HAILES & HAILES
[2010] FamCA 273
•31 March 2010
FAMILY COURT OF AUSTRALIA
| HAILES & HAILES | [2010] FamCA 273 |
| FAMILY LAW – CHILDREN – With whom children live and spend time – Gross parental conflict – Grave concerns expressed by report writers in relation to the children’s emotional and psychological well-being – Consideration of whether a meaningful relationship with each parent would be beneficial to the children – Parents unable to communicate or co-operate in any way – Mother presents with unrestrained hatred towards the father – Daughter states vehemently that she will not live with the father – Son is currently living with the father – Consideration of importance of sibling relationship – Consideration of likelihood of degradation of father-son relationship if the son lives with the mother |
| Family Law Act 1975(Cth) ss 60CA, 60CC, 61DA, 65DAA |
| CDJ & VAJ (1998) 197 CLR 172 Cotton & Cotton (1983) FLC 91-330 Lansa & Clovelly [2010] FamCA 80 Mazorski & Albright (2007) 37 Fam LR 518 Neil v Nott (1994) 68 ALJR 509 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 |
| APPLICANT: | Mr Hailes |
| RESPONDENT: | Ms Hailes |
| INDEPENDENT CHILDREN’S LAWYER: | G Couper Solicitor |
| FILE NUMBER: | BRC | 13440 | of | 2007 |
| DATE DELIVERED: | 31 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 29-30 March 2010 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Burrows |
| SOLICITOR FOR THE APPLICANT: | Andrew Burrows and Associates |
| RESPONDENT: | Appeared in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | G Couper Solicitor |
Orders
All previous parenting orders are hereby discharged.
The child B born … April 1995 live with the mother.
The child N born … January 1999 live with the father.
The child B spend no time with the father save for such time which B may herself elect.
The child N spend time with the mother only at such times as can be agreed in writing between the parties.
The father have sole parental responsibility in relation to N.
The mother have sole parental responsibility in relation to B.
That each of the parties shall provide to the other on or before 4.00pm on Friday 24 September 2009, 18 March 2011, 23 September 2011 and 17 March 2012 their proposals for the children to spend time with each other in a way unfettered by restraint imposed by the parties, such proposals to be in writing and sent by registered post.
Each of the parties shall keep the other appraised of an address where the children can be contacted.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary so as to, in writing and by registered post:
(a)Keep the other informed of the current residential address of the children;
(b)Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child in their respective care attends or undertakes as the case may be;
(c)Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d)Authorise any person, institution or body referred to in the previous sub-paragraphs to provide to the other parent any and all such information in respect of the treatment of the child, his or her activities as the case may be, as the other parent might reasonably require;
(e)Have the child’s school/s provide to the other parent a copy of the respective child’s report cards, together with any other written report issued by the school in respect and respective of the child;
(f)Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of each respective child, including, but not limited to, their social, sporting and extra-curricular activities as the other parent might reasonably require.
Each party provide to the other at least one photograph of the child in their respective care clearly depicting an image of that child at not greater than six monthly intervals.
In the event the father becomes the subject of investigations by any lawful authority or authorities involving the child B he be authorised pursuant to s 121(9) of the Family Law Act 1975 (Cth) to cause a copy of the reasons delivered by the Honourable Justice Murphy on 31 March 2010 to be published to any and all, but only any and all, properly designated officers of any such lawful authority or authorities engaged in any such investigation.
Any further applications filed in this matter be listed, if possible, before the Honourable Justice Murphy.
The Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hailes and Hailes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 13440 of 2007
| MR HAILES |
Applicant
And
| MS HAILES |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
B (born in April 1995) and N (born in January 1999) have been the subject of litigation between their parents since August 2006. The history of gross parental conflict predates the litigation.
That litigation has embraced a number of changes in the care arrangements for the children, has included a final trial in the Federal Magistrates Court and has seen five reports prepared by four different single experts.
The last of those experts, a psychiatrist, Dr M, says in her report dated October 2009 that, during the time just referred to, conflict between these parents has, if anything, become worse. About that Dr M is undoubtedly correct. Indeed, it might be observed that the same is true of the whole of the almost seven years that these parents have been separated.
“Conflict” is, in this case, not a benign term designed to convey a high level of disagreement. The situation in which these children find themselves is much more malign than that word could connote. The court is confronted by children exhibiting seriously concerning signs of anxiety and suicidal ideation.
The children’s situation would make any sane person want to weep. The seriousness of the children’s position is not easy to put into words which convey its gravity. I did so, albeit spontaneously, by posing a question non‑rhetorically at the outset of this final hearing along these lines:
Will it take B taking her own life before this parental conflict will stop?
The question arises because, after years of litigation, and three earlier reports warning of the detrimental impact on B of carrying the parental conflict on her young shoulders, a family consultant, Mr C, told the court in a report dated April 2009:
At one stage of the discussion [B] said in a quiet voice that she wanted to tell me something but didn’t want to tell her mother. She stated, “I cut myself (indicating her leg)” and indicated that she had done so in the past and had recommenced recently. She described her doing so as a reaction to the stress she experienced with the paternal dispute and, more recently, because of her acute sense of missing [N]. I discussed this with [B] and informed her I was obliged to tell her parents of her comments. I consider that [B] has been seriously emotionally affected by her parents’ dysfunctional relationship and is carrying the trauma of that with her still ...”
Mr C said in that report that each of the parents reacted with what might be thought to be appropriate disquiet and concern at the revelation just described. How that can be so is mysterious given that Mr S, in an earlier report prepared at the end of 2008, had also referred to, at the very least, the prospect of self‑harming and B making comments about self‑harming.
Still yet the conflict between these two immature parents continued and continues.
As will emerge, B now (according to her mother) “hates” her father. She wants no contact with him of any type or description and wants nothing whatever to do with him. This picture is somewhat consistent with what she told Mr C, “[I] don’t want to see dad any more.”
The comment to Mr C occurred after she had been in her mother’s full-time care for about four or five months. Previous to December 2008 or January 2009 (the mother can’t be precise as to which) she had been in her father’s full-time care since about July 2006. During the 18 months or so that B was in the care of the father she was, as a result of the litigation taking place about her and around her, seen by two different single experts who produced reports in December 2006, May 2008 and October 2008. They were consistent in their observations of a warm and happy relationship between B and her father and of an appropriate desire by B for a relationship with both parents.
After four or five months in her mother’s care the position was, as the mother accepts, markedly different. The mother says this is wholly explicable by B earlier perpetrating a ruse. When seen by the two experienced single experts she was, according to the mother, “putting on an act” effecting affection and happiness when none existed, and she was doing so because she was intimidated and frightened by her father into doing so. Dr M’s specific evidence to the contrary in that respect will be examined below.
Against this appalling and tragic background, counsel for the independent children’s lawyer submits that arriving at orders that best meet the best interests of these two young children really boils down to answering the single question, in effect, “Is it worth one more go to see if the children can have a relationship with each of their parents and with each other?” Inherent in that submission is an assumption that the orders which should be made should reflect N remaining in his father’s full-time care and B with the mother. I agree that this central question encapsulates the central dilemma facing the court. As will emerge, I also consider the assumption underpinning the submission is consistent with the children’s respective best interests.
I have agonised over what is the “right” result in this case. Having said that, I immediately acknowledge that no such result exists in these appalling circumstances. If ever a case exemplified the difficulty frequently confronted by this court of attempting to fashion orders in children’s best interest where the “least worst” result for those children is the best that can be hoped for, it is this case.
Given this background, I determined that final orders, and these accompanying reasons, needed to be delivered promptly upon the completion of the hearing. I determined that, at the very least, this court should and would do everything in its power to bring an end to the proceedings, that being some small vestige of comfort that this court might offer these children.
Accordingly, despite the very serious issues adumbrated in these reasons, they are given ex tempore.
Applicable Principles
Although the central issue in this case has been expressed in the way just outlined, I need to emphasise that this case, like any other parenting case, must be determined by reference to mandatory statutory provisions.
When parents cannot agree about the post‑separation parenting arrangements for their children best interests is the criterion by which the court arrives at parenting orders that will be imposed upon the parents. Ultimate findings about best interests rest on a fact-finding exercise performed within a mandatory statutory framework. In particular, s 60CC of the Family Law Act 1975 (“the Act”) bears the heading “How a court determines what is in a child’s best interests”.
The nature of what is required by that section, together with complementary provisions of the Act, including its Objects and Principles with respect to parenting orders, is central to the court’s role. The exercise in discerning the proper meaning of the legislation is not an exercise in semantics or sophistry. The court is bound to ascertain best interests in the way mandated by the Act. Reference to the Act makes it clear, though, that the court’s overriding mandatory function is to determine the orders that best promote the best interests of the particular children the subject of the proceedings in the circumstances specific to them.
The court is reminded more than once (for example, s 60CA and s 65DAA) that a determination of those best interests is at the heart of the decision – “the paramount consideration” – when arriving ultimately at parenting orders. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J at para 3:
The provisions in [the Act] relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm. These are stressed in s. 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s. 60CC(1).
In the context of a legislative environment different to that which now pertains and over 20 years before the concept of “meaningful relationship” found its way into statutory Considerations. Nygh J said this:
... It was at one stage the view that a parent had a right of access to their children of which that parent could only be deprived in extraordinary circumstances. That, of course, was language which suggested that a parent had a property interest in a child ... That language was abandoned well before the present Act came into force and judges started to speak of the right of children to access to parent ... The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration which is, in my view, the one and only principle to be applied. It means that in each case the court must make an independent investigation of what the welfare of the child requires and a court is not very much assisted by a recourse to general principles other than that principle. It is true that we can fall back on generally accepted experiences and perceptions in so doing as a guide but care should be taken not to elevate any of these generally accepted perceptions and presumptions which can only be displaced by evidence to the contrary. One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. It is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated ... However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to do positive harm to the child. It is the emotional relationship which counts and not the inherent harmfulness of the parent as such. Thus, I can well imagine that in certain circumstances a woman who leads a totally immoral life, such as a prostitute, may have something to offer her children. On the other hand, it may be that a person who leads a life which, to the general observer, is one of a pillar of rectitude has nothing to offer his children ... (Cotton & Cotton (1983) FLC 91-330 at 78,252).
In my respectful view, there is much in what his Honour there said which finds reflection in the principles to be applied now nearly 27 years later. In particular, best interests (then the “welfare of the child”) remains the ultimate aim of orders for these particular children in their particular circumstances and findings about same remain the criteria by which the parties’ proposals (or alternative proposals fashioned by the court) are to be judged.
“The benefit to the child of having a meaningful relationship with both of the child’s parents” is a mandatory Primary Consideration. Now (as then) “... the desirability for the child to have a meaningful relationship” is plainly a consideration at the forefront of the court’s mind, but now, as then, “... the possibility of a meaningful relationship must first exist” and now, as then, the best interests of the particular children in the particular children’s circumstances is the ultimate guide in that respect.
The purpose of each of the Primary and Additional Considerations is, as the heading to that section makes clear, to direct a court as to how a decision is to be arrived at about the subject children’s best interests. The Act’s mandatory Considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards. (See, eg, Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad inquiry as to best interests must be conducted. That it remains a broad inquiry is evident from the section itself (s 60CC(3)(m)).
Ascertaining best interests by reference to those mandatory signposts must embrace the fact that, “It is a mistake to think that there is always one right answer to the question of what the best interests of a child require ... Best interests are values, not facts.” (CDJ & VAJ (1998) 197 CLR 172 at 219).
“Best interests” – and, thus, the findings of fact (and values) which underpin it – is also a servant to many masters within Part VII of the Act. But the Act prescribed but one method for determining best interests and that is the making of findings in respect to the matters specified in s 60CC. Those findings, though, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time. (See, eg, s 61DA(4), s 65DAA).
It is in my view, then, necessary to commence the application of the statutory process by examining and making findings about those matters specific to the best interests of these children specific to the circumstances in which they find themselves. Those findings then can inform the mandatory statutory exercise.
As these reasons will later make clear, the, single central issue earlier enunciated is composed of a number of antecedent parts which find ready reflection in the statutory principles, objects and considerations.
What are the Parties’ Proposals?
The parties each filed a Minute of Orders Sought on 5 March 2010. The orders ultimately sought represent a significant shift from the positions set out in the parties’ initiating documents.
The Father’s Proposals
The father now proposes that N live with him and B live with the mother. Acknowledging B’s age and her vehemently stated views, the father suggests that any time spent between himself and B be as B chooses. The mother agrees that B ought be allowed to decide the time and communication she wishes to have with the father.
In the minute of orders sought, the father proposes that N spend alternate weekend time and half school holidays with the mother and, consequently, B. Throughout the hearing it became clear there are significant concerns about whether N will return, or be returned, to the father following spending time with the mother. The father stated that if the mother cannot ensure that N is returned to him, she “should not see him”.
In address, the solicitor for the father submitted that there should be no specific order as to time spent between the mother and N. As a consequence of the non‑existent relationship between the parties and the complete inability of them to communicate at all in any vaguely sensible way, the practical effect of this is that there would be no time (or communication) between N and his mother or sister.
The Mother’s Proposals
The mother proposes that both children live with her and that N spend alternate weekend time with the father.
The father’s evidence was that, if this occurs, he “will never see his son again”. A submission to that effect is made on his behalf and, in that, he is (implicitly) supported by the independent children’s lawyer.
While on its face the agreement that B live with the mother ought have reduced the scope of the issues necessary to be examined by the court, the reality of the conflict between these parents and the serious concerns for the emotional health of these children mean that B’s best interests are crucial to the remaining significant issues to be determined in respect of N’s best interests. The importance of the sibling relationship is a vital consideration in that respect, but it is by no means the only one.
The mother seeks an order that she have “sole parental responsibility”. The father did not include any proposal as to parental responsibility in his Minute of Orders Sought, but, at the conclusion of the hearing, sought an order that he have “sole parental responsibility” for N.
The Independent Children’s Lawyer’s Position
The ICL sought orders that will see B remain living with the mother and N living with the father. A series of orders was then proposed to achieve supervised time spent between the mother, B (if she will attend) and N at the E Contact Centre.
Evidence given by the mother throughout this hearing, that will be referred to later, suggests that the prospects of B attending a contact centre to see N are negligible. The mother stated that she would “give it a go”, but, at the first sign of distress on N’s part, would “do something about it”. As will emerge, that latter phrase means that she would either retain N or cease the visits.
Central Findings and the Central Dilemmas
By reason of the matters about to be discussed I make the following findings which I consider to be crucial to the ultimate determination of orders that are in the best interests of N (and B).
·Each of the children are experiencing intolerable emotional pressure caused by their parents’ ceaseless conflict over many years.
·The children are suffering significant psychological harm as a result.
·The parents’ past relationship and history, and their respective personalities, make it impossible for them to conduct any form of relationship or communication for the benefit of the children.
·The parents have no capacity to put aside their own issues for the benefit of the children.
·The mother has an unrestrained, ever-present and overt hatred of the father that is expressed openly in her words and actions, including words and actions directed to, and witnessed by, the children.
·The father’s personality and his level of immaturity and insight are such that he has been unable to react to the mother’s hatred and hostility toward him in a calm and restrained manner. Conversely, those same factors have resulted in him frequently reacting to the mother’s actions and words with unrestrained hostility and anger. Those emotions have manifested themselves in front of the children frequently.
·In particular, the father’s inability or unwillingness to deal with those matters in a restrained way has manifested itself in his dealing with interactions with the mother in the presence of the children in an angry and verbally abusive way.
·The father has significantly more insight than the mother into the profoundly detrimental impact that the ceaseless conflict between the parents has had, and is having, on the children, but, notwithstanding that difference between the parents, his insight is limited and falls short of that which ought be expected.
·The mother’s primary concern is to (continually) show that the father is “a bad father” or is “abusive” or to ensure that he is “punished” for each and that as a result her hatred of him is “justified”. The interests of the children are, despite the mother’s protestations to the contrary, sacrificed on the altar of this “justification”. The mother has no insight into this. Each party’s capacity to parent is filtered through, and guided by, the considerations just mentioned and is each impaired as a result.
·This is particularly so in the case of the mother. Her capacity to parent is infiltrated by and, indeed, guided by, her hatred of the father. It permeates her words and actions in and about her relationship with each child.
·The last mentioned matters, including overt words and actions by the mother toward, or in the presence of, B have caused B to move from a position where (during the time she lived with her father) she felt and expressed love for each of her parents and a desire for a relationship with each to a point where, after being in the full-time care of her mother for about five months, she told the family consultant that she no longer wished to see her father. That attitude has grown in its intensity such that some six months thereafter she told Dr M that “nothing would make her see her father” and by the trial (some five months after that) she – at least on the mother’s version – hates her father. The mother asserts that B’s earlier expressions of love for her father (reported on by two trained professionals in three reports spanning a period of about 18 months or so when B was aged 13 and 14 and a half) and the warmth and happiness between father and daughter observed by those same trained professionals was a ruse or “an act” perpetrated by B through fear and intimidation by her father. That assertion is implausible, contrary to the weight of the evidence and is rejected.
·For so long as B lives with her mother, there is no realistic prospect whatsoever that she will have any sort of relationship, let alone a meaningful relationship, with her father.
·If N was to live with the mother, it is extremely likely that, within a short period of time, he would have no relationship of any type or description with his father, let alone a meaningful relationship.
·Further, if N was to live with his father, he is likely to be exposed, on a very regular basis, to expressions of hatred toward and about his father by the mother and, most likely, also B. I consider it very likely that, over time, he would be encouraged to hate his father.
·The mother seeks to project her hatred of the father onto the children consciously, deliberately and in an unrestrained way.
·The mother is highly likely to continue to make allegations against the father in respect of his current and past treatment of the children and to allege abuse of the children by him. She is highly likely to filter statements to the children about their father through her own hatred of him. I consider it highly likely that the perception of the father that the mother has and will likely continue to engender about the father in her interactions with the children to be unrelentingly wholly negative.
·B will not live with her father, a fact accepted by the father.
·It is in B and N’s best interests for them to have a relationship both in recognition of the love they have for each other as siblings and so that their relationship might act as a bulwark against the conflict, attitudes and conduct just described.
The findings just described present for the court excruciating dilemmas. Mr C opines in his report (which is now some 12 months old):
The separation of [B] and [N] seems to also be negatively impacting upon [B]. She seems to have taken on a belief that she has to protect [N] and becomes anxious when she cannot fulfil this self‑requirement. It is likely that if these children are not living together, or at least having regular and significant contact with each other, that [B’s], and probably [N’s], emotional well being will suffer.
I accept that opinion. However, in oral evidence the mother shut down (by, as she asserts it, voicing B’s alleged concerns) any and all attempts both by the court, and by counsel for the independent children’s lawyer in cross‑examination, to postulate proposals which could be seen to effect time between the children while isolating them (albeit only for short periods) from their parents’ remorseless conflict and pressure.
The mother made it clear that, as she would have it, B would not be part of any such proposals (for example, spending the day with N alone or going to the movies together or such like). For B – according to the mother – it is all or nothing; she wants N to rejoin the family and that is that. Spending time with N at a contact centre was rejected by the mother perforce of precisely the same sort of factors.
In light of the findings just outlined, and the dilemmas just expressed, it is important, I think, to set out at considerable length the evidence of the mother in that latter respect. I do so because counsel for the independent children’s lawyer made it clear, relying upon the opinion of Mr C, that the court should give primary importance to attempting to facilitate a relationship between the two siblings. I am in no doubt that this is an extremely important matter, as I have attempted to make clear. However, that important consideration needs to be seen against the practical reality of the situation presented by the evidence of the mother in the proceedings.
The mother’s evidence was as follows:
Ms Carmody: Ms [Hailes], do you accept that [B] and [N] need to spend time together?
The Mother: Yes, I do.
Ms Carmody: And it would be best, wouldn’t it, that their time together would be without either parent interfering or making it difficult for them?
The Mother: Well, actually, I spoke to [B] about it last night after hearing what was going on [in court that day]. [B] is making it very clear that she is not happy with that. She is not happy. It is her right to have a relationship.
His Honour: I don’t understand the answer. You have been asked two questions. The first question was, should [B] and [N] spend time together?
The Mother: They should spend time together, yes.
His Honour: You said yes. You were then asked, would that not be better if you and the father weren’t there and didn’t interfere? Now, what’s the answer to that question?
The Mother: Your Honour, [B] does not want that. She doesn’t want to be having to spend time with [N]. She wants a family environment. She has made that very clear that she wants her brother and her, myself and the other siblings to maintain a family relationship. She has made it very clear that she feels that her relationship with her brother is being not even considered.
...
Ms Carmody: And why wouldn’t you want to involve people in just dropping your daughter down to the cinema when you’ve involved them in having to give evidence?
The Mother: Your Honour, because they know [B] wouldn’t go and all it would do is upset [N].
Ms Carmody: And don’t you feel that you’re able to talk to [B] and get her to think this is a better thing to do rather than not see her brother at all?
The Mother: [B] is 15 and basically she pretty much has got a mind of her own and she’s got an opinion and she voiced it last night.
Ms Carmody: So she is the one that actually dictates what she will do?
The Mother: No, she’s made it very clear how it will upset her.
His Honour: When you say “last night”, I presume that is because you spoke to her about the sorts of things that we were talking about yesterday in the courtroom, is that right?
The Mother: Your Honour, when I got home, she said to me, “When am I going to see [N]?” And I said to her, “It’s getting arranged that you will be able to see your brother.” And she said, “What does that mean?” And I said, “They are going to make it that you spend some time together.” And she said, “How much time?”, because it’s her birthday on the […] and she turned around and said, “Is he going to be there for the weekend?” for her birthday and I said, “I don’t think so. They are saying that you can go to the movies and spend time together without myself or without your father.”
Ms Carmody: What can be structured to spend time together on her birthday? You wouldn’t want the father to bring [N] up. Could the father drop [N] off at the front of the house?
The Mother: I don’t want him anywhere near the house. I’d rather a contact centre.
...
Ms Carmody: What would [N] need to be shown so that he understands that he really needs to go? Would it help him to see the court order?
The Mother: No, your Honour, he’s too young to understand that.
Ms Carmody: So he would ignore that?
The Mother: Yes, your Honour, he made it very clear when we saw him at the school. Given the chance to be up there and be with his mother, he would refuse to return to his father.
His Honour: He made it abundantly clear?
The Mother: I don’t want [N] to be put in a position where he is being forced to do something he doesn’t want to do.
His Honour: And, as you say, [B], as a 15-year-old, has a mind of her own and is not going to leave [N] in any doubt about how she feels about him returning to his father, is she?
The Mother: When they are together and what they talk about has nothing to do with me.
Ms Carmody: Bottom line, no way that time can be facilitated between [B] and her brother, is there?
The Mother: We can try, but, as I said, I don’t want to be put in a position where [N] is going to be ... causing him more harm than good.
Ms Carmody: No hope?
The Mother: I’d like to try. For [B’s] sake I would like to try, yes. I would like to also have [B’s] psychologist make sure it is not going to cause her any harm or cause her to start self‑harming again.
His Honour: As the children’s mother, your thinking is that the most likely scenario, if we give that a shot, is that [N] is going to say, “I’m not going back.”
The Mother: That’s what I’m concerned about, your Honour.
Ms Carmody: And then we end up in the same position that has been happening throughout these years then. So isn’t the only conclusion then that the two children can’t spend time together?
The Mother: Well, I hope that doesn’t happen.
His Honour: There are two possible conclusions. Both children live with the mother but there’s no way of seeing the father on a regular basis.
The Mother: Like I said, [N] is happy to spend every second weekend father if that’s what he wants to do ...
His Honour: We’re talking practical reality. You can say if that is what [N] wants to do. You’re saying to me there’s no way in the wide world, as a matter of practical reality, that is going to happen?
The Mother: I can try to encourage [B] to see [N].
His Honour: Either the two children live with you and don’t spend time at all with the father or [N] lives with the father, [B] lives with you and they don’t see each other. That’s really the practical reality, isn’t it?
The Mother: No, I hope not, your Honour.
Ms Carmody: What other way can they spend time together then? Can they be transported to somewhere which means that neither of you are there, so that it’s not a question of [N] staying with you? Would it be better to go back to the idea of them being dropped outside of a cinema and being picked up by two people unrelated to both of you?
The Mother: I don’t know. You do want you want to do, but I’m saying now that if [N] is starting to jack up and refuse to return to the father, I’m sorry, but I am not forcing the child to return. I’m not going to cause myself any harm and I’m not going to allow it to cause any more harm to [B] and I’m concerned that with everything going on, what’s happening now. [B] is getting happier and healthier mentally. You want to put her in a position adding stress to her and all it will take is [N] to start doing what he is doing and refusing to return to retrigger what is happening to [B]. I am not, as her parent, going to put her in a position [which might cause] more harm than good ... The day [N] turns 14 he is never going to have anything to do with the father.
If N goes to live with his mother, I have no doubt that within a very short period of time he will not only not see his father, but he is highly likely to generate allegations against him and to express hatred of him. Indeed, the last part of the quote just referred to makes it plain that the mother is already hinting at the possibility of that occurring. It seems remarkable to me that the mother would say to a court that, “The day [N] turns 14 he is never going to have anything to do with the father.”
Again I make the point that this statement sits in stark and troubling contrast to all of the evidence otherwise before the court from expert report writers.
Ultimately, the independent children’s lawyer contends for orders that would seek to shield N from the relentless pressure upon him likely to be imposed by the mother while facilitating time between N and his mother and, hopefully, N and B. As can be seen, the mother poured cold water on this proposal too. Similar themes emerged – she was “pretty sure” B wouldn’t come (because she wants N as part of the family and nothing less).
The proposed order suggested by the independent children’s lawyer would leave it to the mother to organise time to be facilitated by a contact centre. When it was pointed out that this effectively gave the mother a veto over whether time would occur or not, counsel recognised this but submitted that it at least provided, at perhaps some future time, a sign to the (then, perhaps, adult) children that attempts had been made to facilitate time between them.
I have no doubts at all that N will present to the mother information which she will consider as sufficient to allege improper behaviour of one sort or another against the father and that as a result that N is at risk from him. I think it extremely likely that, given half a chance, the mother will withhold N from spending time with his father as a result. I think it extremely likely that if N goes to live with the mother, the result will be as the father fears; N will be systematically alienated from the father and, ultimately, will have no relationship with the father in any way, shape or form.
That is the course that has unfolded with B and I consider it highly likely to occur with respect to N in those circumstances.
Is it more or less harmful to the children to act contrary to what Mr C opines and order either no time between N and the mother or, as the ICL suggests, very significantly truncated time? Is it more or less harmful to the children to allow each of them to be parented by one of their parents with the consequence that they have no effective communication between themselves? Is it more or less harmful to the children to effectively destroy the relationship between N and his father, a relationship which I assess to be meaningful and important to N?
Further, does the court implement an order similar to that propounded by the independent children’s lawyer despite real concerns that, even if implemented (which I consider to be extremely unlikely), it is extremely likely to break down by reason of assertions by the mother of perceived “harm” to N? Should the court put in place orders for supervised time despite profound concerns about their efficacy and despite concerns about any such orders having no specific finishing point?
Those central dilemmas must be answered against one very important consideration. What is abundantly plain, on any view of the evidence, is that this litigation must stop and stop now. Orders perceived by the court as being least likely to lead to future proceedings are a profoundly important consideration in this case.
Evidence of the Parties and Others and Background
I must first observe that the mother represented herself. This occurred in difficult circumstances. Her legal aid was, apparently, withdrawn a short time prior to the final hearing.
I very much have in mind that self‑representation can create disadvantages for a party and I have sought to be particularly careful when assessing the mother’s evidence (and submissions) to bear that in mind. (I have in mind, for example, what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510) that:
... A frequent consequence of self‑representation obviously is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.
A corollary of the concern about self‑representation just expressed is that it can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. In his Atkin lecture in 2002 entitled “The Misnomer of Family Law” Mr Justice Wilson (UK) made the following observations:
... I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience a father. One sees him in action throughout the case, not just when produced by his advocate for his performance in the witness-box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against the barbarity which sometimes infects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside of court, for example whether hand-overs of the children between them would proceed sensibly, than to study their language, including of the body, towards each other in that unenviable situation.
Here there was an opportunity to observe many things as a result of the mother’s self‑representation. The mother’s hatred of the father was palpable in the courtroom, even, for example, by the tone of her voice and her gestures towards him. I remarked on the latter on a number of occasions pointing out to the mother what she was doing. Her ceaseless interruption of me and others and the incessant and intense manner of her speech, remarked upon in similar terms by Dr M, gives, in my view, some insight into how her views might be expressed to both the father and, in terms of their intensity, to the children.
Dr M said in her report:
At interview [the mother] spoke under pressure and continuously with great intensity. Her entire comment was a series of somewhat vague accusations against the father, the uncle and the grandmother. She displayed anger, but was not intimidating. She appears utterly polarised in her opinion of the father and his family.
As will be clear from what I have already said, Dr M’s observation is entirely consistent with my own observations during the course of this hearing.
When cross‑examined by the mother, Dr M was asked by her, “Would you feel that my behaviour to you was quite aggressive?” Dr M responded:
No, I think I commented in my report that you were not intimidating.” “But you did say that if I chose not to ... at the bottom of page 8, second last line ... ‘if you don’t believe me, there will be consequences.’ ...” “I wasn’t sure what you meant by that and I chose not to follow it up, but it could have been seen as threatening.
The mother went on to respond:
As to the consequences and that’s what I meant, the outlining of information that I had that would back up all the stuff that’s been done, that I would put it in the hands of the chief justice, or whoever I needed to, as your report ... and I wasn’t going to put up with another report being inaccurate ...
Conversely, the father presented in a calm and measured way, a task made considerably easier for him not only by the fact that he was represented, but also by the mother’s failure to cross‑examine him. Yet, I accept, for example, the evidence of Ms J, a former neighbour of the mother’s, about his angry and agitated demeanour when attending at the mother’s home for a proposed contact visit. Similarly, I accept, in that respect, the evidence of Ms D about an incident observed by her, which again speaks of the husband’s angry and unrestrained demeanour in front of the children at an occasion of handover.
As the earlier parts of these reasons will have made clear, I do not accept that this case is about who is right or who is wrong about various factual assertions and counter-assertions. If this case is truly about the best interests of the children in their appalling circumstances, there are a number of much deeper, more urgent and more important issues to be determined. It is, though, necessary initially to sketch a broad background to the current issues.
The parties separated in 2002 and, consequent upon that event, the children lived with the mother. In June 2004 N came to live with the father. The father says, and I accept, that the children were simply dropped off by the mother with their clothes contained in garbage bags. In 2006 B came to live with the father. Again, the father says, and I accept, that she was, effectively, simply dropped on the doorstep by the mother.
However, about a week later, the mother collected B. The reasons for the mother collecting B appear to vary, but it seems to be accepted that this was as a result of a desire expressed by B to live with the mother. In July 2006 B returned to live with the father. Again the circumstances in which this occurred are not entirely clear, but it seems that there was some difficulties and disorganisation in the mother’s life at that time. B continued to live with N and the father until about December 2008 when she returned to live primarily with the mother.
From about December 2008 B has been in the full-time care of the mother. N has been in the full-time care of his father since June 2004.
The mother asserts that N went to live with his father in 2004 as a result of threats by the paternal family and she says the she hoped the child living with the father would cease intimidation of her older children (from another relationship). I accept that the father’s family may not have behaved in an ideal way. However, I have serious doubts about whether that is truly the foundation, or at least the whole of the foundation, for N commencing to live with his father.
In relation to when B commenced living with her father, the evidence of the mother was, it might be said, startling. The mother said that in March 2006 B said that she wanted to live with the father so that she could be with N. The mother said in the witness box that she consented to this arrangement but warned B that, “She would have to live with the consequences”. “If she lived with the father she would realise what he was like.”
In July 2006, when B moved back to her father, the mother said that the provision of the child to the father was due to threats and intimidation by the father’s family. The mother alleges that, whilst driving B to the father’s residence for the purposes of her living there, she said to B, “I’m so sorry I’m not strong enough to fight this family.” This is a poignant, but only one, example of the sorts of pressure that had been at play with respect to these children. That adults should seek to protect children, and particularly their own children, from adult issues that have nothing whatsoever to do with the children is, I would have thought, axiomatic. Certainly, it seems to me, to be an integral part of appropriate parenting of the children. It is to be noted in that respect that in 2006 when these statements were made, B was only 11 years old.
This example has echoes in the evidence of Ms D. As I have earlier referred to, Ms D provided evidence of an unattractive incident witnessed by her when changeover was being effected by the parents. The father was angry and verbally abusive but, significantly as it seems to me, on that occasion Ms D said that the mother said to N that “he didn’t have to go with his father if he didn’t want to”. That evidence, which I accept, is of very significant concern in light of the fears that I have for what might occur if N spends any sort of significant time with the mother and B.
I should mention that the mother called three witnesses. None of those witnesses had provided affidavits. It seems, however, that those witnesses had provided some form of written statement to the mother’s previous solicitors.
In order to attempt to alleviate any potential prejudice to either the independent children’s lawyer or the father, I asked a series of questions of the mother designed to, in effect, provide “openings” for each of those three witnesses. Having done so, I gave the mother leave to call oral evidence from each of those three witnesses and made a direction that the mother should ensure that those three witnesses were available to talk to either counsel for the independent children’s lawyer or Mr Burrows, the solicitor for the father, on the morning prior to their giving evidence in the proceedings.
Mr F
Mr F gave evidence that he was a neighbour of the mother’s for some six months. The mother had indicated in her “opening” that he would provide evidence of “verbal abuse” by the father.
As it transpired, Mr F gave evidence of three telephone calls occurring on 29 March, 1 April and 2 April 2009. The call on 1 April 2009 was, it seems, entirely benign and of no relevance to the issues in these proceedings. Mr F said the telephone call on 29 March was between the mother and a person he assumed to be the father by reason of what seemed to be its content (ascertained by what he could hear of the mother’s comments). It concerned a potential visit by N to the mother.
He says that he could hear the angry tone in the father’s voice during that telephone conversation. Equally, though, he gave evidence that the mother’s demeanour was also angry. Similarly, on 2 April 2009, he says that there was a telephone call which, again, had as its subject a potential visit by N.
What emerged, though, from Mr F’s cross‑examination by both Mr Burrows and Ms Carmody is that he had heard only the mother’s version of the antecedent history of this matter. He had no knowledge, for example, of orders made in 2008 which made specific provision with respect to communication between the parties by reason of the conflict earlier referred to and, for similar reasons, made specific reference to what was to occur in respect of changeover. Further, and significantly as it seems to me, Mr F had no knowledge of the then three independent reports that had previously been prepared in respect of the matter.
Mr F also gave evidence that he was present on a number of occasions when the phone was hung up. It was plain from his evidence that he assumed that it was the father who had telephoned the mother and hung up but he had no knowledge of who it was. His evidence to that effect is, in fact, not probative of that fact at all.
Ms H
Again, the mother indicated in her “opening” that Ms H would give evidence of witnessing “verbal abuse” of the mother by the father during telephone conversations.
Ms H ultimately said in evidence that she had not heard any of the words used by the father during the conversation but, rather, could hear the volume and tone of the conversation (which she presumed was with the father from the content of what the mother said). Ms H indicated that the tone of the father’s conversation was loud and angry. Similarly, Ms H gave evidence of the visit by the father earlier referred to in which he displayed a manner which she described as being angry and “very rude”.
Ms H gave further evidence that, during the time the mother lived next door, she heard crying coming from the children. She said that, because of the tone of distress coming from the children, she, as a result, asked the mother about it. The mother gave an account consistent with the children being upset by reason of the actions of the father (as she has consistently maintained to report writers and in her evidence before this court). Ms H gave no account of any such conversation with the children.
The evidence of Ms H about the crying was challenged, at least in respect of the timeframe postulated by her. It was asserted that the crying could not have occurred during the time when the children were living with the mother (as the mother contended) because it was plain on the face of the material that during the time alleged, the children were living with the father.
Evidence of Ms D
I have already referred to Ms D’s evidence and don’t propose to repeat what I have earlier said save to say that I consider that her evidence was significant because she was, as it seems to me, an impartial observer of a changeover between the husband and the father.
Her evidence was redolent of precisely the sort of conflict upon which I have earlier made comment. I reiterate that I consider it very significant that Ms D records the mother saying that N (then aged about 10) did not have to go with his father if he didn’t wish to and that it “had to be his choice”.
The Voices of the Children
It is important that the voices of the children be heard in these proceedings. It is particularly important that their voices be heard by reference to what they are recorded as saying not by the mother, or the father, but by those witnesses independent of the parties.
It is in my view important to record some of the opinions expressed by the earlier independent single experts to which I have referred. As I have earlier observed, the children have now been seen by four different report writers who have produced between them five reports spanning almost three years of these children’s lives. It is interesting – and profoundly sad – to record the children’s voices over that timeframe.
In December 2006 (after they had been living with their father for about four months), Mr P records (emphases in each case in the original):
56. [B] said the contact with her mother is good. They go to the beach and sometimes visit relatives.
57. Living with her mother was excellent and given three wishes she said she would like all of her family to live together again. [B] also wished to be a good singer and/or musician.
58. [B] spoke about wanting to see her mother everyday and it would be nice to live with her again. She said she is unsure when she would see her father if she lived with her mother.
Mr P further observes:
62. From [B’s] discussion there is a strong sense that she is aligned with her mother and she seeks an improvement in family relationships. [B] spoke about wanting her family back together again. She commented that if she lived with her mother she would have to change schools but she would be okay with this.
...
67. Given [B’s] alignment to her mother and her exposure to her parents’ dispute, she is very much at risk of developing childhood depression and/or anxiety. [B] should be engaged with an appropriate counselling service to help her adjust to the various stressors she is experiencing.
In respect of N, Mr P said in that report:
69. [N] was asked about living with his father and he said this was good. He sees his mother on the weekends and sometimes they go to a cousin’s Timezone or the beach.
70. If given three wishes, [N] said he would like his family back together again.
71. [N] was asked about whether each of his parents spoke about the other parent in the household. He said his father does not talk about his mother, but his mother sometimes talks about his father. He did not want to indicate anything further because he is scared that his mother will be mean to him.
Mr P opines:
76. For this report, both children were observed interacting with both parents. In the observation between the children and their father I noted that they were playing games. The relationship between the children and their father seemed quite good. The children called their father “dad”.
...
78. The children were quite affectionate towards one another and appropriate towards their father and paternal grandmother.
About 18 months later, in May 2008, Mr P again saw each of the children. He quoted B’s comments. I consider it very important to quote those comments at some length:
63. Spending time at her father’s has been at times difficult as there has lots of fighting between everyone. Conversely, at her mother’s it is quiet.
64. [B] was given the opportunity to discuss the arrangements for herself, in particular, where she lives and how much time she spends with others. She was told she did not need to say anything, but if she wanted to have input she could.
65. It was clear that [B] did not want to make any statements that would upset either parent or would cause her any difficulty.
66. Given her hesitance, options were canvassed with her. The previous arrangement of shared care was discussed with her. She said this works but because of her parents fighting about special occasions it makes it difficult for her. It was clear from her discussion that her parents’ dispute is impacting significantly on her and I was left with the strong impression that she has been over-involved in the dispute.
67. The second option would be living with her father and spending less time with her mother. She said she would not want to see this happen as she would want to spend more time with her mother rather than less time.
68. The third option is living with her mother and she said this could be good.
69. In order to gauge [B’s] sense of her own psychological functioning, she was asked to measure how well she feels on a scale out of 10. She said she would probably be halfway, about a five. She was asked about how that rating could be improved. She said to see her mother more and for her parents to stop fighting.
Mr P went on to observe:
It is also clear from the discussion about her parents’ dispute that she feels that she is the communicator between her parents. She feels if she gets the message wrong, this only causes further problems. This stresses her as it places an unrealistic expectation and responsibility for her for her parents’ communication.
That a child of this age should be saddled with this responsibility by reason of her parents’ inability or inadequacy to meet those demands themselves is shameful. Of N Mr P says in that report:
53. If given three wishes, he said he would like his mother and father to stop fighting and to be handsome.
…
58. [N] was asked whether he wanted to comment about the issues before the court, in particular, where he lives or how much time he spends with another person. He was told he did not need to say anything, but if he wanted to have some input he could.
59. [N] appeared hesitant to make any clear comments about the ongoing arrangements. He did, however, make a comment about preferring week about shared care. He liked spending time with both of his parents but his parents’ fighting causes him to be upset.
60. [N’s] expression of his wishes and his views about the current arrangements appear not to be influenced by any parent. It is clear he enjoys spending time with both of his parents, however, his parents’ dispute and acrimony upsets him.
I pause here to reiterate that this is the same boy about whom the mother says that, at age 14, he will want to have nothing further to do with his father.
Mr P comments in that report, importantly, as it seems to me, given the amount of time that each of the children had spent with the father by that time:
77. It was evident that the children do have a good relationship with their father and that the father can engage with the children in a child-focused and appropriate manner.
It also seems to me to be significant, and a credit to the father that despite the conflict and despite the fact that the children had been in his predominant care resulting from the circumstances earlier outlined for a period of time, that B was able to express to Mr P her desire to spend more time with the mother. If, as the mother alleges, the father was putting pressure upon B or, indeed, intimidating or frightening her, it seems to me difficult to understand how B would feel free to express the wishes and concerns that she did to Mr P.
Ultimately, Mr P made a number of recommendations which again, sadly, have significant resonance in terms of those things which have subsequently transpired:
... Without the parents changing their behaviour and attitude, the children will likely develop depressive symptoms which could lead to scholastic and social problems.
82. Both parents raised concerns about the other, however, this report cannot discern which parent is at fault. It is likely that neither parent is innocent.
83. The children both report that their parents’ fighting upsets them. Neither child is willing to state what they would ideally like to see happen for fear of causing further problems with their parents. This is disappointing and demonstrates that the children are aware of each parent’s fragile ego.
84. I note the children’s views. [N] said he would like to continue with shared care. It is, in my opinion, that this was said so that he did not have to choose or show loyalty to one parent. [B] expressed that she wanted to see her mother more and not less, but again she was hesitant to make any clear wish for fear of causing further problems. She has also been the communicator between the parents.
As a background to the comments made to the children to Mr S, reported by him in his report dated November 2008, it should be observed that the mother said to Mr S:
... My ex told [Mr P] ... lies ... because of his report [B] is suffering from depression ... I’m over this ... reports are a waste of time ... process takes too long ... in his first report [Mr P] believed [B] was siding with me ... she’s not ... says the same thing each report ... does the child have to suicide ... she told the GP she’s better off dead ... asked to see a psychiatrist ... I don’t care what you recommend ... no one is listening. I’ve got no cooperation ... told my solicitor I hated this ... very frustrating, this report ... yes, I expected more of the same.
Against that background which, it might be thought, has echoes of what the mother told me during the course of this hearing, it is interesting to observe that B told Mr S that:
Being with her mother and “family” is nominated as including her half siblings and maternal Auntie [V] makes her happy while “when my family fights” including her parents and her mother and Auntie [V], makes her feel sad.
Interestingly, given my findings about the pressure brought to bear upon the children by both parents, and the mother, in particular, and the over-involvement of the children in their parents’ dispute, Mr S records B as saying that:
The mother explained the parents’ separation to her as being because “they fight a lot. Mum only married him because he had a bad life, his parents, and she was pregnant”, while her father apparently does not talk about these matters. She believes her parents separated because “they did fight a lot and they can’t forgive each other” and reveals that she does not blame either parent but “blame myself. If mum wasn’t pregnant, they wouldn’t have got married.” If she could fix things the way she wanted, the girl would prefer they had “never met each other. I’d rather not be here than have them fighting, and me and [N] go through this stuff.”
Statements such as that, when made in the context of self‑harming behaviour and the like, should send alarm bells ringing loudly to any loving parent.
Again, B told Mr S that she preferred that the thoughts and feelings that she had shared with him not be passed on to either parent.
N similarly records a number of things directly relevant to those findings earlier made. For example, he told Mr S that he “says his happy memories are from a time when he has seen his parents interacting once on the phone before ‘it went bad’.” He told Mr S that his sad memory is “when it was Father’s Day mum had a video camera and trying to film dad doing something bad. It is his perception that his parents are not friends, ‘No, they fight all the time and they hate each other and they don’t want to be in a relationship’.”
Mr S records N saying that “he does not blame either parent as ‘I go for either parent because I love both as much. I just want them to stop fighting’.” N followed up that comment by saying to Mr S that when his mother talks about his father “she sounds ‘angry’ and says things like ‘he’s feral ... a fruitcake ... a fruit loop’.”
Mr S goes on:
The boy offers the perception that when his father talks about his mother he sounds “sad” adding that he says things like “she’s messing me up, should get out of his life, leave him alone”. If able to talk to the court, [N] would like to say, “I want to see my mum and dad at the same time. If they keep fighting, I might run away or commit suicide because I’m so annoyed. I think I’d run away.” If able to make magic wishes, [N] would wish “to make them stop fighting, and the Africans happy and they die a young age and have no water and food.”
This delightful little boy is attempting to tell his parents that what he wants more than anything else in the world is for them to stop fighting. They appear unable or unwilling or sufficiently mature enough to enable that to occur.
More worrying is the fact that this sweet little boy says, through the report writer, to each of his parents that if they don’t stop fighting, he “might run away or commit suicide”. God knows what it takes for these parents to wake up to themselves.
In April 2009, Mr C records the children saying various things to him, some of which I have already referred to. The significant change in B’s expressed wishes have already been commented upon.
Finally, in October 2009, Dr M, who is, as I have earlier mentioned, an experienced child psychiatrist, records B as saying:
When they were with their father, they were never fed properly; they were neglected; they lived on noodles, didn’t have vegetables or proper meat. She said that her paternal grandmother was alcoholic and smokes and that she could understand why her mother can’t forgive her father. She said it had been alleged that the mother was stalking the father and that they’d got into trouble from the police. She stated that her mother did have hatred towards the father. When she lived with him she wasn’t given clothes that fitted adequately and all they ever did was use the computer, the X-box and television. They never went to the beach, to the park or to bike rides.
Dr M records:
She commenced self‑harming in May. She cut herself with a knife on her leg. She said that she was feeling worried. It occurred one afternoon when she was on her own and was thinking about [N]. She became overwhelmed with feelings of anxiety and “I had to let it out”. She said she also writes about her father and how much she doesn’t like him and this makes her feel better. It releases her thoughts and leaves her head free. She said she told the court report writer and he told her mother. She stated, “They should know what is happening when they put so much on me.”
I interpose here that once again, the words of children seem to make considerably more sense and have significantly greater maturity than the words of the parents.
Dr M goes on:
She is very distressed about not seeing [N]. She said he is meant to come for alternate weekends. Last time he came [N] wouldn’t get into the car or go back, so mum said he could stay. He stayed for about a week and mum enrolled him back in blah, blah, school. She said [N] wanted to stay but the school rang up and said the father had turned up and could take him. She commented, “I think my father bribed him; bought him an X-box.”
The change in the nature of the statements and the manner in which they are said and conveyed to a report writer by a child well experienced in speaking to report writers is of itself worthy of significant note.
Those statements may well now be statements which B has come to embrace as “truthful”. I have significant doubts that those thoughts originated in her own perceptions of her father or her previous relationship with him. As if to underline those matters, Dr M says that B said:
She commented that nothing would make her see her father. She said he was a fake and a phony. She stated that she had been violent to him, had thrown a pan at his face. She said that she had been sending text messages to her father to let everything out.
Again, troublingly, she told Dr M:
She has thought life is not worth living but denied any plans for suicide. She said she one or two bad dreams about running in front of a car and has had a dream that dad has bashed [N] and he died. Her mother was angry with her and kicked her out.
N told Dr M that:
He always said he wanted to be with his father but now he wants more time with his mother. Maybe he would like to live with his mother. He would like to do something different and go to a different household. He said he loved his mum and loved his whole family, but they all hate each other so much that it’s not funny.
Dr M goes on to record:
He said he was a baby when his parents separated. He commented that the parents say bad things about each other, particularly mum about dad. He feels if he loves one, he can’t love the other. He commented, “I don’t want to die, but I would like to remove myself. I pull my hair out,” and he then did accordingly ... asked about three wishes he said (and it might be observed yet again) he wanted to stop his family fighting, to see both parents when he wanted to instead of having to wait. He said that sometimes he had a need to see one or other and it felt bad when that wasn’t possible. The third wish was to have all his friends from both his schools together in one place.
Interestingly, this young child told Dr M that:
... [B] had been badly affected and doesn’t want to see her father. He thought his father might have done something he shouldn’t, but he thought that both his parents were basically good people who hated each other. He said that they seriously hated each other. He could remember one occasion when they talked nicely to each other but it only lasted about 10 seconds. He is quite sure that both parents love him.
I have, of course, to take account of the attitude to parenting and the responsibilities of parenting exhibited by each of the parents. My findings about that are, I think, plain from what I have already said. I should indicate that those findings are based not only on my own assessment of the evidence, but also on opinions provided by each of the report writers to whom I have made reference.
As but one example of that, Mr S gave the opinion that:
Instead of engaging in self‑scrutiny and taking personal responsibility, neither parent locates problems for these children in their attitude or behaviour and both prefer to engage in scrutiny and blaming of the other parent.
I wholeheartedly agree with that assessment. Mr P (see page 20 of his 2006 report and page 16 of his 2008 report) and Mr S again at page 15 of his report referred to similar sorts of considerations.
I have already referred to the fact that a particularly troubling aspect of this case reflective of the parents’ capacity to parent and the nature of the relationship that each of them have with each of the children, and with each other as co‑parents of these children, is that “predictions” made in reports given much earlier have come to pass.
I have already referred to some of those matters and, for the sake of completeness, I would also mention what Mr P said at pages 15 and 19 of his December 2006 report about the mother not being willing to entertain having a relationship with her children if they continue to live with the father; page 16 of Mr P’s 2008 report where he says that the failure of the parties to change will impact negatively on the children; pages 23 and 24 of Mr S’s report where he talks about the children being exposed to ongoing, uncontained adult antipathies and conflict; and where Mr S also referred to the children being “the prizes and victims of an emotional and psychological tug-of-war”.
Again, I agree with each and all of those comments.
The Issue of Sexual Impropriety
The mother made submissions and provided statements under cross‑examination in respect of alleged sexual “molestation” suffered by B at the hands of her paternal uncle.
This evidence was at times confusing due to the mother’s interchanging use of the phrases “sexual harassment” and “sexual molestation”. During cross‑examination it became clear (for the first time) that the mother has what she says is evidence/disclosures from B about molestation. She indicated that B had been to talk to police in relation to these allegations and, in the mother’s words, “is waiting until she is 17 for the truth to come out”. The mother asserts that this reflects advice given to her (the mother) by the police that B ought wait until she was older and more capable of expressing her evidence before bringing charges.
The evidence of the report writers – and, importantly, the absence of evidence of the report writers – is crucial in gaining an understanding of where these allegations sit in the scheme of this matter. The only report containing allegations in any way related to sexual harassment or impropriety of any type is the final report in this matter, that of Dr M. In the first four reports there is no mention whatsoever of sexual impropriety of any type by the uncle toward B.
It is to be noted that in the first report completed in December 2006 Mr P records (and the father confirmed in oral evidence) that, at the time, B was living with the uncle for a few months while the father arranged to relocate to the Sunshine Coast. B is recorded as saying that living with the uncle is “all right”. It appears that B was clearly afforded the opportunity by Mr P to say anything that she chose about her uncle. There is nothing whatsoever in that report that indicates that any issue of harassment or anything worse was raised by B.
In Mr P’s updated report in May 2008, the only references to the uncle record the mother’s express views that he is “over-involved in the dispute and agitates and exacerbates the conflict” and the father’s denial that his brother provides anything other than support for him. There are again no allegations of any suggested impropriety of any type.
In Mr S’s report in October 2008, B is recorded as expressing irritation at her paternal uncle for interfering and involving himself in her fractured family’s conflict. Mr S notes:
Whether of their own volition or as informed and shaped by their mother’s views, [B] and [N] hold negative perceptions of their paternal uncle.
Again, it appears plain that B was given every opportunity by an experienced report writer to say anything which she chose about her uncle. Again, this report contains no mention of any sexual harassment or any form of sexual impropriety of any kind.
In the Children’s and Parents’ Issues Assessment report prepared by Mr C, a family consultant attached to this court, there is no mention at all of the paternal uncle. At this time it is to be noted that B had made a disclosure to Mr C of something profoundly significant and of great concern to her (namely, self‑harming) and noted it as a result of stress and revealed it in a context where she asked that it be kept from her parents. Again, at that time there was no disclosure of any form of impropriety whatsoever by her uncle.
The first allegations of impropriety, insofar as the evidence in this case is concerned as against the uncle, arise in Dr M’s report. At the time of this report (October 2009), as has been previously observed, B had been living with the mother for about 10 months or so.
Dr M records the father as stating that the mother “claimed that his brother had sexually harassed [B]”. The father is recorded as saying that the uncle had told him of one occasion when “[B] had said she had larger breasts than his wife”. Dr M records B as stating that the paternal uncle had threatened the mother with gaol and that he was a “pervert” who had said to her that her “boobs” were bigger than his wife’s.
Dr M goes on to report that B expressed dislike at staying with the uncle and to wearing multiple layers of clothes (presumably a reference to some concerns about sexual impropriety). B told Dr M that she’d spoken to the police about the uncle and that the police had spoken to him and “he laughed at her”. B is recorded as denying that she had “even been sexually touched”.
The mother is recorded by Dr M as saying that B had told her older half-sister that the uncle was making sexual remarks to her and she once had to take her soccer shirt off in front of him. Dr M records the mother as saying: “She believes that [B] has been touched, that something has happened and that this continued after the original police investigation.”
It is striking, at least to me, that the evidence of the mother as to alleged sexual impropriety of the uncle has grown and intensified since the making of Dr M’s reports and that the first indication by B of anything nearing harassment is made after she has been living with her mother for some months.
Of further concern is the mother’s evidence that nothing will be done for another two years or so, at which time, the implication is, a further complaint would be made by B to the police in respect of some unspecified, unasserted conduct. In that respect, the mother said that she was unprepared to disclose to the court what B had said to her about any alleged sexual impropriety.
The allegations made by the mother cannot, in my view, be distinguished from the hatred she has expressed toward the father for a considerable period of time. That hatred has plainly involved the father’s family and specifically his brother. She described the father’s family in the witness box as “evil”. Furthermore, the mother’s assertions, in my view, need to be seen against Dr M’s clear opinion that the mother is “undoubtedly alienating the children against the father” and the consistent statements made throughout the reports that the mother over-involves the children, especially B, in the parental conflict. Against that background, in particular, the apparent escalation in the nature of the allegations is very concerning.
Parental Responsibility
I have, in earlier decisions given by me, outlined what I consider to be the appropriate legal principles applicable to the issue of parental responsibility. In particular, I refer to paragraphs 136 through 152 in a decision reported as Lansa & Clovelly [2010] FamCA 80. I make it clear, should this matter go to another place, that I am applying here the principles outlined in that decision which, in turn, are based on my understanding of the principles emanating from the Full Court.
It will be abundantly plain from everything that I have said that these parents have no capacity whatsoever, in any way, shape or form, to engage in any form of communication in and about major long-term issues with respect to the children.
Although the principles expressed by me in the case just referred to include concerns about the nature of an order for sole parental responsibility by reasons of what I consider to be the arguable ramifications of such an order, I nevertheless am convinced that orders for sole parental responsibility are the appropriate orders to be made in this case.
I will order to that effect because, by reason of each and all of the matters earlier referred to, I consider that the presumption of equal shared parental responsibility is rebutted by reference to the best interests of these two children.
I have earlier referred to a number of matters which can readily be seen to find reflection in the statutory Considerations. Plainly enough, other Considerations also come into play in arriving at an appropriate decision. As but one example of that, the effect of change and separation of the children concerned from their respective loved objects is a major consideration.
So, too, other Additional Considerations can also be seen to be directly relevant to the issues earlier discussed. The task facing the court is to arrive at orders that best meet the best interests of these particular children and their appalling, sad and unenviable circumstances. I have already said, and I repeat, I hold grave fears for the best interest of these two children, whatever the outcome of these proceedings.
Ultimately, it seems to me that I have to balance N living with his mother which will bring to an end a relationship with his father that I consider to be important and meaningful as against the potential for bringing to an end – at least for the time being – a relationship between N and his sister.
The independent children’s lawyer suggests that the latter should attempt to be accommodated by reference to proposed orders that would see the mother and B presenting at a contact centre so that time can be spent in a structured, but protective, environment.
The independent children’s lawyer seeks to place the, as it were, onus on the mother to make arrangements for that to occur. There is no optimism suggested by the independent children’s lawyer in the happening of that arrangement, but it is suggested for the reasons earlier outlined. There is, it seems to me, some merit in attempting to make some provision for these children to see each other should they wish to do so. How that is achieved in orders that have any vague possibility of occurring as a matter of practical reality remains the difficulty.
In the end, with no particular confidence that any orders made by this court will best protect these children, I have determined that I should make orders that B live with the mother and that N live with his father and that B spend no time with the father save for such time as B may herself elect and that N spend time with his mother only at such times as can be agreed in writing between the parties.
I have also determined, as I have earlier indicated, that each of the parties should have sole parental responsibility in respect of the children in their respective care.
I make it abundantly plain that I consider it absolutely vital to the best interests of these children that, at the very least, they have a healthy ongoing, unfettered relationship with each other. I would dearly love to make orders in which I could have confidence that would see that occur. Every possibility mooted during the course of these proceedings has been met with resistance in the manner earlier referred to in these reasons.
I am not convinced that the method postulated by the independent children’s lawyer would effect the purpose sought to be achieved by those orders. Equally, I am by no means convinced that the orders that I am about to make will bring about that result either.
Nevertheless, as submitted by the independent children’s lawyer, I want to make it abundantly plain to these children at some future time in their lives, and I want to make it abundantly plain to these parents, that the court considers that it is absolutely imperative that these children attempt to have a relationship with each other, even if the personality characteristics and dynamics of these particular parents mean that they are unable to facilitate time between the child living with them and the other parent.
With that in mind, I propose to make orders that each of the parties shall provide to the other by a specified time and a specified date their proposals, if any, for the children to spend time with each other. I reiterate, I do not consider it likely that that order will necessarily be complied with in the sense that it will facilitate time between the children. The order is made in the fervent hope that it will do so.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 14 April 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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