FAMILY COURT OF AUSTRALIA
| HARRIS & HADFIELD | [2014] FamCAFC 41 |
FAMILY LAW – CHILDREN – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – WITH WHOM A CHILD LIVES AND SPENDS TIME – Where the Federal Magistrate made orders that the appellant have virtually no contact with the children – Where the appellant was self-represented at the trial and the hearing of the appeal - Where the appellant alleged that the Federal Magistrate had failed to afford procedural fairness - Where the appellant submitted that the Federal Magistrate had failed to give appropriate weight to the evidence and improperly exercised judicial discretion – Where the Federal Magistrate gave extensive and thorough reasons – Where the appellant’s allegations of abuse and neglect in the respondent’s care were rejected by the Federal Magistrate – Where expert evidence suggested that the children were at risk in in the appellant’s care and impeded the respondent’s ability to parent – Where the Court considered the duties owed by trial judges to litigants in person to ensure procedural fairness – Where the grounds of appeal had no merit - Appeal dismissed.
FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – COSTS – Where the appellant resisted a costs order if the appeal was dismissed– Where the appeal was wholly unsuccessful – Where the grounds of appeal had no merit – Where the respondent had been put to significant cost in defending the appeal – Where the respondent submits that the appellant has the financial resources to meet a costs order –Where the particular circumstances justify a costs order being made -The appellant to pay the respondent’s costs of the appeal and application in an appeal to be assessed failing agreement.
| Family Law Act 1975 (Cth) |
| Bookhurst & Bookhurst [2010] FamCAFC 26 Cachia v Hanes (1994) 179 CLR 403 Gallo v Dawson (1990) 93 ALR 479 Hartmann & Gardiner [2013] FamCAFC 126 House v The King (1937) 55 CLR 499 Nabers & Nabers [2011] FamCAFC 145 Neil v Nott (1994) 121 ALR 148 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Rice v Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Harris |
| RESPONDENT: | Ms Hadfield |
| INDEPENDENT CHILDREN’S LAWYER: | Michael Weston |
| FILE NUMBER: | MLC | 8871 | of | 2008 |
| APPEAL NUMBER: | SOA | 22 | of | 2012 |
| DATE DELIVERED: | 14 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Strickland & Murphy JJ |
| HEARING DATE: | 18 June 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 February 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 2 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Arnold |
| SOLICITOR FOR THE RESPONDENT: | Rochelle Belcher Lawyer |
Orders
The appeal be dismissed.
The appellant father pay the mother’s costs of the appeal and of the application in an appeal, failing agreement, to be assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Hadfield has been approved by the Chief…
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- AGLC
- Harris & Hadfield [2014] FamCAFC 41
- Case
- [2014] FamCAFC 41
- Decision Date
CaseChat Overview and Summary
The appeal, brought by the father, Mr Harris, against the Federal Magistrate's decision regarding the living arrangements of his two children with the mother, Ms Hadfield, was dismissed by the court. The primary concern was the impact of Mr Harris's behaviours and attitudes on the children, particularly his tendency to be critical and negative towards Ms Hadfield, which experts believed was harmful to the children's psychological well-being. The court found that the Federal Magistrate had provided thorough and extensive reasons for the orders made, rejecting the allegations of abuse and neglect against Ms Hadfield while highlighting the risks to the children in the father's care. The appeal's grounds were found to have no merit, and the court ordered that the father pay the mother's costs of the appeal and the application in an appeal, to be assessed if not agreed upon. This decision underscores the importance of ensuring children's well-being by mitigating exposure to parental conflict and negative behaviours.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellant father pay the mother’s costs of the appeal and of the application in an appeal, failing agreement, to be assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Federal Magistrate’s analysis of the evidence of Mr P is as follows:320.Mr [P] is a clinical psychologist. Mr [P] prepared a Family Report dated 28 January 2009 on behalf of the parties when this matter was first before the court. Mr [P] prepared an updated Family Report for this matter dated 26 May 2011 which is before the court pursuant to his affidavit sworn 19 June 2011 and filed 27 July 2011. A further affidavit from [Mr P] sworn 31 October 2011 was filed by the Independent Children’s Lawyer on 4 November 2011 annexed to which was a further brief Report dates 9 September 2011, as well as copies of correspondence addressed to the husband dated 19 September 2011 and to the Independent Children’s Lawyer dated 27 September 2011. Mr [P] also gave viva voce evidence at the final hearing of the matter.321.When discussing the husband in his Report of 26 May 2011, Mr [P] in paragraph 8 made the following observation:8.The persistent theme to emerge from my interview with Mr [Harris] was his criticism to do with the level of care and attention to the children provided by their mother. He conveyed his concern that the children were being neglected in the extreme, physically and emotionally… He was critical of [Ms Hadfield] at generally every level of her parenting, that extended to the quality of care from people with whom she left the children, including the maternal grandparents and her partners…322.In paragraph 10 of his Report, Mr [P] made the following observation in relation to the husband:10.Most significant of all is that Mr [Harris] does not acknowledge or accept that he has had a negative emotional impact on [Ms Hadfield], or that he has caused her to loose (sic) confidence or impacted adversely on her welfare, despite the fact that the thrust of his campaign in relation to her has been to prove her negligent, unable to elevate the needs of her children ahead of her own and that she has been derelict in her care of the children…323.In paragraph 12 of his Report, again when considering the husband, Mr [P] stated the following:12.… I noted however that he showed a tendency to confabulate, that is, a tendency to take information and to create a story to fit his central beliefs, by exaggerating and embellishing. I felt at times that Mr [Harris]’ presentation reflected a sense of grandiosity, dramatic over exaggeration and communicated a clear, persistent, unrelenting personal criticism of [Ms Hadfield], her individual functioning, her parenting and her care of the children… When I raised with him concern about the emotional fallout on the children of these proceedings, and their embroilment in this milieu of conflict, his response was that the people who lie should be held accountable. I spoke with Mr [Harris] about the concepts of “a pyrrhic victory” insofar as this dispute, but his position was unrelentingly “she has blatantly lied and should be held accountable for the deceit and manipulation of the children.””324.When discussing the wife in these proceedings, in his Report of 26 May 2011, at paragraph 14, Mr [P] stated the following:14.[Ms Hadfield] presented as a woman genuinely tormented by Mr [Harris] and his unrelenting attack on her and her character…325.In paragraph 15 of his Report, Mr [P] stated:15.I was left in little doubt that [Ms Hadfield] felt traumatized by the treatment of her by Mr [Harris], that she experienced him as at least emotionally violent, felt in need of protection and security, but also conveyed a sense of hopelessness and despair at the likelihood of any change. Her greatest concern is the psychological impact on the children of the constant exposure to their father’s negativity and criticism of her, his lack of understanding of the impact that this actions have upon her, let alone the children, and his extreme tendency to abdicate any responsibility for his actions in favour of a constant criticism of her. [Ms Hadfield] referred to multiple abusive, derogatory, critical and denigrating emails with which she has been bombarded, and the obsessive and abusive correspondence that Mr [Harris] has shared with third parties, without any appreciation of the impact on her.326.In paragraph 17 of his Report, Mr [P] made the following comments:17.Of particular concern to [Ms Hadfield] is the embroilment of the children in these proceedings, and what seems to be Mr [Harris]’ conscious and deliberate embroilment of the children in his beliefs. She described him as a person who generates enormous conflict around him, and not just with her, because his beliefs become fact and all other considerations and all other points of view become irrelevant. She referred to the head lice issue as a perfect example of how he became so fixated in his beliefs, and so preoccupied that she was neglecting [X], that nothing she said or did was sufficient to shift his fixed immutable beliefs. Not surprisingly, she worries about the children’s feedback, that their father questions them unrelentingly and that they feel intimidated, as this reinforces her fear that he lacks empathy and insight.327.When discussing [X] in his Report of 26 May 2011, Mr [P] made the following observations:22.[X] presented as a friendly but initially cautious girl, who was hesitant and reluctant to talk much about her family… Even though she described her parents in positive terms, she was much more circumspect about her father, telling me that she loved him but that he was very stern and that he didn’t laugh often. From [X]’s perspective, the greatest source of her father’s consternation is her mother, and [X] was very aware that her father was critical and did not believe that her mother looked after them well, that he was very angry about her having head lice, and his belief that she was not treating the problem appropriately, even though [X] told me, “She does, dad just doesn’t believe it. We tell him she does, we tell him all the time, that she uses the comb and everything, but he doesn’t believe us.”328.In paragraph 23 of his Report, Mr [P] reports as follows:23.Whereas [X] was more cautious in relation to her father, this wasn’t the case in relation to her mother. She described her mother as kind and loving, generous, happy and that she looks after her very well…329.In Mr [P]’s Report, at paragraph 23, he indicated that [X] advised that she would like to make her father more like her mother, and when asked to explain what she meant by this, told Mr [P] the following:“If dad was less stern it would make a lot of difference. Me and [Y] would be happier about mum and dad. He makes me feel sad and when he’s like that I don’t want to talk to him and it’s a bit scary, and when he’s angry at mum he doesn’t want to talk to us much and we get frightened and stuff.”330.In paragraph 26 of his Report, Mr [P] describes [X] as someone feeling enormous divided loyalties and as someone who feels responsible for the happiness of her parents.331.Of even greater concern, Mr [P] further reports in paragraph 26 of his Report of [X] worrying about her father’s preoccupation with her mother and that her father might seek some kind of revenge against her mother if her father was to feel that her mother was not looking after she and [Y] properly.332.Mr [P] indicated that what was clear and obvious was that [X] does not share the same perception of her mother as that of her father and in contrast perceives her mother as warm, loving, safe and secure.333.Again in paragraph 26 of his Report, Mr [P] reports the following comments to him by [X] in relation to her concerns:“Dad just thinks really negative about mum. I don’t think it’s right for dad to feel so negative. It’s just not true what he thinks.”334.It was apparent to Mr [P] that [X] is tense and anxious about her parents and their relationship, and in particular most apprehensive about changeover when she told Mr [P] the following:“… my dad makes me nervous. He makes me feel scared. I don’t like it when he asks me questions about mum and her place. It makes me feel unsafe.”335.In relation to [Y], Mr [P] noted that he was an extremely difficult boy to interview.336.In paragraph 27 of his Report, Mr [P] described [Y] in the following terms:27.… He was guarded and cautious in the extreme. He actively resisted any question about his parents or about any difference within the family, and so tense was he that he actually conveyed a pressure of speech, that is unusual for a child of his age. He was reluctant to participate in any activity, he was hesitant to complete drawings, he would enter into no discussion about his drawings, and his interaction conveyed a sense of extreme control.337.Mr [P] then further explained his observations in relation to [Y] in the following terms in paragraphs 28 and 29 of his Report of 26 May 2011:28.The themes to emerge from the limited information produced related to feelings of fear of loss, anxiety about his parents and their safety. It is as though he feels consumed by his parents’ conflict and unable to defend against the unhappiness in which he is immersed and the feelings of loss attached.29.He impressed as a boy who was particularly emotionally shut down and cut off, and he would not discuss his parents whatsoever. His presentation was in my experience very atypical for a child of his age.338.In the conclusions to his 26 May 2011 Report, Mr [P] makes the observations in paragraph 39:39.With the passage of time, the problems in this family have only intensified…339.Paragraphs 46 to 48 of his Report of 26 May 2011 summarises the conclusions reached by Mr [P]:46.It is of great concern that this family’s functioning has deteriorated so significantly. The common denominator to this deterioration is the criticism and the attack by Mr [Harris] upon [Ms Hadfield], her parenting and the children’s relationship with her. It most obviously impacts upon her, but in my clinical opinion also severely impacts adversely upon the children. The inability of Mr [Harris] to reflect upon the fallout on the children and to not reflect upon the enormity of the consequences of a pyrrhic victory suggests that it is he who has enormous difficulty elevating the children’s needs ahead of his own. It is my concern that he distorts the children’s experience, compromises their welfare, and does so from a misguided platform of trying to act in the best interests of the children, when the objective reality is that the attack and criticism of their mother to the extent to which he does can only have an adverse effect upon them. 47.My assessment of Mr [Harris]’ presentation was of a person obsessed and preoccupied by a set of beliefs that reflected grandiosity, exaggeration, confabulation, and at the very least, a profoundly over inflated investment in the criticism of [Ms Hadfield] and her parenting, when the objective reality suggests that the parent most likely to be adversely compromising the welfare of the children is Mr [Harris].48.Mr [Harris] has shown a propensity to be in conflict with anyone who has a view different to his own. His perception is that none of the other persons or agencies involved with his children are capable of acting protectively, and that his concerns are ignored. He does not reflect at all upon the possibility that his concerns are not shared, and that his view may not be correct.340.In paragraph 49 of his Report, Mr [P] concluded with the following observations:49.There however can be no denying that the children love their father and want to see him, and at least insofar as [X], one of her fears is that she will not see him. I again reiterate the sentiment in my previous report, that is, that there is no sharing and no likelihood of sharing in this dispute. In my view, any future Court Orders should reflect the hopelessness of this situation and the extreme likelihood that there will be no shared parental responsibility. It may be that a decision should be made on behalf of Mr [Harris] and [Ms Hadfield] for one or the other to be responsible solely for making decisions to do with education and medical care……349.Under the heading ‘Conclusions’, Mr [P] stated the following:CONCLUSIONSThe problems in this family remain unchanged as do my concerns. From what the children present, it is not their mother but rather their father who is a source of great anxiety and concern to them. [X] states very clearly that his anger and his incessant questioning of her causes her considerable distress. [Y] was very regressed and unable to separate from his mother and clearly, his understanding of the process and that somehow speaking with me would entail discussion of his family was sufficient to prevent him from being able to meet with me. It is important to note that notwithstanding the concerns regarding [Ms Hadfield] that [Y] clung to his mother for comfort and reassurance at a time of distress and showed anything but apprehension but rather sought much active reassurance from her. My concerns regarding this family remain unchanged… It still seems to me a crucial consideration that both Mr [Harris] & [Ms Hadfield] have psychiatric assessments completed. I am concerned that notwithstanding his motivation and intent that Mr [Harris] has escalated conflict around something that could have been managed very differently without awareness or understanding of the impact that his actions had either upon the children or upon [Ms Hadfield]. This seems to me to be a pattern associated with Mr [Harris] and his behaviour, that is that he seems not to understand how his actions impact upon those around him and instead maintains a self righteous stance, justifying his behavior on the basis of perceived injustice, maltreatment, abuse and neglect that has occurred.My assessment and observation of the children is that they convey anything but being abused and neglected by their mother and to the contrary feel that she is great source of comfort, reassurance, that she empathizes with them, that she understands them and their needs and acts accordingly. It seems also clear that these children love their father and want a relationship with him. Ultimately consideration needs to be paid to what extent his behaviour to them becomes harmful and damaging regardless of his intent.350.In his very brief Report of 27 September 2011, Mr [P] notes that he again interviewed [X] and he observes as follows:“it is my overwhelming concern that she is being severely, negatively impacted by the conflict between her parents and in particular the negativity felt from her father in relation to her mother. Her unhappiness is palpable… She is distressed…. She told me she would like them to know how sad they make her feel and that they speak with each other in an awful way.”351.On the second page of his brief 27 September 2011 Report, Mr [P] makes the observation that the contents of the note left by [X] for [Y] are significantly less important than the impact on the children of these proceedings. Mr [P] set out the following very insightful observation by [X]:“I think dad makes too big a deal of when me and [Y] get angry with each other”.352.Mr [P] concludes his short further Report of 27 September 2011 with the following observations:“From a clinical perspective, the sense of hopelessness about the family’s situation as communicated by [X] was most concerning. She sees little way forward. I am deeply concerned that the core issues in this dispute are not being understood. Given the problems between Mr [Harris] & [Ms Hadfield], I wonder whether continuation of the current arrangement is in fact feasible in the long term or whether this family’s situation falls within that category for whom the shared care of children is not possible because of the amount of chronic conflict between their parents. It is difficult to foresee how Mr [Harris] & [Ms Hadfield] will share parental responsibility given the intractable nature of their problems.”353.It was put to Mr [P] in cross-examination that the impact upon the wife in these proceedings of the husband’s ongoing behaviour has been significant. Mr [P] agreed with that and said:“I’ve said it’s profound and that she was tormented.”354.In commenting further on the impact of the husband and his behaviours on the wife and her parenting, it was Mr [P]’s evidence as follows:“If she is more emotionally resourced then her parenting of the children is going to be significantly improved. I assume you’re also very aware of the social science literature on the impact on the primary parent, of their emotional state being so depleted. That’s how I see her; I see her as very depleted and very battle-worn and emotionally exhausted. And I think it’s more likely than anything that that is going to impact in a protective sense on the children. The better she is able to parent them on a fulltime basis, the more likely they are going to do better.”355.Mr [P] was questioned by Counsel for the Independent Children’s Lawyer as to what, if any, insights the husband had developed in relation to the impact of his behaviours, particularly given his evidence that he will continue to video changeovers to ensure he is protected from the wife’s manipulation and his evidence that the only behaviours he needed to change to help [X] and [Y] were to simply stop sending the wife sarcastic emails.356.It was Mr [P]’s response in the following terms:“I’ve really pondered about this case, your Honour, and I wondered whether in fact the word “insight” didn’t genuinely convey my concern, and that maybe a lack of empathy might better account for how I perceive the process. In order to have empathy you have to have insight, insight and understanding, but just because you’ve got insight doesn’t mean you’ve got empathy. And he doesn’t seem to understand how what he does affects the people around him who are the recipients of his words, his actions, and that there is a tendency to justify his behaviour on the basis of how other people have behaved. And if the reason for my behaviour is always because of something or someone else, then it’s not likely that I will change because the locus of control is external to me.”…367.In relation to the therapy that the husband has been having with Dr [K], it was Mr [P]’s observation as follows:“It may be that the treatment, to work, it needs to be more intensive and longer term. You know, I think 13 sessions over three years is probably not at the frequency that I would imagine significant change would require.”…372.Mr [P] noted that [X] still maintains love and affection for her father, notwithstanding that his behaviours are causing her great confusion. Most tellingly, Mr [P] gave evidence that he thinks that the husband’s behaviours are damaging to [Y].373.It was put to Mr [P] that if things continue as they are – ie. the current parental dynamic and the behaviours of the husband, then [X] and [Y] would be severely damaged. Mr [P] agreed with this. When asked to expand on what the damage would be, it was Mr [P]’s evidence as follows:“I think you will have tremendously anxious and confused, stressed children. The question of how they go about dealing with this conflicted reality is a very challenging one… That group of kids, your Honour, who I see who are caught in this situation do the worst, by far, of any group. And during adolescence it’s really associated with tremendous acting out. I think, you know, the social science research is really clear on this point. These kids are at significantly higher risk of problems with anxiety and depression, alcohol and substance abuse and, not surprisingly, significantly higher risks of being unable to sustain intimate relationships in their own adult lives. And it’s most simple; if this is the model of how you deal with conflict and how you deal with intimate partners, then it augurs poorly.”374.Mr [P] was questioned as to the very real improvement in [Y]’s behaviour, as observed by his school teachers from an angry little boy who was constantly throwing tantrums, unable to focus on his work, lacking resilience and displaying quite serious oppositional behaviour to one who is happy, engaging in his work, showing more confidence, whose body language had altered and who is cracking jokes and is just a happier and more light-hearted spirit.375.Mr [P] was asked as the major change that predicated [Y]’s improved functioning was the suspension of his time with the husband, was that indicative that the husband had been at the root of [Y]’s behavioural difficulties? It was Mr [P]’s evidence as follows:“I think there are probably two parts to that… I think it’s really common for children who are highly oppositional and defiant, controlling and aggressive, to have very high levels of underlying anxiety, and that their endeavour to control the world is manifest in this very oppositional, controlling behaviour. And they’re trying to control their internal state by controlling the world around them. It’s also very common for these youngsters to be unable to contain themselves, so they have these explosions. Now, to what extent he is being affected by the enormous tensions between his parents – you, know, this deposit in him of his father’s negativity, the unrelenting conflict that he feels because of being told different things, coupled with being settled in one house with one parent who cares for him and whom he trusts, I think that’s an interesting equation. I guess for me the big things are that in the care of his mother he is settled; not moving actively between houses he is more settled, and that not being exposed to this constant double bind is probably a source of the alleviation of great anxiety. He is living continuously, and both children are living continuously, with two stories that can’t integrate in a meaningful whole, so their only solution is to split the world so that they say one thing to one parent and one thing to another, or in fact just manifest this continuous state of driving anxiety, which is unfortunately very common in families where one or both parents are constantly telling the children negative things about the other. There’s no defence against that. The assault upon the children is overwhelming. And if it doesn’t fit with their experience then how do they make sense of it? What do they do? They get tense and stressed and anxious and worried and frightened and fearful. And I think it’s really interesting that the words and the language used by [X] talks about feeling unsafe, because the world isn’t in calm equilibrium, that Mr [Harris] interprets as [Ms Hadfield] causing. I mean, it’s completely off skew.”376.It was put to Mr [P] that the husband had suggested that there would have been exactly the same level of improvement in [Y]’s behaviour if the court had ordered that [X] and [Y] live solely with him, rather than with the wife. It was Mr [P]’s evidence that this might be true because for both the children it would have removed the intolerable conflicting realities. 377.However, Mr [P] made this very telling observation:“But I would suspect that if they were living with him they would become more alienated from their mother, is I think the likely scenario, and they would become more aggressive towards her.”378.Mr [P] was asked on more than one occasion by Counsel for the Independent Children’s Lawyer and the wife what his recommendations were in relation to the living arrangements for [X] and [Y], especially given his strongly held belief that the prognosis for the husband was poor and he was unlikely to develop the empathy that would enable him to change his behaviours.379.It is fair to say that Mr [P] struggled with this question and in formulating a definitive position as to the best way forward for [X] and [Y].380.However, Mr [P] was in no doubt that given the dynamics of the parties in these proceedings, this was a matter where there could not be equal shared parental responsibility.381.Mr [P] was also quite clear in his evidence that a continuation of the existing arrangements of 9:5 was not in the best interests of [X] and [Y], nor was any increase in the time that [X] and [Y] spend with their father.382.It was Mr [P]’s evidence that to continue the existing arrangements where they have so palpably not worked in the hope there would be a different outcome would be fraught with problems.383.It was Mr [P]’s evidence that ultimately [O] and [C] need to see both of their parents. It was his evidence that they love their father, that they want to see him and that from his observations, the husband is very good with [X] and [Y]. He made the following observation:“However, at some point the balance of the advantages and disadvantages is something that has to be struggled with, and struggled with carefully.”384.Mr [P] suggested one possible outcome was that [X] and [Y] spend each alternate weekend with their father. He was concerned however about the impact of such an order on the wife. Mr [P] made the observation that one of the things that he had not factored into his initial evaluation of these parties when he prepared his written Reports and the recommendations contained in them for time between [X] and [Y] and the husband was the impact on the wife of her having no respite from having to deal with the husband and what the flow-on affect of her having to do so has been on the children. He described the wife as a woman who was tormented and overwhelmed beyond description.385.It was put to Mr [P] that the court needed to try and determine which was the greater risk to [X] and [Y] – ie. spending no time with the husband or continuing to spend time with the husband in circumstances where it was unlikely his behaviours and attitude towards the wife would change and she and they would continue to be exposed to those behaviours and attitude Mr [P]’s response to this was as follows:“It feels like neurosurgery with a chisel, your Honour, you know, trying to do something really delicate that feels just so grossly – but, yes, in some ways I think, crudely - with respect, crude as your analogy is and your suggestion is, it’s something like that. It seems to me as though there are infinite number of better options in the middle, none of which have worked, all of which should have worked. And I think we would be naive to think that they will work if they haven’t thus far.”386.When it was put to Mr [P] that the wife’s proposal is that [X] and [Y] spend no time with the husband, Mr [P] indicated that that came as no surprise to him given the level of torment in her that he had observed arising from the impact on her of the husband’s behaviours.387.Mr [P] was asked whether the wife’s current levels of distress and the impact that has on her parenting and the relief she would be accorded through not having to deal with the husband was sufficient unto itself to support an order that [X] and [Y] spend no time with the husband. It was his response that whilst he would normally say no to such a proposition, in this matter it was ultimately the question that this court would have to struggle with. He was not prepared to proffer an opinion.388.At the conclusion of Mr [P]’s evidence, he was again asked whether he had a view as to whether the risk of [X] and [Y] continuing to see their father was greater than the risk to them of not spending time with him: “Does one risk outweigh the other?”389.It was Mr [P]’s response to this question as follows:“There of course is the short and the long term implications. I think it’s likely that in the short term there will be some respite, just not being in the midst of it all and having a break. Their mum having some space and not having to deal with it will I think have a very significant and substantial impact short term. The long term implications are really difficult to answer. I think it would be naive to believe that not seeing one of your parents for a significant amount of your life is not going to have some fallout, okay. I know that’s a very general answer and I don’t mean to be evasive, but I don’t know if I can answer that question more specifically.”
Ratio Decidendi
Legal Principle Established
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