JOLLIE & DYSART

[2013] FamCA 762

FAMILY COURT OF AUSTRALIA

JOLLIE & DYSART [2013] FamCA 762

FAMILY LAW – CHILDREN – Parental responsibility – with whom the child shall live and spend time – child to live with the father – father to have sole parental responsibility for the child – mother’s time with the child to progress to whole alternate weekends – orders to remain in place until the child reaches 16 years of age – where incentives for compliance are required to obviate the need for enforcement applications – where the mother’s mental health and personality is a major issue – where the child’s fulltime residence will change.

FAMILY LAW – INJUNCTIONS – Mother restrained from making contact or communicating with the child unless in accordance with orders – mother restrained from providing the child with a mobile telephone.

Family Law Act 1975 (Cth) ss 60CC, 62B 64B, 65DA, 67Q, 68B

APPLICANT: Ms Jollie

RESPONDENT: Mr Dysart

FILE NUMBER: (P)NCC 421 of 2007

DATE DELIVERED: 9 October 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 9, 10, 11, 12, 13, 16 & 17 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas

SOLICITOR FOR THE APPLICANT: Burke Elphick & Mead

COUNSEL FOR THE RESPONDENT: Mr Rugendyke

SOLICITOR FOR THE RESPONDENT: Powe White Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior parenting orders in relation to H Dysart born … 2001 (“the child”) are discharged.

2. That until the child is 16 years of age (… 2017) parenting orders are as follows:

3. That the Father is to have sole parental responsibility for the child.

4. That the Father is to collect the child from school on 11 October 2013 and thereafter the child shall live with the Father.

5. After the expiry of four weeks from the date of these Orders the child shall communicate with the Mother as follows:

   5.1each week on Wednesday between 6.30 pm and 7.00 pm by telephone or Skype, with the Father to arrange for the child to contact the Mother at the number/Skype address supplied by her pursuant to Order 14 herein PROVIDED THAT an adult supportive to the Mother is present with her and an adult supportive of the child is present with him on the first four occasions of communication.

6. In the event that the child communicates with the Mother at his instigation or hers in the four week period immediately following the date of these Orders then the commencement of Order 5.1 shall be delayed for a period of four weeks.

7. In the event that the child communicates other than in accordance with Order 5.1 with the Mother at his instigation or hers, after the commencement of that Order, then its operation shall be suspended for four weeks on each and every such occasion.

8. After the expiry of eight weeks from the date of these Orders:

   8.1The child shall spend face to face  time with the Mother as follows:

   8.1.1on two alternating Saturdays commencing 7 December 2013 for a period of  five hours from 12.00 noon to 5.00 pm on each occasion;

   8.1.2then on alternating Saturdays on two occasions commencing 4 January 2014 for a period of eight hours from 9.00 am to 5.00 pm on each occasion;

   8.1.3then on alternating weekends on two occasions from 9.00 am Saturday to 5.00 pm Sunday commencing Saturday 1 February 2014

   PROVIDED THAT an adult supportive to the Mother is present on each occasion.

   8.2Thereafter each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday commencing 28 February 2014 PROVIDED THAT the Father may thereafter suspend:

   8.2.1up to four weekend periods per year for the purpose of holidays periods for the child; and

   8.2.2 periods of communication pursuant to Order 5.1 during any period of overseas travel for the child

   PROVIDED THAT the Father gives written notice in advance to the mother of not less than 14 days.

   8.3The Father or his nominee is to deliver the child to the Mother’s home at the commencement of each period of time and the Mother or her nominee is to return the child to the Father’s home at the conclusion of each period of time.

9. In the event of the following:

   9.1that the child goes to the home of the Mother or meets with her at any time other than in accordance with these Orders;

   9.2that the child fails to return to the home of the Father at the conclusion of a period of time with the Mother then whether or not the Father has had recourse to the Recovery Order issued pursuant to Order 23 herein, time between the child and his Mother will thereafter recommence pursuant to Order 8.1.1 and progress pursuant to Order 8 on each and every such occasion.

10. Pursuant to s 68B of the Family Law Act 1975 (the Act) the Mother be restrained from making contact and communicating with the child in any way other than in accordance with these Orders.

11. That the Mother is restrained from providing the child with a mobile telephone.

12. That the Independent Children’s Lawyer meet with the child to explain these Orders with particular reference to the facts that the Orders are made until aged 16 years and that thereafter:

    12.1each parent will have parental responsibility by operation of law;

    12.2the child may then live with the parent of his choosing; and

    12.3spend time with the other parent in accordance with his choosing

    PROVIDED THAT the parent of his choosing for residence accepts him into that parent’s care.

13. The Independent Children’s Lawyer shall provide a copy of these Order to:

    13.1The Principal of SH School; 

    13.2Dr S.

14. The parties shall keep each other advised in writing (including electronically) of current home address, telephone number, email and Skype address.

15. The Father shall enrol the child for High School and advise the Mother in writing of his decision in relation to the High School that the child shall attend for his secondary education (the High School) within 7 days of confirmation of enrolment.

16. The Father shall:

    16.1notify the mother of the name and contact details of the general practitioner engaged for the child;

    16.2authorise that general practitioner to discuss issues relating to the child’s health and treatment with the Mother; and

    16.3authorise the release of medical reports about the child to the Mother.

1. The Father shall provide to the High School:

   17.1a copy of these Orders;

   17.2the contact details for the Mother as supplied by her pursuant to Order 14 from time to time;

   17.3authority to provide to the Mother information regarding the progress of the child at school including but not limited to copies of his school reports and school photographs;

   17.4authority to invite the Mother to occasions and events at the High School to which parents are invited commencing in 2015.

2. Within 48 hours of the date of these Orders the Father is to make arrangements to engage with Mr W, Psychologist or such psychologist to whom he is referred by Mr W or Dr K:

   18.1to assist the child to adjust to the transition from the household of the Mother to the household of the Father;

   18.2for parenting advice;

   18.3for family therapy;  and

   18.4for individual therapy for the child.

3. Prior to the first appointment with Mr W the Father is to provide to Mr W (and to any psychologist to whom he is referred by Mr W or Dr K) copies of the following:

   19.1    the Single Expert Report of Dr K dated 18 February 2013;

   19.2    these Orders;  and

   19.3    Reasons for Judgment.

4. The parties are to attend upon Mr W and to arrange for the child to attend on Mr W (and to any psychologist to whom they are referred by Mr W or Dr K) as and when directed by Mr W.

5. The parties must not discuss these Court proceedings with or within the hearing of the child and must not knowingly allow their family and friends to do so.

6. The parties are to ensure that the other party is informed as soon as reasonably practicable, and not later than 4 hours, of any serious medical matter involving the child when the child is in their care.

7. Subject to Order 24 a Recovery Order is to be issued for the child pursuant to s 67Q of the Act and the Marshal, the Deputy Marshal, all Officers of the Australian Federal Police and all Officers of the State and Territory Police are authorised and directed with such assistance as they require and if necessary by force:

   (a)to stop and search any vehicle, vessel or aircraft and search and premises or place for the purpose of finding the child H Dysart born … 2001;

   (b)to recover the child;

   (c)to deliver the child to Mr Dysart.

8. The execution of the Recovery Order pursuant to Order 23 is stayed until such time as the child is absent from the Father’s care without such absence being in compliance with these Orders.

9. The Recovery Order pursuant to Order 23 is to be executed upon the Father informing the Registrar of the Family Court of Australia at Newcastle that the child is absent from his care without such absence being in compliance with these Orders.

10. That each party is hereby restrained from denigrating the other parent in the presence or hearing of the child or from knowingly permitting third parties to do so.

11. That the Father may obtain an Australian passport for the child without reference to the mother, in the event that she is unwilling to sign the relevant application.

12. Pursuant to s 65DA(2) and s 62B of the Act, 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 by this Court under the pseudonym Jollie & Dysart has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC421 of 2007

Ms Jollie

Applicant

And

Mr Dysart

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing parenting applications in respect of one child H, aged 12 years at the date of trial.  Each parent seeks orders for sole parental responsibility and residence.  Each parent also seeks an order in the alternative, if unsuccessful with the residence application, for equal shared parental responsibility.

2. The applicant is the mother Ms Jollie aged 52.  The respondent is the father Mr Dysart aged 50.  Both parties are health professionals.  They began living together in 1986, married four years later, separated after 14 years of marriage and were divorced in 2007.  They have two older children Y aged 22, now living independently and U, who will be 18 later this year.  U lives with his father.

3. The Dysart children have all experienced issues involving their mental and physical health.  Y has mild cerebral palsy, a learning disorder and in the view of one if not both parents, Obsessive Compulsive Disorder.  U suffers from anxiety and was hospitalised for treatment of an eating disorder.  H suffers from anxiety and has had behaviour problems at school.

4. Both parents have remarried.  The father began a relationship with Ms G after separation.  They married in 2008.  The father has two daughters by this marriage, aged three years and four months respectively. 

5. There have been no children of the mother’s remarriage, but her husband’s 14 year old daughter has been an occasional visitor to the household.

6. Soon after separation in 2004, the parties came to an equal time arrangement for all three children.

7. In April 2006 Y chose to live with her father.  After three years she lived fulltime with her mother.  From 2012 she has lived independently.

8. On 25 September 2007 consent orders were made confirming the ongoing equal time arrangement for H alone.  U continued with equal time until moving to live with his father early in 2010.  He has remained living there. H continued in the equal time arrangement until March 2012, when he left his father’s home.  He has lived with his mother since and has seen his father on an irregular basis.

9. There is a single expert report by a psychiatrist, Dr K, which raises serious concerns about the state of the mother’s mental health and the mental health and psychological state of the child H himself. 

The issues

1. The issues raised by the hearing are as follows:

   ·What is the capacity of each of the parents to meet the needs of the child?  Within this issue is the state of the mother’s mental health and personality and the father’s parenting style and discipline of the child.

   ·Should parental responsibility be shared or should one parent make all the long term decisions?  Within parental responsibility is the issue of the child’s education.  He is eligible to attend the local selective high school which his brother attended.  He has the opportunity to attend the local private school, which his older sister attended.  The parents have not agreed on where the child will commence high school in 2014.

The evidence

1. The mother relied upon the following documents:

   a)Amended Initiating Application filed 22 July 2013;

   b)Affidavit of mother filed 7 August 2013;

   c)Affidavit of Mr J (mother’s husband) filed 7 August 2013;

   d)Affidavit of Dr S (mother’s GP) filed 7 August 2013 and additional evidence-in-chief;

   e)Affidavit of Ms B (mother’s Psychologist) filed 28 August 2013;

   f)Affidavit of Mr P ( Senior Psychologist at the Defence Force where the mother works) filed 7 August 2013;

   g)Affidavit of Ms O (friend of the family) filed 7 August 2013;

   h)Evidence of Mr E Psychologist (the child’s recent therapist)[1];

   [1]Proof provided, Exhibit 44

   i)Evidence of Ms D Deputy Principal of the child’s school[2].

   The father relied upon the following documents:

   a)Amended Response filed 22 August 2013;

   b)Affidavit of the father filed 7 August 2013;

   c)Affidavit of Ms G (father’s wife) filed 7 August 2013;

   The Independent Children’s Lawyer relied upon the following:

   a)Report of Dr K, Single Expert Child & Family Psychiatrist, dated  18 February 2013;

   b)Children & Parents Issues Assessment of Family Consultant Ms R dated 22 August 2012.

   [2]Proof provided, Exhibit 42

The applicant mother, Ms Jollie

1. The mother is a health professional who works for the Australian Defence Force within the area of recruitment.  She appeared to be a careful witness in all her responses.  She made no concessions without documentary evidence of the proposition being put to her.  Her tone was a somewhat suspicious and wary one.  She was very often non-responsive, providing unsought information.  When directed, she did answer responsively and I conclude that her non-responsive answers were evasive.

Mental health of the mother

1. The first issue which was squarely raised with the mother was her own mental health.  She swiftly conceded that her mental health had been put in issue but did not concede to any extent that she suffered from present mental illness or personality disorder.  The diagnosis of Dr K in his report was that the mother has:

   Significant personality dysfunction, with prominent borderline personality traits which likely are of the severity and functional impact to warrant a diagnosis of borderline personality disorder[3];

   and

   Associated with (both contributing to and resulting from) her personality dysfunction, the mother has a mixed anxiety disorder (with features of separation anxiety, social anxiety and panic disorder) probably currently in sustained remission and a mood disorder[4].

   [3]Report of Dr K dated 18/02/2013, par 274

   [4]Report of Dr K dated 18/02/2013, par 275

2. In his oral evidence the doctor did not rule out the possibility of a borderline personality disorder, but concluded that the relevant personality traits were certainly present.

3. The mother asserted that she had revealed her mental health history in her affidavit.  She did, but not fully.  The relevant paragraphs are contained under the heading, “My own mental health history”[5].  That history was described as:

   ·post natal depression when the first child was born in 1991 with symptoms persisting for about 18 months;

   ·severe depression in early 2004, including attempted suicide, when the mother began attending a psychiatrist, Dr V noting that she was medicated with anti-depressants and continued to see Dr V until sometime in 2007 when she chose to stop consulting him  (Diagnosis major depressive episode).

   [5]Affidavit of  the Mother filed 07/08/2013, pars 328-345 inclusive

4. The mother makes this statement[6]: 

   At no stage throughout the time that I consulted with Dr [V], Dr [L], [Ms  C], [Ms B] or my GP Dr [S], was it communicated to me that:-

   (a)I suffer from Borderline Personality Disorder;  or

   (b)That I have significant personality dysfunction with borderline personality traits and/or that those traits would warrant a diagnosis of Borderline Personality Disorder.

   [6]Affidavit of the Mother filed 07/08/2013, par 343  

5. The mother repeated that assertion during cross-examination.  She had not read any of the extensive material produced in response to subpoenae to doctors and hospitals.  Contained in that material was some very significant matters as follows:

   ·A projected inability to work for three months in 2006 due to depression which the mother was unable to remember; that is she was unable to remember telling the Child Support Service that she would be unable to work for a three month period, nor obtaining a certificate from her GP Dr S for three months off in 2006[7].

   ·The terminating by the mother of the relationship between the mother and her psychologist Ms C.

   ·The fact that the mother had no psychologist or psychiatrist assisting her between the end of the therapeutic relationship with Ms C in 2008 and the commencement of the new therapeutic relationship with Ms B in 2010.

   ·Next and most significantly, correspondence between Dr S and Dr V, communicating a diagnosis that the mother suffered from a “disorder of self” arising from her childhood difficulties.  The mother denied all knowledge of such diagnosis and of course had not read the documents that contained the exchange of letters.

   ·Likewise the report from Ms C dated 15 August 2006, which advised an opinion from Ms C that the mother suffered from depression associated with self-disorder.  The mother denied any knowledge of Ms C’s view, or of her reporting to the GP that she held that view.

   [7]Medical Certificate dated 08/05/2006

6. The mother’s answers during this period were lengthy, unresponsive and defensive.  Otherwise she stated that she could not remember, or could not recall matters of considerable significance to her mental health and ability to work.

7. In his report, Dr K said this:

   I note that Dr [V], the psychiatrist who reviewed the mother between 2004 and 2007, felt that the mother had a depressive episode which has developed upon a background of primary psychiatric difficulties consistent with a diagnosis of Disorder of Self (another language for personality disorder). I agree with him[8].

   [8]Report of Dr K dated 18/02/2013, par 276

8. Faced with the reference by Dr K to a diagnosis many years ago which accords with Dr K’s own recent diagnosis, the mother was still prompt and decisive in her agreement with the proposition that she did not agree with Dr K’s opinions about borderline personality disorder, “I certainly don’t.”  She said the reason she disagreed was, “I feel psychologically well now” and also because “no one has spoken to me along those lines”.

Mother’s review by relevant professional discipline Authority

1. The mother self-reported to the relevant professional Authority for depression and was placed under ongoing scrutiny of the Authority.  She was permitted to return to fulltime work in about 2010.  She was reported on by the Authority’s psychiatrist, Dr L for several years.  The mother consulted psychologist Ms C between 1998 and 2008. She did not mention in her affidavit that that relationship was abruptly ended by herself.  There has also been a relationship with Ms B, Psychologist since 2010. 

2. In June 2009 the Authority noted an edge or irritability not noticed previously in the mother, due to her growing impatience and dissatisfaction with the intrusion of the Authority’s process into her life.  On more than one occasion she answered “something was written in the documents but that there were mistakes in the documents.”  There may have been, although the mother attended to raising corrections after she received review reports.

3. At that time Dr L in a supplementary report, gave the opinion that the mother had no current diagnosable psychiatric illness or condition; that she remained at risk for further psychiatric illness because of predisposing vulnerabilities; that she disputed the vulnerabilities and attributed her depression to the breakup of her marriage. 

4. Dr L regarded the marriage breakdown as a trigger exposing an underlying vulnerability.   Dr L in essence thought that the mother’s attitude towards the risk of further episodes of depression is “one frequently encountered in clinical situations and can really only be addressed by her and her family and friends being vigilant as the risk I think is life-long”.  During the course of the interview the mother was noted as being insulted by a remark about her lacking insight, which she felt was a gross under-estimation of her intelligence. 

5. My own observation is that despite her obvious intelligence the mother does lack insight particularly as to her impact on those closest to her.

Mother’s general practitioner

1. Between 15 May 2008 and 4 May 2011, there were eight occasions where Dr S referred to the mother as suffering from depression, or major depression.  The mother acknowledged that that was what was written, but implied by her answer that that was a heading which had become permanent in her file and did not refer to further episodes of depression, “I wasn’t depressed then, it was a very stressful time in my life.”  She did not know why Dr S wrote down depression or major depression on those occasions.

Revelations by the mother of information to the child H

1. In 2012 the mother told the child that his father wished to return to regular days pursuant to orders which had been relaxed by the father for the child’s benefit.  The mother conceded that she was not happy that the father wanted to return to the orders and also conceded that she may have mentioned the orders themselves to the child, although she denied mentioning her own unhappiness.  I have no doubt that that unhappiness was communicated one way or another to the child at the time.

2. The evidence of the mother is that the child was happy to see his father if he could control the times and that she supported him in that, “Flexibility in terms of seeing each of his parents as much as you’d like.”[9]  The mother denied the proposition that she was supporting the child in his having whatever he wanted, but she clearly was; if he did not want to go, the mother supported him in that.

   [9]Affidavit of  the Mother sworn 07/08/2013, par 166

3. The mother also allowed the child to read an email sent by the father on 4 May 2012 to the mother.[10]  It was a fairly forcefully worded email, clearly intended for parents’ eyes only.  The father referred to what the mother needed to do to assert her authority in the matter of the child coming to visit his father: 

   You say that you are unwilling to force or punish [the child] to come to me.  Neither physical force nor ‘punishment’ is necessary.  You only need to say that he has to go to Dads and provide no alternative.  You can go away for the night or weekend and tell him that there will be no one at your house and that dad will pick him up from school.  If he refuses to go to school, he shouldn’t get fed, he shouldn’t watch TV and he shouldn’t get computer time.  I have heard you say in the past that withdrawal of privileges is a punishment and so it is in a rough sense, but if you are unwilling to do this then you have no control at all and [the child] is completely in charge.  Giving this kind of control to a 10 year old is damaging.

   [10]Affidavit of the Mother sworn 07/08/2013, Exhibit ‘G’

4. I consider that the mother allowing the child to read this email was a disgraceful breach of parental responsibility and manipulative of his feelings.  The mother said that the child was standing behind her when she was reading the email on the computer.  She was particularly evasive about what she had done, “I don’t remember showing him the email deliberately.”  I take this evidence to mean that the mother allowed the child to read the email and allowed herself to consider that it had happened accidently.  The mother agreed that she thought the father was extreme and severe in his attitude.  She agreed that the child had become upset when he had read the email and said to the child, “I’m sorry you saw that, dad wants to see you, I’m sorry you saw that email.”  It is hardly surprising that subsequently she had difficulty getting the child to go to see his father.

5. Accordingly by the time the child was told that the father wanted to revert to the July 2012 orders, there was already an atmosphere in the mother’s household that the father was taking a harsh and punitive attitude.  The child doubled his efforts to have control over the visits.

School attendance for the child

1. Between February and August 2013 the child missed part or the whole of a school day on 58 occasions.[11]  The mother denied that she had been advised in writing by the school of that fact.  She conceded that she had received the child’s school report, but denied knowledge of a letter which appeared to be a covering letter, referring to the school report being enclosed.  The mother said simply that she had not looked at his school attendances and did not know there had been so many.

   [11]Exhibit 16

2. Later in her evidence she changed this and said that she had received a handwritten note from the school alerting her to absences and that she had spoken to the child about it.  He explained that he had difficulty getting to school on some days when the mother had already left for work.  On balance, I consider it likely that the mother was well aware of the majority of the child’s failures to attend school and was unconcerned about it, or more likely had been unable to get him to attend on time and sometimes at all.

Communication book

1. The mother ceased using the communication book for the child, although she thought it was a good idea and a useful tool.  Her objection to it was that it had been set up without first reference to her and apparently by Ms G, the child’s step-mother.  There is ample evidence that the mother deeply dislikes Ms G and has been immensely resentful of her leaving “instructive messages” as described by the mother, in that book.  The relationship between the mother and Ms G is a hostile one.

The child U’s illness

1. From about 2009 U, the parties’ middle child, began to talk about living fulltime with his father.  The father suggested a trial of residence on 17 June 2009.  The mother denied receiving any email about that until shown a copy of it[12].  It is a reasonable balanced letter by the father relating to a boy then aged 13.  It is apparent that U continued to express his view about wanting to live with his father fulltime.  The mother did not deny that U did this; she simply said that he did not express the view consistently.

   [12]Exhibit 20

2. In 2010 U developed an eating disorder and had to be hospitalised.  The mother was then, and remains, immensely resentful that she was excluded from the medical consultations and the decision to hospitalise him.  

3. U asked that his mother not be told about it, which put his father in a difficult position.  I asked the mother whether she believed that U had told his father that he did not want his mother to be told about his eating disorder.  She said she did believe it.  When asked why she thought U had made that request, she said she didn’t know and was unable to reach any conclusion about that, except for one issue.  She had become concerned about his weight and had shown him a couple of books that she had bought about anorexia and young boys and that he had become “very angry with her for bringing it up.”  The mother simply brushed aside the suggestion that U may also have been concerned that she would become immensely distressed, worried and angry. 

4. The mother denied that the father had sent her emails about U’s condition and asserted that she had learned of the diagnosis from a third party, a medical practitioner.  Confronted with emails she agreed that she had received some information.[13]

   [13]Exhibit 21, series of emails relating to U’s health

5. The mother considered that the father and his wife contributed to U’s illness with their food regime in the household and their focus on staying thin.  She continues to be understandably upset that U did not want to see her when he was in hospital and that she was not given all of the information, at his request.  When asked whether she thought information should have been given to her, even if U did not want it to be, she answered, “Yes, in the case of such a serious illness.”  It is understandable.  However, it sits directly at odds with the mother’s view that the child H since March 2012 should have complete authority about whether or not he maintained his relationship with his father. 

6. The mother was worried at the time that the father was deliberately aligning U with himself, against her.  She clearly became distraught and did her best to obtain information wherever she could.  She agreed that she may have said it was the father’s responsibility for U being ill.

7. She also agreed that she had said to the father when the child H was refusing to come to visit him that he now he would understand how she had felt when U did not want her to know about his illness.  This reflects badly on the mother and although she said that that had not been “eye for eye”, I do consider there is some retribution involved in the mother’s behaviour with H.

8. When U had chosen to live fulltime with his father, the mother held very strong views about the father’s parental obligation to ensure that U spent time with her[14].  A passage from an email she sent on 6 April 2010 is illuminating:

   This is NOT a power game ...  It is about ensure that [U] does not make decisions which he is too young to make or realise the consequences of.  It is damaging to him in the long term to cut himself off from interaction with me and many other loving relatives on my side who care about him and have a great deal to offer him.  I get the strong feeling that you feel that you and your family are all he needs and that is NOT the case and even if HE thinks that it is not important for him to see my family and me, YOU should be firmly ensuring that he does by supporting and respecting my time with him.  Your attitude should make it clear that you expect he will spend the designated weekends and holiday time with me.  Otherwise your ‘we kept telling [U]……….’ are just bullshit platitudes, covering up a complete lack of commitment to supporting [U’s] relationship with me and my proper involvement in his life.[15]

   At this time U was 14 years of age.

   [14]Exhibit 31

   [15]Exhibit 31

9. The email is an extraordinarily forceful statement by the mother of parenting conduct which is the exact opposite of what she is currently doing with H.  On that occasion at least she was holding the father to a different standard than the one she presently operates by.

Parent’s relationship

1. I do not consider that the mother is ready to participate in any kind of amicable relationship with the father, although she stated “I would like an amicable and functioning relationship”.

2. The father sent an invitation to her for what appears to be a welcoming ceremony for his new daughter N, now three.  The invitation extended to the mother, her husband and the child H from the mother’s household.  The mother’s response was swift and cutting:[16] 

   We have no wish to participate in your charade of friendliness.  Please do not communicate with me regarding anything other than important issues to deal with our children.  [The child H] is spending time with us on Sunday.

   [16]Exhibit 26

3. It seems to me that the father was communicating on important issues to do with the children, that is, the child’s relationship with his new baby sister.  It was also an opportunity to develop a better relationship between the parents, which was responded to in the most discouraging way. 

Mother’s relationship with her husband Mr J

1. The mother and her husband currently live separately.  They separated in January 2012.  Mr J stays in the mother’s house presently on a couple of occasions per week, but it varies.  Reconciliation is apparently a possibility. The mother confided in her current psychologist that she believed that her husband had some features of personality disorder.  The mother told her husband what she thought.  He then saw a psychologist in response to the mother’s view, who reassured him that it was unlikely. 

2. The mother conceded that the child had been sad when she and Mr J separated, although she had not been so much since the decision was mutual.  Several weeks later the child announced that he no longer wanted to spend any time with his father.  There is a real possibility that the child was looking after his mother by choosing to live fulltime with her and cutting off his father.  The child told Dr K that he was worried when Mr J, the mother’s husband, moved out.

3. Mr J has not been a member of the household for more than a year and acknowledged he no longer is part of day to day interactions.  Mr J was clear to say that when he was a fulltime member of the household, his wife had made consistent comments of support and encouragement to the child about spending time with his father after March 2012.  Prior to that date, in his view the child had willingly gone around to see his father.  He described the child as “difficult to get an opinion out of until then.”  I take that to mean that the child did not say much at all about his father or his father’s family until after March 2012.  

The end to equal time

1. In March 2012, the child told his mother he felt unloved and stressed out in his father’s household.  She did not take the opportunity to reassure him of his father’s love or to contact the father. She simply told him to talk to his father about it.  

2. Since then the child has been caught in a power play between his parents and has become a player himself.  He is increasingly insisting on having his own way.  I accept the advice of Dr K that there are very real risks for the child’s character development and mental health in continuing to be supported by his mother in having “the freedom to live where he wants and to see his father as often as he wanted”.

Mother’s relationship with Ms C

1. The mother consulted Ms C for 10 years.  Her evidence is that she did not seek a diagnosis from Ms C; that Ms C said very little to her, but mostly asked questions which prompted her responses.  Certainly the mother denies that Ms C ever raised with her the possibility that she had a personality disorder to any extent.  That may be the case.  It is however difficult to understand how the mother could be in a therapeutic relationship with the same psychologist for 10 years, without seeking a diagnosis and goal for therapy.

2. The single expert Dr K, expressed the following view:[17]

   The mother has engaged in long standing insight-orientated therapy, and this has likely provided some benefit in terms of containment of symptoms and pragmatic problem solving at the time, and ongoingly a reduction in anxiety symptoms and cessation of self-harm, but does not appear to have led to a shift in underlying personality dysfunction. 

   [17]Report of Dr K dated 18/02/2013, par 292.4 p 28

3. When the mother was asked whether she accepted Dr K’s opinion, she simply stated that she didn’t accept that she had a personality disorder.  She further agreed that she did not intend to undertake dialectical therapy as recommended by Dr K, because she did not accept his underlying diagnosis of personality disorder.

4. The mother was taken to an entry in Dr K’s report that Y then aged 19 had entered in her diary which was contained in the notes of her therapist.  She referred to listening to her mother as follows:[18]

   …. Not when your mum cries her fucking eyes out, sounds like a kid again, and it’s because of something your dad and stepmum had done with the best intentions.  It makes you feel so confused and conflicted.

   [18]Report of Dr K dated 18/02/2013, par 176, p 15

5. The mother agreed that that could have been a genuine expression of Y’s feelings, but that Y “may have attributed wrong reasons to it” (a reference to the crying).  In my view this was a failure of insight by the mother.  The reasons for her crying were irrelevant; it was the impact on Y that was the issues at hand.  The evidence suggests that the mother has very often become upset, angry, tearful and agitated, which likely made her children wary of raising subjects which would provoke that response.  I consider that the mother does not understand that effect that she has on her children, including H.

6. A compelling example of that appears in Dr K’s report where the child H says this:[19]

   I recall, even when I was a toddler, when it was time to go to dad’s wanting to stay with mum (pause).  I love mum (pause).  I’ve been stressed out at dad’s for quite a while.  Mum was quite upset by dad.  I thought dad ruined mum’s life. 

   I asked what dad had done, to ruin mum’s life.  The child paused, as if to think.  He said, ‘I just know (pause) I used to go to sleep, and mum was crying (pause) I heard things.’  ‘It always feels like he [the father] made her very very sad.  Dad’s the one that destroyed her life.’

   [19]Report of Dr K dated 18/02/2013, pars 146, 147

7. I accept that the child would be burdened by such knowledge.

The child H at school

1. The mother attended the school and complained about the child’s treatment at the hands of his class teacher.  She felt he had been unfairly treated and inappropriately chastised in front of the class.  The child is reported to have said, “School is a torture” and he did not want to go.[20]

   [20]Exhibit 37

2. There were meetings about it and the class teacher kept a record for the first week of term 2 in 2012.  On 2 May 2012 she records that the child was with some other children at the back of her classroom.  The child was talking loudly about “how bad some teachers are and how he didn’t like them.”  Another child tried to stop him staying such things.  However the note goes on, “[The child] didn’t care about my presence and continued to chat about how bad I am.’  The teacher walked away and ignored the situation.[21]

   [21]Exhibit 37, red tag 13

3. The child told Dr K that his teacher was better now, although she had been bad in the past, and offered the explanation that the teacher ‘knew she might get in trouble.’ It is easy to see why.

4. I have no doubt the mother’s intentions were based on her love for her child, but by taking up his battle to this extent, she has put the child in a position of authority over his teacher.  His current teacher Ms D, acknowledged that the child’s behaviour was inappropriate and would usually have been addressed.

1. The child may have the idea that his mother will come to his rescue on every occasion when something is happening that he does not like.  If he does, it would be a realistic assessment of what his mother is prepared to do for him.

Report by school counsellor Ms BB and referral of the child to an independent counsellor

1. This is a matter of considerable significance.  For about two years the child saw a psychologist, Mr W, who also spoke to both his parents.  At the end of 2011 both parents were acknowledging to the school that the child had been under extreme stress for several years for various family reasons.  The school counsellor Ms BB became convinced that it would be important for the child to start afresh with a new therapist who did not consult with his parents. 

2. On 2 April 2012 she called a meeting of the parents at school to discuss a way forward.  The parents agreed on a new therapist with a report to be provided to that end by Ms BB.  However, what emerged during the course of the evidence in this case was that the mother had anticipated such a recommendation at the meeting and had already, on 28 March 2012, obtained a referral from her GP, Dr S to a psychologist, Dr E.

3. At the meeting on 2 April 2012, the mother said nothing about having already obtained a referral.

4. On 5 April 2012 there was an exchange between the parents where the father asked the mother whether the child had a GP appointment and whether the mother would like him to organise one.  The mother’s response was, “I will be organising after [Ms BB] has done her report.”  This was not a candid response as the mother not only had a referral, but also a first appointment date.[22]

   [22]Exhibit 9

5. On 11 April 2012 the mother wrote to Ms BB telling her she had an appointment for the child to see a psychologist Mr E.  She made critical comments about the father’s attitude to the psychologist being completely independent.  There is irony in the fact that on the same day, she wrote to Mr E to give him her version of why the child was being referred to him rather than waiting for the report.  The mother did not provide a copy of those emails to the father or tell him about them.

6. On 20 April 2012 Ms BB emailed her report to the parents.

7. On 23 April the mother and the child attended on Mr E.  The child did not want to speak to Mr E and wondered why he had to talk to anyone.  The mother allowed the child to wait outside while she spoke to Mr E herself for 30 to 40 minutes.

8. On 24 April 2012 the mother sent an email to Ms BB criticising her report and requesting changes before it was provided to Mr E.

9. On 7 May 2012 the mother went to a second meeting with the child and Mr E.  She went in with the child and spent some time talking to Mr E.

10. Ultimately Mr E refused to speak to the father and the father ultimately made a complaint about his refusal to speak to him.

11. The initiative to start the child with an independent counsellor proved to be a complete failure.  The school did not keep control of the process.  The father assumed the process would unfold as discussed.

12. The mother manipulated the process from the beginning.  She did not tell Dr S when she obtained the referral what was waiting for discussion at school.  She did not reveal at the school meeting the referral already obtained.  She did not consult with the father about the psychologist to appoint.  She was not candid with the father about the steps she had taken and the information she had provided to Mr E.  She was not candid with the father about her complaints to Ms BB. 

13. Ultimately Mr E is reported by the mother to have told the child that his father had complained about him.  The outcome for the child could not have been worse.

14. On 5 December 2012 Mr E terminated the counselling as concluded.  However the mother set about having Dr S make an application for further counselling for the child, due to “significant circumstances.”  The mother was unable to point to any significant event that had occurred since 5 December 2012.  She said that his mood was up and down, there was sadness and grief and that further support was needed.  There was nothing in the affidavit of the mother that pointed to any difficulty at that time for the child, quite the reverse.  He spent holiday time with both sides of his family which appeared to be pleasant and unexceptional.

15. The proposition was put to the mother that it suited her for the child to be suffering from anxiety, so that she was relieved of her obligation to ensure he spent time with his father.  I consider there is real substance in that proposition which the mother denied.  Correspondence between the mother, the school, and Mr E in August 2012[23] and between Mr E and Dr S at the end of 2012[24] provide support for this conclusion.

    [23]Exhibit 13

    [24]Exhibits 14 & 15

Mr J, husband of the mother

1. Mr J and the mother are somewhat estranged at this point.  He is living independently and visiting the mother’s home at varying levels consistent with their work obligations.  Mr J impressed as a loyal husband, who is probably hopeful of restoring the marriage.  His tone was flat and sad.  He himself has suffered from severe depression and revealed compassion for his wife.

2. Mr J has not been a regular member of the mother’s household and his evidence about the child’s attendance at school and illnesses is unreliable, only for that reason.  Mr J stated that he shares the view of the mother that the father is a “narcissistic control freak”, but was otherwise polite and restrained in his responses about the father and the other children in the family.

Dr S, the mother’s general practitioner

1. Dr S impressed as somebody with a strong professional relationship, also based in friendship with the mother.  The mother has been consulting Dr S for 23 years since her pregnancy with her first child Y.

2. Dr S holds the view that the mother does not suffer from a personality disorder of any kind and probably has never had such a disorder.  He conceded that the mother’s psychiatrist Dr V, who treated her between 2004 and 2007 when she was severely mentally ill, had consistently sent reports describing the mother as affected by ‘disorder of self.’  Dr S said the term ‘disorder of self’ can apply to many different things.  He said that at that time he understood the term to be a generalisation about disorders of personal relationships and that it would loosely be the generic term for all personality disorders, as well as disorders of interpersonal relationships.

3. He regarded it as a provisional diagnosis for the mother, although that is not what Dr V or Ms C had said in their reports to him.  His view was that when the mother had recovered from the breakdown of her marriage and from her severe mental illness, depression and anxiety that would be the time to look at personality.  I consider this to be a protective response.  However it is nine years since the breakdown of the parties’ marriage.

4. I have no reason to think that Dr S discussed with the mother the diagnoses he had received by way of reports from her other treating practitioners.

5. Dr S agreed that he had been the general practitioner for all three children when the mother was most ill between 2004 and 2007.  In 2004 the children were aged 13, eight and three.  He said he had not seen the need then to ask Dr V to identify exactly what he meant by ‘disorder of self’ in relation to the mother.  He agreed that there could be some adverse effect on the children if she had such a disorder, but he had not seen the need to take it up with Dr V then or now. 

6. I consider that Dr S was defensive of his patient.  I accept that it can be the duty of a medical practitioner to advocate for a patient.  However, I also consider that his unwavering focus has been on the mother and not on the possibility that there could be problems for the children if he was wrong in his own view about the mother’s personality.

7. There is clearly a close and confiding relationship between the mother and her general practitioner, which has no doubt been a benefit.  Dr S supported the mother through the years when she was being monitored by the relevant professional Authority. 

8. I do think that Dr S lost objectivity about his patient.  This is evident in the sequence of events which led to the child having a new counsellor, Mr E, who refused to see the child’s father.  Dr S allowed a negative version of the father to go forward to Mr E.  To be fair to him, he was not advised by the mother about the process which she and the father had agreed on with the school.  This process would have enabled the report prepared by the school to be the source of information for Mr E.  Dr S conceded that he had only received the mother’s side of the story and it had led to a one-sided approach to referral.

9. There has been a serious disadvantage to the child in this having happened.  Dr S had several meetings with the father at the father’s instigation.  He felt that he was being pressured to take a side in an adversarial relationship between the parents.  Understandably he did not want to interfere.  Nevertheless he has been a witness in the mother’s case and has in that sense, taken her side in the parenting dispute.  His evidence was that he did so in the knowledge that there was a psychiatric assessment which suggested that the child should be removed from her care.  It would be most appropriate for the child now to see a different general practitioner, so that the conflict for Dr S between the mother’s interests and the child’s interests is resolved.

Ms D, Assistant Principal at SH School

1. Ms D presented as a committed teacher.  She has been the child’s class teacher in 2013 at the request of the mother.  I formed the impression that she has dealt with the mother for the majority of the time and sometimes the father when he asked for meetings.  This is appropriate in circumstances where the child is spending the majority of time in his mother’s household.  There have been ongoing learning support meetings with each of the parents separately.

2. Ms D was not concerned about the child’s high level of absences from school, on the basis that his mother had communicated informally with her to keep her advised about his progress.  Ms D confirmed that she had instructed the child’s class teacher in 2012 to “go easy on [the child]” on the basis of advice from the school counsellor, Ms BB, that the child was depressed.

3. Ms D resisted the idea that the level of intervention from the mother was unusual, rather it was part of her day to day routine dealing with parents. 

4. In my view the statement by the mother on 14 December 2012 for a meeting about the child’s 2013 class “and a kind teacher, that means you (Ms [D]), as respite from his experience of school in 2012”, was manipulative of the teacher and unhelpful to the child.  Ms D said such term 4 requests were common.  Likewise, Ms D cheerfully said that she received a volume of correspondence from parents, usually by email, which she dealt with in the hour before and after school. 

5. Her concern, which I accept, was that the child was a child who was anxious about going to school.

Ms B, the mother’s present psychologist

1. The mother was referred to Ms B by Dr S, for the reason that she was having a problem in her relationship with her ex-husband and that her son was leaving her household.  These issues being in the context of the mother having suffered major depressive disorder. 

2. Their first meeting was 3 May 2010.  Ms B had not had access to any of the notes the mother’s prior therapist, Ms C.  Her only source of information was the mother herself, other than one telephone call with Ms C.

3. It seems likely that as part of his management of the mother, Dr S arranged for Ms B, not only to deal with the nominated issues, but as a monitoring system in respect of her vulnerability to depression.  I had the impression that there is a good professional relationship between the mother and Ms B, who is supportive of her and not confronting. 

4. Ms B is trained in dialectical therapy and sees patients with personality disorders.  She was clear to say that she did not consider that the mother had any disorder of self for these reasons: 

   People with self-disorders have difficulty in engaging in meaningful relationships and engaging in activities for periods of time.  They drop out of school, may be attracted to a group and conform to the interest in order to be part of the group, for instance basketball.

   In her view the mother has a stable view in relation to her own career, long standing friendships and interests and hobbies she has been able to maintain.

5. Ms B said that the mother told her she had been labelled with a personality disorder by Dr V.  Ms B, in a polite professional way, acknowledged Dr V as a reputable psychiatrist, but was clear to disagree.

Mr E, Senior Clinical Psychologist

1. Mr E began consulting with the child officially on 23 April 2012, although he spoke only briefly to him on that occasion.  Mr E very clearly did not know that the referral to him was part of a plan which originated at the child’s school for him to have an independent psychologist, with the school to provide the initiating report. 

2. Mr E took the view that that is what he had been doing.  On that basis, he consistently refused to speak to the father.  The fact that he has spoken to the mother did not in his own opinion, affect his independence.  It is hard to see why.  All of the information that he obtained as background to the child’s difficulties and reasons for referral came from the mother including the reasons for referral by Dr S.  He certainly did not understand the significance of the report of Ms BB.  It is no criticism of him that he did not.  Unfortunately the process from school miscarried.

3. On 1 July 2013 Mr E obtained an authority from the mother to speak to Mr W and Ms BB.[25]  It was at that stage he appeared to realise that other agendas were operating.

   [25]Exhibit 45

4. Mr E stated that he would not have challenged the child on the factual accuracy of what he told him, nor about his feelings.  Accordingly, in my view, Mr E had an unbalanced view from the beginning, even more unfortunately when the father made a complaint about Mr E’s refusal to speak to him, Mr E told the child about the complaint.  He said the reason he had done that was so that the child would know that the therapy meetings might end unexpectedly.  He volunteered the statement that “it wasn’t to turn him against his dad.”  He said he had considered that telling the boy might damage his relationship with his father, but thought it would be more important for the child to know what might happen. 

5. Further, when Mr E was subpoenaed by the mother to give evidence, he explained to the child that he had received a subpoena and asked him about revealing what had been discussed.  It is hard to understand, given that the child’s views could not be determinative of what Mr E had to do.  I accept however that Mr E was being candid with his 11 year old patient.

6. The child was discharged from therapy on 5 December 2012 by Mr E.  He then received information from the mother to the effect that the child continued to be extremely distressed, isolated from friends, felt excluded from activities and distressed about going to his father.  Two weeks after discharge, Mr E contacted Dr S to ask for authority for further sessions in special circumstances. 

7. It seems clear that for Mr E, the child’s major problem was the poor relationship between himself and his father.  The history of mental illness, psychological distress and sadness that has plagued this family since at least 2004 was not known to him.  When asked whether he knew about the mother’s serious illness and suicide attempt in 2004, he said “vaguely”.

8. Unfortunately Mr E asked the child whether he wanted him to meet with his father and the child is reported to have said, “No I would prefer not.”  There was no question of the child being asked whether he wanted Mr E to meet with his mother, because she had met with Mr E from the beginning.  It seems likely that the child simply tolerated the process and saw it as something that his mother wanted him to do.

The father, Mr Dysart

1. The father is a health professional, self employed in a specialised field and a senior lecturer at a university.

2. As a witness he was intensely focused and careful to the point of pedantry with his answers.  At times he appeared analytical and quite cold.  At other times, distressed, tearful and anxious.  On many occasions he appeared to start his answers laughing, but I came to the conclusion that this was a nervous response beyond his control.

3. I have no doubt that the father loves the child and is concerned about his present state of psychological health.  This is the youngest child of his first marriage. 

Conduct of the father

1. The father felt quite understandably that he was excluded from the therapeutic relationship between the child and Mr E, he was.  To the extent that the father thought that that process had been high-jacked by the mother, I agree with him.  Three months after the therapy began the mother filed her Initiating Application.

2. The father responded and quickly became intensely focused on resolving the dispute.  He did several things which brought me to this conclusion:

   (a)On 16 June 2012 the father sent an email to many members of the mother’s family referring to the Court case.  It frankly disclosed the opinion of a close friend of the mother, a clinical psychologist, that the mother may have borderline personality disorder.  It appears to have been an attempt to get them to persuade the mother to negotiate rather than litigate.  If so it was a fairly brutal method.

   (b)In 2013 the father initiated three meetings with the child’s GP Dr S, on the basis of an urgent meeting about the child’s health.  The child did not attend on any occasion.  The father had known since 2012 that Dr S was a proposed witness for the mother in these proceedings.

3. The proposition was put to the father that he had had those meetings with Dr S with an improper purpose in mind, that is, to persuade Dr S about the evidence to give. I do not consider that the father had the intention to interfere with evidence in that way.

Meeting 5 February 2013

1. In the first meeting the father produced a copy of a letter from Ms C to Dr S from 2004/2005.  The father apparently said the reference in the letter to ‘disorder of self’ with reference to the mother meant that she was an unsafe parent.  It is hard to understand, given that Dr S has been the mother’s general practitioner for 23 years, why the father believed that Dr S would take a different view based on the father’s opinions of a report the doctor had long known about.

Meeting 5 May 2013

1. In the second meeting the father registered his unhappiness with the referral of the child by Dr S to Mr E.  The father and his wife brought a textbook on personality disorders and gave it to Dr S.

Meeting 3 July 2013

1. In the third meeting the father revealed in an artificially hypothetical way that there was a recommendation in the report of the single expert that the child be removed from his mother’s care and time with his mother to be restricted.  He referred to the mother having a borderline personality disorder.  The reference although very carefully made, was hardly appropriate.

2. Dr S was apparently unmoved by the father’s arguments for him to take a different view about his patients and was unimpressed with the attempts.  I consider that the father was attempting to convince Dr S that his patient the child was more at risk in the sole care of the mother than Dr S understood.

Father’s change of approach

1. It was forcefully put to the father by counsel for the mother that the three children had spent equal time with both parents after separation, that the orders in 2007 were by consent and that an order in 2012 for the child to live with his mother without enforcement of the orders for time with his father, were all reflections of the father’s belief that the mother must be a good enough parent.  There is considerable substance in that proposition.

1. There are signs that the child was ready to restore his relationship with his father’s household in January 2013 and the child continued to be affectionate in the first half of that year towards his step-mother. 

2. I consider that Ms G did not really do herself credit in the witness box, perhaps because she was highly anxious herself during the hearing.  The fact that she now has two very young children in the household has obviously been an additional layer of complexity.  She clearly has felt protective to the little ones when tensions have broken out for U.  She knew he was buying razor blades and about some of his self-harming behaviours with them.  However I am persuaded that Ms G does have a genuine commitment to the child H and that she loves him independently of her wish to support her husband in his plan for the child’s care.

3. Ms G gave oral evidence that she is currently taking anti-depressants and has been since 2011.  She intends to continue to take them and to see a psychologist for assistance “until the stressors of the family have reduced.”  I consider that Ms G should have been more open in her affidavit about some fragility in her own mental health.  I note her statement that there was “a lot of discussion about what to put in about my mental health.”  However I do not consider that it was deceptive conduct at all, rather self-protective and protective of her new baby and three year old child, who constantly need her attention and have done so through the course of the preparations for these proceedings.

4. Dr K strongly advised that there be a change of residence, only if I was satisfied that the child had a good relationship with his father and step-mother with which he could reconnect.  His view was that there had been such a relationship and that it was presently disrupted.  I share that view.  My impression is that Ms G played down the strength of her love and affection for the child in an attempt not to be competitive with the mother, which is to her credit.

Dr K, Single Expert

1. Dr K provided a detailed, thorough, comprehensible report which was of immense assistance in understanding the dynamics in this family.  His oral evidence was equally helpful.

2. Having read all of the affidavit material, Dr K varied his opinion to some extent in relation to the mother’s mental health and personality.  He was particularly swayed by what the mother’s GP and present psychologist had to say and her employer, Mr P.  The doctor concluded that the mother might not have a borderline personality disorder, but he continued to have significant confidence that she had borderline personality traits.  This conclusion by Dr K is a positive one for the child.  It suggests that the mother functions quite well in employment and in certain relationships.  However Dr K did not step away to any extent from his view that the mother’s personality and inability to recognise her own contribution to emotional problems for the children, was a risk to the child’s proper development and a threat to his own personality.

3. Dr K’s view is that the mother presents to her current therapist, Ms B, “her most positive self.”  There is certainly a strong incentive for the mother to have done that.  She has clearly lived with an abiding resentment that her role as mother was reduced by the equal time arrangement after separation and an abiding resentment that the father’s new wife had taken up a significant role with her children.  I have no doubt that she feared losing even that reduced role.

4. There was also the matter of her employment and the road to recovery from being an impaired professional under review by the professional Authority, back to privacy and the ability to work fulltime.  I consider that the mother has been powerfully supported and well supervised by Dr S, her GP for 23 years. 

5. Dr K explained that his view was that the father was patient and reasonable, although sometimes “a bit preachy and intrusive.”  In the event that the evidence presented a different picture, that is that the father had a view of himself as superior to the mother, wiser and more emotionally balanced, that he was “puffing himself up and was a narcissistic fellow”, then residence for the child with him would be ill advised. 

6. I have not come to that conclusion about the father and I accept the submissions of his counsel that his ambivalence over the last 18 months about whether to press forward is a sign of some self-doubt and compassion, both for the child and the mother.  That is inconsistent with the “narcissistic control freak label” that the mother and her husband attribute to the father.

7. Dr K rejected the idea that the parents were simply at each end of the parenting spectrum.  He said that the mother is emotionally intrusive and that unless the Court found that the relationship between the child and his father was a barren one in a cold home where there was only work and restriction for the children; that the child would do better in his father’s household.  I do not consider that the father’s household falls into that category.  Certainly there are rules and restrictions, consequences and careful management, but there is a great deal of love, affection and fun.

8. Dr K was very clear to say that if the child was to go to live with his father, the orders had to be both clear and “bigger than [the child].” Consequences had to be delivered immediately as a discouragement to the child flouting the rules. 

9. Dr K was equally clear that if the child remains in the household with his mother, one consequence will be that he would be unlikely to maintain a good relationship with his father.  Another would be that he would increasingly lack resilience and a third would be that he would continue to develop unpleasant aspects to his personality where he both expected to get his own way and to be saved from situations that were stressful for him. 

10. Dr K’s view is that in terms of fearfulness, the child needs to “lean towards the heat” and not be saved from his fears in the way that the mother is inclined to do.  Dr K pointed particularly to the way the child relished the knowledge that his teacher in 2012:

    Got into trouble for disciplining him; that he had the teacher of his and his mother’s choice this year and children that he couldn’t get on with were eliminated at school. 

11. I accept that the improvement this year for the child is probably a result of micro-management of his situation so that nothing upsets him.  I note Dr K’s statement:

    Parenting is a contribution to the raising of the child, not just choosing what the child wants.

12. Dr K described the mother as creating alliances against a common enemy as an aspect of her personality.  Unfortunately the common enemy is the father and the alliances have been with teachers and the child himself.  I accept that it is a matter for concern that in June 2013, the child manipulated the arrangements for him to visit his little sister for her birthday to an unacceptable extent, constantly changing the time and place for the meeting in a way that would not be tolerated by any reasonable person.

13. I accept the submission by the Independent Children’s Lawyer and on behalf of the father that the child’s childhood needs to be protected; that now is not the time for him to be concerned about the welfare of his mother or to be putting her or any other adult’s interests ahead of his own.  He should just be experiencing his life.  He should also be guided by parents making decisions in his interests, not constantly consulting him and delivering his stated wishes.

14. I raised with Dr K my concern that in July 2012 the father had allowed the child to think that he would be permitted to stay with his mother in order for the child to think better of him (the father). 

15. I accept the advice of Dr K that if I consider the father is not ready to take on the care of the child fulltime and enforce the orders with absolute strictness that it should not happen at all and that a botched attempt would be worse than no change.  I accept the submission on behalf of the father that since he filed his response in these proceedings, he has not waivered and has not weakened in order to please his son.

The law

1. These are applications for parenting orders pursuant to s 64B(2).  In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration.  The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3). 

2. Each parent seeks sole parental responsibility.  It is unrealistic to expect these parents to consult, discuss and compromise on long term decisions for the child. Whoever the child lives with should have such responsibility.

3. The immediate decision is where the child should go to high school.  There is no basis for a decision by me on that subject.  The parents’ views are known to each other already.

4. I take into account the following matters in coming to a decision about the best interests of the child.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of his parents

1. The child has his most important relationships with his parents and his step-mother.  The relationship between the child and his mother is a loving one.  His mother struggles to assert parental authority and very often indulges the child’s wishes at the expense of his healthy development.  

2. The relationship between the child with his father and step mother is also a loving one.  It is strained and under pressure.  

3. The expert evidence suggests it will be detrimental to the child if he is able to prevail and control events in his own life.  Paradoxically less time with his mother is more likely to preserve their relationship into the future.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm or exposed to abuse or family violence

1. There is a need to protect the child from psychological abuse unintentionally inflicted.  

2. The personality of the mother is assessed by the single expert to be having a detrimental impact on the healthy development of the child as he moves into adolescence.  He has been given control over matters that he lacks maturity to decide about.  He is somewhat parentified and burdened by the mother’s sadness.  He feels responsible for her and is taking on her perceived view that the father has ruined his mother’s life.

Section 60CC(3)(a) - any views expressed by the child and the weight it should give to the child’s views

1. The child is expressing a strong wish to live with his mother and to spend time with his father, step-mother, brother and little sisters at times directed by him.

2. The child is a 12 year old boy starting high school next year.  He is intelligent and thoughtful.  He is not mature enough to understand that taking his mother’s side and looking after her emotionally is not what he should be doing.  

3. I give weight to the child’s expressed views that he wants a relationship with both parents, but not to his insistence on his own control over events

Section 60CC(3)(b) - the  nature of the relationship of the child with each of their parents and other persons

1. The child lived in a shared care equal time arrangement from age three to 10.  He has reacted to the actions of his elder brother and sister who ceased cooperating with equal time in their teens, both choosing at least initially to live mainly with their father. The child made his decision at 10 and his mother has strongly supported his increasing reluctance to spend any time in the other household.

Section 60 CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship

1. The mother encouraged continuing relationships for the three children, but was resentful and hurt by losing the role of primary carer which she had enjoyed during the marriage.  She was particularly offended by the way the father’s wife treated the children, imposing strict discipline with well-defined consequences.  The mother most likely felt undermined and disrespected in her role as mother.

2. After U moved to live with his father and especially because the mother was deliberately excluded from the treatment of his eating disorder, her ability to support relationships in the other household diminished.  She is now paying lip service to the importance of the child’s relationship with his father but in reality is not supporting it at all.

3. The father was unhappy with the equal time arrangement regarding it as the best available compromise.  I infer that his preference after separation would also have been for the three children to live with him.

4. The father supported Y moving back to live with her mother when she started University.  He permitted U to spend less time with his mother from age 15, in particular circumstances of U’s ill health and recovery.

5. I am satisfied that the father understands the value of the child maintaining his relationship with his mother and the warmth and support she unfailingly provides.

Section 60 CC(3)(d)  - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents; or any other child or relevant person

1. A change to fulltime residence with his father is likely to be intensely upsetting for the child, at least initially.  Dr K predicts that he will test to the fullest extent the resolve of his father and step-mother to abide by such a change.  I agree.

2. However the benefit for the child is that he will literally be relieved psychologically by such a change.  If the orders are “bigger than him”, to use the words of Dr K, he is likely to settle, accept the change and draw the benefit over the next four years of a structured and orderly life where parental decisions are made for him not by him.

Section 60 CC(3)(e) - the practical difficulty and expense of the child spending time and communicating with a parent on a regular basis

1. There is no impeding expense to a change of residence.  There may be practical difficulties in compliance.  The child may run away or otherwise defy what he is directed to do.

2. Accordingly orders need to be such as to obviate the need for enforcement applications, as well as providing the strong measure of a Recovery Order.

Section 60 CC(3)(f) - the capacity of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

1. Both parents have the capacity to meet the child’s immediate needs.  The ability of the mother to meet his emotional needs to accept direction and become resilient is impaired by her own need to nurture him and protect him from all that could possibly upset or worry him.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child and the parents that the Court thinks are relevant

1. The child is a 12 year old boy, the youngest of three.  His parents and his step-mother are intelligent, sensitive, well educated people, who want the best for him.

2. All three of those adults, his step-father, and both his older siblings have suffered from depression and anxiety to a greater or lesser degree.  There is enormous emotional intensity and significant sadness all through his family.

Section 60CC (3)(i) - the attitude to the child and to the responsibility demonstrated by each of the parents

1. Both parents are hoping for a good outcome for the child and are willing to take responsibility for his care.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings

1. If things stay the way they are, the child is likely to have little contact with his father.  

2. The risk identified by Dr K is that the child may not be able to cope with being questioned or crossed by his father at all so that he cannot reconnect with him as a young adult.  Further there is a risk that the mother would be dependent on the child restricting his ability to individuate and become increasingly independent as he should.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. I am satisfied that there is a dysfunctional element in the mother’s household, such that relationships for the child have become fractured within his family and inappropriate at school.  She has become his champion and they have united against “common enemies” including the father his wife and teachers at his school.

2. I am also satisfied that there are traits in the mother’s personality that have at least contributed to the present situation for the child.  I accept that the mother may have a borderline personality disorder, although that has been somewhat discounted by Dr K on the basis of her high functioning in employment and for other reasons.  It has certainly been raised as a diagnosis by two treating practitioners in the past.  The label, or diagnosis, is far less significant than the evidence of potential risk to healthy development living entirely or mostly in the care of the mother.

Conclusion

1. For the Reasons stated above, orders are made for sole parental responsibility to the father and residence with him.  There will be a short period of time to allow the child to adjust to the very different arrangements for his care before time and communication with his mother is restored and increased.

2. Orders have been made with incentives for compliance built in.  I accept the expert evidence that enforcement applications would be unusually adverse to the child in transition between the households.

I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9October 2013.

Associate: 

Date:  9 October 2013