Lachlan and Lachlan

[2009] FamCA 520

FAMILY COURT OF AUSTRALIA

LACHLAN & LACHLAN [2009] FamCA 520

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Lachlan

RESPONDENT: Mr Lachlan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYF 3137 of 2006

DATE DELIVERED: 19 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE:

2 March 2009 &

26 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

1. On the application of the mother and by consent, Orders 3, 4, 6, 7, 8, 9 and 10 of the orders made by me Justice Le Poer Trench on 25 June 2008 be discharged.

2. The Independent Children's Lawyer is to use her best endeavours to meet with the child and explain the orders made today and reasons for same.

3. All outstanding applications in relation to parenting be dismissed.

4. The Court notes all matters in relation to parenting are now concluded.

5. The docket Registrar is to ascertain from the mother what else remains outstanding in relation to financial matters and advise me. Upon receipt of that advice I propose to make directions in relation to the outstanding financial matters.

6. The Court notes the Family Consultant, Mr G, has made himself available to meet with the mother and discuss the implications of the orders made today.

7. The Court notes Mr G’s invitation has also been extended to the father.

IT IS NOTED that publication of this judgment under the pseudonym Lachlan & Lachlan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3137 of 2006

MS LACHLAN

Applicant

And

MR LACHLAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the Court is an Application filed by the mother 11 November 2008 in the Federal Magistrates Court and a Response filed by the father on 16 January 2009 in the Family Court relating to children’s matters and property matters. In relation to the children’s matter the only child the subject of the proceedings is the parties’ son born in September 1995 (13).

2. On 25 June 2008 I made orders following a lengthy hearing which dealt with both children’s and property issues. In relation to the child I made an order that the father have sole parental responsibility and that the child live with his father. I made orders for the child to spend time with his mother.

3. The applications filed by the mother principally complain that she has not been able to exercise the time provided for under the Orders made 25 June 2008 with the child.

4. Since the judgment handed down on 25 June 2008 the child has continued to be directly involved in the disputes between his parents. His behaviour has become very worrying given his age and further reports about his words and actions that have come from letters he has written to the Court, conversations he has had with the Family Consultant and other communication with his father and other relevant people.

5. The matter came before me on 23 January 2009. On that day I made orders, inter alia, “that the father deliver the child […] to the Child Dispute Section on Level 2 of the Family Court of Australia at 9.30am on 27 January 2009 for the purposes of [the child] meeting with Mr [G] the Family Consultant”. I further directed that the matter be listed before the Judicial Registrar on 27 January 2009. The reason for the listing before the Judicial Registrar was that I was commencing a three week period of leave on the evening of 23 January 2009 and the matter required some urgent determinations.

6. The father failed to comply with the order to have the child brought to the Court to see Mr G. Further evidence given by the father in Court contained his assertion that he was either unable or unwilling to force the child to attend the court as required by the order. He indicated that the child had said he did not wish to attend at Court.

7. That failing on the part of the father gave rise to the issue of a warrant by the Judicial Registrar on 27 January 2009. The child was collected by police from his school and brought to interview with Mr G. I will refer to the outcome of that interview with Mr G shortly.

8. The matter was before me again on 20 February 2009 and following further representations Mr G rescheduled an appointment for the child to meet with him out of school hours. The father had again indicated that the child was unwilling to attend to meet with Mr G and by implication the father was advising the Court that he was either unwilling or unable to arrange for the child to attend at the Court. On 20 February 2009 I made an order that the father ensure that the child attend the appointment with Mr G. On 22 February 2009 Mr G received a letter apparently signed by the child in which the following appears:

   “I can only come to see you on the 5^th of March after school. My dad said I should see you before the court case on the 2^nd of March. If you can send the police to pick me up then I can come on the 22^nd of February (Thursday). I can only come for half an hour at 4.30 only as I have lots of homework.

   This is the last time I’m coming to court. I do not want Karen Shea or my mum to be there at all before, in or after the meeting. I will not go with mum after the meeting. You can only use the things I say as evidence if the judge is there at the meeting like before. You can’t give my parents any information about the meeting. I will bring a support person so the meeting is not misinterpreted or I’m forced to do something I don’t want to do. I’m not going to go to the psychologist Ms [S] or any other psychologist especially Dr Smellings].

   These are the conditions on me coming to the meeting with you. Please reply with answer immediately.”

9. Thereafter the child did meet with Mr G and he did have a “support person” with him.

10. On 29 January 2009 a letter was received by my Associate purportedly signed by the child. As part of that letter, the following appears:

    “I agree that I love my mum and missed her but I want her to get treatment or show me that she has changed. I am angry with Karen Shea because she forced me to come to court and forced me to see my mum. I don’t tell Karen Shea anything so don’t believe what she says. I have already fired her and she is mum’s solicitor not mine.”

11. In the same letter the following appears:

    “Dr Smellings said I’m not mature and I should live with my mum. He said dad is mad. He does not know how to write a report with Microsoft word that automatically corrects spelling and grammar even though he teaches at university.”

12. This last quote evidences a high level of disrespect and arrogance by the child. He well knows that the name of the relevant psychologist is Dr L. It also evidences that the father has either shown to or discussed with the child Dr L’s report.

13. The last paragraph of the letter includes the following:

    “I am giving my dad a copy of this letter. I don’t want you to show this letter to anyone. Listen to what they are saying I told them and compare it with what I have written here. If they are lying then put them in gaol. I will give dad some secret evidence to give you. I won’t obey orders if it puts me in danger. If the police take me again to court I am more afraid of mum than them. I am only a child and cannot fix this problem. Even time I am being manipulated to come to court someone makes up stories and my dad has to go to court. It is not my dad who is manipulating me. This is why I am writing to you. I have asked dad to fax you a copy as well.”

14. The copy of the letter above referred to was received by the Court by facsimile. I have no doubt that the letter was provided to the father who faxed it to the Court.

15. On 2 March 2009 there was a further hearing in this matter before me. Mr G gave oral evidence. He asked me to look at the letter he had received from the child which I have referred to earlier in these reasons. He said that the tone of the letter really coloured the interview he had with the child on 26 February 2009. He said that the child brought with him a support person. Mr G said that the child was emotionally comfortable during the session. He had never sought or relied on a support person before and in Mr G’s opinion, a support person was not necessary. Mr G concluded from the information provided that the support person was there for the single purpose of being able to corroborate evidence for the purpose of the Court case. The child blocked all questions about his relationship with his father. He was more open in relation to topics such as his schooling. Mr G explored the topic of friendships with the child. The child told him that he doesn’t like the idea of having a best friend. His words in explaining why he did not want a best friend were summarised by Mr G as “if you have a strong relationship with one person, you are likely to have a problematic relationship with another person.”

16. Mr G asked the mother to bring certain items which the child had requested. These were provided to the child as the child had set a precondition to seeing his mother that he recover the items. The mother also provided a present and a card. The child blocked any conversations about his own feelings and thoughts. Mr G said that he reacted in a way consistent with a child who has been through an alienation process which, in Mr G’s view, the child clearly has.

17. Mr G had met with the mother and extracted from her undertakings about her not talking to the child about his relationship with his father or his father at all or any aspect of the Court proceedings. Mr G then put to the child that all his conditions which he had set for seeing his mother had been met and that in those circumstances, did he not feel that it was time to be able to see his mother again. The child replied, “Yes, but she’s got to see a psychiatrist, she’s got to get herself sorted out.” Mr G concluded that the conditions which the child has set as preconditions for seeing his mother will never be satisfied. This is because, he says, the child’s goals mirror those of his father and are in reality his father’s goals, which is to win the game. It is to punish the mother. Mr G said that he did not think the child was a willing party to that plan but concluded that he is so wrapped up in the plan that he cannot escape it. He has lived for so long with that type of strategic relationship that he probably knows no other. When the child perceives that others are not on his side it turns into a rather strategic game. Mr G pointed to the letter that had been delivered to him and that part which said, “I’ll come on the 26^th if the police come out”. He said that this is not the sign of a child who is particularly distressed by that prospect. In the middle of the interview, quite suddenly and unexpectedly, the child started “flooding and talking about how embarrassing and how humiliating it was.” Mr G said it struck him that even his own emotional state is used strategically. He said, “I mean these tears went on and off like a tap so he went through a list of demands.”

18. Mr G told me that the child had demonstrated a sort of pseudo adulthood. As a consequence, Mr G reminded the child that he was thirteen and it was not his decision whether his parents see psychiatrists or not.

19. Emotionally the child can appear like a seven, eight or nine year old. But on the other hand, his interactions have pseudo maturity and pseudo adulthood about them. Mr G said the child did not like being reminded that the decision was not his.

20. Mr G told me that in his opinion, this is a case of extreme alignment. All three players, including the child, have some degree of pathology. It is the child who is particularly vulnerable.

21. Mr G reported that as he gave the goods which the mother had provided for him, together with the present and the card, the father was present and he said to the child words to the effect “You don’t need these” or “What do you need these for?”

22. Mr G took the father aside to point out that comments like that would colour the present for the child and that he should not say things like that to the child. The father’s response was, “That will only be discussed in Court.”

23. When asked, Mr G said that he was as sure as he could be that the father has systematically aligned the child with himself in the battle he is having with the mother.

24. Other discussion took place with Mr G and he gave further evidence relating to the options that might realistically be available to the Court to make orders in relation to the child. The clear impact of Mr G’s evidence is that it would, on balance, be unsatisfactory to remove the child from his father’s care in the absence of some real and committed agreement by the child to cooperate with and comply with the will of the Court.

25. On 26 March 2009 Mr G gave further evidence. He told me that if the child remains with his father there will be three negative outcomes: (1) his perception of relationships will be distorted; (2) his understanding of moral truth will be distorted; and (3) he will have an emotionally impoverished life. These three outcomes are based on the assumption that the child will spend no time with his mother. Mr G said that it is most unlikely that the father will encourage a relationship between the child and his mother because the father’s purpose is to defeat the mother absolutely.

26. The option of removing the requirements for the child to spend any time with his mother and to end the Court proceedings would have some positive outcomes: (1) it would remove an opportunity for the child to be manipulated further by his father for the purposes of the Court proceedings; (2) it would eliminate the necessity for the child to behave strategically in the way described by Mr G; and (3) it would allow him to focus on his schooling and interaction with his school which would potentially bring him into contact with some social normality.

27. If the Court was to order the child to live with his mother, then potentially the benefits would be: (1) a more normal emotional environment; (2) the mother is more likely to allow the child to spend time with his father; and (3) she is more likely to encourage and allow him to have friends. Mr G agreed that it would be most unlikely that the child would stay with his mother. Mr G said that if the child were with his mother then he could engage in intensive psychotherapy which is what he desperately needs.

28. Submissions were made by each of the Independent Children's Lawyer and the mother and the father. The father also gave further evidence. In his evidence, which itself was emotive in that he was reduced to tears on occasions, the father told me that the child was a pseudo adult and this was caused by the fact of his intelligence and his involvement in the selective school process in Australia. He said that the child’s school friends, who were of like intelligence, had the same pseudo adult aspect to them and their relationships were different to the types of relationships that you could expect to see in children who weren’t blessed with high intelligence. As an example of the child’s pseudo adult life, the father told me that the child had given $3000 to charities last year. When I enquired where he had obtained $3000, the father said, “He has the child support money.” It then evolved that the father had advised the child that he did not need or want any child support from the mother and had arranged for the child to give all the child support money to charity. I was alarmed by that evidence as indeed was Mr G. The father did not seem to understand at all why there would be any adverse reaction to the evidence. I pointed out that his actions were to give the child a clear and unequivocal message that none of the money provided by his mother for child support was to be used to provide support for the child and that the only purpose for that money was to give it charity. I then invited the father to advise the mother forthwith that there was no requirement for her to pay child support and that the child support assessment was to be discharged. His response to that was words to the effect, “[the child] has said that when his mother has received psychiatric therapy then he will stop the child support.”

29. The impact of the father’s evidence as above referred to was stunning. All the participants in the Court, with the exception of the father, immediately understood the gravity of the situation for the child, the intensity of the father’s resolve and the incapacity of the father to comprehend the adverse and damaging aspect of his parenting on the child. The mother immediately submitted that the order for the child to spend time with her should be discharged. She also submitted that the order for the child to live with the father should be discharged. That submission was supported by the Independent Children's Lawyer and by Mr G. The father did not oppose that submission. As a consequence of those two orders being considered for discharge the Independent Children's Lawyer also sought that other consequential orders be discharged.

30. The mother sought that the order for sole parental responsibility should be discharged and thereby have the provisions of the Family Law Act apply; namely, that parental responsibility would vest equally on a shared basis between the mother and the father. That submission was opposed by the father.

31. All parties requested that the proceedings conclude by submission with no further evidence and the determination be made by the Court based on the evidence before it at this time.

32. Given that I delivered a very extensive judgment in June 2008, I do not repeat all of the matters which s 60CC require but incorporate into these reasons those findings and those conclusions. I also incorporate all the other reasons delivered on that day.

33. This is a case where the Court is quite powerless to make orders which are genuinely in the best interests of the child. The orders which the child actually requires probably are orders which require that he be removed from the parenting of each of his parents for some considerable time and only spend time with each of them in supervised circumstances. It is quite impossible to make such an order because the Court has no power to do so at this time and the Court faces the reality that the Department of Community Services in this state, which has the capacity to seek orders under state legislation for the removal of children, would not consider doing so in this case given their other work commitments and the desperate plight of other children whose welfare is far more perilous than that seen in this child. The reality is that the child’s physical needs are provided for well by his father. It is his emotional needs which are not provided for at all well and are being actively damaged by the father.

34. To continue the proceedings would, in my view, simply exacerbate the child’s damage. The only hope for the child is that if the Court proceedings finish and the father concludes that he has had an absolute victory in his battle with the mother then he may soften his attitude and allow the child to have some independent development free from the inculcation by the father of his hatred for the mother. It is also hoped that one day the child will come to realise that he has in fact been used as a pawn by his father in the strategic game of life which the father is engaged in. A pawn whose future is of no value and which is quickly sacrificed to achieve the end that the father has in mind.

35. The mother’s application for the sole parental responsibility order to be discharged would not, in my view, assist the child. In times of medical crisis it may be important for consent to be given for medical procedures and lack of clarity as to capacity to give that consent would not be in the child’s best interests. Further, other important aspects of child’s life may be subjected to conflict between his parents if consultation is required in relation to same. Quite clearly, the parents have no real capacity to consult, let alone agree about aspects of the future welfare of their son. It is with those matters in mind that I would refuse the wife’s application in that regard.

1. I propose therefore to discharge Orders 3, 4, 6, 7, 8, 9 and 10 of the Orders made by the Court on 25 June 2008. I do so on the application of the mother. I otherwise refuse the mother’s application to discharge the sole parental responsibility order. I order that the Independent Children's Lawyer use her best endeavours to meet with the child to explain the orders made by the Court today and the reasons for same.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  19 June 2009