LADAS & LADAS

[2020] FCCA 970

FEDERAL CIRCUIT COURT OF AUSTRALIA

LADAS & LADAS [2020] FCCA 970

Catchwords:
FAMILY LAW – Interim parenting – where children are refusing and resisting contact with one parent where reportable intensive family therapy took place – examination of the expert evidence – where one parent is highly anxious – where interim orders are made for the younger children to spend time with the father – where parents are asked to consider the long term implications on the children of their actions.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA.

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR LADAS

Respondent: MS LADAS

File Number: PAC 1381 of 2018

Judgment of: Judge Altobelli

Hearing date: 31 March 2020

Date of Last Submission: 31 March 2020

Delivered at: Wollongong

Delivered on: 6 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Maven Lawyers

Solicitors for the Respondent: Rossi Simicic Lawyers

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS PENDING FURTHER ORDER

1. The Children, X (born in 2003), Y (born in 2005) and Z (born in 2006) spend time with the Father in accordance with their wishes and the Mother shall do all things necessary to facilitate such time that is so requested.

2. The Children, W born in 2009) and V (born in 2012) (‘the Children’) spend time with the Father as follows and the Mother shall do all things necessary to facilitate this time:

   (a)Commencing from the second Saturday after the making of these Orders, each alternate Saturday from 10:00am until 4:00pm.

   (b)On Father’s Day from 10:00am until 4:00pm.

3. For the purpose of changeover the Mother or her nominee shall deliver the Children to Suburb A McDonald’s at the commencement of each period of time with the Father and the Father or his nominee shall return the Children to the Mother at Suburb A McDonald’s at the conclusion of each period of time.

4. Both parties be restrained from:

   (a)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so; and

   (b)Showing or allowing the Children to see, any documents relating to these proceedings.

FURTHER ORDERS:

1. The matter be stood over to the 4 day Final Hearing commencing on 7 December 2020 at 10:00am.

2. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

3. Both parties file and serve any Amended Application and/or Response upon which they intend to rely by no later than 4:00pm on 26 October 2020.

4. Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s Affidavits by no later than 4:00pm on 26 October 2020.

5. Neither party may rely on any documents filed after 26 October 2020 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

6. The Independent Children’s Lawyer is granted photocopy access to all material produced on subpoena in the proceedings including any documents produced by any Local Court and marked as a subpoena packet for the purpose of preparing a tender bundle. The Independent Children’s Lawyer shall by no later than 14 days prior to the commencement of the Hearing liaise with the parties legal representatives as to the content of the bundle with a view to the tender bundle being provided to the Registry, placed on the court file, and tendered on the first day of the Hearing for use during the Hearing, NOTING THAT any copies of the completed bundle made prior to the Hearing must remain in the possession of the parties’ legal representatives and the Independent Children’s Lawyer only, and FURTHER NOTING THAT if a party becomes self-represented that party may view a copy of the tender bundle at the Wollongong Registry in the subpoena viewing room.

7. The Applicant and Respondent file and serve a Case Outline document by no later than 4:00pm on 23 November 2020, setting out:

   (a)a list of documents to be read in their case; precise Minute of Orders Sought;

   (b)a list of objections to evidence and the basis for such objection; and

   (c)a brief summary of argument touching upon the matters set out in s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon.

8. The Independent Children’s Lawyer file and serve a Case Outline document by no later than 4:00pm on 30 November 2020, setting out:

   (a)a list of documents to be read in their case;

   (b)a precise Minute of Orders Sought;

   (c)a list of objections to evidence and the basis for such objection; and

   (d)a brief summary of argument touching upon the matters set out in s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon.

9. In the event that either party wishes to cross examine the Expert at the final hearing, that party shall provide written notice to the Expert within 14 days from this date or in the event that the Expert’s Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Expert and the Expert is unavailable the Expert’s Report will be admitted into evidence without cross-examination subject only to evidentiary objection.

10. Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court, provided that they consult prior to issuing such subpoena to avoid duplication.

11. The Independent Children’s Lawyer is requested to meet with the Children as soon as possible to inform them of the Orders that have been made and explain the Court’s reasons.

12. The parties are at liberty to file terms in Chambers for the purposes of orders being made in Chambers in relation to any update Expert’s Report.

NOTATIONS:

A.A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

PAC 1381 of 2018

MR LADAS

Applicant

And

MS LADAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about five children:  X, 16; Y, 15; Z, 13; W, 10; and V, 8.  These Reasons for Judgment explain the Orders that the Court has made in relation to the children.  This is a very sad and complex case.  There are no easy solutions to the problems faced by these children, and their parents.  There is an epidemic of anxiety in the Mother’s household, where the children live.  This anxiety is highly contagious, and all of the children have been affected.  This epidemic of anxiety has disrupted, and possibly even destroyed, their relationship with their father.  Unless a cure can be found, this epidemic of anxiety will adversely impact on the lives of these children, as they progress into adulthood.  The stakes are very high for these children.

Background

1. These are interim proceedings.  What has happened since the proceedings commenced in 2018 is not nearly as important as understanding the present situation for these children.  The matter is listed for a three-day Final Hearing in December 2020, but the Court has reservations as to whether the matter could be completed within that timeframe, given the complexity of the issues in this case, and the number of Experts who might usefully contribute to the evidence.  The Court will, therefore, not dwell unnecessarily on matters of background.  Relevant history is set out in the Expert’s Report that will be discussed below.  The precise reason for why the children’s relationship with their father has broken down is not nearly as important as whether anything can be done about it, and if so, what?

2. The parents and the children attended a Child-Inclusive Conference with a Family Consultant on 21 August 2018.  A Family Report was prepared by Dr B on 19 February 2019.  The parties also engaged in Reportable Intensive Family Therapy (RIFT) with Dr C in August 2019.  Dr C’s report is dated 24 September 2019.

3. Interim orders were made by consent on 24 July 2018 for the two youngest children, W and V, to spend time with their father on alternate weekends, from Friday to Sunday, and on some special occasions and their respective birthdays.  The older children could spend time with their father in accordance with their wishes.  In fact, the children have not spent time with the Father for some time.

The Applicable Law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)  If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)  If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The Evidence before the Court

1. In the Father’s case she relied on the following documents:

   a)Case Outline document filed 23 March 2020;

   b)Affidavit of Mr Ladas filed 23 March 2020;

   c)Application in a Case filed 21 November 2019;

   d)Report dated 24 September 2019, prepared by Dr C;

   e)Family Report dated 19 February 2019, prepared by Dr B; and

   f)Child Inclusive Conference Memorandum dated 21 August 2018.   

2. In the Mother’s case she relied on the following documents:

   a)Case Outline document filed 30 March 2020;

   b)Response to Application in a Case filed 28 February 2020;

   c)Affidavit of Ms Ladas filed 28 February 2020; and

   d)Affidavit of Ms Ladas filed 2 March 2020.

   e)Report dated 24 September 2019, prepared by Dr C;

   f)Family Report dated 19 February 2019, prepared by Dr B; and

   g)Child Inclusive Conference Memorandum dated 21 August 2018. 

3. The Independent Children’s Lawyer relied on her Case Outline document filed 30 March 2020 and her Tender Bundle.

The Competing Proposals

1. The Father seeks orders for the reappointment for Dr C to engage with the parents and children in further RIFT.  In the meanwhile, all five children would spend time with him on alternate Saturdays for four weekends, and then Saturday to Sunday for a further four weekends.  Thereafter, the children’s time with him be in accordance with Dr C’s recommendations. The Mother proposed that the Father’s Application be dismissed. The Independent Children’s Lawyer proposed that the Mother have sole parental responsibility that a Family Report be ordered and otherwise there be no further orders. In closing submissions the Mother adopted the Independent Children’s Lawyer’s proposal.

Determination of some preliminary issues

1. The contents of Dr C’s report will be discussed below.  The Father’s proposal involves the continued involvement of Dr C.  The Mother opposes this.  The Independent Children’s Lawyer sees no benefit in Dr C’s further involvement in circumstances where it is clear from the Mother’s evidence that both the Mother and the children have lost confidence in Dr C.  Whether this loss of confidence by the Mother and the children is justifiable or not is not the issue.  From their subjective perspective confidence has been lost.  Therefore, from the Court’s perspective, there is no utility in continuing to involve Dr C in any therapeutic context with this family.  The orders sought by the Father in this regard are futile, and will not be made by the Court.  That is not to say that the Court would not be assisted by thorough examination at a Final Hearing about how, and why, the Mother formed her adverse view about Dr C.  Moreover, Dr C’s report is in evidence and is highly relevant to the present application, irrespective of the Mother and children’s views about her.

2. Neither the Father, nor the Mother (initially), sought interim orders in relation to parental responsibility. The orders of 24 July 2018 do not deal with parental responsibility. Only the Independent Children’s Lawyer seeks an interim order for conditional sole parental responsibility in favour of the Mother, as set out in her minute of order. This Court believes, when the totality of the evidence is considered as is discussed below, that it is not appropriate in the circumstances either for the statutory presumption set out in section 61DA to apply or, indeed, for any order to be made in relation to parental responsibility. The Court observes that parental responsibility has not been an issue for these children, whether in theory or in practice.

The expert evidence

1. In an Interim Hearing, where none of the evidence can be tested by cross-examination, expert evidence takes on a much greater significance.  The evidence in question is not just expert, but independent.  The Court cannot ignore this evidence, even though it is untested.  There are three pieces of expert evidence in this case, the Child Inclusive Conference Memorandum to Court dated 21 August 2018, Dr B’s Report dated 19 February 2019, and Dr C’s Report dated 24 September 2019.

The Child Inclusive Conference Memorandum dated 21 August 2018 

1. At the time of this conference the Father was noted as seeking that the children live with him in an equal time parenting arrangement, whilst the Mother sought that the three older children spend time with the Father in accordance with their wishes, and that W and V spend time with their father fortnightly on Saturday and Sunday, but during the day only.  Both parents made mutual allegations of verbal abuse and denigration, and each commented about feeling a sense that the other was controlling them.  The Mother said that towards the end of their relationship she felt increasingly intimidated and denigrated by the Father.  She said she continued to experience this since separation.  The Father denied this.

2. The Family Consultant noted that communication between the parents is poor.  Comments made by both parents suggested that the Mother was the parent who organised most of the children’s activities and attended their sporting events.  The Father indicated that he felt he had no input into the children’s lives, and that the Mother’s involvement of the children in a range of weekend activities precluded him spending other than limited time with them.

3. X was in year 9 at the time of this Conference.  He expressed a preference for the current situation in which he could make his own arrangements to spend time with his father as being the most appropriate for him.  X indicated that he experienced his Father as somewhat absent before separation.  His closest relationship was with his mother.  X commented that he found it difficult to deal with his father’s alleged anger about the parental relationship.  He recalled his father punching him in the stomach during this period.  He also said that his father became angry when he and his siblings were staying with him, and had punched walls.  The Family Consultant observed that X might have felt that he was scapegoated for his father’s anger if the other children were misbehaving.  He was adamant that he did not want orders in place for him to spend time with his father, wishing to make his own arrangements with his father.

4. Y was in year 8, and Z in year 6, at the time of the Conference.  The Family Consultant observed that the girls seemed to have a close bond with each other, and were united in their perception that their father had little involvement in their lives before separation.  Both children recalled their father as often being angry and being physically aggressive to X.  Their closest relationship was with their mother, and they described their connection with their father as a distant one.  Y and Z seemed to accept spending time with their father during the day, but were adamant that they did not want to stay overnight.

5. W was in year 3, and V in year 1, at the time of the Conference.  When they completed a family drawing, they did not include their father explaining, “He is not there”.  W said that her father is, “Scary” linking this to him allegedly yelling at them.  V seemed to have a very different experience of her father, including ice skating, and having fun.

6. The Family Consultant noted:

   It might assist the Court if an ICL were appointed, given the age range of the children and the different proposals of each parent.

   The allegations about the father’s alleged violence towards X, at the end of the parental relationship and since separation, are troubling.  Such behaviour is inappropriate and naturally results in children, particularly younger children, being fearful of a parent.  Thus if, as suggested by the children, their father has been physically violent to X and  if their father  has difficulty controlling his anger, then the children’s concerns about spending time with him are justified and understandable.  In order for the children to feel comfortable spending time with their father, he will benefit from obtain professional assistance to better understand the children’s needs and perhaps acknowledging the children’s concerns.  It is noted that there is already an Order for family therapy but it is not known whether the parents have arranged this.  If not, then it would assist the children if their parents were to do so.  In the context of the children’s allegations, consideration might need to be given to there being no changes to the current Orders, until the family have completed a number of family therapy sessions.  If, however, there is no evidence to support the children’s allegations then then this is equally concerning and might indicate that the mother is seeking to undermine the relationship between the father and the children.

   If the children are to continue to spend time with their father, and if this time is to increase in the future, then it will be important that the mother actively support the children in spending time with their father.  It will also assist the children if their parents are able to develop better communication strategies.

   X’s wish for there to be no Orders for him to spend time with his father is developmentally appropriate, in most circumstances.  However, if there were to be a family therapy intervention it would be important that X take part.

   Should this matter continue to a final hearing the Court will be assisted by the preparation of a Family Report.

   Records ought to be subpoenaed from:  NSW Police Force;  FACS;  Dr D and E Hospital;  the children’s schools;  and any other medical, and allied health professionals involved with the family.

Dr B’s report of 19 February 2019 

1. At paragraphs 2 and 3, Dr B accurately depicts the very polarised views of each parent about their relationship:

   2. According to the mother, post-separation visitation arrangements were never satisfactory. She claims that the father missed > 30 opportunities to spend time with the children 2017-18, often because he prioritised his career (and income) over family time – which she claims continued the pattern of the marriage.  The mother blames the father’s bullying behaviour for the break-down of the marriage and for the older children’s reluctance to visit him.  She claims that he was abusive during the marriage – sexually disrespectful  and verbally abusive in front of the children. Furthermore, that his bad temper made everyone in the family tense such that she and the children felt relaxed when he was away. She claims that he punched X on 4 occasions prior to separation. In her Notice of Risk she contends the children would be at risk of harm due to Mr Ladas’ aggression. She refers to his previous threats of self-harm .

   3. According to the father, the mother blocks his  children’s contact with him and his family, fails to inform him properly about the children’s progress, makes unilateral decisions about the children without consulting him and influences the children against him. He asserts that prior to separation the children enjoyed warm, meaningful relationships with him and his family. He denies prior maltreatment of  the children, or spousal abuse. In his Notice of Risk he contends that Ms Ladas suffers  panic attacks, depression and anxiety, does not comply with medical treatment and has an alcohol addiction. In Mr Ladas’ Initiating Application he requested that Interim Orders provide for a Family Report to be prepared.

2. Dr B correctly noted that the Mother was a member of the Employer F, and the Father and his partner continued to serve in the Employer F.

3. When Dr B interviewed the Mother she justified her proposal on the basis that the children never previously enjoyed close meaningful relationships with their father, disliked being forced into unenjoyable contact, and found his telephone calls intrusive.  She observed the Mother to harbour feelings of resentment about injustice which often overwhelm her.  She saw the main problem as being the Father’s bullying and harassment.  At paragraph 15 Dr B noted that the Mother addressed her question about whether being susceptible to invitations from others to take hyper-responsibility for their problems was a lifelong tendency by saying she had always been a “People pleaser” modelling herself on her mother.

4. Whilst the Mother denied current alcohol abuse problems, she did admit that in the past she drank more heavily during periods of high stress.  The Mother described ongoing social anxiety/avoidance as a result of PTSD but denied that her symptoms were incapacitating or impede her in the normal functions of everyday life, or in fulfilling her role obligations as a mother.

5. At paragraph 21 in the final sentence Dr B’s observations are summarised as follows:

   Ms Ladas struck me as an anxious – worrier with a socially – conformist disposition and a compliant response style who manages the tasks of everyday life in a well organised manner.  She seems a devoted Mother.

6. Dr B met with the Father.  He conceded that his proposal for week about shared care was not feasible given his full time work, and the children’s before and after school activities.  He explained that he was now seeking weekend and holiday time with the children.  The Father seemed to have some insight into the difficulty of compelling compliance with orders by the three older children.  He thought that if the children knew the Court had made orders, and, “That was the rule” they would obey.  He denied the Mother’s allegations of spousal abuse and aggressiveness towards the family.  He denied having punched X, claiming that this was X’s misinterpretation of justifiable, proportionate physical chastisement which was, “Smacking” not, “Punching”.  He denied that he posed any risk of harm to the children, but reiterated his concern about the Mother’s alcohol consumption, and the risk this presented to the children.

7. Dr B administered a number of psychologist tests.  In relation to the Palhaus deception scale, the Mother’s scores were consistent with Dr B’s impression of her as someone who does not have an inflated self-concept and is fearful of negative appraisals by others.  The Father’s scores suggested both situational and trait-like tendencies to overestimate personal virtues and underestimate personal shortcomings.

1. Dr B had the parents undertake the Personality Assessment Inventory.  The Mother reported slightly more emotional or behavioural problems than most community adults, as might be realistically expected for a family law litigant with a history of PTSD.  She also showed a marked elevation on psychotic features, the element which probes persecutory thinking.  In the absence of other signs of a thought disorder (none of which were observed or reported) elevated psychotic features indicate an external locus of control – a tendency to attribute causality for personal troubles to others or to circumstances.  The Father scored low on this scale, reporting much less likelihood of emotional and behavioural problems than the average community adult.

2. Dr B administered the Parenting Alliance Measure.  The Mother rated the parenting teamwork as dysfunctional whereas the Father rated it as marginal.

3. Dr B also administered the Parental Reflective Function.  She found that neither parent displayed hostile attributions about children’s motivated behaviour which predict grossly pathological care.  Neither parent exhibited high reflective function.  Both were deemed to be in the low-normal range.  The Mother seemed better attuned emotionally to the children.

4. Dr B met with the children.  X, at that time 15, struck her as “a man of few words in general.”  He said he did not want to spend any time with his father, finding that his father was always angry.  He confirmed the prior allegations that his father had assaulted him. 

5. Y, at that stage 14, described her Father as “never attentive”.  She refused to spend time with him because he would get aggressive and “He cannot take care of us”.  As will be seen below, this was a theme of the children’s concerns about the Father, especially Y.  She was adamant that she never wanted to see her father. 

6. Z was at that time 12.  Dr B noted: “She answered my questions readily, but did not seem to have come to interview bursting to express a view.”  Z gave a similar account to Y of her prior relationship with her father as disengaged and unpleasant, saying she had been glad when he left home.  She could name no good things about him.  Dr B observed that, like Y, Z opined that her Father cares for no one but himself and had never tried to make visits fun for kids. 

7. W was aged 9 when she met Dr B.  Dr B reports that W said, almost immediately: “Tell the judge I don’t want to go with Dad ever.”  Dr B observed that although she said she did not miss her father “…unlike her older sisters, W did not seize the chance to enumerate her father’s past bad behaviour, including marital infidelity.” 

8. V was 7 when she met Dr B.  She explained to Dr B that the good thing about visiting her father was swimming in the pool and there were no bad things about visiting her father.  At paragraph 58, Dr B notes: “After a moment’s silence; ‘I don’t want to go to Dad’s’.  Question: ‘Do you miss Dad?’  Answer: ‘No.  I’m glad he went away.  He was always screaming at us.’”

9. Dr B wanted to observe the interaction between V and W and their father.  This was to take place at a local ice cream parlour.  The observations are found at paragraph 60-62 of her report:

   When Ms Ladas brought the children over W seemed reluctant to leave her mother. Ms Ladas looked rather tense, but she matter-of-factly encouraged W to separate then walked briskly off.  V greeted her father in a friendly, if not effusive, manner.  W was aloof. Mr Ladas  greeted the girls in a cheerily but did not attempt to embrace them. Given W’s obviousness nervousness and coolness, demands for hugs and kisses would have been insensitive and unwise. In contrast to our previous meeting, V seemed much more self-confident in the social situation than W, who seemed very ill-at-ease. She answered her father’s questions about her news and other family members in monosyllables and avoided his gaze.

   I had expected the meet-and-greet over an ice-cream to be fairly short, but the children’s order was slow to arrive, and V’s Nutella pancake was not easy to wolf down in a hurry. When Ms Ladas  came into sight ( having returned at the nominated time) I asked her to wait elsewhere until Mr Ladas called her after V had finished eating. W waved affectionately to her departing mother, but V ploughed on with her pancake, seemingly oblivious. After W laughed at a joke I made (which V did not get) she seemed to unbend a little.

   On request Mr Ladas  produced the card from V he had shown me earlier. I queried who had helped V write the message. W took the card from her father and examined it. She could not remember whether she or Z wrote V’s message. She finally seemed at ease, whereas up to that point she gave the impression of being nervously poised to flee. My impression was that W, but not V, found the transition between parents very stressful. Mr Ladas was kind and attentive to his children but was probably rather nervous in the context. He persisted with attempts to engage W in conversation despite her minimal responses. He may have felt at a loss for words faced with such unresponsiveness, but showed no annoyance.  The girls returned my parting farewell when I rose to leave, reminding them Dad would tell Mum when they were ready to go. Inside the shopping mall I met Ms Ladas who was sitting waiting. I repeated that Mr Ladas would call when the girls were ready to go. 

10. Dr B administered a number of tests for the children.  Her conclusion at paragraph 65 was that: “These results suggest a strong alignment of all children with their mother.” 

11. Dr B’s evaluation commences at paragraph 68 of her report.

12. Dr B deals with the issue of whether the children are at risk of harm at paragraph 69-71.  No risks of harm were identified for the children in the care of their mother.  There was nothing to suggest that W and V had been physically harmed by their father.  Whilst recognising the Mother’s fears in relation to the Father, Dr B did not seem to place any significant weight on that risk.  She was more concerned about the risk of psychological harm to the Mother of the Father being able to ring the children frequently. 

13. Dr B considers the views expressed by the children and what weight should be accorded to them at paragraph 72-74:

    None of the children welcomes contact or telephone communication with their father. The three older children are all strongly aligned with their mother and they judge their father harshly.  Y and Z seem to know too much about adult concerns (such as their father’s “ other women”).  W is more strongly opposed to contact than V, who is the most positive about her father – but V will follow W’s lead.

    While it may be the case that the children’s disinclination to spend time with their father is an outcome of his prior empathic failures, it is worth considering what benefits may accrue to child’s growth towards psychological individuation from negotiating a relationship with the less-beloved (but non-dangerous) parent  (cf APPENDIX II for a fuller explanation of attachment relationships during adolescence).

    The social world is full of challenging relationships. We cannot always choose our neighbours, bosses, colleagues , clients, relatives or in-laws. We cannot always get our own way. Storming off in a huff is not an effective way to resolve all disagreements. We need to learn how to deal strategically with difficult people. Individuals who rely on either coercive or dismissive-avoidant tactics to manage social interactions are less likely to do well in personal or professional relationships than those whose parents have assisted them to develop age-appropriate assertiveness and tact, along with the ability to judge when diplomacy would be a better choice than self-assertion and vice versa. On the other hand, it is not certain that the Court has it within its power to obtain these outcomes for the older children as Orders for contact between X, Y, Z and their father would probably be unenforceable under current conditions.

14. In relation to the nature of the relationships between the children and their parents, at paragraph 75 Dr B noted that the Father’s claim that a normally-nurturant relationship between his children previously existed “requires testing”.  She noted that none of the children expressed fondness for him currently or historically.  Also they experienced relief when he left the family home.  The children’s mother is their secure base in the world.  The sibling relationships are strong, particularly sisterhood.  She noted that Y and Z express strong hostility towards the Father’s partner, Ms G, in similar terms.  Ms G was, therefore, caught up in their mother’s negative view of their father, ie, as their father is their mother’s enemy, then so must be the Father’s partner.  W seemed to feel ambivalent about Ms G, and V expressed no view.

15. She was of the view that separating the children from their mother would be harmful, and is not suggested, in any event.  The children presented as having a busy schedule to which they are more committed, than to their father.  Thus, any non-essential change to routines would be “pointlessly disruptive and should be avoided”.

16. In relation to time arrangements, Dr B rejected equal time.  At paragraph 81, she states:

    The father’s amended proposal for residence with their mother and regular weekend time with him seems more realistic, but there are obstacles to making Orders to that effect work for all children. Firstly, as noted above, the three adolescent children state plausible reasons for refusing contact and it would be hard to compel their compliance. It is developmentally appropriate to allow them some latitude, including about telephone contact. Secondly, while it may be possible to compel the two younger children to comply with Orders now, this will become increasingly difficult as they grow older. W is already resisting, and V will not attend visits without her.

17. In relation to the mental state of both parents, Dr B observes that whilst neither presented in psychiatric crisis, the very nature of this dispute implies some maladaptive personality features for both.  At paragraphs 82-85, she states:

    Neither presented in psychiatric crisis, but the very nature of this dispute implies some maladaptive personality  features for both. In Ms Ladas’ case these relate to her tendency to be overly dependent on social approval – as she terms it a “ people-pleaser.”  She seems vulnerable to invitations from others to  put her own concerns to one side in order to take hyper-responsibility for their problems. It is not her job to regulate the father’s relationship with the children. If he rings and they do not answer or do not speak long enough to satisfy him that is a problem he needs to address with the child  and by moderating his approach. Equally, if the older three children do not want to speak to their father it is not for Ms Ladas to tell him. Each child needs to find an age-appropriate way of dealing with his/her father. Ms Ladas should not be so ready to respond to requests to mediate the children’s relationship with their father.

    Equally, Mr Ladas should not issue such requests. Mr Ladas  may not have accepted that none of us gets to choose how the other people feel. If his children have rejected him ( and it makes no difference whether they reject him out of a misguided sense of loyalty to their mother or for valid reasons related to his past failures as a father) he cannot change their minds by insisting on his rights. Whether or not he has been violent, the children perceive him as having been unkind and rude to their mother. Reparative fathering is indicated (see APPENDIX IV for guidelines, especially points 2,4,6 and 8)  although it may be too late for him to woo back anyone but V.

    As noted, each parent blames the other for poor co-parenting and the lapsing father-child communication. Mr Ladas claims Ms Ladas vengefully excludes him. Ms Ladas contends that Mr Ladas bullies her and the children as he did during the marriage. Whether the current dynamic perpetuates a long-standing abuse of power and Ms Ladas is acting protectively, or whether Ms Ladas is spitefully undermining the father-child relationships are disputed facts for the Court to arbitrate. Negative implications should be drawn about Mr Ladas’ parenting capacity if the Court finds him to be as coercively controlling as Ms Ladas alleges, since spousal abusers are known to be psychologically destructive as parents – for example, undermining the child’s respect for the authority of the other parent and intruding unhelpfully into the other child-parent relationship. If so, shared parental responsibility would be strongly contraindicated.

    Even if Mr Ladas is not as abusive as Ms Ladas claims, it is plausible that he has behaved irritably in response to stress and conflict– at least since 2016. Marriages fail when partners are locked in non-mentalizing vicious cycles (cf APPENDIX V) with each other. Such cycles go into runaway around the time of separation and soon after. Bitter property disputes index non-mentalizing vicious circles. There is a long ledger book in marriage.  Each partner keeps his/her own reckoning of who has contributed what (practically, emotionally and financially) to the family’s assets, as well as a personal evaluation of whose needs are most pressing and who deserves compensation.

18. Dr B found that the Mother was the children’s primary attachment relationship.  Whilst the Father’s attachment was, therefore, secondary, it was nonetheless important.  When a child rejects a normative parent, there is cause for concern.  But Dr B noted that the contention that Mr Ladas is, or is not normative, has not been tested in Court.

19. Dr B’s conclusions and recommendations are found at paragraphs 89-96:

    No immediate risk of serious physical harm has been proven for Mr Ladas, although the mother expresses fear of his violent retaliation if he is disappointed in Court. The children do not value their attachment relationship with him. Whether or not he has been abusive, they currently perceive him as persecuting their mother. This problem calls for reparative fathering – if it is not too late. Attempts to solve this problem by coercive means are doomed to fail.  The children must be insulated from parental conflict. Accordingly it is recommended that:

    The children should live with their mother who should make all decisions about their welfare, communicating with the father as necessary using Our Family Wizard.*

    The family should engage with Dr C and follow her advice thereafter.

    Contact should be suspended until Dr C can be engaged.

    In the alternative case that Dr C is not engaged, it is recommended that:

    X, Y, Z, W and V have contact with their father in accordance with their wishes.

    The father should be at liberty to phone the older three children on their mobile phones once per week. There is no obligation for them to take his call.

    The father should be at liberty to call V and W weekly on the landline, at an appointed time, on the understanding that  if it is announced that V or W decline to answer or to speak then the call will end without further discussion. (The mother may prefer to obtain a dedicated mobile for this purpose, or to  use her existing number for that purpose, obtaining a new number which she does not disclose)

    The parents should be restrained by injunction from routinely communicating by any means but Our Family Wizard. Direct contact only permitted in direst emergencies.

The report of Dr C 2019

1. Dr C met with the family in a reportable therapeutic context on 10, 11, 12 and 13 August.  At the time, her impression was that the Mother was proposing that X, Y and Z see their father as they desire, and that W and V spend time with him fortnightly each Saturday and Sunday during the day only, though she did consider that all of the children have a poor relationship with him and do not want to see him and they should all separately decide and agree if they want to see him.

2. Dr C met with the Mother and the children.  On page 6 of her report, she observed how

   “…the girls and Ms Ladas competed to complain about Mr Ladas.  X was morose and just looked very unhappy. … Ms Ladas presented as highly anxious and perceived that she had been criticised unfairly.” 

3. Part of the therapy involved the children meeting with their father.  The report of this commences at page 6 of the report.  Dr C noted that at the meeting, the children sat across from their father and Y mostly read through a list of complaints about their father. The list of complaints is summarised in 20 dot points in Dr C’s report.  Dr C noted that it was very cold at the park and the children were not dressed appropriately.  The session was brief due to the weather.  X was quiet and morose and as he listened, he appeared to become more withdrawn.

4. At page 7, Dr C notes that she was keen to arrange a follow-up meeting between the children and their father the next day.  There was an issue involving Y having a competition the next day, but Dr C was insistent that the meeting with the Father take place, as it would capitalise on Y’s increased confidence by talking with her father.

5. The next day, 11 August 2019, the children were to meet with their father at a local bowling centre.  Dr C observed that W had a cold, X was again sullen, Z was stand-offish, but V:

   “Showed open enjoyment and a relaxed and friendly approach to her father.  W wavered between supporting Z in her rejecting behaviour, alternating with enjoyment of her Father and relaxation.” 

6. Dr C noted that over the bowling activity and games, the children gently opened up.  W was happy for her father’s attention.  Z was slow to warm up, but was happy with her father’s praise.  X was sullen, but this was not directed at his father.  Over the activity, all the children relaxed.  When the Mother then collected them, there were no issues of distress or concern.  Dr C noted that the Mother seemed surprised.

7. The following day, 12 August 2019, when Dr C met with the Mother and the children, there were no complaints from her about struggling to get the children to the activity. The children seemed relaxed and cooperating with their mother.  The children separated easily from their Mother.  They went shopping with the Father.  X’s mood improved perceptibly.  X, Z and Y chose to accompany their father to another store.  They seemed very comfortable with their father and made no protest at going with him alone.  Y and Z asked the Father to help them with purchases and called him “Dad”.  At lunchtime, the four girls were happy and relaxed, but X’s mood was again flat.  After lunch, they went back to meet the Mother.  The children said goodbye to their father and thanked him for their purchases.  V ran back to her father and gave him a deep hug.

8. Dr C had arranged for the family to have dinner with the Father, with the intention that the parents would model cooperation and respectful behaviour in front of the children.  The Mother texted Dr C to say that X would not attend.  The Mother, the four girls, the Father and Dr C met at a restaurant at 5:00pm.  Dr C observed the Mother to be “Prickly and uncomfortable.”  She looked impatient.  Dr C noted that V and W appeared happy, Z was the most comfortable and satisfied that Dr C had seen her, and Y was quiet, but comfortable.  Over dinner, they played a card game, all the girls appeared happy to play.  V touched and hugged her Father in front of her Mother.  She was cheeky with her Father.  For the first time, W was also relaxed with her Father.  Z appeared glowing and made jokes.  At the end of the dinner, the girls thanked their father for dinner and taking them shopping.  For the first time, Z smiled directly at the Father as she was leaving.

9. The plan for the final day of therapy, 13 August, was to meet at a trampoline centre.  Dr C reports that the children enjoyed trampolining.  Y was noted to enjoy the activity and was often showing off, looking at her father for him to congratulate her:

   V was happy and called to her Father often.  W also asked her Father to help and to look at her tricks on the trampoline.  X's mood had improved immensely.  He was smiling and kind to his sisters.  He joined in the activities and showed enthusiasm.  At one point I spoke to him alone and he told me that his mood had improved because his Mother and sisters were more relaxed.

   Dr C observed that between 10:30 am when the children arrived and about 11:40 am, the atmosphere between the children and their father was relaxed and natural.

1. At 11:40 am, Dr C observed X sitting on a chair with an ice pack on his hand.  He had, apparently, fallen on his hand whilst on the trampoline, and his father had organised the ice pack for him.  After discussing with the Father, Dr C let the Mother know, by way of text.  X approved of the text.  He indicated that he was okay with the ice pack.  The Mother asked if she should come to collect X, Dr C asked X, who said that he did not need his mother.  Dr C observed that X's hand showed no obvious sign of injury.  There was no swelling, discolouration or indications of injury.  He did report that his finger hurt and that he found it difficult to move it.  He was not upset and more interested in his game.

2. Dr C reports that Y, Z and W had come over to look at X.  They were very concerned.  Y said that she was going to call her mother immediately and she became heightened, highly anxious and looked very worried.  X then said that he would want his mother to come.  Y went white and wanted to call her mother immediately.  Dr C took Y aside.  Y said worriedly, "He can't look after us - mum will know what to do".  She was intensely distressed and suggested that her father had caused the injury and had not dealt with X appropriately.  X stood beside Y and also looked worried.  W joined her.  Within a few minutes, the Mother arrived at the trampoline centre, parking her car quickly, and came running into the building.  Dr C observed that the three girls were standing behind her and called out to their Mother, "It is serious" and their distress increased exponentially.  Dr C observed that by this time X's hand continued to show no discolouration, swelling or unusual physical symptoms, but he did say he could not move it.

3. The Mother had organised a doctor's appointment and so the Mother, and the children, left hurriedly at 12:00pm.  That concluded the four days of intensive therapy.

4. According to Dr C's reports, despite her efforts to communicate with the Mother via her solicitors, the therapy was not reconvened.  The Mother finally communicated with Dr C on 31 August 2019, explaining that X had undergone surgery as a result of his injury.

5. Dr C's summary commences at page 15 of her report.  The summary is lengthy, but it informs the Court's decision in the present application, so it is set out in full.

   Ms Ladas impresses as highly anxious and hypervigilant, as is consistent with her diagnosis of PTSD. Nevertheless, she appears to be unduly sensitive to threat and quickly makes assessments of danger and risk in ambiguous situations. She shows by her behaviour that she perceives Mr Ladas as a threat to the children and easily believes any criticism about him. She provides a model of behaviour that encourages anxiety in, and a lack of security for, the children.

   Mr Ladas also impresses as having a level of anxiety where he shows difficulty in circumstances of uncertainty and ambivalence. His job of course involves experiencing very difficult and tragic circumstances and sometimes it appears that this might make it difficult for him to appreciate Ms Ladas’ (and/or the children’s) hypersensitivity. In other words, while Ms Ladas and the children are quick to perceive threat and danger, Mr Ladas’s work suggests that he finds it difficult to appreciate or anticipate their sensitivities and this has contributed to some of the children’s complaints about their father.

   X’s perception is highly concerning. Both parents discussed their worries about X, and Ms Ladas reported that X never smiles or appears happy. Although the therapy was suspended due to X’s injury, I had emphasised separately and together my concerns for X’s presentation and suggested that is appeared likely he suffers from clinical levels of depression that are exhibited by him appearing subjectively depressed and suffering irritability, anhedonia and low energy levels. I consider that it is likely that some of his symptoms include thoughts of self-harm. He describes difficult social interactions at school and appears to get little pleasure from peer relationships. One activity that was identified by Ms Ladas as giving him pleasure was riding his bike, but this has also become an issue of conflict between his parents. Mr Ladas purchased a bike for X and there were subsequent arguments about changing bike tyres and other fittings. I suspect that even this pleasure has been spoiled for X.

   Although the therapy was suspended, I had made it very clear to both parents that I would recommend that X attend a clinical psychologist for treatment. I had intended to have a very direct talk with X and , with his permission, provide this information to his parents in order that they might make good decisions for him. Subsequent to the therapy and in my email of 6 September 2019, I emphasised that I would be recommending X see a clinical psychologist. Mr Ladas then informed me that Ms Ladas had made an appointment with a generalist psychologist rather than a specialised clinical psychologist and complained about the cost and then cancelled the appointment when Mr Ladas objected to the referral and insisted that X be seen by a clinical psychologist. Mr Ladas conveyed that Ms Ladas has inferred that he was no appropriately sensitive to X’s needs by objecting to the appointment of the generalist psychologist.

   Ms Ladas may have another explanation for her choice of generalist psychologist, however I emphasised to her than I consider that X’s presentation is very serious, and he needs specialised care with someone who has clinical experience of treatment of childhood depression.

   It is unfortunate that the therapy was interrupted as I did not have an opportunity to have a full feedback session with both parents. This report and the therapy of course are significantly limited by the absence of knowledge of how the children have no interpreted and understood X’s injury. If there is any suggestion made to them, or they are encouraged to think that Mr Ladas is responsible for the injury or acted in some way that was negligent, this would reflect very poorly on Ms Ladas and her capacity to care for the children and understand their needs.

   Ms Ladas’s behaviour since the therapy was interrupted by X’s injury has also not provided confidence in her motivations or capacity to appreciate the children’s best interests. Her behaviour since the therapy was interrupted has included:

   - Providing little information to me, and as I understand it Mr Ladas, in the immediate aftermath of X’s injury.

   - her response regarding Father’s Day which appeared unusual by providing me with information to suggest that she had let Father’s Day free for the children to see their father, but yet when I conveyed this to Mr Ladas and he made a request of Ms Ladas, her response was to suggest that the information she provided to me had been confidential rather than actually making arrangements for the children to see Mr Ladas on Father’s Day.

   In addition to the more urgent concerns for X, the concerns for Y, Z and W’s behaviours indicate they suffer from some debilitating symptoms of anxiety. Unless they are taught to deal with possibly difficult people, or uncomfortable situations that they might experience with their father, their anxiety is likely to increase and become even more problematic for them. As Dr B indicated, sometimes therapy can make things worse and in this family the children’s anxiety appears to be generally associated with their relationship with their father (and of course includes genetic predispositions to anxiety) and the most effective treatment for dealing with such anxiety, is facing directly with the anxiety producing stimuli (i.e. their father).

   In terms of moving forward, I consider that Ms Ladas is likely to a reluctant participant, however this does not preclude her involvement in further periods of RIFT. I could schedule another two or three days (to allow for movement to our previous level of relaxation with the children), but this would require robust intervention by way of Court Orders for my further appointment.

   Leaving aside the possibility of further RIFT, another option that might be open to the family is for the Court to make Orders leaving the status quo unchanged. This would reduce the children’s immediate distress and anxiety in relation to their father, although it would increase avoidance behaviours and ultimately increase their anxiety, likely deepen X’s depression and sense of hopelessness, leave the parental relationship in its current state of hostility and poor communication, deprive the children of any emotional, psychological and physical resources that might be provided by their father, but most significantly compound the children’s fears and lose an opportunity, perhaps their only opportunity in relation to their father, to teach them assertiveness skills and how to deal with conflict and negative emotions with all the potential lifelong benefits of doing so.

   Another option for the Court might be to make Orders for at least W and V to continue seeing their father. Orders for X, Y and Z to spend time with the father seem determined to fail and create distress for the whole family including W and V which is likely to affect their relationship with their father.

6. The three options proposed by Dr C are reflected in the last three paragraphs from the above extract.

The Independent Children's Lawyer's tender bundle

1. Without objection, the Independent Children's Lawyer tendered a bundle of documents that had been produced on subpoena.  The Court will only discuss documents that appear to have some relevance to the present application.

2. Dr C's observations of the Mother's anxiety are entirely consistent with historical records, indicating that the Mother had been diagnosed with adjustment disorder with anxiety since at least 2007 when she was working as a public servant.  The context of these reports appears to be a claim for a work-related injury.  The reports produced come from a number of different contexts.  The causation of the Mother's anxiety is not relevant in the present proceedings, though it certainly was in the context of these documents.  What is clear is the common theme of the Mother's anxiety.  One of the reporting psychologists, Mr H, was of the view that the Mother may have some predisposition to psychological distress based on the history the Mother had herself given.  He observed, for example, that the Mother's responses on the PAI indicate a degree of anxiety that is unusual even in clinical samples, with the result that her life is severely compromised by tension, with even mild stressors being sufficient to cause significant difficulties.  He noted that the Mother's responses indicate that she is likely to be plagued by worry, to the detriment of her attention and concentration.

3. One of the documents produced was by the Mother's treating psychiatrist, Dr D, dated 30 April 2008.  Whilst the primary diagnosis was of post-traumatic stress disorder, Dr D referred to the Mother's significant ongoing anxiety symptoms. The Mother's clinical psychologist, J & Associates, wrote to Dr D on 26 June 2012, once again referring to the Mother's presentation with symptoms of depression and anxiety.

4. Dr K, a consultant psychiatrist, provided a report dated 28 November 2012 in relation to the Mother, indicating that the Mother was suffering from chronic post-traumatic stress disorder and major depressive disorder with anxiety at the time of her withdrawal from work in 2007.  This resulted in the Mother being psychologically, totally and permanently incapable of engaging in any gainful employment for which she was qualified by virtue of education, training and experience.  This obviously meant that the Mother's diagnosis was ongoing.  A 20 November 2013 report from Dr K confirmed that the Mother still suffered from the effects of chronic post-traumatic stress disorder and comorbid major depressive disorder.

5. On 5 June 2015, another consultant psychiatrist, Dr L, provided a report in relation to the Mother in which he confirmed the diagnosis of chronic post-traumatic stress disorder and chronic major depressive disorder.  He described the leading symptoms of frank psychiatric disorder as being anxiety, poor sleep, nightmares, flashbacks, concentration difficulties and mood changes.  The frank psychiatric disorder developed in 2007.  He observed that her symptoms had not really improved over time and she has, at the view date, all of the same symptoms which were recorded as present at first psychiatric presentation in 2008.

6. Attached to the Mother’s Affidavit was what appears to be an undated letter from the Mother’s treating psychiatrist, Dr D.  This report is referred to at paragraph 38 of the Mother’s Affidavit of 28 February 2020.  It follows from the Mother consulting Dr D on 3 October 2019.  The letter must have been sent shortly thereafter.  The potential significance of this report is found in a submission made by her solicitor to the effect that the stress on the Mother of any order for the children to spend time with their father would adversely impact her parenting capacity.

7. Dr D’s evidence is useful in this regard.  It is a very recent confirmation of the Mother’s diagnoses of having major depressive disorder, described as being currently in remission, generalised anxiety disorder and social anxiety disorder.  Dr D was of the view that the Mother did not qualify for a diagnosis of panic disorder but she does experience intense anxiety, verging on panic, in situations where she is being evaluated.  Dr D’s view was that inevitably, her anxiety, no matter how much she tries to disguise it, must be apparent to her children.  Indeed, Dr D observed the Mother’s presentation to include, “Visible shaking and tearful.”

8. Dr D’s assessment is not, however, useful to the Court insofar as it contends that Dr C’s continued involvement is deleterious for the Mother’s mental state.  The first observation is that Dr D’s report is unnecessary on this issue.  The second point, however, is that Dr D’s opinion is framed entirely by the report given by the Mother.  There is no indication, for example, that the Mother provided Dr C’s report to Dr D.

9. What is of interest from the Court’s perspective is the Mother’s response to being evaluated.  The inherent nature of litigation is that a parent is being evaluated.

The cases summarised

1. The Father’s case, briefly summarised, was that when Dr C’s reports are closely examined they show significant gains in terms of the Father’s relationship with the children.  The only concern was the Mother’s behaviour, throughout the process.  Whilst recognising the coercive issues inherent in ordering the family to continue therapy, on behalf of the Father it was submitted that the alternative, doing nothing until a Hearing, would inevitably result in the loss of any gains that had been made.  The real issue in this case was the Mother’s lack of support of the children’s relationship with their father, no doubt inextricably linked to her own anxiety.  On the Father’s behalf it was submitted that there was simply no evidence that could be accepted at an Interim Hearing of the Father presenting a risk of harm to the children.

2. By the time of closing submissions, the Mother’s position moved to endorse that of the Independent Children’s Lawyer which gave her sole parental responsibility, but otherwise provided for Dr B do a further report.  The submissions made on behalf of the Mother, like the rest of the Mother’s case, were minimalistic.  There was no attempt to explain or contextualise the Mother’s reported behaviours.  The Mother’s case emphasised the futility of further therapeutic interventions.  She rejected the contention that she was not supporting the children’s relationship with the Father.  The risk of harm to the children was framed in terms of continued exposure to parental conflict in forcing them to do something against their own views which, it was submitted, was ultimately counterproductive for the Father.

3. The Independent Children’s Lawyer’s submissions emphasised the complexity of the case.  She was deeply concerned by the children’s rejection of their father.  She noted the similarity between the complaints of the Mother against the Father, and the children’s complaints against the Father.  The Independent Children’s Lawyer explained that the children wanted the Court to know that they do not want anything to do with their father and they would feel let down if any contact were ordered.  Nonetheless, the Independent Children’s Lawyer submitted there was long-term benefit to the children, indeed to both parents, if the children had a relationship with their father.  The Independent Children’s Lawyer emphasised that on any view of the evidence, both parents had fragilities.  If nothing else, if the Father were not present in the children’s lives it would remove an important safety net for them.

4. The Independent Children’s Lawyer was particularly concerned that the children seemed to be very aware of the contents of Dr C’s report, and all acknowledged to her that the Mother had told them about this.

Discussion 

1. The strongly recurrent theme of the more reliable evidence in this case is of the Mother’s anxiety, and its intensely contagious nature.  That is the substance of her own treating psychiatrist’s report.  It is consistent with the opinions of Dr B and Dr C.  Dr C’s report contains factual examples of this contagion.  Whatever the Mother may think about Dr C’s involvement in this case, her professional observations, and her conclusions stand fast.  An example of positive mood contagion is found at pages 10 and 11.  Before X’s unfortunate injury whilst trampolining, Dr C observed the positive affect and mood of Y, V and W.  X’s mood was observed to have improved immensely.  He was smiling and kind to his sisters.  When Dr C pointed out to X that his mood had improved he explained that it was, “Because his Mother and sisters were more relaxed.”

2. An example of negative contagion is manifested immediately after X's unfortunate injury.  The Mother, who had hitherto been absent, was called to the centre and was observed to have:

   …parked her car quickly and came running into the building.

   Dr C records that she:

   …called out to Ms Ladas that she should slow down because the injury did not look serious.

   The impression created is that Dr C was attempting to manage the situation, and contain the anxiety, as best she could in the circumstances.  The Mother's actions create the inference that she carried her anxiety to the situation.  The contagious effect of this is recorded in the last paragraph of Dr C's report:

   The three girls were standing behind me and called out, "It is serious," and their distress increased exponentially.

   The objective facts are recorded by Dr C - at that time X's hand continued to show no discolouration, swelling or unusual physical symptoms.

3. The overall impression created is that the Mother struggles to contain her own emotions, and fails to understand the importance of, and the responsibility that she has, to shield her own children from her anxieties.  Of particular concern to the Court is the Mother's failure to respond, even in closing submissions through her solicitor, to the Independent Children's Lawyer's assertion that the children had told her not just that they were aware of the contents of Dr C's report, but that their Mother had told them these things.  Her inability to contain her anxiety appears to have resulted in these children being completely and inappropriately involved in this litigation by having been granted access, in one way or another, to the expert evidence.  The overall impression created is that in the Mother's household, there are few boundaries between what is in effect the Mother's dispute with the children's father, and the children's involvement in it.

4. It is hard to discern from the Mother's case what benefit, if any, she sees in the children having a relationship with their father despite what, for example, Dr B says at paragraph 73 and 74 of her report.  There, Dr B describes the Father not in terms of being a risk of harm to the children, but as having "prior empathic failures".  She was well-placed to make this observation.  On the present evidence, there is scant material which would encourage the Court to conclude that the Mother has considered the risks to the children of growing up without their father. Dr B raised issues about psychological individuation.  She raised issues about the children's capacity to manage future challenging relationships.  There are other issues that are inferred in the expert evidence of both Dr C and Dr B.  For example, has the Mother considered the contagious effects of her own anxiety on her children?  Does she really want the children to become like her?  Has the Mother considered what the world would look like for her children without their father in their life, and what, for example, might transpire when the children have individuated from her and desire to seek the truth about their father?

1. This is a truly complex case.  The Court is satisfied that the views of the three older children Z, Y and X need to be respected, and thus they can decide when and how they spend time and communicate with their Father.  On present indications, given the pervasive and contagious effect of the Mother's anxiety, it is unlikely that they will have this relationship with their father.  The Mother would do well to ponder the potential future impacts on their relationship with her of this situation being allowed to continue.

2. The situation is not nearly as clear, however, for W and V.  There may still be hope for them.  There is enough evidence found in the Reports of Dr B and Dr C to suggest that, with some assistance, W and V may be able to build a relationship with their father.  This will need scaffolding.  The Independent Children's Lawyer will need to be very proactive.  The older children, and the parents will need to be therapeutically supported in their own right.

3. Perhaps ironically, it is the Mother's own interim proposal and her response filed 23 July 2018 that forms the basis of the Court's interim orders.  She proposed that W and V spend time with their father on alternate weekends from 10:00am to 3:00pm on both Saturday and Sundays.  The Court's approach will be more measured in the circumstances.  Two days on each alternate weekend may be more than the fragile scaffolding can support for these children.

4. The Court will order that pending the Final Hearing W and V spend time with their father each alternate weekend from 10:00am to 4:00pm on Saturday. In addition, they are to spend Father's Day with him from 10:00am to 4:00pm.  The children's time with their father is non-negotiable.  They will go.  The Mother is to do all things necessary to cause this to happen.  There will be no escape clause based on their desire to return to their mother's care.  The older children are to be excluded from all changeovers.  If the children are undertaking gymnastics and/or physical culture, then the Father is either to take them there, or to be present, in each case to the exclusion of the Mother, and the other children.

5. The Court requests the Independent Children's Lawyer to meet with all five children, as soon as possible, to explain these orders to them.  Whilst the Court has respected the views of the older children, the Court will ask the older children to respect the views of the Court that W and V should be entitled to spend time with their father without any interruption or adverse influence from them.

6. Changeover is to be effected at Suburb A McDonald's.

7. There is to be no other communication between the children and their father.  The Father needs to be personally available to care for the children when they are spending time with him.  He is to prioritise them over his work.

8. Both parents need to be supported in a therapeutic sense.  The Independent Children's Lawyer can make appropriate recommendations to each parent.  The task for the Father is a formidable one - to focus on developing a relationship with his younger children in exceedingly different circumstances.  The children themselves need to be appropriately supported.  The Mother needs to be supported, particularly in terms of her own anxiety, and better understanding the contagious impacts of it.

9. There are existing orders that prevent the parents from denigrating the other parent, but this order will need to be expanded to include discussing these proceedings in any way or discussing or involving these proceedings with the children in any way.  A number of the injunctive orders made by consent on 24 July 2018 will remain apposite.

10. The Court agrees there is benefit in Dr B preparing a further report, in terms suggested by the Independent Children's Lawyer, and supported by the Mother.

11. The matter will remain listed for Hearing commencing on 7 December 2020 but will be now listed for four days rather than three to provide a more realistic timeframe for hearing what is a very difficult case.  The orders made will contain trial directions in this regard.

Closing thoughts for the parents

1. The Court offers the parents these closing thoughts that are based on what is stated, or can reasonably be inferred, from the expert evidence in this case, as well as this Court’s own experience in cases such as the present one.

2. There are long-term issues for the children which may subsist well after this litigation is concluded.  For example, Dr B was concerned that if the children could not develop coping mechanisms for an important relationship such as with their father, this might inhibit their coping mechanisms in the myriad multiple future relationships they will need to navigate in their life.  If the children have difficulties in relating to their father today, will it be their friends tomorrow, their girlfriends/boyfriends next year, their future’s partners and spouses after that, with whom they have difficulties?

3. At some future point in their lives, the children will want to make sense of their lives.  They will certainly think, and may well ask, why was one parent absent?  They may reflect on why one parent allowed her deep anxiety to be inculcated in them?  How will they make sense of this, without that parent becoming collateral damage to the emotional damage the children may themselves suffer?

4. At some future time in their lives, could the children feel that they have been misled by one parent?  Is it possible, for example, that even though they might know what is in Dr C’s report, they will wonder why they were not told about Dr B’s report, or the Courts Judgment?  What happens when the children are mature enough to understand that what they were told by one parent about these documents and events may not be an accurate summary of those documents and events?

5. It may well be that any psychological harm that the children experience is in fact attributable to the acts, omissions and attitudes of both parents, and not just the one.  There are rarely black and white fault lines in cases such as this.

6. Have the parents considered that if they set up a parenting style that capitulates to the children’s resistance on certain matters, this might embolden them to develop even more resistant behaviours?  Today it may well be about their other parent.  Tomorrow it may be about school and about extracurricular activities.  Next year it could be about boundaries in relation to such behaviours as smoking, drinking, drugs, promiscuity etc. This bodes poorly for parenting during adolescence when children typically test boundaries.  If children learn that resistant behaviour is met by capitulation then what is otherwise appropriate authoritative parenting is eroded.

7. The parents are urged to reflect on these matters.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.

Associate:

Date: 6 May 2020