LYON & LYON
[2015] FamCA 107
•20 February 2015
FAMILY COURT OF AUSTRALIA
| LYON & LYON | [2015] FamCA 107 |
| FAMILY LAW – CHILDREN – where the father proposes that the children choose where they predominantly live – where the mother proposes the eldest child chooses where to predominantly live – where the father has a mental illness which affects his capacity – where the children are continually exposed to the father’s abusive behaviour to the mother – where there is an alleged incident between the children and the mother’s new partner – where there is no evidence to substantiate this allegation – benefit of the children having a meaningful relationship with both parents – protecting the children from risk – where the children lack the maturity to determine their own developmental needs – whether the parents should have equal shared parental responsibility – whether due to the father’s inability to co-parent the mother should have sole parental responsibility - best interests of the children. |
| Family Law Act 1975 (Cth) ss. 4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAC |
| G & C [2006] FamCA 994 |
| APPLICANT: | Ms Lyon |
| RESPONDENT: | Mr Lyon |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | PAC | 5089 | of | 2010 |
| DATE DELIVERED: | 20 February 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17, 18, 19 and 21 November 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | McPhee Kelshaw |
| RESPONDENT – LITIGANT IN PERSON: | Mr Lyon |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Blacktown Family Law |
Orders
All previous Orders in respect of J born … 1999, K born … 2001 and L born … 2004 (“the children”) are discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
The children spend time with the father as follows:
(a) Each alternate weekend from 7:00 pm Friday to 6:00pm Sunday
(b) The father’s weekend time be suspended during school holidays and recommence the second weekend of the new school term.
(c) For one half of the school holidays, being the first half in odd numbered years and the second half in even numbered years, and all short school holidays, with changeover at 7:00pm Fridays. Christmas Holiday changeovers shall be on the first and fourth Fridays at 7:00pm in odd numbered years, and the second and fifth Fridays at 7:00pm in even numbered years.
All changeovers are to occur at Suburb M train station.
The father shall communicate with the mother only as follows:
(a) In the case of an emergency in relation to the children that occurs whilst the children are in his care, by telephone as soon as practicable and advise her of the nature of the emergency and where the children are located.
(b) In relation to arrangements concerning his time with the children by text message.
(c) The father is to give 24 hours notice if he is not spending time with the children.
The father is to communicate with the mother in a polite, respectful and non-denigrating manner.
The father is not to communicate with the mother or Mr C except as provided for in these Orders.
The father is restrained from denigrating the mother, or Mr C, to or in the presence of the children or by way of text message or any other form of communication.
The mother is restrained from denigrating the father, to or in the presence of the children or by way of text message or any other form of communication.
The parties are restrained from discussing these proceedings with or in the presence of the children, or showing them any documents in these proceedings, or permitting any documents to be left where they may be located by the children.
Within 7 days of the date of these Orders the mother is to do all things necessary to authorise and direct the children’s schools to provide to the father, at the father’s expense, copies of all school reports, school circulars, school notices, school invitations, school correspondence and other documents concerning the education and school activities of the children.
The father is prohibited from attending the children’s schools, unless there is a school event to which parents are invited, including parent teacher interviews.
The father is restrained from discussing the mother or Mr C with any staff member at the children’s schools.
Each parent shall keep the other advised at all times of their mobile phone numbers.
The father is to advise the mother of the address at which he proposes the children to spend any overnight time with him, and the full names of all other occupants of those premises.
The mother shall notify the father by text message of the following:
(a) Any prescribed medicines that the children are required to take and shall provide the medication to the father. The father shall administer the medications in accordance with the prescriptions.
(b) The details of any medical specialist providing treatment for the children.
The mother is to notify the father by telephone in the case by any emergency in relation to the children that occurs whilst the children are in her care as soon as practicable.
The mother may limit the children’s school holiday time with the father to weekends from 7:00pm Friday to 6:00pm Sunday, in the event she is of the view that the father’s living circumstances are not suitable.
The mother is to facilitate the children’s attendance for a one-off session with a therapist recommended by Dr B to discuss with them their father’s distorted perspective of danger from other people and professional opinions as to his mental condition.
Dr B’s report of 24 November 2013, excluding Annexure “A”, is to be released to any therapist or counsellor engaged to assist the children.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lyon & Lyon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5089 of 2010
| Ms Lyon |
Applicant
And
| Mr Lyon |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for J (“J”), who is 15, K who is 13 and L, who is 10. The children’s parents, Ms Lyon (‘the mother’) who is 43 and Mr Lyon (‘the father’) who is 42 were married for 15 years before they finally separated in June 2009. They divorced in January 2011.
There have been various parenting arrangements in place for the children, since the date of separation, including equal shared care. This arrangement ended in July 2011 when it was not practicable for the father to care for the children as he was no longer living near them. Since that date the children have lived with the mother and spent time with the father, originally by agreement between the parents. On 15 November 2012, interim parenting orders were made by consent, but they have not necessarily been followed.
The father proposes final orders that would see the parents share parental responsibility for the children who are to live with the parent of their choosing. The mother seeks orders that she have sole parental responsibility for the children, that the two younger children live with her and spend defined time with their father, but that J may choose who he wishes to live with. The Independent Children’s Lawyer seeks the same orders as the mother, with respect to parental responsibility, and the children’s living arrangements, and some further additional orders.
I am required to make orders as proposed by the parties or the Independent Children’s Lawyer or otherwise, that are in the best interests of the children.
Background
The mother who is currently 43 and the father who is currently 42, married in 1994, when they were in their early 20s.
The mother says she had concerns about the father’s mental state from the time of their marriage. The issue of the father’s mental health is a significant matter and is dealt with later in these Reasons.
For about the first nine years of their marriage, the mother and father attended church together on a weekly basis and were involved in other activities associated with the church.
J who is currently 15, was born in 1999.
K who is currently 13, was born in 2001.
In February 2002, the mother began working part time.
Up until early 2003 the family lived in various suburbs of Sydney, but then moved into the paternal grandparents’ home in the N Region where they lived for the balance of 2003.
After the family moved to the N Region the father ceased attending church regularly, but attended sporadically. The mother continued to attend church regularly with J and K.
In January 2004, the family moved to Suburb M, so the father could commence full-time tertiary study.
The mother says she became significantly concerned about the father’s mental health from around 2004.
L who is currently 10, was born in 2004. The mother had 12 months leave from work after L’s birth. For about six months after L’s birth the mother felt “overwhelmed, sad, exhausted and isolated.” There was an incident in the second half of 2004 when the mother picked up a knife and threatened to hurt herself in the course of an argument with the father, and also contemplated throwing herself under a truck on a major highway near their home. The mother consulted her general practitioner who referred the mother to support from an early childhood service.
J commenced school at a religious school in early 2005. The mother continued attending church with the children alone, without objection by the father.
In the first half of 2005 the father attended upon a psychiatrist and counsellor.
By mid 2005 the mother’s mental state had recovered and she returned to part-time work.
The family moved to the N Region in 2006, and J and K were enrolled in a religious school.
The mother says that the father’s verbal abuse and denigration of her became particularly serious in 2006. In September 2006 the police were called by the mother on one occasion and from 16 September 2006 the parents separated for about 11 months. The father moved out of the family home and the children lived with their mother and spent time with their father on most weekends.
The parents reconciled in August 2007 and the father moved back into the family home.
In 2008 the father saw a psychiatrist, Dr R, on two occasions.
The parents separated for the final time in early 2009. Initially they separated within the family home and then the mother rented another property in a nearby town in the N Region. The children spent equal time with the mother and father from the date of separation, and after the parties’ physical separation, on a four day/three day regime with each parent, involving two changeovers per week.
After separation the mother observed J to appear very sad and that he was sleeping poorly. A general practitioner referred J to a youth therapist. The father refused to allow J to continue with his therapy as he believed that the therapist had a religious affiliation.
In mid-November 2009, without prior discussions with the mother, the father attempted to withdraw L from his pre-school about three or four weeks before the end of term. Thereafter the father refused to take L to preschool on the days L spent in his care for the rest of 2009.
The father completed his studies in 2009.
The parents divorced on 14 January 2011.
The mother commenced a relationship with Mr C who is currently 51, in February 2011.
The children were in the father’s care on Mothers’ Day, on 8 May 2011 and were due to be returned to the mother the following day. On 8 May the father alleged to the mother during a telephone conversation that Mr C was a paedophile who had made K sit on his knee. The mother initially denied that this had ever occurred, but subsequently agreed that K briefly sat on Mr C’s knee in the course of a game in the presence of other family members. The father contends that Mr C’s actions go beyond this brief interaction and amount to paedophilic grooming. The mother denies that any such grooming conduct occurred. This factual dispute which is of significance in these proceedings is dealt with later in these Reasons.
From 10 May 2011 onwards, the father required the mother to sign an undertaking that Mr C would not be coming into contact with the children prior to each occasion when the father returned the children to the mother’s care.
On 1 July 2011, the father moved from his rental property into his parents’ home. The children spent the first week of the July 2011 school holidays with the mother and the second week with the father. The children were due to return to school on Tuesday, 19 July 2011 and the mother was to collect them from the father the following day. The mother was unaware that the father had had a falling out with his parents, who had asked him to move out with the children. On 18 July 2011 the father sent the mother an email informing her that he had extended the children’s holiday, that they would not be attending school on the Tuesday and that she could collect them on Tuesday night from a hotel where they were staying in the city. The mother collected the children from Parramatta train station on the evening of Tuesday 19 July 2011. The children were distressed about the fight between their father and his parents.
The following week when the children were in the father’s care they missed two days of school and stayed with their father in a motel.
On 27 July 2011 at 5:00 am the father sent an email to the mother, which included the following words: “I have no choice but to move… It will be necessary for the children to change schools and perhaps also for you to move… I will be in touch with schools in the near future. My future location will be much closer to my current place of employment.” The father at that time was working at the University of F.
The mother had not read the father’s email of 27 July on that day, but became aware that the father had raised the topic of moving schools with the children, without having previously discussed the topic with her.
On about 13 August 2011, the father moved to a new home near Suburb M.
In September 2011, the mother commenced these parenting proceedings.
In about May 2012 when K was eleven, the mother had difficulties disciplining her. There was an incident in which the mother locked K out of the home and she ran away, which J apparently reported to his father. There was a second similar incident a few months later when K became quite hysterical and the mother again locked her outside the home. This incident was also reported by J to the father.
After numerous court appearances, the parents agreed to implement a “week about” arrangement which was due to commence on Friday, 17 August 2012. This arrangement commenced with changeover occurring after school on that Friday. The mother stopped providing the father with the hand written undertakings in relation to Mr C from this time.
In November 2012, interim parenting orders were made in terms of the “week about” arrangement that the parents had already implemented.
The “week about” parenting arrangement continued until 29 March 2013 when the children were due to return to their father’s care. As a result of telephone conversations between the father and the children at this time, the mother understood that the father was unable to have the children live with him for an indefinite period. The father indicated in subsequent emails that he was looking for a new home and requested that the children live with the mother until that home was established.
The children lived with the mother from April 2013 to June 2014. During this time they spent some time with their father on an ad hoc basis, as agreed between the parents. J generally spent a few hours with his father on some Thursday evenings at a shopping centre in Suburb M. The younger two children spent time with the father on some Thursday evenings and on occasional days during the school holidays and on some weekends in the holidays. Occasionally they spent time overnight with their father.
In August 2013, the family were assessed by an expert psychiatrist, Dr B.
In late June 2014 the father moved into a new home in Suburb O with his then current partner. K and L spent a number of nights with the father in the winter school holidays in 2014. From about this time the children spent more regular time with their father, including some weekends and Thursday nights for a few hours in Suburb M.
At the time of the hearing, K and L spent time with their father on most Thursday evenings for about two hours and J attended on occasions. The two younger children also spend most weekends with their father from Friday night until Sunday night, and J occasionally also went for weekends with them.
The mother and Mr C were married in 2014.
The Areas of Dispute
Does the father suffer from a psychiatric or psychological disorder?
The mother contends that the father suffers from a psychotic disorder which impairs his parenting capacity. The Independent Children’s Lawyer says that the evidence supports this diagnosis and regards this diagnosis as central to the best interests of the children. The father denies that he has a psychiatric or psychological disorder or any impairment to his parenting capacity.
The mother says that her knowledge of the father’s psychological history prior to their marriage, is based upon what the father told her. She says that the father told her that when he was about 15 years old he was “bashed” by strangers and received head injuries and suffered post-traumatic stress disorder. The father does not include any history related to his mental state prior to his marriage in his affidavit.
The mother says that from the time of the commencement of their marriage she was concerned about the father’s mental well-being, he slept poorly and had sudden outbursts of anger. She describes him as “frequently restless and agitated”. According to her, in about 1998 the father began receiving treatment from a general practitioner and took anti depressive medication from about 1998 to 2001. The father’s affidavit does not address this period of time.
The mother gives evidence of the father’s unusual behaviour from about 1999. She says that when J was born in 1999 and her mother stayed for about a week the father told her that he had set up a video camera to monitor her mother and make sure she didn’t hurt the baby. The father also told the mother that he had seen her mother squeeze J tightly when she was holding him. The mother described her reaction at the time, as surprised, angry and embarrassed. The father agreed under cross-examination that he observed the maternal grandmother squeeze J tightly as a baby.
The mother says that when the father ceased taking his medication in about 2001 or 2002, he “withdrew” from her and the children and spent most of his days in his home office or on his computer.
The father does not give a history of his mental condition in his affidavit. However, a doctor the father consulted in 2004 told Dr B that the father gave a history to him of a “mental breakdown” in 2002.
When the family moved to the N Region in about April 2003, the mother says the father began attending a medical practitioner who provided a certificate to the effect that the father was not mentally well enough to work and the father began receiving Centrelink disability payments. The father does not address this period of time in his affidavit.
In January 2004, the family moved to Suburb M so that the father could commence full-time study at the University of P. The mother said that she observed that the father’s mental health began to worsen significantly and that at times he spoke incoherently; she understood he was suffering from hallucinations and he was suicidal. The mother said that the father saw a psychiatrist but that the psychiatrist referred the father to Dr Q, a general practitioner for ongoing care. Dr Q told Dr B that there had been a diagnosis of anxiety, panic disorder and possible bipolar disorder or psychotic disorder but that he mainly treated the father for anxiety.
The father’s evidence about his mental state at this time is that there was no discussion (with treating doctors) about hallucinations or delusions, but he does not dispute the diagnosis of “mild psychosis”. The father says that he did not suffer from a real psychosis, but the appearance of one, brought on by “the mother’s insistence” and his depression and anxiety due to their relationship and his business failure.
In 2005 Dr Q did not feel that he was able to manage the father’s care and referred him to a psychiatrist. The father attended upon this psychiatrist and he improved for about 12 months with anti-psychotic medication.
Dr Q told Dr B that after the father’s improvement over 12 months, the father relapsed. The mother also says that after the parents reconciled in August 2007 following an 11 month separation, the father’s behaviour deteriorated. He became increasingly “paranoid”, complaining frequently that people were looking at him strangely or acting strangely around him.
The mother gives a number of examples of the father’s behaviour, conversations and communications, which she says demonstrate the father’s unusual behaviour. For example, according to the mother’s affidavit, the parents changed J and K’s school from a private school to the local public school, as the father believed the children were being treated unfairly by the school. Although the mother did not agree with the father’s views, she agreed to change the children’s schools. There is an ongoing theme in both parents’ evidence that the father believes that his children suffered repercussions from “religious people” as a result of the father’s loss of religious belief. Further, during the first half of 2008, the mother says that the father repeatedly expressed that he was not happy with L’s treatment at pre-school and he wanted a change in pre-school. Although the mother did not agree with the father’s ideas, she twice changed L’s pre-school at the father’s insistence.
The father was reviewed by a psychiatrist, Dr R, on two occasions in 2008. Dr R told Dr B that he recalled the father having “a slight edge of suspiciousness” but Dr R at the time felt that this was more likely to be linked to personality characteristics rather than a psychosis.
In early 2009, the father became concerned about his health and believed that he was suffering from kidney disease. The father attended numerous doctors including general practitioners, underwent many tests and also conducted extensive research about kidney disease on the Internet. The mother says that the father told her that he was poisoned by takeaway food from Chinatown or that the problem with his kidneys may be hereditary. She said that the father told her that he did not trust various general practitioners and this is the reason that he changed doctors so often. The mother’s understanding is that none of the tests revealed that the father had any kidney disease.
At around the same time, the father also organised for each of the children to attend doctor’s appointments for assessment for kidney disease and the children underwent tests including urine testing and ultrasounds. The father was particularly convinced that J suffered from kidney disease and told the mother that J’s kidneys were damaged when her mother had squeezed him as a newborn child. The father required J to have a blood test and a test that involved a needle being inserted into J’s penis, both of which caused J great distress according to the mother. Neither test revealed that there were any concerns about J’s health. The mother says she opposed J undergoing these tests. According to the mother, J was taken to about 12 medical appointments and the father told her that a specialist said to him “there is nothing wrong with J. Stop wasting my time. I have sick people to see.”
The mother annexes to her affidavit, an email message sent to her from the father on 27 May 2009 in relation to J’s medical condition. This email is as follows:
Subject: intellectual discipline, determination, subversion, and determined rationality required to help [J]
We are going to have to work very hard, and be very rational and inventive in order to circumvent the normative systemic impediments in order to get [J] diagnosed and treated with corrective surgery (if necessary, based on results of tests.) From what I have experienced myself and based on what mum has told me about how long the system has been like this, the most likely reason, logically speaking, is that we are all fighting against a sophisticated program of passive-aggressive and selective populist eugenic genocide by proxy. There is no reason, in countries with the resources and technology of Australia or the United States, why hundreds of thousands of people cannot get medical treatment, and why a nine year old boy who needs urgent treatment to prevent permanent damage has to wait two months just to see a specialist. Big picture-wise, this is highly suspect. Perhaps the population culls of WWI and WWII were too messy, and nuclear conflict cannot be risked because of collateral damage? Perhaps so other alternatives must be used: conventional weapons conflicts, slow progression guerrilla and terrorist wars in which the body count is obscured by time. Then there are the roadways, chronic diseases, and diseases from the alcohol, cigarettes, sugar, fatty foods, anti-depressants and other poisons that get determinedly shoved through every chemist and supermarket in the western world. Of course – the chances of success are increased when people use faith for cognition and not rationality, making them more vulnerable to damage:
poor fool actually thinks she was doing the right thing, and wants to defend the institution which was used to use her to kill her daughter: ‘system’ clearly used the discursive, psycholinguistic and psychological programming of the …Church to get these parents to murder their child: murder by proxy. This child was murdered by deception and through the programmatic substitution of faith and ‘pragmatic’ thinking in place of healthy logical cognitive ratiocination. If we are going to help [J] to not end up like me and my cousin (it may well be too late) then we are going to have to really use our brains and rationality and subvert many of the systemic and bureaucratic obstacles placed before us.
Note that it is the continued uro/hydrodynamic pressure and stress of reflux that does the most damage to the kidneys – not the infections. The damage can happen very fast.
follow-up of children with UTI who have reflux has established that renal damage correlates with marked reflux, not with infection.”
Time is of the essence.
Another example of the father’s unusual behaviour occurred in January 2011, when the mother and children visited the maternal grandmother. The mother says that the father told her in the children’s presence not to allow the children near their grandmother unless the mother was present and told the children to “be careful of Nanna”. During this visit L reported to his father that he had danced with the maternal grandmother and had held her hands. During a subsequent phone call, the father said to the mother “if you don’t deal with your mother, I will call the police.” The source of concern in relation to the grandmother has not been identified by the father.
During the same school holiday period, the father insisted that the mother take K to an appointment with an optometrist near the grandmother’s home, as he believed K had a degenerative eye disease. The mother did not believe there was anything wrong with K’s eyesight but complied with the father’s request. The optometrist told the mother that there was nothing wrong with the child’s eyesight. While the mother was at the optometrist’s appointment police attended the maternal grandparents’ home at the request of the father to make enquiries to ensure the children were safe.
The mother says that the father has believed for a number of years and continues to believe, that other people and organisations are biased against him and that the mother is responsible for this bias. She annexes emails from the father to her affidavit which express these beliefs. These include the following email of 27 July 2011 to the mother, when the father was looking for accommodation. He wrote:
[Ms Lyon],
Due to the apparent links between [S Pty Ltd] and the rest of the real estate community here, and due to further (easily demonstrable) links between that community and your faith community and yourself, I am having exceeding and abnormal difficulty securing a property for rental despite a provably stable adequate income and spotless tenant ledger for over four years.
I hold you responsible for this in significant measure since I know that some of the persons with whom I have come into contact are verifiably connected with your faith community and correspondingly treat me with contempt and behave obstructively towards me. I am also reasonably sure that you have played some part in the difficulties I had with a particular estate agent using their professional position to harass me in an obvious and wanton fashion. Even if you have not done this directly through word of mouth – which is highly likely – then your acquaintances have most certainly done it for you. Either way I consider you partly responsible.
… I will also be pursuing the previous estate agent over harassment as soon as more information comes to light. (This is in process and includes some laboratory testing and PI work). I have made adequate and serious efforts to secure a lease in the local area, and have been prevented because of the aforementioned ‘community cohesion’ dynamics. Therefore I am not responsible for my not being able to live in the local area.
In another email dated 19 May 2013 the father wrote:
Dear [Ms Lyon],
It is clear based upon the behaviour directed to myself by certain individuals in the wider community over the last several months (some of which has been dangerous to my person and damaging to my ability to prosper and live in peaceful congress) that either you or one of your close family members has irresponsibly made false or inaccurate claims about certain events that transpired during our marriage approximately 12-13 years ago.
You should be of the clear understanding that it is logically impossible that anyone else could have produced the outcome that I am alluding to, and that I subsequently hold you and your close family members wholly responsible, especially since your behaviour and attitude of 12 years ago was a significant cause of the problem in the first place.
Although the father denies that he suffers from any mental condition he does not generally dispute the mother’s version of events and past doctor’s diagnoses. He gives no evidence about his mental state and treatment received at any time.
Dr B, a child adolescent and family psychiatrist, provided a report in the proceedings based on interviews with each of the parties and the mother’s partner alone, family interviews with each parent and the children and interviews with each child alone. He also spoke to Dr R and Dr Q and a psychologist who had treated the father. Dr B gave evidence in the proceedings and was cross-examined.
Dr B is of the opinion that it is likely that the father has a current and long-standing mental disorder, being a psychotic disorder such as schizophrenia or schizoaffective disorder. The doctor says in his report:
A prominent feature of this disorder has been paranoid (self-referential and persecutory) ideation, which I feel has the characteristics of delusional ideation. Associated with the father’s delusional ideation, he has experienced delusions of reference, that is false and implausible interpretations from his environment and likely auditory hallucinations. I note that it is not only the unlikely nature of the belief that denotes a delusion but the implausible chains of reasoning initiating or supporting that belief, and the association with perceptual disturbances.
Some of the father’s delusional beliefs date back over many years and integrate various observations and conclusions over time. These are termed complex systematised delusions. Such delusional systems often persist over time, even with treatment, and are elaborated and reinforced by false inference from new experience.
The doctor annexed to his report the content of the father’s delusional ideation as given by the father in the assessment.
Dr B observed that the features of paranoid ideation, delusions of reference and hallucinations that he observed at interview, are consistent with information given to him from health professionals who had previously treated the father. For example, Dr Q recalled the father having irrational thoughts about “enemies from the past” intruding on his life and people following him when he was on public transport during the period of 2004 to 2006. Dr Q also recalled that the father improved after having received anti-psychotic medication.
The Doctor also felt that some of the mother’s evidence about the father’s unusual beliefs, the contents of emails (such as the one set out in paragraph 61) and the father’s belief that the maternal grandmother had squeezed J in a harmful way as a baby and again in 2011, are consistent with his opinion about these matters.
In addition to delusions and hallucinations, the doctor was of the opinion that the father showed some evidence of disorganisation of thinking and behaviour that is common in psychotic illnesses including pressure of speech and tangentiality during the interview. The doctor also observed that while the father has had periods of organised and effective thoughts and behaviour such as in achieving his postgraduate degree, he has at other times been disrupted by stressors such that he has had to extend deadlines. The father has also experienced periods of day to day disorganisation and inconsistency, for example with regard to his own accommodation.
The doctor also observed that the father’s style of argument is “quite concrete, perseverative, pedantic, and disconnected from broader emotional and relational context”. The doctor gives the example of the father’s use of long lists of positive adjectives to describe himself, as opposed to long lists of negative adjectives to describe the mother which appeared to the doctor to be rather black and white and caricatured rather than considered or sophisticated.
The doctor said that although both the mother and father told him that the father had been “depressed” in the past, the father did not present as depressed upon assessment. Dr B felt the father’s symptoms of depression may have been secondary to distress, despair and dysfunction caused by his psychotic illness, or that he may have a co-existing mood disorder, that is schizoaffective disorder.
While the doctor acknowledged that the father had a period of depression and dysfunction in the early 2000’s associated with a number of stressors, he was of the view that the father had recovered.
The doctor was also of the opinion that the father has “developed personal dysfunction in the form of narcissistic personality traits”. The doctor described this as secondary narcissism which has developed as a defence against the shame and insecurity felt by the father as a result of his psychotic illness and sequelae as well as his own childhood and adult experience of a harsh and judgmental father. The doctor said the father’s narcissistic traits are his grandeur, sense of self importance, speaking of himself as special and associated with high status others and that he has a sense of entitlement, is inter-personally exploitative, lacks empathy, believes others are envious of him and shows arrogant haughty behaviours and attitudes.
Dr B remained firm in his opinion under cross-examination.
Although the father does not accept Dr B’s diagnosis, that he has a psychotic illness, he did challenge Dr B under cross-examination directly either about the diagnosis or the factual basis for that diagnosis.
In his affidavit the father challenges Dr B’s findings on the basis that the Doctor only spent one hour with him in particularly stressful circumstances due to the proceedings. However, the father did not suggest to Dr B during cross-examination that the doctor’s opinion was affected by this allegedly “limited assessment”.
The father says that he has never experienced either hallucinations or delusions of reference, but did not challenge the annexure to Dr B’s report which deals specifically with this issue.
Although the father says that Dr B’s conclusions are likely to be based on incorrect information given by the mother and the stress of the circumstances, he does not challenge the information given by providing an alternate version of any events or through cross-examination of Dr B.
In his affidavit the father also suggests that Dr B may be of “the same ideological and religious disposition” of the mother, and that she and Mr C were able to unduly influence the outcome and content of the report. The father did not ask any questions of Dr B or present any evidence to support his feeling or opinion that Dr B was biased towards the mother.
The father also sought to rely upon the opinion of a psychiatrist, Dr R who he saw twice in 2008. However, the father did not obtain a report from Dr R for the purposes of the proceedings. As previously noted, however, Dr B did speak to Dr R for the purposes of preparing his report and confirmed that Dr R was of the opinion at that time (having interviewed the father alone and not having access to any other material) that the father did not suffer from a psychotic illness.
I am satisfied that the father does suffer from a psychotic illness for the following reasons. Dr B is a court appointed expert psychiatrist who was not challenged about any of the factual matters upon which he relied upon in forming his opinion or upon the opinion itself.
The doctor’s opinion was corroborated by past medical records and discussions with previous health professionals. Dr R was the only psychiatrist to express the view that the father did not have a psychotic illness but no report was obtained from him. The basis of his opinion is unknown and he was not the subject of cross-examination. In these circumstances, I attach little weight to his opinion as expressed to Dr B.
Many of the matters Dr B relied upon came from information which was not disputed by the father during the interview and is not in dispute in these proceedings. For example, the father does not dispute the content of the emails sent by him and asserts in his own case, that beliefs he holds are accurate, such as that people recognise him when he is out in public or interfere in some way with his rights because of his beliefs or the mother’s influence.
In my view, the father also demonstrated narcissistic personality traits such as a sense of self importance and entitlement in the content of his evidence and in his conduct in the proceedings. For example, in his affidavit when commenting upon an email written by himself the father describes his own writing style as “grammatically excellent … clear and unambiguous with excellent sentence structure”. The father demonstrated particular entitlement in requiring undertakings from the mother in relation to the children’s contact with Mr C and in vetting the mother’s relationships, but did not consider that similar requirements should apply to him. The father also uses particularly high-handed language in his emails to the mother. For example, at a time when the father was expecting that the mother should move her home and change the children’s schools to accommodate a change in his circumstances he wrote, “the custody arrangements will be maintained regardless of whether you move or not”. At a stage when the father believed that Mr C was dangerous to the children and believed the mother had allowed them to have contact with him, the father wrote, “do not do it again or you will not be getting the children back until I have a Court ruling barring Mr C …”. In another email he said, “I have indicated to you that you should not use my first name due to your attitude and behaviour towards our daughter and myself”. In another he said “I now demand in no uncertain terms that forthwith you acquiesce, as you reasonably should, to a week-about arrangement”.
For these reasons, I am satisfied that the father does suffer from a psychotic illness. The relevance of that illness to the best interests of the children is dealt with later in these Reasons.
The alleged incident involving the mother’s partner, Mr C
As previously noted, the father contends that the mother’s husband, Mr C has engaged in paedophilic grooming of K, which is disputed by the mother. Although it is not entirely clear, it appears that the father continued to contend at the hearing that there was an unacceptable risk of harm, should K spend any unsupervised time with Mr C.
It is the father’s case that Mr C encouraged K to sit on his knee or lap on numerous occasions in a secretive fashion out of the mother’s presence and that this amounted to paedophilic grooming.
The incident or incidents upon which the father’s fears are based are said to have been revealed by K in the course of a series of conversations in May 2011. The father’s version of the first conversation in his affidavit is that on 8 May while in the car L asked his father “Dad, what’s child abuse?” The father says that he answered the question by explaining the different forms of child abuse and included the following:
I explained that sexual abuse could involve grown-ups being very sneaky and tricking children into doing things like taking off their clothes, touching their privates and less obvious and apparently harmless things like inappropriate touching during hugging and putting children on their lap.
The father says that at this point K interjected and said “Oh [Mr C] does that with/to me all the time”. He does not elaborate about the conversation any further in his affidavit except to say that K said it in a matter of fact manner and her tone was not one of concern or worry. The father says that later that afternoon or evening or the next day he contacted the mother to enquire about the events and asked that they not be repeated. The father says that the mother said “I know nothing about that” or words to that effect and “[K] must be making up stories”.
The father says that “later” he further questioned K about how the mother could not be aware of Mr C having her sit on his lap. In his affidavit, he said that he became aware from 10 May that Mr C had K sit in his lap in secret on a number of occasions. According to him in the further conversation or conversations K insisted that her mother was at home when this had occurred, which appears to be in response to the father suggesting that perhaps the mother was not home at the time. The father then asked K how Mr C could have her sit on his lap without the mother noticing and says:
My daughter responded that “when mum leaves the room he says ‘do you want to hop up here’” and then she patted her lap on her right thigh close to her hip, apparently in mimicry of [Mr C’s] own actions. I then asked how it transpired that the Applicant did not discover this activity (“how can it be that your mother didn’t notice this if she was there?”) [K] responded (with some exasperation at my difficulty in understanding) “No, dad. When she is coming back into the room he says ‘time to hop off now sweetheart/sweetie’.
The father says that he carefully questioned K a number of times to ensure she was sure about her statements.
The father says that after making enquiries of the mother he withheld the children from her for the next period they were due to be in her care while he “investigated further and demanded guarantees that Mr C would not be allowed near the children and that the (mother) take appropriate measures to remedy the situation”.
On 16 May 2011 the father took K to Central Police Station and reported the incident. He says he and K were both interviewed by three detectives and K was interviewed by a specialist of some sort for over an hour. The father says that the detectives gave him information about what K had said and, in particular, that she had reported the same behaviour in the same terms.
In his affidavit, the father says it transpired that K reported that the lap-sitting events had happened “five times” . He says that he later questioned K again to ask if she was sure about the number of times the incident had occurred and that K had told him that “it was in different chairs”.
The father says that after he learnt that the police could not intervene beyond making a record of the events, he sought and received some legal advice to the effect that his concerns were neither trivial nor unfounded. The father says that he was given advice to ask the mother to sign a “voluntary court order to the effect that Mr C would be barred from approaching or having any contact with the children”. It appears that the father interpreted this advice as suggesting that he had the power to require that Mr C be kept away from the children and that if a written guarantee to this effect was not provided by the mother he would have retained the children in his “custody” permanently.
The mother’s version of events in relation to the father’s allegations against Mr C are that on Sunday 8 May 2011, the father telephoned her and said words to the effect of “your paedophile friend [Mr C] made [K] sit on his knee”. The mother also received an email from the father on 8 May at 7:20am. In that email the father says:
I will not be returning [K] or the boys into your care, until such time as I have a written undertaking from you that the inappropriate behaviour of your boyfriend [Mr C] – which I think more than borders on paedophilic (sic) and paedophilic behaviour – will cease. This statement must indicate that you will no longer permit [Mr C] to offer to have [K] sit on his knee/lap, and that you will disallow her from doing so with any other adult male persons. K indicates that [Mr C] has offered to have her sit on his knee/lap several times and that she has done so.
The mother sent the father an email on the morning of Monday 9 May denying that an offer by Mr C had ever been made for K to sit on his knee or lap. A few hours later the father wrote another email accusing the mother of lying on behalf of her boyfriend. In this email the father also wrote:
[K] is telling the truth and [J] confirms it. She mentioned one incident in passing in a conversation thinking nothing of it, and immediately remembered and revealed the frequency upon further simple questioning …
You most certainly will not be getting the children back until such time I am fully satisfied you have taken strong action to prevent your boyfriend from interacting with [K] in this way and provided written guarantees the behaviour will not be able to be repeated.
In a further email sent by the father in the early hours of 10 May, the father wrote “during our initial conversation, K indicated that you were home on the occasions when Mr C had her sit on his knee/lap. Now she informs me that you were home, but always in the kitchen. I asked her, “what does Mr C do when mummy comes back in the room?” K responded “he gets me to get off”. Apparently it is possible that you have not been able to witness this behaviour.”
The mother says that on 10 May when she attended the father’s home to collect the children, she handed him a handwritten note which said:
[Mr Lyon]
Whilst I am considering this situation and its implications for the future, I have asked [Mr C] not to visit between 10th May to 14th May, inclusive while the children are in my care. This is so that the normal routine with the children is not interrupted.
You have my permission to drop around during the period if you have any doubts that this will actually occur.
[Ms Lyon].
The mother says that she only gave this document to the father as she believed that if she did not he would not release the children to her.
On 16 May 2011 there were further emails exchanged between the parents. In one the father wrote:
I will not be allowing the children back into your custody without a written guarantee that your boyfriend [Mr C] will not be allowed within 500 m of K or the boys and will not be permitted to be present in the same location or building as they are in. If you provide this guarantee and demonstrate your will to enforce it, I will permit the children to return to you.
In that email exchange the mother continued to deny that K had ever sat on or been invited to sit on Mr C’s knee. The mother also said “[K] has not been telling the truth”.
The children were due to be returned to the mother on 18 May 2011 but the father refused to return them to her the following day, until the mother gave him the written undertaking.
The father required the same written undertaking when the children were next due to be collected from him by the mother on 24 May 2011. On 28 May 2011 the father informed the mother in an email that he required a written undertaking from her on a continuous basis, that Mr C will not be permitted to approach or be permitted to have any contact with the children “in order to release them into your custody”.
The mother says that on about 31 May 2011 she telephoned police who informed her that the father had brought K to be interviewed in the city but no offence was noted. She was not contacted by police or Community Services at any time, since the allegations were made. The mother says that she continued providing the father with the handwritten undertakings until 14 August 2012.
So far as the alleged conduct itself is concerned, the mother says the following:
I believe that on one occasion during April 2011 [Mr C] was playing with [L] and [K] in close proximity to each other and me. During that game [Mr C] said to [K] “Sit on my knee for a sec” at one point during the game. [L] sat next to [Mr C] on the lounge and [K] sat on [Mr C’s] knee on the lounge. [Mr C] showed both children how to do something. I am certain nothing untoward occurred.
[K] did not show any distress, she was absorbed in whatever [Mr C] was showing her. I can no longer remember what [Mr C] was showing the children as I did not consider the incident of any significance at the time it occurred. I was within about a metre of [Mr C], facing him, at all times during this incident.
The mother was not challenged as to this version of events under cross-examination.
Mr C says in his affidavit that K has never sat in his lap. He also said that in late April or early May 2011 K had sat on his knee once. He described the incident as having occurred in the course of himself, K and L watching television in the mother’s home. He described the home as having an open plan lounge and dining area and open plan kitchen and that the mother was walking around in these areas as he sat on the lounge with the children. He said the following occurred:
[L] reached across [K] and put his hand on my forearm or wrist. This was how, at about that time, [L] used to initiate an “arm wrestle” with me. I was concerned that [L] might accidently hurt [K], or cause her annoyance that would lead to an argument between them, as he arm wrestled with me. For this reason I lifted [K] out of the way and sat [K] on my knee while [L] and I arm wrestled.
I am not satisfied on the balance of probabilities that Mr C invited K to sit in his lap or on his knee on several occasions in the absence of the mother, or that K did so. I am satisfied that on one occasion K sat on Mr C’s knee at his invitation, briefly in the course of a game, in the presence of the mother. I prefer the mother’s version of this incident over the father’s version for the following reasons.
Firstly, there are a number of inconsistencies in the father’s version in relation to his knowledge of aspects of the complaint and the way in which he received that information. The father first raised the issue with the mother in the email sent at 7:20 am on 8 May 2011, which is prior to his own evidence that the first conversation had occurred on 8 May in the course of a car journey. At that stage, he described Mr C’s behaviour as “more than [bordering] on paedophilia and paedophilia grooming” and asserted that K had sat in his lap or on his knee on several occasions and that he had asked both J and L whether they had had the same experience. In an email of 9 May the father indicates that he had further questioned K and J about the incidents and both had confirmed that the incidents had occurred. In an email sent at 12:08 am on 10 May 2011 the father informed the mother that on each occasion that K sat on Mr C’s lap she was in the kitchen and that Mr C had K get of his lap before the mother returned to the room. However, in his affidavit, the father indicates that he received this information as a result of further conversations with K on and from 10 May 2011.
Secondly, I am of the view that the children’s version of the events given to their father may have been tainted by the father’s persistent questioning.. On the father’s own evidence he had numerous conversations with the children about the incident over a short period of time and arranged for K, who was 11 years old to be interviewed by police. The father also refused to return the children to their mother, unless she provided a written undertaking. In these circumstances the children must have known that the issue was of great significance to him.
The older two children described to Dr B their father’s mode of discussion with them. Both told the doctor that their father will persistently talk about and try to persuade them of his views and that the only way to end the discussion is to agree with him. Dr B expressed the view that part of the children’s adaptation and manner of relating to their father is to peremptorily comply with his views when in his presence. In my view, there is a risk that as a result of the father’s persistent questioning about the incident the children may have provided the father with the information they perceived he wanted rather than a version of the events which was accurate.
Alternatively, the father’s perception of what the children told him may be inaccurate. For example, although the father asserts that K sat on Mr C’s knee or lap “in secret”, he agreed under cross-examination that K had not used the word “secret” and this was a conclusion he had drawn. The father also continues to maintain that K alleged that she had sat on Mr C’s knee or lap, though the only independent evidence of K’s “disclosure” is that she had sat on Mr C’s knee only.
Further K told Dr B that she had sat on Mr C’s knee “maybe three or four times, I can’t remember… I thought it was fine”. K demonstrated to Dr B that she sat up on the edge of one of Mr C’s knees and said it had not lasted long and had not felt awkward or intrusive. In Dr B’s view, K had not made a disclosure of sexually inappropriate behaviour by Mr C.
The father seems to attach some weight to the mother’s initial denial that any incident in which K had sat on Mr C’s knee or lap had occurred. He suggests that this denial makes it more likely that the event had occurred as he alleges. I accept the mother’s explanation that the single occasion (which she subsequently specifically remembered) that K did sit on Mr C’s knee in the course of a game, did not appear to be an incident of any significance at the time, so that she did not recall it straight away.
Has the father perpetrated family violence?
It is the mother’s case that the father has been verbally abusive to her and has denigrated her, which has had an impact upon her psychological state and parenting capacity. The father’s conduct as alleged by the mother falls within the definition of “family violence”[1] in the Family Law Act 1975 (Cth) (‘the Act’). The father does not deny that he has been “constructively critical” of the mother but does not consider that he has denigrated her, or harmed her psychologically. The father says that the mother never shows any sign of fear, stress or is distressed when exposed to him, but frequently seems either amused or angry.
[1] Family Law Act 1975 (Cth) s 4AB:
It is the mother’s case that throughout the marriage the father spoke loudly to her and criticised her on a regular basis, and if she walked away from him, he followed her and continued his criticism. In her affidavit, the mother says that by 2004, the frequency and duration of these “sessions” had increased and she was less able to cope as she was not well herself at the time.
The mother says that in 2006 when they moved to the N Region the father continued to regularly speak loudly to her and criticise her for lengthy periods of up to an hour in their home and that the children were often present. She also said that he continued to follow her if she walked away. The mother says in about September 2006 she called the police during such an incident and that the police spoke to each of them separately. From September 2006 the parents separated for about 11 months.
The mother says that from the time of final separation in early 2009 onwards, the father sent critical, abusive , and at times threatening emails to her, which he sometimes copied to the children. She annexes a large number of emails to her affidavit. Extracts from some of those emails include the following:
[Y]ou were given many chances to behave reasonably and fairly, and I have to date exhibited the most extreme patience and tolerance in the face of utter domineering arrogance fuelled by the immensely passive aggressive bullying attitude cultured by the religious/cult society to which you belong… I have copied this email to our children, and will be reading it to them, because they have a right to know about the negative and destructive agendas to which they are being subjected by you and your supernaturalist religious “community” [written at a time when the children were aged 10, eight and five respectively]
I now assure the children on a regular basis, for their own defence and so that they can understand your behaviour, that you are in fact hateful and embrace what is really a hateful doctrine and are up to no good, that you lie when you pretend to be decent and “peaceloving… You’ve got one option with me-get real and start to behave like a decent human being or suffer the consequences.
You don’t deserve your children. You really are one hell of a selfish cow and always have been. As long as you get to pout and make yourself the centre of the universe, forget your little daughter.
This is exactly the kind of behaviour that I have come to expect from you, and it is disgusting, passive aggressive, selfish, bullying and piggish.
The mother also gives examples of the father’s coercive behaviour which she says has had an impact on her parenting, to which the children have been exposed. A recent example given in her affidavit occurred in February 2014 when she and the father were attempting to organise arrangements for the children to spend time with him. The mother asked him to return the children by 6:00 pm on a Sunday evening as they had school the next day, but the father wanted to return them later. The parents had several conversations in which the father accused her of being inflexible and preventing him from seeing the children. The father then repeatedly telephoned her on her landline, her mobile phone and on K’s mobile phone. He then sent a text message to her in which he wrote “your tone of voice, wholly unnecessary rigidity and complete unwillingness to negotiate on the basis of the context and circumstances are inappropriate and contrived to cause upset. What’s more, your behaviour is cruel and patently quite vicious and does not in any way place the children’s welfare and psychological health first”. The mother did not respond to the father’s message. The father then telephoned K and spoke to her. K and L became upset and accused the mother of preventing them from seeing their father.
The father does not challenge the mother’s allegations that throughout their marriage he spoke loudly to her, criticised her and followed her and continued his criticism if she walked away. There is also no doubt that he sent highly critical, and in some cases, threatening emails over a number of years, a number of which he copied to the children. He did not challenge the mother under cross-examination in relation to the negative impact that she says that denigration and criticism had upon her.
Dr B also reported that K described the parents’ arguments in the following terms:
“[T]hey used to fight all the time… I used to think, when I was a lot littler, that dad was giving mum a hard time… but then I figured out, that he was just trying to get through to her, and she wouldn’t actually listen”. She gave the example, “It was at [T Street]… dad was downstairs… mum was fighting him about something… Dad was at the bottom of the stairs, [saying] ‘if you would just listen, because you don’t know what you’re talking about’… and she wasn’t listening… she was doing her own thing, and he was asking her to listen”.
In my view, K’s description given to Dr B when she was 12 years old, recalling events from her childhood is consistent with the mother’s complaints of the father’s persistent style.
Dr B described the father’s emails as consistent with the pattern of behaviour described by the mother and the children.
The father does not deny that the emails sent by him are authentic and does not challenge the mother’s evidence concerning words used by him but submits that this evidence does not amount to denigration, but merely constructive criticism, which he appears to suggest he is entitled to make as it relates to the mother’s parenting capacity. So far as his conduct is concerned, the father submits that it does not amount to coercion.
As the father does not challenge the mother’s version about his behaviour, and his emails and K’s description to Dr B are consistent with that behaviour having occurred, I am satisfied that the mother’s descriptions are accurate. Dr B is of the view that this behaviour demonstrates some features of a pattern of family violence before and since separation. He describes this pattern of behaviour as “coercive intimidating, disrespectful and harmful” to the mother. Dr B also says that some of the attitudes and behaviours typical of family violence perpetrators have been demonstrated by the father during the parental relationship and since separation, such as superiority, entitlement, control, possessiveness, externalisation of responsibility, denial, minimisation and victim blaming. In the doctor’s view, “these attitudes and behaviours arise from the father’s experience of mental illness and to some extent from his narcissistic personality traits and childhood experience of violence and aggression from his own father. In terms of a personal ethic, the father is not an abusive man, but in practice to some extent he has become so.”
For the reasons set out in previous paragraphs am satisfied that the father has engaged in threatening and intimidating behaviour which has coerced the mother to which the children have been exposed.
The Law & Discussion
The objects of Part VII of the Act and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
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).
According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations
The primary considerations (under s 60CC(2)) 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.
As these proceedings commenced prior to 7 June 2012, these primary considerations are each to be balanced equally.
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court has approved of the definition that it means a relationship which is “significant” or “of consequence”.[2]
[2] Mazorski & Albright (2007) Fam LR 518; McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
The Full Court also agreed with the reasoning of Bennett J in G & C[3] when Her Honour described the inquiry relating to the benefit to a child of having a meaningful relationship with both parents as “a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
[3] [2006] FamCA 994
In this case, I have no doubt, having regard to the advantages that each of the parents offer and the role they have played in the care of their children, that having a meaningful relationship with each of them will significantly advantage these children.
It is in my view unlikely that if the orders as sought by the father (and by the mother and Independent Children’s Lawyer in relation to J) any or all of the children would choose to live with one parent and spend limited time with the other. However, if it were to occur, it could have the result that the child may not receive the benefit of a meaningful relationship with both of the parents. Although not proposed by either of the parties or the Independent Children’s Lawyer, consideration was given to all the children living with the mother and spending defined time with the father. In my view, this arrangement would ensure that both parents continue to play a significant role in the children’s lives.
For the reasons given, I am of the view that the children have been affected by family violence by being exposed to verbal abuse and at times threatening conduct perpetrated by the father against the mother. If the children are permitted to make their own decision about the parent with whom they live and spend time with, as proposed by the father (and in the case of J by the mother and the Independent Children’s Lawyer) this will involve more contact between the parents to make the necessary arrangements than under an order of defined time which was recommended by Dr B. Under orders which specify the time to be spent which each parent, there would be less need for communication between the parents. I am of the view that the pattern of communication between the parents and the father’s verbal abuse will continue when the parents are required to communicate with each other and the children will continue to be exposed to this verbal abuse. The children will be better protected against exposure to this form of family violence under orders where there is less need for communication between the parents.
I also accept Dr B’s opinion “that there are significant risks to the children’s development, emotional wellbeing and mental health if they were to live predominantly with their father or if he equally shares the care of them with the mother”. Dr B refers in particular to the risk of the children becoming dislocated from friends, schooling and extracurricular activities if they live with the father as a result of his “long-standing low level of personal, interpersonal and occupational functioning and his [then] current financial and residential dislocation and relative social isolation”. The doctor also refers to risks faced by the children in relation to the father’s psychotic disorder, such as that the children have been influenced by and in part, have taken on some of the father’s paranoid and persecutory beliefs. J also was placed at some physical risk by being taken for medical appointments by his father and tested in relation to kidney disease as a result of his father’s delusional beliefs. Dr B is of the opinion that these risks would be minimised by the mother having sole parental responsibility, and by the children living predominantly with the mother. If the children are permitted to choose where they live, one or more of the children may choose to live predominantly with the father and be exposed to this risk of harm.
The issue of the father’s mental condition is of great significance in these proceedings. Having regard to this and to the children’s ages and intelligence I am of the view that the proposed order of the Independent Children’s Lawyer, (in accordance with Dr B’s recommendations) that the children receive information from a therapist about the father’s mental condition is appropriate.
Although it is not entirely clear, I understand that the father contends that Mr C poses a risk of harm to K due to his conduct towards her in the past. I am not satisfied for the reasons given that K was abused in any way by Mr C, nor that any of the children are at risk from him.
The father also suggests that there is a risk that the mother will psychological abuse the children. He contends that this arises due to the clash between the mother and Mr C’s religious beliefs and the children’s “non-theistic and non-faithist” views. Dr B is of the opinion that the children’s difficulties related to religious beliefs appeared to be associated with the differences between the parents’ position relating to religion rather than between the children and their mother. None of the children identified differences in religion as a cause of stress or anxiety to them in the interview with Dr B.
The father also suggests that the response by the mother and Mr C to the allegations of Mr C’s inappropriate conduct itself threatens the emotional and psychological health of the children, especially K. It is also the father’s position that J and L denigrate their sister to support their mother’s harsh and abusive view. The father describes the initial telephone conversation and email with the mother about K’s disclosure as “aggressive verbal attacks on K’s character and person including overt and severe actual denigration of K in front of others” and suggests that this behaviour has been copied by K’s brothers. Whilst it is unfortunate that the mother did initially say that K was not telling the truth about her disclosure concerning Mr C’s behaviour, the tone of all of the mother’s email contact with the father in my view is moderate and reasonable. There is no evidence to support the submission that the mother has engaged at any time in aggressive verbal attacks upon K or has denigrated her. In relation to the relationship between siblings, I accept Dr B’s evidence that each of the children spoke of each other with “warmth, interest and respect”.
I am not of the view that there is any risk of physical or psychological harm to the children at the hands of the mother. Neither the alleged psychological harm arising from a difference in views relating to religion, nor any aspect of the mother’s conduct in relation to the complaints about Mr C arise from the children being subjected to “abuse” as defined with in the Act[4]. Further, although the father raises his concerns about psychological harm, from which the children should be protected, he does not propose any particular orders that provide that protection, as he proposes that the children themselves determine where they should live and how much time they should spend with their parents.
[4] Family Law Act 1975 (Cth) s 4:
Additional considerations
Section 60CC(3) then sets out the additional considerations the Court must consider when determining a child’s best interests. I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
Each of the children expressed the view when assessed by Dr B that they wished to spend time with both parents. Each of the children also told Dr B that they would prefer to choose who they would live with and the time they should spend with the other parent. J told Dr B that he would rather be with the father most of the time, but expressed concern that the father did not have a stable house, that he lived far from J’s school and that J would experience difficulty in preparing meals, as his father was undertaking his Phd.
In my view, having regard to the age and obvious intelligence and thoughtfulness of each of the children, some significant weight should be attached to their views. However, these views should not in my opinion be determinative as they are not necessarily consistent with the children’s best interests. I accept Dr B’s opinion that the children lack the maturity to judge their own development needs at this time.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
Dr B is of the view that each of the children has a good relationship with each parent, appears to feel loved and valued by both parents and expressed loyalty to both parents.
Dr B observed warmth and reciprocity in the interactions between the children and their mother, and noted that the mother gave the children space to express themselves. Each child when seen alone spoke positively of their mother and although K told Dr B that there had been difficulties in her relationship with her mother, she spoke particularly warmly of her. The doctor said that it was notable that when the children were seen with their mother they spoke positively, in a very open, relaxed and elaborated way about the father and did not appear inhibited or vigilant about their mother’s response. This suggested to the doctor that the children’s relationship with the mother makes space for them to love the father, enjoy him and accept influence from him.
The doctor also observed warmth and reciprocity in the interactions between the children and their father. The doctor commented that the two older children presented as more grown up in their tone and behaviour when seen with their father which fit with their description of liking the greater autonomy when with their father. He also said that the children presented as protective of their father.
The doctor was of the opinion that each of the children has developed an anxious-avoidant attachment style to adapt to the adversity and challenge of chronic interpersonal conflict and their father’s vulnerabilities. The doctor described a child with this attachment style as suppressing his or her own emotions and desires and inhibiting expression of their own immediate needs in order to meet the needs of the parent. He says that this is a pragmatic adaption to the relational environment in which the children find themselves, rather than an emotionally driven reaction. Dr B is of the view that the children’s strategies for dealing with the inter-parental conflict and relating to their father show a predominant anxious-avoidant attachment style. The doctor said the mother’s home, in his view, is more balanced and secure and allows the children to express negative emotion and more needy or more emotion-driven interactions. He is of the view that it is beneficial for the children to spend the majority of the time in their mother’s home where they can utilise a broader range of relational strategies and develop a more secure and balanced model of intimate relationships, which they will then take into their adulthood.
Under either of the proposals put forward by the parties and the Independent Children’s Lawyer, there is the potential for the siblings to be separated, through their own choice of living with different parents. The father proposes that each of the children choose where they are to live and when they are to spend time with the other parent. The mother and Independent Children’s Lawyer propose for J to choose where he lives, and for the younger two children to live with the mother. Under either of these proposals it is possible for one child to live with one parent and two children to live with the other parent. The separation of siblings in my view will be a detriment to the children, given Dr B’s opinion, which I accept, of the importance of the sibling relationship. In my view, it would not be in these children’s best interests to live predominantly in separate homes, especially as the parents live some distance form one and other.
The children appeared to have good relationships with each of their grandparents. The paternal grandparents live near the mother and she makes arrangements directly with them for the children to spend time with them about once a month, including staying overnight. The children also spend time with their maternal grandparents during school holidays as well as their extended maternal family, including cousins.
Dr B noted that the children spoke positively of the mother’s partner Mr C, of time spent with him engaged in family activities and of the mother being happy and contented because of him. The father contends that the children’s relationship with Mr C is not so positive but there is no evidence to support this contention. As Dr B was not challenged as to his opinion, I prefer his opinion to the father’s concerning this relationship.
Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent
There has been a significant level of conflict between the parents since separation. The father also placed demands upon the mother that she provide an undertaking that Mr C would not have contact with the children over a period of 15 months, which in my view was an unreasonable demand. The father has also denigrated the mother and quite inappropriately shared his views with the children. However, the father has not ever actually interfered with the children’s relationship with their mother. The mother has on many occasions found the father to be demanding, unreasonable and abusive but has not allowed her views about the father’s conduct to affect the children’s relationship with him. This ability of each parent to facilitate the continuing relationship between the children and the other parent is to credit of each of the parents.
Likely effect of change in the children’s circumstances
The only change in the children’s circumstances that may arise under the proposed orders would occur if any or all of the children were permitted to live with the parent of their choosing and choose to live with the father. The risks associated with this change are set out earlier in these Reasons.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Practical difficulties would only arise if the children choose to spend equal or substantial time with each of their parents. There are no practical difficulties or significant expense involved in spending time with and communicating with the father if the children are to live with their mother.
Capacity of each parent to provide for the children’s needs
Dr B is of the opinion that the father’s mental disorder has caused significant personal and inter-personal dysfunction and instability, which has disrupted his parenting capacity. For example, the doctor is of the view that the father’s delusional ideation causes marked interpersonal dysfunction as the father can act on the ideation to accuse others and also attributes an interpersonal problem to a delusional cause.
In some domains Dr B is of the view that the father has good parenting capacity. The doctor says he observed an attitude of love for and commitment to the children and to his responsibility as a parent. He said that a positive element of the father’s paranoid outlook is his active protective nature which has caused him to step in and speak to preschools and schools when he is concerned about the children’s welfare. The father’s intellectual striving and narcissism, believing he has a lot to impart to the children and engagement with them is also positive.
Overall the doctor is of the view that at the level of intention the father is committed to meeting the children’s needs, but there is a large gap between his intention and action associated with the impact of the father’s mental illness and personality dysfunction. This gap relates to pragmatic matters such as the father’s struggles in stability in material matters such as accommodation and in the more complex area of meeting the children’s emotional, relational and developmental needs.
The doctor was of the opinion that if the children live with their mother they will have pragmatic stability and their emotional, relational and developmental needs will be met. Then they will be able to spend time with the father and to gain from his commitment, energy and areas of strength without being harmed by his lack of capacity in other areas. For this reason, the doctor recommends that the children predominantly live with their mother. He is of the view that the amount of time the children had spent with their father in the context “of the partisan uncertainties of these legal processes” has contributed to the anxieties seen in all three children and to the development of their anxious-avoidant attachment styles. The Independent Children’s Lawyer’s proposal for an order prohibiting them from discussing the proceedings with the children may assist in reducing their anxiety.
Dr B is of the view that father is at times quite intense and coercive in relation to the children. Although the doctor said that the father admitted that this occurred at times, in the course of the hearing the father contended that he was not coercive and expressed surprise about some of the matters the children told Dr B. The two older children told Dr B that whereas the mother and father have differing views and both try to persuade them, the father is much stronger in his trying to persuade. They said the mother allows them to have their own view and they can agree to disagree with her but the only way to end a conversation with the father is to agree with him. Of this process the doctor said the two older children:
Had a lightness and almost a fond smile about this characteristic of the father. They did not appear frightened or burdened. This is in my view in part because the children recognise the positive loving, protective intention that motivates the father’s earnest entreaties and in part because the issues about which the father becomes persuasive often do not relate to their day to day priorities, so they are willing to give ground.
The father contends that the mother has a depressive illness which impacts upon her parenting style but there was no evidence to support this contention. Dr B is of the view that the mother does not have a current or ongoing mental disorder, although she did in his opinion previously suffer from an adjustment disorder with depressed mood which did likely progress to periods of major depressive illness. He is of the view that the stressor for the adjustment disorder was dealing with the father’s pattern of verbal and emotional abuse, his personal and interpersonal dysfunction, his lack of insight into that dysfunction and his externalising of the blame for that dysfunction.
Dr B is of the view that the mother has a strong capacity to meet the children’s basic needs and their more complex developmental, emotional and intellectual needs. In relation to their emotional needs he said the mother has shown a strong capacity to meet those needs in the difficult context of the father’s symptoms, functional deficits and idealising but coercive interpersonal style, including a capacity to give the children space to continue to love, enjoy time with and accept influence from their father. He was also of the view that the mother has provided the children with a stable and predictable home, expectations and daily routines.
Maturity, sex, lifestyle and background
The father’s proposal, and the mother and Independent Children’s lawyer’s proposal with respect to J, allow the decision about living arrangements and time to be spent with parents to be made by the children themselves. As indicated earlier in these Reasons, Dr B’s opinion, which I accept is that the children lack the maturity to judge their own developmental needs. He observes:
[J] is drawn towards withdrawal and intellectualising, but this may not be in his interests. [K] is acting in part out of a desire to meet her parents’ need for fairness. [L] is motivated by an idealised view of the father that has in part been cultivated unhealthily by the father, and is presuming upon the many ways in which the mother has quietly underpinned his emotional and relational development during her day-to-day care of him.
For this reason, although the children have said that they want to choose their own arrangements, allowing them that decision-making capacity does not appear to be in their best interests.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
While generally the father is a responsible parent there are some aspects to indicate that he is more focused upon himself than upon the children. For example, his termination of the then shared-care arrangements for the children in 2013, according to his affidavit resulted in part from his “ aversion to living in an area heavily peopled by [Ms Lyon’s] extensive faith-based social network.” On other occasions he appears to have been unduly focussed on the mother’s shortcomings in a quite disrespectful manner and has incorrectly in my view had the perception that he is a ‘better’ parent.
I am also of the view that although the mother is generally a responsible parent at times she has acted inappropriately such as locking K out of the home twice when K was 10 years old and yielding to K’s demands to be let out of the car in the incident in October 2014. The mother did however appropriately recognise her inappropriate parenting during these incidents under cross-examination.
Family violence
Family violence is dealt with elsewhere in this decision. As the main form of violence now occurs when the parties are required to communicate with each other, reducing that level of communication and making an order which prohibits the parties from denigrating one another will promote the protection of the children from being exposed to this form of family violence.
Further proceedings
In my view, if the parenting arrangements for the children are fixed and leave no room for the children to make their own decisions, this arrangement is less likely to lead to the institution of further proceedings than a regime which allows for the exercise of the children’s choice. This latter proposal may lead to further proceedings, if that choice is perceived by either parent to be not in the children’s best interests.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[5] (2006) FLC 93-286
In this matter, the Independent Children’s Lawyer and mother seek an order that the mother exercise sole parental responsibility for the children and the father proposed that it be jointly shared.
Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this case, the presumption does not apply as the father has engaged in family violence as defined by the Act. Shared parental responsibility must still be considered however, as the father is seeking it.
Having regard to my findings and accepting the opinions of Dr B, I am not satisfied that it is in these children’s best interests for their parents to share jointly in decision making. I attach particular weight to the risks to the well-being of the children associated with being exposed to the father’s verbal abuse and coercive conduct towards the mother, and to the disrespectful manner in which he relates to the mother as well as his belief in his superior qualities as a parent, which do not auger well for co-operative decision making.
For these reasons, together with my findings about the mother’s capacity and level of respect towards the father and encouragement of a relationship with him, I am of the view that it is in the children’s best interests for the mother to have sole parental responsibility for the children.
Conclusion
The proposal of the father in relation to each of the children (and the mother and the Independent Children’s Lawyer with respect to J) is based on an assumption that the children will each make a decision about their future parenting that is consistent with their best interests. As previously indicated, I accept the opinion of Dr B, that the children lack the maturity to judge their own developmental needs and may make a decision based upon other matters such as perceptions of loyalty or fairness to each of their parents. Further, in light of the anxious avoidant attachment of the children to the parents, one or each of them may make a decision based on meeting the needs of a parent rather than their own emotions, desires and needs.
Having regard to all of the best interest considerations outlined in these Reasons, I am of the view that the orders which meet the best interests of the children are largely those proposed by the Independent Children’s Lawyer. The significant exception is that I have made an order with respect to where all of the children should live, and have not made an order allowing J to make his own choices for the reasons given. Accordingly, I make orders set out at the forefront of this judgment.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 February 2015.
Legal Associate:
Date: 19 February 2015.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
…
(d) repeated derogatory taunts;
…
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Jurisdiction
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