M and M & ANOR
[2010] FCWA 83
•28 MAY 2010
[2010] FCWA 83
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | M and M & ANOR [2010] FCWA 83 |
| CORAM | : | THACKRAY CJ |
| HEARD | : | 25, 26, 27 & 28 MAY 2010 |
| DELIVERED | : | Ex tempore |
| FILE NO/S | : | PT 6929 of 2003 |
| BETWEEN | : | M |
| Applicant/Mother | ||
| AND | ||
| M First Respondent/Father | ||
| AND | ||
| B Second Respondent | ||
| Catchwords: |
CHILDREN - With whom a child lives - Best interests of a child
Legislation:
Family Law Act 1975 (Cth) s 60CC(2), s 60CC(3)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr M Berry |
[2010] FCWA 83
| First Respondent | : | Mr P Cole |
| Second Respondent | : | Self Represented |
| Independent Children's Lawyer | : | Ms J Taylor |
Solicitors:
| Applicant | : | CMS Solicitors |
| First Respondent | : | Terrace Law |
| Second Respondent | : | |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in judgment(s):
Jones v Dunkel (1959) 101 CLR 298
[2010] FCWA 83
1 [Mr M] and [Ms T], formerly [Mrs M], have been involved in a long-standing
dispute concerning arrangements for their children, [Charles] and [Alexandra]. Charles was born in January 2003, and is therefore now seven, and Alexandra was born in January 2004, and is therefore now six years of age.
2 I have been dealing with this dispute for many years. I conducted a lengthy trial
in November 2006, following which I delivered judgment in February 2007. I gave
a further judgment immediately following another trial in February 2008.3 The orders I made in February 2008 were significantly amended by consent
orders made on 18 August 2008. Since then, the matter has been back before the Court on a number of occasions, to deal with a variety of issues. It is important that the reasons which I propose to give this afternoon are read as supplementary to the reasons I gave following the many earlier hearings, especially the more detailed judgments delivered on 9 February 2007 and 20 February 2008.
4 With the passage of time, the orders put in place following the 2006 trial have
undergone very significant changes. Pursuant to my original orders, the mother was given sole parental responsibility and the children were to live with her during weekdays. They were to spend time with their father on almost every weekend, and for about half of the school holidays.
5 Significantly, all of the father’s time with the children had to be supervised by
the father’s foster mother, [Mrs B]. It is noteworthy that these orders were made contrary to the recommendation of the Independent Children’s Lawyer, who has also had significant involvement with this family over an extended period.
6 The second trial that was conducted in February 2008 arose in circumstances
where the mother was continuing to pursue her claims of sexual abuse against the father. The orders made after that hearing provided for some extension of the father’s time with the children. The orders also provided for the father’s time with the children to be spent “in the presence of” Mrs B, rather than being supervised by her.
7 The original orders were also varied to allow the father to be able to take the
children to and from school on his own, that is, unsupervised. The orders of February 2008 foreshadowed a review of the arrangements after six months. That review did not take place as contemplated because the parties reached an agreement which resulted in the making of consent orders on 18 August 2008.
8 Those orders provided for the parents to share parental responsibility. The
orders involved the mother having the children on one weekend in every six, but otherwise provided for the father to have the children on three nights every week during school term and for half the holidays.
9 Very importantly, the requirement for supervision was removed, although the
somewhat complicated orders did involve the children spending some nights sleeping at Mrs B’s home and some nights at the father’s home. The orders continued to provide for the children to spend somewhat more of their time with the mother, especially during the school week. The orders were expressed to be until further order of the Court.
[2010] FCWA 83
10 Those arrangements, made in August 2008, have undergone further important
changes, it seems ultimately with the agreement of all involved. The mother’s evidence suggested that she appreciated that the August 2008 orders had something of a yo-yo effect, with the children having to spend time sleeping in three different homes.
11 However it came about, the arrangement that ended up being put in place was
that the children no longer have to spend any time overnight at Mrs B’s home. Essentially, they spend Monday to Thursday nights with their mother, and Friday to Sunday nights with the father. Their time with the father has been completely unsupervised.
12 There has also been a change in arrangements for parental responsibility. In
October 2009, I determined that until further order of the Court the father should have sole parental responsibility for all matters relating to the health and education of the children, subject to the father consulting with Mrs B in relation to those matters. This came about largely as a result of matters concerning the referral of the children to [Ms J], to which I will refer later.
13 Neither party is satisfied that the current arrangements are in the best interests of
the children. The mother is aggrieved by the arrangements I have ordered for parental responsibility. She also, understandably, complains that she has little quality time with the children, except during the school holiday periods. This is because she only gets to spend one weekend in six with the children.
14 The mother does not seem to appreciate that this was a compromise arrangement
reached in the face of the very real possibility that the children would live full-time with the father. On the other hand, the father considers that the mother’s continuing conduct, some of which he says is in breach of injunctions made previously, amounts to emotional abuse of the children. He considers the children’s best interests would be served by them predominantly living with him.
15 Having had the parties before me on many occasions over the last few years, it
became apparent that it was appropriate for issues between them to again be explored in detail at a further trial. My decision to hold such a trial came at around the same time as the Independent Children’s Lawyer was seeking to be discharged from further involvement with the family.
16 Her application was not made because the Independent Children’s Lawyer was
content with the then current arrangements. On the contrary, the Independent Children’s Lawyer was dissatisfied with the arrangements, but felt that nothing further could be achieved by ongoing involvement, given the orders then in place and the many other demands that are placed on the limited resources of the Legal Aid authority, which has funded the involvement of the ICL at considerable expense to the taxpayers.
17 There has now been a third trial which has taken place over the last four days.
During the trial the Court has heard evidence from both parties and from Mrs B, who is also formally a party to the proceedings. Evidence has also been given by the maternal grandmother, [Mrs T], who has come up from her home in [the south-west].
[2010] FCWA 83
The Court also heard from [Mr D] who, until Christmas last year, was involved in a romantic relationship with the mother. Evidence was also given by the mother’s treating psychiatrist, [Dr S] from the [Mental Health Clinic], by her general practitioner, [Dr M], and by [Mr H], who is the mother’s case manager at the Mental Health Clinic and who has had involvement with her since about August 2009.
18 Evidence was also given by the Principal of the school which the children attend
in [the suburbs], and by Charles’s class teacher. Finally, expert evidence was given by [Dr W], who has had involvement with the case for an extended period. [Dr W] is, of course, a highly experienced clinical psychologist who has appeared before the Court on numerous occasions as a single expert.
Credibility
19 It is important I make some comments on the credibility of the principal
witnesses arising out of my observations of them during this trial. The father gave his evidence in a calm and measured fashion. I considered his testimony to be generally reliable. The same can be said for Mrs B, who once again gave her evidence in a calm and thoughtful way.
20 Unfortunately, I am unable to say the same about the evidence and credibility of
the mother. Her psychiatrist, Dr S has in recent years changed his diagnosis of the mother’s condition from that of a depressive illness to that of a borderline personality disorder. His description of that disorder corresponds with the impressions the mother has created during her many appearances before me.
21 Dr S said that people with a borderline personality disorder have periods of
instability of mood associated with depression and anxiety. He also said that people with that disorder have a tendency either to idolise or demonise others; that is to say that they tend to deal with other people as if they are all good or all bad. They find it hard to trust and they act very impulsively and react emotionally. Some have a tendency to self-harm or suicide.
22 In my view, someone who presents with this personality disorder is unlikely to
be able to give entirely accurate evidence, because their view of the world is badly
skewed by their own emotional reactions to events and people in their lives.23 The difficulty the mother would inevitably experience in giving reliable
evidence was, in my view, exacerbated by the extent to which she was medicated. The mother routinely takes a cocktail of medications which are designed to deal with her mental health issues and the chronic lower back pain from which she suffers. The mother particularly requires medication to help her sleep and to get her through stressful times, and there can be no doubt that these proceedings have been exceptionally stressful for her.
24 My impression is that the mother has been affected by her medication during the
week of this trial and in a number of the appearances leading up to it. In particular, her speech has been slurred in a way that I do not recall being obvious in the earlier stages of the proceedings, notwithstanding that I am aware that at those times the mother was also taking prescription medication.
[2010] FCWA 83
25 All of these things must have an impact on credibility and the ability to recall
information, especially because the mother’s life has been full of many dramas, the details of which would be difficult for anyone to recall. Whilst I am satisfied that the mother felt that she was giving truthful evidence during the course of the trial, I did not find her to be a credible witness, and I placed little weight on anything she said.
26 The maternal grandmother, Mrs T, presented as a calm and sensible witness.
She impressed me as someone who would be a moderating influence on the mother, who is the youngest of her nine children. Mrs T is a very highly experienced schoolteacher, who has suffered some quite serious health problems in recent years.
27 Understandably, she is aligned with her daughter, but I nevertheless believe she
did her best to assist me by giving what she regarded as truthful evidence. Her affidavits demonstrated a good understanding of the two children and demonstrated much insight into Charles’s special needs.
28 Mr D was called to give evidence, notwithstanding that his relationship with the
mother has ended in fairly acrimonious circumstances. I considered it important that he be called for a number of reasons, including the fact that it seemed the mother had allowed him to assume a significant role in the lives of the children at what was a very early point in their association.
29 He presented as a somewhat simple man, whose speech at least suggested that he
was of below average intelligence. It was difficult to assess his credibility in the relatively short time he spent in the witness box. I gained the impression that elements of his evidence were credible.
30 It is unnecessary for me to comment in detail on the other witnesses, as I do not
consider their credibility was seriously an issue. I recognise that to a greater or lesser degree the evidence of some of them would have been affected by the fact that they are likely to have an ongoing professional relationship with the mother.
31 The evidence of Dr S in particular, was given under most difficult
circumstances, with him clearly appreciating that his patient was listening to most of the evidence, save for that given when I excluded the parties from the courtroom. Dr S in particular, would have been acutely aware that evidence given in Court proceedings can have far wider ramifications than simply having an impact on the legal outcome.
32 As I have mentioned, this trial has taken a most unusual course in that on two
occasions I asked both the parents and Mrs B to leave the courtroom whilst various exchanges occurred. I did so in circumstances where the parents had legal representatives who remained behind to ensure their interests were protected.
33 The legal representatives understood the reasons for this unusual course, and
I anticipate that my reasons for following this otherwise unsatisfactory procedure will also be apparent to any appellate court.
34 The orders sought by the mother were set out at the commencement of her trial
affidavit, and those sought by the father were contained in his Papers for the Judge. Mrs B advised that she supported the making of the same orders as proposed by the
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father. The orders sought by the Independent Children’s Lawyer were contained in a
Minute handed up this afternoon.35 The mother’s proposal was for equal shared parental responsibility and for the
children to live with her. She proposed that the children spend time with the father on three out of every five weekends, from after school on Friday until the commencement of school on Monday. She also proposed that the father have half of the school holidays, as well as time on special occasions. She intends to continue to live in her home in the [suburbs], and the children will continue to attend the [local] school.
36 The father seeks sole parental responsibility. He proposes that the children will
live with him and have only limited contact with the mother. His proposal is for the mother to have the children each alternate weekend, with the only overnight time being the Saturday of each alternate weekend.
37 He does propose that school holidays be shared, but on the basis that the
Christmas holidays are on a week-about basis. The father proposes to continue to live in his home in [the northern suburbs], where he has been for more than two years. His house is about five minutes away from Mrs B, who continues to work as a school teacher in a government primary school in [a northern suburb].
38 The father proposes to take the children to Mrs B in the morning and they would
attend the school at which she teaches. She would take them home after school, and
the father would collect them from her when he finishes work.39 The father’s employer is prepared to change his working hours to accommodate
this arrangement. The father has now been in full-time work for a number of years, the last two being at the job he presently holds [in local government]. The father has discharged his child support debt and pays regular child support of $186 a fortnight.
40 The proposals I have mentioned from the father were as set out in his Papers for
the Judge. During his closing address today, counsel for the father proposed some different arrangements in the short to medium term in light of concerns about how the mother would react to a decision that the children live with the father.
41 The Independent Children’s Lawyer has similar concerns. In the Minute handed
up before the Court took its recent short adjournment, the Independent Children’s Lawyer proposes that the children live with the father and that he have sole parental responsibility, subject to him consulting with Mrs B in relation to matters concerning health and education of the children.
42 Otherwise the Independent Children’s Lawyer proposes a regime of supervised
contact at a contact service for the immediate term, and for the mother to have the opportunity to relist the proceedings to consider alternative and extended time with the children, subject to certain conditions being met relating to the provision of further evidence about her condition and mood. The Independent Children’s Lawyer seeks a variety of other orders, which I will address at the conclusion of these reasons.
[2010] FCWA 83
43 It is unnecessary for me to discuss the law to be applied in these proceedings.
This was set out in my earlier judgment, and it is sufficient for me to say that the best interests of the children must remain the paramount consideration.
44 The first matter which it is necessary for me to determine is the allocation of
parental responsibility. Following the 2006 hearing, I made an order for the mother to have sole parental responsibility. The parents then agreed, in August 2008, that they should share parental responsibility. More recently, as I have earlier mentioned, an order was made for the father to have sole parental responsibility for matters relating to the health and education of the children, subject to consultation with Mrs B.
45 The father now seeks full parental responsibility; the mother proposes equal
shared responsibility. In my view, it is not feasible for the parents to share parental responsibility. I recognise that from time to time they have reached agreements, but the process of communication is often so destructive that I consider it does more harm than good. It is virtually impossible for the parents to speak on the phone, largely because the mother refuses to let go of past hurts and wants to raise issues that have no present relevance to the welfare of the children.
46 The email communication is sometimes pleasant and cooperative, but on
occasions it is vitriolic, at least on the mother’s side. It must also be terribly time-consuming, and inevitably occupies energy that could be better spent attending to the daily needs of the children. I am also confident that it places stress on the mother that she could well do without.
47 In my view, one of the parents needs to have sole parental responsibility. The
calm and measured manner in which the father and Mrs B approach important matters relating to the children satisfies me it would be in the children’s best interests for the father to be given sole parental responsibility.
48 The best recent example of this is the way in which the father and Mrs B have
set about obtaining occupational therapy for Charles, and setting up appointments for him to see an educational psychologist. This has been done in such a way as to ensure that the mother has an appropriate opportunity to be involved. It has also been done in a way that recognises the difficult dynamics involved and the necessity for the professionals to undertake their work without undue influence from either parent.
49 I anticipate that the father will, as he has always done in the past, look to Mrs B
for advice and assistance in making and implementing decisions relating to the children’s welfare. Whilst I do not see any real necessity for a formal order requiring him to do so, I will make the order proposed by the Independent Children’s Lawyer that he does consult with Mrs B. I expect that the father will keep the mother informed of important decisions he makes for the children. It will be a matter for him to determine whether he would seek input from her before making such decisions.
50 I turn now to consider where the children should live. As I do not propose to
order equal shared parental responsibility, I am not formally required to consider the outcomes described in s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) for an equal sharing of time, or for both parents to have what is called substantial and significant time with the children.
[2010] FCWA 83
51 These are nevertheless options which I accept are available to the Court, and
would be considered if they appeared to be in the best interests of the children. Whilst I have given thought to such outcomes, I am quite satisfied that neither would be in the children’s best interests.
52 In determining what would be in the best interests of the children, I am required
to take into account the many matters set out in ss 60CC(2) and (3) of the legislation. I intend to discuss each of these briefly, bearing in mind that I have previously made findings in relation to these matters.
53 I turn first to the primary consideration contained in subparagraph (2)(a), which
is the benefit to the children of having a meaningful relationship with both of their parents. The children currently have a meaningful relationship with both parents. They spend a considerable amount of each week living with each parent, and the evidence indicates they are closely attached to both parents. I consider it very important for the children that they continue to have a meaningful relationship with each parent.
54 It is equally important, however, that the emotional wellbeing of the children is
safeguarded. This overriding requirement is likely to have an impact on the frequency and duration of the time the children spend with the mother, especially in the short to medium term following this hearing.
55 The other primary consideration contained in subparagraph (2)(b) is the need to
protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In my earlier judgments I discussed at length concerns relating to the possibility of the father abusing the children. The mother clearly continues to harbour strong concerns that the father may molest the children, although those concerns do not appear to be quite as prominent in her thinking as they once were.
56 Nevertheless, the mother’s own evidence indicates that from time to time she
still voices those concerns publicly. For example, I am satisfied she did so to the Department for Child Protection workers in February 2009, and to staff at Royal Perth Hospital in June 2009.
57 In considering the likelihood of the father molesting the children, it is important
to record that there is no evidence to support the proposition that either of the children has been molested by him since August 2008, when he began to have entirely unsupervised time with them.
58 The children have shown themselves quite capable of taking tales home to their
mother, and I consider it highly likely that they are under firm instructions from the mother to report what happens in the father’s home. They have not been reporting abuse of this nature.
59 I also consider it a factor of some significance at least that the children are now
older than they were when I made my previous determination that they were primarily to live with their mother and have supervised time with the father. According to the evidence of Dr W, Alexandra, in particular, has reached a stage of maturity at which a
[2010] FCWA 83
protective behaviours course will provide her with some degree of protection. I accept Dr W evidence that Charles would not benefit from such a course, as he would, to use his expression, “not get it”.
60 In any event, it needs to be kept firmly in mind that all of the outcomes I am
being asked to consider, including the mother’s own proposal, would provide plenty of
opportunity for the father to molest the children, if he were so inclined.61 The focus of the mother’s concerns about the father appears now to have moved
to other forms of abuse. For example, she now regularly says the father puts them under cold showers, and that Charles has even been put inside a rubbish bin. I am satisfied that the mother leads the children to believe that they have been abused in this fashion and that it is as a result of her actions that the children continue to report punishment of this nature.
62 I do not accept that these things have occurred, although I do accept that the
children do tell the mother and others that they have occurred. I accept the father’s evidence that he does not smack the children, or use any other form of physical discipline. I accept that he uses appropriate forms of discipline.
63 The most significant factor for me to consider under this heading, that is,
subparagraph (2)(b), relates to the concerns that the mother herself might cause physical harm to the children. The mother has had fairly long-standing suicidal ideation, which she has, of course, not attempted to act upon, save on one occasion when she was very much younger.
64 The mother knows the devastation caused to parents and other loved ones as
a result of suicide, because one of her brothers has completed suicide. The mother has, however, been diagnosed with a borderline personality disorder, and the Court has heard, but does not record in these reasons, the evidence concerning the extent to which people with that personality feature end their lives by suicide. It is sufficient to record that the very great majority of people with borderline personality disorder do not commit suicide.
65 It was put to the mother in cross-examination that in October 2008 she said
something in the presence of her half-sister which led the half-sister to advise the mother’s case worker that the mother was not only expressing suicidal thoughts, but also expressing an intention to “take the children with her”.
66 The mother’s counsel, Mr Berry, who has most ably represented the mother
throughout this difficult trial, has properly drawn attention to the fact that these proceedings are not being conducted pursuant to the provisions of Division 12A of Part VII of the Act. The laws of evidence must therefore be applied. In the absence of evidence from the mother’s half-sister, [Linda], there is no direct evidence that the mother did in fact make any threat to do harm to her children. A submission was made on behalf of the father relating to the failure of the mother to call Linda, but I am not satisfied that this is an appropriate case for the principle in Jones v Dunkel (1959) 101 CLR 298 to be applied.
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67 I was, however, very concerned about the mother’s extremely evasive response
when this issue was put to her in cross-examination. Without going into any further detail, it is sufficient to say that this is a matter of concern to me and has influenced, to some extent, the decisions that I intend to make.
68 I am next required to consider subparagraph (3)(a) which relates to any views
expressed by the children. The mother’s own affidavit properly acknowledges that the children are too young “to express with any acceptable level of understanding where they would choose to live”. It is therefore unnecessary for me to detail what was said on this topic in Dr W report, save to say that reading his report as a whole confirms other evidence that the children love both their parents very much.
69 The next relevant matter is subparagraph (3)(b), which concerns the nature of the
children’s relationship with each parent and other relevant people, including grandparents. I find that the children have a close and loving relationship with both of their parents and with Mrs B, who is in the position of a grandparent.
70 They also have a loving relationship with their maternal grandmother, although
by virtue of distance and other circumstances, it is not possible for them to spend a great deal of time together. It is of significance that since the first hearing in 2006 the children have now had the opportunity to cement their relationship with their father in a way that had not previously been possible. They have now become accustomed to spending significant unsupervised time under his sole care.
71 The next factor is subparagraph (3)(c), which relates to the willingness and
ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Although the mother says she encourages the relationship, I find that on many occasions she does not. Although I accept that from time to time the mother will say positive things about the father, she often makes disparaging remarks about him in the presence of the children.
72 Her email correspondence with him is, on occasions, inflammatory and abusive,
whereas the father’s responses to her are by and large appropriate. Whilst clearly the father does have some concerns about the impact of the mother’s behaviour on the children, I accept the evidence of Dr W that the father, at the very least, will be compliant with Court orders so the children spend time with the mother as directed.
73 I also find the father is unlikely to make anything like the sort of derogatory
comments about the mother of the sort that the mother makes about him, especially when she is feeling emotional and stressed. To his credit, the father has attended the Mums and Dads Forever program, as well as the Triple P program. He has also attended on the psychologist, [Ms Y], in accordance with orders made previously.
74 The next factor, subparagraph (3)(d), relates to the likely effect of any changes
in the child’s circumstances, including the likely effect of any separation from either parent. This is a matter of utmost significance in these proceedings. I have already commented that the children have a close and loving relationship with both parents.
75 In the event that I make orders as proposed by the father and the Independent
Children’s Lawyer the children will cease to live with the mother, who has been their
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primary carer since their birth. I accept that such a separation will be traumatic not only for the mother, but also for the children, and has the potential to cause unhappiness for them. This therefore needs to be weighed carefully in the balance against other factors which would suggest that there are considerable benefits associated with the children primarily living with their father.
76 Making the orders proposed by the father and the Independent Children’s
Lawyer will also have the effect of the children changing school. Although Charles has been having occasional troubles at school, there is no doubt that the children are well settled in their current school environment. They would inevitably be well known by other students and by the teachers who care for them and understand their particular needs.
77 In an ideal world, such a change would not be made. On the other hand, the
father’s proposal for the children to attend the school at which Mrs B has had a long-standing involvement will provide the children with support that would not ordinarily be available to children changing school.
78 I also consider there will be some advantage to the children moving away from
a school at which I suspect the mother would be well known for her sometimes emotional and erratic conduct and the drama which tends to surround her. In the future, it may well be desirable to consider arrangements that involve the mother having no or limited direct contact with the school, especially given the possibility for public conflict with Mrs B.
79 Turning next to subparagraph (3)(e), which deals with the practical difficulty
and expense of a child spending time with and communicating with a parent, there will be some practical difficulties associated with the proposal of the Independent Children’s Lawyer for the mother’s time with the children to be supervised, at least for the time being. Those problems are not insurmountable.
80 The next factor, and one of crucial significance in these proceedings, is
subparagraph (3)(f), which relates to the capacity of each of the parents and others to provide for the needs of the children, including their emotional and intellectual needs. I do not have any particular concerns about the capacity of each parent to provide for the children’s physical needs. They are both competent parents, and my decision has not in any way been influenced by evidence about the children having nits or occasionally being a bit late getting to school.
81 On the contrary, the quality of physical care provided by both parents appears to
be fairly high and is a credit to them, given that they both have limited financial resources. It is especially commendable that the headmistress has noted that both children “present well for school, in full and correct uniform, clean and with necessary equipment and lunch”.
82 I do, however, consider that the intellectual needs of the children will be better
served by the combined resources of the father and Mrs B. They are likely to provide a more calm and stable environment during the school week than the mother is able to provide. They are also likely to have more energy than the mother, who has to grapple with a range of physical and emotional difficulties, while dealing with the effects of
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her medication. No matter what environment is provided, the reality nevertheless is that Charles is likely always to struggle at school, whereas it seems Alexandra will cope fairly well.
83 The major factor of importance under this heading is the capacity of each of the
parents to provide for the children’s emotional needs. There is not any shadow of doubt that both the father and the mother are loving and committed parents and want to do the best by their children.
84 However, the mother suffers from a personality disorder which makes it difficult
for her to focus on the needs of the children, and results in behaviours which, in my view, are likely to be damaging to them. Looked at in combination, they persuade me that the mother is often incapable of attending to the children’s emotional needs. In arriving at this view, I make it clear that I do not reject the evidence of Dr S that borderline personality disorder is not a contra indicator to good parenting.
85 Without going into details, some of the matters that particularly concern me and
lead me to conclude that the mother is not able to provide adequately for the children’s
emotional needs are these:
•
the mother’s behaviour in the presence of the children at school, which led the headmistress to describe her contact as “emotional abuse”;
•
the way in which I am satisfied the mother discusses these proceedings with the children;
•
the way in which the women [Sarah] and Linda came to be in the mother’s home; the circumstances in which they left; and the dramas that appear to have occurred whilst they were there;
•
the extent to which the mother allows the children to sleep in her bed and her incapacity to provide appropriate boundaries for the children;
•
statements made by Charles to the father about his mother and her former partner having seen spirits (as in ghosts) in the house and “oily stuff” coming out of the door;
•
the mother’s assault on the father in the precincts of the Court in October 2009 and the way in which she announced she was going to fling herself from the balcony;
•
the way in which the mother yells at the father and Mrs B after Court hearings, including making statements such as “I wish [Clara] would hurry up and die”;
•
the way in which the mother allowed Mr D to be introduced into the lives of the children and were allowed to refer to him as [“Daddy D]” even over, apparently, his own objection;
•
the way in which the mother handled arrangements relating to the care of the children in June 2009 when she was hospitalised, including calling the police to undertake a welfare check at the father’s home, which was entirely unnecessary;
•
the mother’s actions in making inquiries about herself being adopted by her stepmother, Sarah, notwithstanding that she has a relationship with her own mother;
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• the mother’s actions in informing the children that Charles has Asperger’s Syndrome. In this regard I accept the evidence of Mrs B that both children have stated that Charles has this syndrome. Even if he did, I would consider it highly inappropriate for the boy to be labelled in this fashion; • the mother’s actions in discussing with Charles the fact that the Court ended the therapy by Ms J, which she then related to Charles getting into trouble at school; and • finally, the mother’s actions in leading the children to believe Mrs B is ill, when Mrs B had assured the mother she was not. 86 The list could go on. Overall it is sufficient to say that I accept the assessment
of Dr W that, as time goes by, the children are likely to be adversely affected by the mother’s behaviour. Quite apart from other considerations, Dr W’s concern is that ultimately the children will be forced into a position where they will have to take sides with the mother or with the father. I do not see any signs of the mother’s behaviour improving. If anything, it has got worse, as was submitted by the Independent Children’s Lawyer. Her opinions, prejudices and dislikes appear to have become more strident over time.
87 On the other hand, I accept Dr W’s assessment that the children are likely to end
up, to use his word, “normal” in the event that they live with the father, notwithstanding that he too suffers from some personality issues. I should observe in this regard, however, that I now hold a somewhat more positive view of the father’s personality than I did at the time of the original trial. In my earlier reasons I described the father as “fairly cold, guarded and detached” whilst he was in the witness box. During the course of this recent trial, he appeared somewhat more animated and behaved in a way that satisfies me that he has a greater capacity for warmth in his relationship with his children than I considered he had previously. Dr W has made observations to similar effect.
88 I consider that the calm and measured way in which the father conducts himself
is likely to provide a healthier emotional environment for the children than the chaotic fashion in which the mother’s life is generally arranged. Importantly, the father has the strong support and assistance of Mrs B to accommodate deficits in his own personality functioning. On the other hand, the mother does not appear to have family or close friends in Perth on whom she could call for help. She does make friends from time to time, but the evidence suggests such friendships often come to an end in acrimonious circumstances.
89 The next matter to be considered is subparagraph (3)(g), which relates to the
maturity, sex, lifestyle and background of the children and the parents. I have already commented that the children are young and any expression of their wishes is a matter of relatively little weight. I do consider, however, the fact that the children have matured somewhat since the first trial, when they were three and four years of age respectively, will make it somewhat easier for them to adjust to the shift from their mother’s home to the father’s home than if that shift had occurred at the time of the first trial.
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90 The next relevant factor is subparagraph (3)(i), which related to each parent’s
attitude to the child and the responsibilities of parenthood. In dealing with that factor, it is sufficient for me to say I am satisfied that both of the parents have done their best by the children, and have taken their responsibility as parents seriously.
91 Turning to issues of family violence under subparagraph (3)(k), there are no
issues of family violence I consider to be of any relevance in these proceedings, save
for the mother’s unprovoked assault on the father outside this courtroom.92 The mother continues to claim that she lives in a “safe house” and indeed used
these words as part of her address when she was sworn to give evidence during this trial. It is true that since the last trial the mother has been the subject of a violent attack in her own home, but this had nothing to do with the father. I am quite satisfied the mother has no reason to be concerned about any violence on the part of the father.
93 Subparagraph (3)(l) is of some relevance. This concerns the desirability of
making orders least likely to lead to the institution of further proceedings. Given the past history of this matter, it would be overly optimistic to anticipate that the proceedings could ever be completely concluded. The family dynamics are such that it is likely there will continue to be problems in the future which will require the intervention of the Court. Thus the fact the Independent Children’s Lawyer’s proposal means inevitably there will be a continuation of the proceedings is not a factor of any real significance.
94 It will be apparent from my previous judgments that I considered I was faced
with a finely balanced case where there were concerns about the possibility of abuse of the children by the father, and concerns about the impact on the children from the emotional instability of the mother.
95 At the time, for the reasons I explained, I determined that the balance fell in
favour of the mother. I did, however, attempt to convey in strong terms to the mother on more than one occasion that this outcome was not permanent and that there was a real prospect that the Court at a later stage would come to a different view, especially if she continued to engage in conduct of the type I have earlier described.
96 With the passage of time, the balance, in my view, has shifted. The mother has
not been able to move on in the way that I had hoped. In fact, I accept that it is almost impossible for her to do so in light of her current psychiatric diagnosis. Whilst there have been a combination of matters which have led to my increasing concern about the current arrangements for the children, issues associated with the referral of Charles to Ms J were amongst the most important in persuading me that the placement of the children needed to be reassessed.
97 The mother’s solicitors endeavoured to have Ms J called to give evidence. Most
unfortunately, she apparently resisted efforts to serve her with a subpoena, and ultimately she was not called. This has left the Court in a difficult position, as I consider it would have been most important to determine the basis upon which she diagnosed Charles as having Autism Spectrum Disorder.
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98 Charles was referred to Ms J by [Dr H], who has been Charles’s doctor for some
time. Ms J undertook her initial assessment of Charles on 20 August 2009, and had three follow-up appointments. She also saw Alexandra for short periods on two of the days when she saw Charles.
99 After the first two interviews, and following a meeting with the mother on
8 September 2009, Ms J wrote to Dr H, advising him that she had assessed Charles as having Autism Spectrum Disorder. Her letter noted that her assessment was based “on observations, teacher and school interviews and includes the following:” - and there followed in her report a relatively long list of behaviours.
100 While some of these behaviours could no doubt have been assessed by Ms J in
her room, others could only have been described to her by others, and in a number of instances almost certainly only by the mother. Cross-examination of the mother established to my satisfaction that important elements of the information upon which Ms J based her assessment were provided only by the mother.
101 I accept the evidence of the father and Mrs B that many of the behaviours
described in Ms J’s report are not seen when Charles is with his father and with Mrs B. It was most unsatisfactory that Ms J proceeded to undertake her assessment without speaking with either the father or Mrs B in order to ascertain whether or not behaviours said to occur in the mother’s home are also occurring in their homes. It is apparent, however, that the mother went out of her way to ensure the father was not involved in the process of assessment, and this presumably explains why Ms J saw it as being appropriate to make an assessment without obtaining what might be seen as the full picture.
102 Although evidence was given by the school principal and by Charles’s class
teacher, no questions were asked to assist the Court in understanding to what extent any of the matters recorded by Ms J in her report corresponded with observations made of Charles at school. There are some puzzling aspects of the matters recorded by Ms J, for example, her statement that “Charles has an excellent ability in mathematics and is able to calculate addition and subtraction quickly in his head”.
103 I note there is nothing in Charles’s school reports to suggest that his
mathematical ability is anything other than “satisfactory”. Whilst I have no reason at all to doubt Ms J’s expertise and experience, there is no indication in her reports that any attempt was made to understand Charles’s development and unusual behaviours in the wider context of living in a home with a mother who suffers from a borderline personality disorder, and who is by no means an accurate historian or narrator of matters related to the child’s welfare.
104 It is also noteworthy that while Ms J endeavoured to persuade Charles’s school
to arrange for the school psychologist to assess him for Autism Spectrum Disorder, this request was not acted upon. I gained the impression that the school had been somewhat sceptical about the assessment and the process by which it was undertaken.
105 Although I am of course concerned about the father having been excluded from
the assessment process, my primary concern related to the claims that were made about Charles’s behaviour. There could, in my view, be only two inferences to be
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drawn in that regard, given my acceptance of the fact that Charles does not display the behaviours described by the mother when he is with the father and Mrs B. Either the mother was fabricating the behaviours in order to ensure that Charles was diagnosed with a condition that he does not have or, alternatively, Charles was behaving in that fashion because of something to do with the nature of the relationship between him and his mother.
106 Either inference, in my mind, points to an entirely unhealthy situation. I might
add that the former inference, that is that the mother fabricates symptoms, needs to be considered in light of the fact that she claims she had “a degree in children’s services and a certificate in autism” which she suggested she had obtained when Charles was only a very young child.
107 Whilst I have considerable sympathy for the mother, who has a biological
condition over which she has little control and who has done her very best to provide for the children’s needs, my primary obligation is to make the order that will be in the best interests of the children. My assessment is that this will be more likely to be achieved if the children are primarily being looked after by the father. It is very important to stress that this decision does not mean that the mother no longer has a role in the lives of the children. On the contrary, she has an ongoing role of utmost importance in their lives. It is important for the children’s health and emotional wellbeing that they continue to know their mother and be able to spend time with her.
108 The amount of time that the mother will be able to spend with the children will,
in large part, depend on how she is able to manage and cope with the hurt and disappointment that she clearly feels as a result of the Court’s decision. It is too early at this stage of the process to begin to consider how that time sharing arrangement will unfold as time passes. The only decision the Court can make at the present time is to what is to happen in the very short term. Because of the expert evidence, I am satisfied that at least in the short term it is appropriate that the mother’s time with the children should be supervised until the Court has had the opportunity to obtain further expert evidence to assess how she will cope with the big changes in the lives of herself and the children.
109 I consider there will need to be a short period during which the mother does not
have any contact with the children because her levels of distress will be such that she will unable to keep her distress hidden from the children. During this period, arrangements can commence for the mother to begin seeing the children at a supervised contact service, where the mother can demonstrate how she is able to manage with the new arrangements without upsetting the children.
110 From there, if all proceeds well, the mother will then be able to commence
spending time with the children unsupervised. When and how that will occur, and how much time that would involve, are matters on which it is premature to comment, but will largely be dependent upon the way in which the mother deals with the new arrangement.
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Orders
111 For these reasons I propose to make the following orders:
1. All previous parenting orders be and are hereby discharged. 2.
The children CHARLES M born [in] January 2003 and ALEXANDRA born [in] January 2004, live with the First Respondent, Mr M (“the father”).
3. The father have sole parental responsibility for the children. 4.
The Second Respondent, Mrs B (“Mrs B”), spend reasonable time with the children as agreed between the father and Mrs B.
5.
The father consult with Mrs B in relation to matters concerning the education and health of the children.
6.
Until further order of the Court, the Applicant Mrs M (“the mother”), spend up to two hours each Saturday or Sunday with the children, such time to be supervised by a children’s contact service nominated by the Independent Children’s Lawyer.
7.
Upon the Independent Children’s Lawyer nominating a contact service the father and the mother shall contact the service promptly and make arrangements for an appointment and intake interview and shall comply with all reasonable requests and/or directions of the staff of the contact service.
8.
Until further order of the Court, the costs of such supervision be met by the mother, save that the mother and the father shall each meet the costs of any intake interview for their own interview.
9.
The mother spend supervised time with the children subject to the contact centre being satisfied that the mother’s presentation will not negatively impact on the children.
10.
In the event the father is unable to care for the children they be placed in the care of Mrs B.
11.
The father be at liberty to enroll the children at [the local] Primary School.
12
The father authorize the Principal of [the Primary School] to provide copies of school reports and notices to the mother.
13.
Until further order the mother be restrained and an injunction is hereby granted restraining her from attending the children’s school.
14.
As soon as practicable the father enroll Alexandra in a protective behaviors course.
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15. As soon as practicable the father shall obtain a referral from his General Practitioner for the children to attend on a counsellor nominated by the Independent Children’s Lawyer. The father shall pay any costs associated with such counselling.
16. All parties be restrained and an injunction is hereby granted restraining them from:
(a) discussing with or in the presence of the children the proceedings or the allegations in this matter; and (b) denigrating any party to these proceedings or allowing any other person to denigrate any other party to these proceedings to or in the presence of the children. 17. The father be restrained and an injunction is hereby granted restraining him from:
(a) physically disciplining the children; and (b) changing the children’s residence without providing written notice 21 days prior to any changes to the other party and the Independent Children’s Lawyer. 18. As far as practicable the children attend upon [Dr N] for any medical treatment. In the event the children require emergency medical treatment whilst in the mother’s care, they are to attend upon the [named] Medical Group or Princess Margaret Hospital, with the mother to forthwith notify the father of any such medical treatment.
19. The mother be restrained and an injunction is hereby granted restraining her from:
(a) coming within 100 metres of the residence of the father and/or the residence of Mrs B; and (b) contacting any person at the father’s place of employment and/or attending at the father’s place of employment.
[NOTATION: These orders are for the personal protection of the father and Mrs B and in the event a police officer believes on reasonable grounds that the mother has breached these orders the police officer may arrest the mother without warrant]
20. The mother and the father and the Independent Children’s Lawyer have liberty to seek the re-listing of the proceedings in order to obtain orders relating to the implementation of the supervised contact arrangements and in due course to consider other appropriate arrangements for the mother to spend time with the children.
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21. The proceedings otherwise stand adjourned generally.
I certify that the preceding [111] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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