McGovern and Donoghue
[2017] FCCA 1511
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGOVERN & DONOGHUE | [2017] FCCA 1511 |
| Catchwords: FAMILY LAW – Parenting – alienation or realistic estrangement due to family violence and abuse – hybrid or pure alienation – changing residence. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA(1), 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4), 68L, 68Q, 69ZW |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Cobb & Cobb (No.2) [2015] FCCA 2766 Lloyd v Lloyd and Child Representative (2000) FLC 93-045 Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] HCA 4 |
| Applicant: | MR MCGOVERN |
| Respondent: | MS DONOGHUE |
| File Number: | MLC 5058 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 21-23 June 2017 |
| Date of Last Submission: | 23 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hutchings |
| Solicitors for the Applicant: | Counsel Family Lawyers |
| The Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Ms Treyvaud |
| Solicitors for the Independent Children's Lawyer: | Schetzer Constantinou |
ORDERS
The father have sole parental responsibility for the child X born (omitted) 2005 (“the child”).
In making any significant long term parental decision, the father use his best endeavours to consult with the mother by email, or through the appointed family therapist as appropriate.
The father collect the child from childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria after the Independent Children’s Lawyer has explained the orders.
The child live with the father.
The child spend time and communicate with the mother as follows:
(a)For a period of 3 months, there be no time or communication;
then:
(b)By telephone each Wednesday and Sunday, with the father to facilitate the call between 6:30pm and 7:00pm and the father be at liberty to monitor these calls;
then after 4 months from the enactment of (a.):
(c)For a period of 3 months, each alternate weekend at and supervised by Bethany Children Contact Centre in (omitted) noting that said Centre may nominate the time and duration of time but it is expected to be approximately 2 hours each visit;
then:
(d)For a period of 3 months, each alternate weekend for a period of 3 hours with changeover to occur at Bethany Children Contact Centre in (omitted);
then:
(e)Each alternate weekend from 7:30pm Friday until 6:00pm Sunday;
(f)On the commencement of paragraph 5(e) herein, for half of all school holiday periods as agreed, but failing agreement, the first half in odd years and the second half in even years, with the child to always be in the care of the father no later than 72 hours prior to the commencement of each school term;
(g)Each Mother’s Day weekend, commencing in 2018, from 7:30pm Friday until 6:00pm Sunday, and in the event this would not otherwise be a spend time weekend, the following weekend be suspended;
(h)Commencing 2018, from 9:00pm on 24 December until 7:00pm on 26 December every year;
(i)As otherwise agreed in writing.
The child’s time with the mother is suspended:
(a)Each Father’s Day weekend;
(b)From 6:00pm on 22 December until 9:00pm on 24 December each year.
All changeovers be facilitated by the father, his partner Ms I, or his nominee, delivering the child to the mother’s residence at the commencement of time and the mother or her nominee delivers the child to the father’s nominated residence at the conclusion of time; save for the changeovers over Christmas, whereby the mother or nominee collects the child on 24 December and the father or his nominee collects the child on 26 December, save as otherwise agreed in writing.
The parties keep the other informed in the event the child suffers any serious injury or illness, such notifications to include the details of the treating health professional and location of the child.
The mother be at liberty to attend all parent teacher interviews and to liaise directly with the child’s school and treating health professionals provided that during any period of no time, she not come into contact with the child.
The mother be restrained by injunction from having the child attend upon psychologists, psychiatrists or any other health professional or counsellor when the child is in her care, save in an emergency with prior written agreement of the father.
The father as soon as reasonably practicable do the following;
(a)Arrange for a referral and do all things to engage Child & Adolescent Mental Health Service (“CAMHS”) in a private capacity to assess, monitor and treat the child for any Autism Spectrum Disorder (“ASD”), if applicable,
(b)Arrange for a family therapist agreed by the Independent Children’s Lawyer to engage with the child, himself, his partner, the mother and the child’s siblings (at the discretion of said therapist) to monitor and assist X and the family with ensuring the implementation of these orders and X’s new living arrangements;
at the father’s expense.
The father be at liberty to provide all family reports and any written judgment to the child’s treating health professionals and any counsellor involved with the child and the child’s school, be provided with a copy of these Orders.
The Independent Children’s Lawyer be discharged in 12 months’ time.
The parties forthwith do all acts and things required to avail themselves and the child with Bethany Family Contact Service in (omitted) for the purpose of time pursuant to subparagraph 4(c) herein.
The child’s siblings be at liberty to attend the final 2 supervised contact visits.
The mother forthwith notify the father in the event X seeks to make any contact with her, or to any of his siblings, outside of the times stipulated in orders 4(a) to (i).
The parties be restrained by injunction from denigrating the other, or any member of the other household or family in the presence or hearing of the child.
The parties be at liberty to correspond by email as to all issues relevant to the child.
Each party be restrained by injunction from showing any material used or filed, or proposed for the proceedings to any of their children, or allowing any person to do so, save these orders.
That mother is encouraged to engage with a psychologist, psychiatrist or experienced family therapist to assist her with adjusting to these orders and to alter her attitude toward the father and if she does so she shall provide with copies of this Judgment and the Family Reports in this matter to psychologist or psychiatrist.
The mother notify the Independent Children’s Lawyer as to any professional she engages pursuant to paragraph 19 herein, and the Independent Children’s Lawyer ensure that the relevant documents have been provided to said professional and be at liberty to monitor attendance by the mother.
Pursuant to Section 68Q of the Family Law Act 1975, the extent to which this order is inconsistent with any family violence order between the parties, the family violence order is invalid.
Parties have liberty to apply on short notice.
DIRECTIONS
The Registrar provide a copy of these orders to the Registrar of the Magistrates’ Court of Victoria (Warrnambool Registry).
IT IS NOTED that publication of this judgment under the pseudonym McGovern & Donoghue is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5058 of 2016
| MR MCGOVERN |
Applicant
And
| MS DONOGHUE |
Respondent
REASONS FOR JUDGMENT
The options for the Court in this case are stark. There is a real chance that it will not be possible for X born (omitted) 2005, aged 12 (“X”) to maintain his relationship with both his parents if something is not done to change the current dynamic.
The three options open to the Court are:
a)X lives with his mother. She has sole parental responsibility. X sees and communicates with his father in accordance with his wishes.
b)X lives with his mother. The mother and father have equal shared parental responsibility. There are specific orders for X to spend time and communicate with the father on a graduated basis. The family engages in family therapy.
c)X lives with his father. The father has sole parental responsibility. There are orders prohibiting the mother and siblings from contacting X for three months. The mother and siblings are gradually reintroduced in supervised settings. The family engages in family therapy.
I will return to these options.
Due to the serious issues of risk in this case, I formed the view that it was important to deliver the reasons as quickly as possible bearing in mind the need to carefully weigh up the risks and benefits involved in each of the options before the court and the evidence. I arranged with Child Dispute Services of Victoria (“CDS”) for a family consultant to be available to explain the outcome of the proceedings when I deliver these reasons. I ordered the parties and legal representatives to attend in person for the delivery of reasons and set the date and time at the end of the hearing for a week later so everyone would be prepared. I ordered the mother to deliver X to CDS in the Melbourne Registry as I believe it would be in X’s best interests for the orders to be explained to him by professionals, regardless of the outcome.
The parties were in a relationship from 1977. The father says they separated in June 2013. The mother says they separated in late 2014 after on again off again periods of reconciliation. The father also refers to period of reconciliation. It is clear the lines were blurred. They bought joint property during this period. I think the parties’ evidence reflects their different perspectives on their relationship.
They have 4 children: W born (omitted) 1988, aged 29 (“W”), Y born (omitted) 1992, aged 25 (“Y”), Z born (omitted) aged 17 (“Z”) and X.
The father commenced these proceedings on 2 June 2016. Initially the father sought parenting orders with respect to Z as well as X. He is no longer seeking orders with respect to Z and indeed the Court indicated at an earlier stage of the proceedings it would be futile to do so given Z turns 18 on (omitted) 2017.
The case raised serious issues of risk with respect to issues of whether mother has alienated the children from their father or whether the children are realistically estranged from their father due to family violence and abuse.
The mother relies on her trial affidavit filed on 7 June 2017 and her Notice of Risk. After being cross-examined and just before W was to be called to be cross-examined, the mother sought leave and was granted leave to withdraw the affidavit of W filed 16 March 2017. This was to the mother’s credit.
The father relies on his trial affidavit filed on 23 May 2017, the affidavits of Ms I filed on 23 May 2017 and Mr S filed 7 June 2017. He also relies on the two family reports.
The father lives with his partner Ms I (“Ms I”) and her two children A aged 16 and B. They met in (omitted) 2015. They now live together, spending time during the week at (omitted) and weekends at (omitted).
In addition the family reports, there is the report provide by the Department of Health and Human Services (“the DHHS”) pursuant to s.69ZW of the Family Law Act 1975 (Cth) (“Family Law Act”).
The mother makes many allegations against the father and Ms I. It is not necessary to discuss all of them. In a recent appeal decision of Bell & Nahos [2016] FamCAFC 244, Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
I will focus on incidents which were the subject of cross-examination.
Interim orders
There have been four sets of interim orders.
On 27 June 2016 the parties agreed to interim orders which provided for the father to spend time with X on 4 occasions for 3 hours in (omitted) before increasing to a full day. They also agreed to interim property orders. The mother was legally represented.
On 7 December 2016 the parties agreed to further interim parenting orders which introduced overnight visits, starting at one overnight, then increasing to two, with a 7 day period in January, afterward It was to be alternate weekends and school holidays. The 7 day period did not occur and no face to face or communication time at all has occurred since then. The parties also agreed to X enrolling at (omitted) School, one day a week for the rest of the school year then full time at the beginning of the next school year. The parties also agreed to final property orders.
The father filed a contravention application after the mother refused to make X available for further time. The matter returned to court on 21 March 2017. Those orders were orders of the Court and not made by consent. I appointed an Independent Children’s Lawyer (“ICL”) and made an order for the DHHS to issue a report pursuant to s.69ZW. I ordered that X remain at school. I made an order restraining the mother from taking X to see Mr D and any other medical professional.
On that occasion I also ordered that the parties be excused from filing a financial statement unless they brought a financial application before the court. Neither made any application with respect to the implementation or setting aside of the property consent orders. This is significant because both complain about issues with respect to those orders in their affidavits which are not relevant given that neither has brought an application.
Application to discharge the Independent Children’s Lawyer
At the beginning of the hearing the mother made an oral application to discharge the ICL. The father and the ICL opposed her application. After hearing argument, I dismissed her application and indicated that I would give reasons for this in the primary judgment.
The duties of the ICL is set out in s.68L of the Family Law Act 1975:
(1) This section applies to proceedings under this Act in which a child's best interests are, or a child's welfare is, the paramount, or a relevant, consideration.
(2) If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
(3) However, if the proceedings arise under regulations made for the purposes of section 111B, the court:
(a) may order that the child's interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and
(b) must specify those circumstances in making the order.
Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.
(4) A court may make an order for the independent representation of the child's interests in the proceedings by a lawyer:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation concerned with the welfare of children; or
(iii) any other person.
(5) Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child's interests to find out what the child's views are on the matters to which the proceedings relate.
Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.
(6) Subsection (5) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
Several cases have discussed principles to be considered when determining whether or not to discharge an ICL. I had cause to consider an application to discharge an ICL in Cobb & Cobb (No.2) [2015] FCCA 2766. I refer to [18] to [22]:
[18] Holden CJ considered the principles applicable to applications to discharge an ICL in Lloyd v Lloyd and Child Representative (2000) FLC 93-045. Circumstances where an ICL may be discharged include:
a) If there is evidence that the ICL has acted contrary to the children’s interests;
b) If there is evidence that the ICL has acted incompetently in a professional sense:
c) If the ICL has shown a lack of professional objectivity;
d) If to continue to act would involve a breach of fiduciary duty or a conflict of interest.
[19] Holden CJ said the ICL’s duty “is not to neither of the parties but, rather, is to the children and to the Court.” That is plainly correct. He also commented on the reasons why the court is reluctant to discharge an ICL on the basis of “largely unsubstantiated complaints of one of the parties” including:
a) The best interests of children. In that case the ICL had been representing the children for a long period of time and developed a good rapport with them.
b) The court should treat cautiously any allegation of lack of impartiality otherwise every ICL would be in a vulnerable position facing an application to be discharged based on unfounded allegations or perceptions of one of the parties. The need for impartiality does not mean that the ICL should refrain from taking steps in the proceedings that a party does not want the ICL to take. Holden CJ expressed the view that an ICL should only be removed in the case of actual rather than perceived or alleged impartiality because otherwise a party could apply to have an ICL removed simply because a party perceived the representative was not on their side of the case on running in their favour.
c) The last point is the public policy consideration of the costs of the ICL being met by legal aid and the further costs that would be incurred in appointing a new ICL with the need for that ICL to become familiar with the file.
[20]The father’s counsel made submissions in reply said that this issue goes beyond his clients concerns but also to the wider administration of justice and the role of the ICL. His argument relies on the Court accepting that the ICL is a lawyer acting for an opposing party. That is a fundamental misconception of the ICL’s role. It ignores the fact that the ICL is a party not a lawyer acting for a party on instructions. The individual lawyer is appointed as the ICL in that capacity. Section 68L itself refers to the ICL being appointed to represent the child’s interests. That is a different to representing the child on instructions. Section 68L(4) makes it very clear.
[21] The father’s counsel emphasised that the ICL could not help but be aware of the fact that the father was prepared to concede the fundamental basis of this case which was that the children should live with him on a full time basis and would necessarily be influenced by that. The whole difficulty with this line of reasoning is that again it ignores the fact that the ICL is a party to the proceedings. The ICL would have been entitled to have been present throughout that mediation. If the ICL had been involved in mediation, the ICL would have a much fuller picture of the context of the father making that proposal. Mr Puckey also referred to the theoretical risk that the ICL would use this information to her advantage. That submission also shows a fundamental misunderstanding of the ICL because the ICL is not opposing either parent. The ICL’s represents the children’s interests. The ICL is not in an adversarial position in the same way that the parties are. Indeed parenting proceedings the cell not surely adversarial or any longer because of division 12A of the Family Law Act 1975. The position of ICL is analogous to counsel assisting a royal commission. See Bennett and Bennett (1991) FLC 92-191.
[22] Chisholm J considered the role of the ICL in T and L (2000) FLC 93-056. That case also concerned an application to discharge the ICL. Chisholm J said:
The critical question in considering an application to remove a child's representative is whether the representative is likely to carry out his or her task properly. … it might well be appropriate to remove a child's representative where the evidence showed that he or she had deliberately misled the Court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child's representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child's representative to “act in an independent and unfettered way in the best interests of the child”.
It is appropriate to note in this connection that it is frequently part of the child's representative's role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child's interests. Differences of views are of course inevitable in litigation. While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests. I agree with the child representative's submission that it is important to avoid a situation in which the child representative “is a captive or the most vocal, litigious or dissatisfied parent or party”.
The mother outlined her concerns in her trial affidavit and had also raised it during an urgent telephone mention in the weeks leading up to the hearing.
The mother says her concerns have only increased since the telephone mention rather than being allayed. Her concerns centre on the following issues:
a)The role of Mr A;
b)The ICL not contacting the children when appointed and not meeting them;
c)Mr H’s involvement.
She says she was led to believe that Mr A was the ICL when the ICL is in fact David Schetzer. She found out that Mr A is not qualified to be an ICL.
With respect to Mr A working on the file, the father’s counsel pointed out that whilst the appointment of the ICL is a personal one, it is not unusual for the ICL to engage junior lawyers to assist him or her in carrying out the required tasks. The question is who makes the decision.
There is no dispute that Mr A is not a qualified ICL. The appointment of an ICL is a personal one to the individual solicitor who is on the ICL panel, not the solicitors’ law firm. That does not mean that it is inappropriate for an ICL to brief counsel to appear in court on his or her behalf or to enlist the assistance of junior solicitors. Indeed junior lawyers need to be exposed to ICL work if they want to become ICLs themselves in the future. The important issue is that the appointed ICL makes the decisions and speaks with the children if the ICL thinks that is appropriate. Exhibit B is a letter to Mr H signed by Mr V. He clearly identified Mr Schetzer as the ICL. Exhibit C is a letter from Mr Schetzer to the mother addressing the concerns she raised in her trial affidavit.
The mother complains that the ICL did not contact the children to let them know that they had a lawyer and did not meet with the children until the day before the hearing.
Mr Schetzer did meet with the children the day before the trial. Ultimately the decision as to whether or not to meet the children and the timing of that is a matter for the ICL. Particularly in a case like this where Z and X have presented for family reports interviews in less than a year and X has seen several professionals. Ultimately it is a matter of discretion in the context of the individual circumstances of the case. The court would not have criticised the ICL if he decided not to meet the children. The ICL does not take instructions or act on interests of children. The ICL must represent the best interests of the children which may be contrary to the children’s views. The ICL was also appointed just a few months before the final hearing given the emerging issues in the case after the release of Dr N’s report and the mother ceasing X’s time with his father.
Mr A is Mr V’s nephew. Mr V saw the mother and father once for non-reportable counselling. He also saw the father and Ms I twice on further occasions when they sought his advice about strategies to use with X.
Dr N prepared the first family report. She was not available to prepare an updated report before August 2017 and was unavailable for cross-examination during the scheduled final hearing. The case was listed for an urgent telephone mention on 19 May 2017. Mr H was available to see the parties and children on 26 May 2017, prepare a family report, and give evidence at the hearing. Mr H works under the umbrella of Mr V. Mr A appeared for the ICL. The mother expressed her concern at his involvement and the involvement of Mr H. Mr A explained that Mr Schetzer was away. This is the only time he appeared as advocate for the ICL. He advised that he had made enquiries of several experts but had not been able to find anyone else. I made orders for Mr H to prepare the report if it was not possible to find someone else.
When Mr H was cross-examined, I asked him about his working relationship with Mr V and he said it was a financial one. Unprompted he said he had received instructions with the documents that he was not to talk to Mr V about the case. He said that he has not seen him for five weeks as he is overseas. They keep separate files and he has an external supervisor, as do the other family consultants who work there. It is not uncommon for consultants in private practice to work under this type of model.
The mother expressed suspicion that Mr H was available at short notice. It is not unusual for an opening to come up within a short time frame as family law matters settle at various stages including before report interviews. There can also be situations where a family needs to reschedule. There is nothing sinister about this.
The father’s counsel submitted that Mr V had had limited involvement with the parties. He saw them for one joint confidential counselling session. He saw the father and his partner on two further occasions when they sought assistance with strategies for dealing with X’s behaviour.
The father’s counsel further submitted that when considering the conflict of interest the familial relationship between Mr A and Mr V is tenuous.
The ICL’s counsel adopted the father’s counsel’s submissions. She said Mr A has been admitted for four years and is well known for assisting Mr Schetzer in his ICL role. He appeared once when the case was listed for an urgent telephone mention.
Exhibit A is an email the mother emailed to my associate copying in the other parties dated 9 June 2017. As is the usual practice when chambers receives correspondence raising issues of a substantive nature, I did not see this email until it was tendered. The thrust of the mother’s complaints were the same as those expressed in her trial affidavit and at the hearing. She expressed concern that the children had not been given an opportunity to instruct their lawyer or make their views known.
It is unfortunate that the ICL did not take into account the concerns that the mother had based on her perceptions by continuing to have Mr A being visible in his assistance to the ICL. This is only because of the mother’s expressed concern about the familial relationship and the fact that she was without legal representation. There is no evidence that supports any suggestion of a conflict.
There is no evidence to suggest that the ICL has not discharged his duties properly. The application is dismissed.
Father’s evidence
The father’s case is that the mother has alienated all four children from him. He expressed deep concern about Y’s future educational prospects given he has deferred his university course and as far as he is aware had not made planned to re-enrol. He says the first time he knew of Y saying he was doing the wrong course was when he read the mother’s trial affidavit after he expressed concern about that in his previous affidavits.
The father is also concerned about Z and X’s education. Z told the family reporter that he is at year 10 level. The mother says he is more advanced in some subjects.
He had to acknowledge that he at the very least acquiesced to the children being home schooled. The children were home schooled for many years whilst the parties remained in their relationship. W chose to go to high school for the first four years. She has a university degree and is a qualified (occupation omitted) but is not working. She has never worked full time. She has anxiety and depression.
From 1998 the father ran his business from home. He says he was involved in the children’s education and would provide assistance when the children asked and would read with them. He helped Y with maths and physics when he was studying for the Victorian Certificate of Education.
I have no doubt that the mother was primarily responsible for the children’s education. The father concedes this as he was primarily responsible for the business. However both are responsible for the decision to home school the children.
It is clear that all four children have become enmeshed in their parents’ dispute. Some of it relates to financial issues and the family trust particularly with respect to distributions and tax issues.
The husband repartnered in early 2015. On 13 May 2015 the father says he told the mother that he had been seeing Ms I since early March 2015. The father says the mother told the boys which distressed them before he had a chance to address it with them and reassure them. The father says the mother told him that she did not know it was a secret but later said that X had been eavesdropping on phone calls to the father and that the children were very angry with the father when they found out he was in a new relationship. The father believes the mother did this deliberately to damage his relationship with the boys. The mother’s evidence was inconsistent. It is more than likely that she did discuss it with the children.
The mother sent a text to the father on 1 July 2015 saying that X wanted to see him. The father spent two hours with X. During the visit X said he was worried about money and he was angry about Ms I. The father says he is concerned about psychological damage to X as the mother is either briefing him or inappropriately involving him in adult conversations. The mother and Z collected X that afternoon and that was the last time he had any contact with Z (apart from family report interviews). He did not see X again until 10 April 2016.
The father says he tried to contact the mother about Z’s birthday on (omitted) 2015 when the mother told him that he and W were not allowed to be involved.
In November 2015 the mother told him that X was seeing a psychologist, Ms J. The father said he had thought it was only for an initial assessment.
The father says he made numerous attempts at contacting the mother directly and via her lawyer attempting to make arrangements to see the children. He says in early 2016 he found out that the mother and the children had moved to reside primarily at the (omitted) property which is a two and a half hour drive from (omitted) or (omitted).
The father saw X on (omitted) 2016 for his birthday at (omitted) but otherwise did not see him until interim orders were made on 27 July 2016. The father said he issued court proceedings after the mother refused to make X available to spend any time with him after 10 April 2016.
On 30 June 2016 the parties attended non-reportable family counselling with Mr V. The mother refused to attend again. The father saw Mr V with his partner, Ms I, in November 2016 and on one further occasion seeking advice with respect to strategies to deal with X’s behaviour.
The father gives evidence in his trial affidavit that Z may have a mild form of autism spectrum disorder. He is concerned that the mother has refused to have him assessed. The mother says Z has decided to wait until he is 18 years old because he does not want the father involved.
X did not go to school until court orders were made requiring him to attend (omitted) School. The father complains that he does not know what X was being taught via home schooling. He would have been aware of type of education his elder children received from the time they were living together. He says X is intelligent but lacks social skills.
The father says he saw the children regularly from June to October 2014. He only saw them on a few occasions between October 2014 and January 2015.
He spent Christmas 2014 with the mother and children, and he said it was strained and uncomfortable. This is the period when the mother says they separated.
The father says that X rang him on 18 February 2015 asking to see him so he went to the parties’ (omitted) property and spent time with Z and X that afternoon.
The father says on (omitted) 2015, W celebrated her birthday with the mother and her brothers. On that occasion the mother questioned her extensively about the father. The father says after this W’s relationship with the mother broke down and she was not able to see Z and X until she returned to the mother’s home to live in January 2017.
The father says he sent the mother a text on 20 March 2015 asking to see the children but she did not respond. He says was not able to spend any time with X on his birthday. He then initiated mediation.
The father gives evidence that on 23 April 2015 he phoned the mother and the mother told him that she would not help him see the children and did not want anything to do with him or W. He says he became extremely concerned that the mother was not separating her own needs from the children.
On 8 May 2015 the father texted the mother asking if she was attending mediation. She replied that she needed to see her lawyer and the children did not want to see him.
The mother cross-examined the father putting to him that he stalked her and was aware she was having trouble paying electricity bills because he sent bills to her. He said he was aware later that she had received a large electricity bill but denied tracking her through her power usage.
The father also denied driving past her home when the garage door was open and the mother and Y were outside without stopping. I accept his evidence that had he seen them he would have stopped. He had given evidence previously that he had driven past their home on a few occasions when he was concerned for the children and did not know if they were there or elsewhere.
I am not satisfied that either the father or Ms I stalked the mother.
Father’s supporting witnesses
The father called his partner Ms I to give evidence. She works in the father’s business at their home providing (business omitted). Previously she was a (occupation omitted) and also worked in (employer omitted). She has two children with her ex-husband Mr S.
Ms I says the father has been actively involved with her children during the past two years.
Significantly, she has been a foster parent to children at various times. She and the father have been asked to take in children by the DHHS three times. The DHHS carried out police checks before placing the children with them which is standard practice.
She details the emotional and practical assistance she provided W. She annexes a lengthy, bitter and vitriolic email she received from W. It goes for more than five pages. She replied to W saying she would not read it or tell the father about it. She then got a reply complaining that Ms I was silencing her.
Ms I and the father both gave evidence that X settled into their care more easily when W was not there.
Ms I gave her evidence in a blunt and straightforward manner. She admitted to talking to W about difficulties with X but denied saying she hates X. She agreed that she entered the (omitted) property with the father on 15 November 2015. She said the father wanted to get his typewriter and if the mother and children were home he wanted to see the boys. If the boys were there the father was going to drop off her at (omitted) and then visit with the boys on his own. She denied accessing the mother’s account with Ambulance Victoria. She said she contacted Ambulance Victoria to see the number of years the father still had coverage. She further said that the father’s lawyers had asked her to collect the car from the mother pursuant to the property orders.
Ms I readily admitted that she disparaged the mother to W and said that W was also disparaging of the mother and told her that the mother hit her and dragged her by the hair. She said many things were said in conversations and that she was mainly concerned with the mother’s mental health.
Ms I said it was hard to give an exact date as to when she and the father started permanently living together as it happened gradually. She has a property in (omitted) where they live during the week with her two children who attend school in the local area. Initially the father spent some of his time in (omitted) and some time in (omitted). She did not go to (omitted) all the time.
Ms I said that she and W were close before she returned to live with her mother. It is clear she is quite hurt by W’s change in attitude. She was helping W deal with Centrelink when she was trying to get a disability support pension.
Ms I was not at (omitted) every weekend X visited. She referred to the weekend of 6 and 7 January 2017 when the father brought X to Melbourne on Saturday. She says on Saturday X was initially incredibly rude to herself and her daughter B. B became upset and so they decided that she and B would have lunch on their own. X later apologised and the four of them visited the aquarium without incident. She could not recall exactly what X said but said he was putting the father down.
Ms I agreed that she and the father have made inquiries about schools for X and acknowledge that it will be a huge adjustment for X and that it will be difficult however she and the father will be guided by professionals.
She has cared for foster children both when she was married to Mr S and since then. She said at the request of the DHHS she and the father took in a foster child she previously fostered for three weeks to provide short-term care. That child has Asperger syndrome. They do not have plans to have any foster children living with them if X comes live with them.
She was a witness of truth. I accept her evidence.
Mr S filed a brief affidavit. He has a flexible parenting relationship with Ms I. He said he has met the father on several occasions in the last two years and has seen him interacting positively with his children. He met X once and said he appeared relaxed with the father and Ms I. He was cross-examined briefly.
The mother’s evidence
The mother’s case is that the father was an absent father and was emotionally and financially abusive during and after the relationship.
The material the mother relied on, being her trial affidavit and Notice of Risk (and initially W’s affidavit which she withdrew just before W was due to be cross-examined), are relentlessly negative about the father. In her Notice of Risk she says the father has been emotionally and verbally abusing all four children for years. She says he has abused Z and X for all of their lives. She says the abuse increased and evolved with the parties’ separation. She makes various allegations of neglect during the time X has spent with the father in accordance with the interim orders. The Notice of Risk is detailed. She details the same allegations in her trial affidavit.
The mother told Mr H that she wanted sole parental responsibility, to be able to resume home schooling, and for X to be able to decide whether or not he sees or has other contact with his father.
The mother paints a picture of having to raise the children largely on her own and the father being a negative presence in the home. She says that the family violence was mainly in the form of financial abuse.
It is clear that she blames the father for her financial circumstances post separation and that children do too. She characterises it as financial abuse which is unfair.
The mother claimed when cross-examined that she does explain to X that it is not the father’s fault that they are in the financial situation that they are in and she told them they will be all right. I do not accept this evidence. It is inconsistent with the strong themes in the mother’s evidence and case outline portraying of the father as being an abuser of all members of the family.
The mother said that X has a habit of listening into phone calls. At best the mother has not taken care to ensure that he did not overhear adult conversations. At worst, the mother has deliberately involved X and others in the dispute by discussing her negative views of the father.
During the mother’s cross-examination by the father’s counsel the mother attempted to deflect when asked to confirm her position being that she hoped X would not be ordered to spend time with his father. She conceded that she made very serious allegations against the father and that X had not seen his father for six months. When it was put to her that this was not going to change she said she did not know, she had not said that and she hoped it would.
At that point I asked the mother how she could see it being able to change. The mother said that when the father first had visits with X things improved but when there were overnights things worsened. She does not indicate that there was anything positive in the visits in her affidavit. She said X needed a gentler hand and that she spoke to the father many times about modifying his behaviour but he ignored her. I asked her if it could be that X does not always accurately report his experiences with his father. She conceded that sometimes that could be the case but he has vomited from stress and had suicidal thoughts. I have no doubt that X has struggled with being caught in the middle of this conflict where in order to maintain his loyalty to his mother he cannot say anything positive about his father. This was not the only time during the hearing when the mother tried to soften her position, but she made it clear that she thinks it is the father who needs to modify his behaviour not her. She admitted that X “probably” only tells her the bad parts of the visits.
The mother says she has always second-guessed herself and that that is why she took X to see Ms J and why she also took him to see Mr D. I do not accept her evidence on that point. My impression of the mother is not someone who doubts herself. Rather I find that she was seeking assistance for X but also people who would assist her cause. The events are consistent with the mother then distancing herself and X from professionals when they expressed views different to her own. This became very clear during the course of cross-examination.
The father’s counsel put to the mother that Dr N’s report indicated that the boys had a bleak future if the situation continued. The mother was asked if that concerned her. She said yes and that she took herself off to a psychiatrist to see if she was crazy. I think the mother did this as she was seeking support of her case.
The mother sought to soften her position during the course of cross-examination. She said that obviously she wanted to keep residency of X but was also proposing a softer approach to X spending time with his father with it starting gently. She said she thought if she gave X the choice he would see his father. She also tried to distance herself from her affidavits saying she was talking about historical issues. However, given that her affidavit was affirmed on 6 June 2017 and she filed a case a detailed case outline a week or so later I do not accept that explanation. Rather it is clear that during the course of the hearing in particular during the time she was being cross-examined, that it was dawning on her that there was a real risk that X would be ordered to live with his father.
It was pointed out to her that she complains about the father stepping back too much and abandoning X but also complains about the father seeking to demonstrate affection to X by kissing him good night and giving him a cuddle. She could not see that she was damning the father no matter what he did. She said she thought that there was a middle ground.
It was telling that despite being on notice of the possible outcome of a change of residence that was made very clear in Dr N’s report and Mr H’s report, and also other experts telling her that it was important that X have a relationship with her father that the mother made no attempt to reinstate any face to face time or communication between X and his father. Yet she asks the court to believe that if she was given another chance X would spend time with his father if he remained living with her.
The father’s counsel asked the mother if she thought X was at risk with the father. She said psychologically she did not know, she then said not lately but originally yes. Of course it was then pointed out to her that X has not seen his father recently.
The mother said that the interviews with Dr N were very difficult and that she does not remember Dr N talking to her about her concerns about alienation.
She had to concede that in the face of receiving Dr N’s report she still ceased the father’s time and did not resume the father’s time after receiving the DHHS’s report, which she also disagrees with, and made no proposals for the father’s time to resume in any way at all. The mother said that X is suffering. It was telling that the mother said she was still very worried and that she and W both tried to talk to the father about modifying his behaviour. I think this reflects that her real view is that it is the father who needs to change.
She does not say anything positive about the father’s time with X in her affidavit although attempted to soften her position during the course of being cross-examined.
The mother was cross-examined about her efforts to encourage the children to socialise with people outside the home. This has been flagged as an issue of concern in both family reports. It was put to her that it appears in general that the children are socially isolated. She agreed with respect to X and Z, and said that X can be brusque and rude and has issues with calling other children names. She said this is an issue which she is working on with the school. She says that drives potential friends away.
It was put to her that she does not want X to attend school. She said if she had a choice she would send him to school part-time and home school him the rest of the time. She said that issue in the past month is that he has started to make friends so she would not remove him now. She does not know if she will send X to high school. She says the principal told her that he does not think X would cope with high school.
The mother said that X refuses to use the phone unless it is on hands-free. She said she did not monitor the calls. She then said sometimes she overheard them but not as a matter of course.
It was put to the mother that the time spent between X and the father was bound to fail because X knows how much she hates the father. She said this was not true but I accept that the children are acutely aware of the mother’s antipathy towards the father and it is clear that the mother takes an all or nothing approach such that the only way for the children to cope would be to express loyalty to her and to adopt her views. She does not necessarily do this consciously.
The timing of the mother and W taking out intervention orders against the father and Ms I is also concerning. They did not do this until March. Yet they have had no contact whatsoever since late January. What the father had done was to file and serve his contravention application and interim change of residence application. I do not accept her evidence that it was not done in response to those applications. I observed her to sit forward in the witness box and answer defensively when questioned on this topic. Is also clear that during the course of the mother being cross-examined that whilst she attempted to soften her position, she at heart still sees it as being the case of the father needing to change his behaviour and attitude towards X. This is in spite of the fact that X clearly displays challenging behaviour not just to his father but to the General Practitioner, his counsellor, and at the school. It also seems clear that the mother takes what X says at face value and is keen to hear negative things from him about the father, as well as from W.
It was put to the mother that she has rejected every professional opinion that has told her that X should have a relationship with his father including Ms J, Mr V, Ms J, Dr N and Mr H. She has been told this multiple times. She was also on notice, at least by the time Dr N’s report was released, that X may be ordered to live with the father. She disputed hating the father and says that her fear of losing her son is a huge motivator for her but I need to look at her actions in lead up to the hearing, where she has made no attempt to facilitate the relationship and I simply cannot be confident that she will do so if I make the final orders that she seeks.
It is of concern that for years the children were not registered with the Department of Education for home schooling and that the mother only did this on 16 October 2016.
The mother was cross-examined by the ICL’s counsel. The mother said she was no longer seeking sole parental responsibility and would prefer it to be joint, provided that she has a say. She said she was not surprised that X told the ICL that he rated School 7.5/10 as the school has improved for X, but this had occurred only the last few weeks. She went on to state that the school still calls her three or four times a week about X’s behaviour.
W
The mother’s position is that W insisted on preparing an affidavit in support of her case and insisted that she wished to give evidence at the hearing. The mother sought to present a position that she had discouraged this but that W felt very strongly that she should do this and that she was a witness to the abuse X experienced in his father’s home. She claims that W prepared it herself. The mother researched what needed to be done and formatted it. The mother read it because she was going to file it in support of her case. I find that if the mother really wanted to she could have prevented W from doing this. She certainly could have chosen not to file and serve W’s affidavit and to not rely on W’s affidavit in support of her case. She only changed her position when reality struck as to how confronting cross-examination would be for W. Prior to this she sought to minimise W’s mental health difficulties which are not disputed as she has anxiety and depression. It was striking that she referred to W previously coming to court to support her father and placed a malevolent spin on the father’s partner sending W a text at 9.33am and an email saying that she was thinking of her on that morning of the previous court date. She interpreted this as W being given a prize for turning up and not that it could have been Ms I showing support and concern knowing the court was on that day. What is telling is that the mother places that interpretation on the father. Certainly the father could be criticised for allowing W to come to court because regardless of the fact that she is almost 30 years old she is and always will be a child of these two parents. However, the difference is that the father did not have W prepare an affidavit in support of his case.
The extreme change in attitude of W in such a short period of time is very telling of the dynamics in the whole family. In 2013 W moved out and lived independently. She received financial support from her father. Her relationship with her mother broke down in early 2015, and the mother cut her off from Y and Z. The only times she saw X was when the father facilitated it during the limited times he had X. The mother emailed the father, copying in the W, on 23 July 2015 and said the following:
In regards to W all I can say is that I treated her like an equal and a friend. She more than encouraged me to share my issues with her. She fed off it. She said she was a big girl. She left out the disloyal opportunistic part. She like you has stomped all over my faith and trust. How can trust either of you again with anything other than the weather.
The mother accepted that she sent that email. What is telling is her references to W being equal and an adult. This shows a real lack of insight. W would never have equal power with her mother. It is correct she was an adult but, as I said previously, she is still a child of the relationship. It would have been devastating for W to have received this no matter how hurt and upset the mother was feeling and it is concerning that she sent such a harsh rigid email to her daughter. It is very much reflective of the dynamic that Mr H referred to that it is simply impossible for these children to feel that they have permission to have a relationship with both their parents because they clearly do not from their mother.
It is also telling with respect to W, and also X, that their extreme negativity towards the father is in response to the father imposing rules and boundaries that a responsible parent should as part of their parenting. With respect to W, it was not unreasonable for the father to impose rules when W moved into his and Ms I’s household that she would tidy up after herself, do her laundry and most importantly clean up after her cat. This has to be seen in the context of Ms I having very serious allergies to cats. I accept the father’s evidence that it was an enormous concession allowing W to bring a cat to the home. With respect to X, his criticisms of the father with respect to two incidents, one being a (omitted) show and the other being at a shopping centre were due to his oppositional, defiant behaviour in public and the father seeking to control that behaviour.
The issue of W seeking the father’s assistance in setting up a (omitted) business and W bringing a sex documentary for the father, Ms I, and W to watch together, which they did, was brought up by the mother in cross-examination. Both the father and Ms I pointed out that W was an adult and it was her idea. I do not propose to go into this further if it is not relevant to the decision I have to make.
(omitted) incident
The mother complains that the father did not tell her that he was going to attend the (omitted) home suggesting that if he had it would not have been a problem. The father’s evidence is that he did not think he had to do so. It was still the holiday home, he had a key and it was in joint names. He said that the mother had not told him he was not welcome. The mother says she and the children were living there for half the time at that point and that they were very distressed after they had found out he did attend the home and felt unsafe and that the children had asked to change the locks.
Another example is the mother’s description of the incident where the father entered the (omitted) property. She continued to refer to it as a break in. In her affidavit she suggested that the father picked the lock. It was suggested to her that her version set out in her affidavit at [98] was misleading when she referred to the father using lock picking skills again to let him himself into the (omitted) property as he had with the (omitted) property. She said that it was possibly paranoia. Even if the mother did not realise he had a key to the (omitted) property at the time, by the time she affirmed the affidavit she knew that he did. Furthermore, it is hard to understand why she would think he would not have a key given the concession that it was still the joint holiday home at the time.
The mother conceded that she never told the father that he was not allowed to attend the property but she said she expected to be informed. She also conceded that at that stage it was the joint holiday home. She said that he knew that they spent 50% of the time there. She does not say in her affidavit that she had asked him to return the key before the (omitted) incident. It is most concerning that she has portrayed this as an incident of the father stalking her and has clearly portrayed it that way to the boys as well. She did nothing to reassure them; rather they all bought in to this as being another example of abuse.
In her affidavit she characterises the father and Ms I’s attendance at the (omitted) property as breaking in. I prefer the father and Ms I’s evidence about this incident.
(omitted) incident
It is quite clear that the mother interprets anything the father does negatively. Her response to the father buying a (omitted) video camera for X is a good example of this. The father’s explanation as to why he bought this for X and what he said to X about using it is credible. He said he recalled that X had an interest in making home videos and previously used the father’s camera. Recently Ms I’s daughter had received a (omitted). It has to be remembered that the father was trying to reconnect with X. I prefer the father’s evidence that he simply said to X that he could film whatever he liked around the home and could show it to him if he wanted. The mother’s spin on the use of the (omitted) is that it was a way of the father’s spying on X and the household.
Souvenirs
The mother was very critical of the father for bringing the children souvenirs from (country omitted). The father’s evidence is that he attended a work conference in (country omitted) and brought back souvenirs for them. He said he thought they would appreciate the souvenirs. The mother conceded when she was cross-examined that the father had been going on work trips overseas for years and had brought back the children souvenirs. She then focused to criticism on the fact that the souvenirs referred to (country omitted) and said the children were upset because they would have liked to travel overseas but could not. A recurring theme of the mother’s case is that the father has been financially abusive and controlling post the relationship. She has not made her case in this regard.
The mother conceded that historically the father brought souvenirs home for the children when he returned from overseas business conferences which he has gone to each year for many years. Rather than seeing this as a continuation of his usual practice, she characterised it as him emphasising to the children that he can still travel overseas while she cannot afford to do so. She complained about the reference to (country omitted) on the gifts. It is quite clear that the mother would not have presented this as a positive on the father’s part to the children but rather another example of his misconduct. It is an unreasonable interpretation for the mother to have. The same is true of her interpretation of the father giving X a (omitted). She and X readily interpreted this is another attempt by the father to control them and stalk them. These are both examples of legends which Mr H refers to in his report.
(omitted) show
The father spent time with X on 3 November 2016. The father says X told him he wanted to go to the (omitted) show. The mother says that when X returned after this visit he was injured and in pain. The Father took X to the Animal enclosure at X’s request, but when it was time to leave X refused to go. The father said he moved away and told X he was leaving but kept X in his line of sight. The mother and Z were at the show. The exhibitor asked the father to leave with X and X still refused. The father says he briefly picked up X to take him away. The father said X did not say anything and the visit continued. The father said X was angry and did not like being removed but he could not think of a different way to handle the situation. The father said he was unaware that X complained he was hurt until he read the mother’s trial affidavit.
The mother was cross-examined about the incident at the (omitted) show, which she said was an example of the father’s physical abuse. She referred to the father manhandling X and the mother thinking he had cracked ribs, so she took him into the hospital the next day. She says at [105] of her trial affidavit that she regrets not reporting the incident to police. She was asked whether this was an incident of physical abuse. She said it was more his roughness and intolerance. That is not how she described it in her affidavit. I accept the father’s evidence about this incident. He acted reasonably in the circumstances. Again it is important to note that this affidavit was prepared two weeks before the hearing so her reference to regretting not reporting it to the police is important. She also did not refer to the incident in her March 2017 affidavit or the Notice of Risk she filed in March 2017. She said it was an unintentional omission. She then gave evidence that she regretted not reporting it because she feels that no one believes her about the treatment of X and that a report would have provided some sort of evidence of abuse. This is inconsistent with the evidence she had just given.
X’s school attendance
The mother’s position with respect to X attending school also shifted somewhat during the hearing. It is quite clear that if it were not for the order made by the court X would have not attended school. The mother refers to X being forced to go. Certainly that is an accurate statement with respect to the orders.
She says that X has had trouble adjusting and that the school calls her multiple times a week to come and get X early because they cannot cope with his behaviour. She said it would be good if X went to school part-time and was home schooled the rest of the time.
Later during the course of being cross-examined she said X’s experience of going to school had improved in recent weeks and he was starting to make friends. Due to this she was not surprised that X had told the ICL that his experience of school was 7/10. However, she stated the school still calls her several times a week.
Professionals involved with X
The mother was cross-examined at some length about the counselling notes of Ms J, the school counsellor at (omitted) consolidated school. The mother subpoenaed her notes, presumably in the hopes that the notes would support her case.
The notes are both enlightening and concerning. Ms J records that she met with X on 9 February 2017. She records that he walked straight in and sat down then quickly got up and pointed to the bullying sign on the door which refers to threats, name-calling, physical abuse, stealing, and cyber threats. Ms J says X told her that his father does all of these things and that he hates his father and his “disgusting girlfriend”. He called his father a sociopath and a parasite. He said that his mother tells him everything as he has a right to know. She records that X explained the Court case to her and other adult conversations. The mother was cross-examined about this and said that although X says he knows everything he does not and she tries to shield him and the other children from the proceedings. I do not accept the mother’s evidence in cross-examination that she has not had inappropriate conversations either with X or within his hearing and presence, as she has certainly had them with W and the other children. It is concerning that X clearly went in to the counselling session with an agenda to portray his father as an abuser. This does not necessarily mean that she deliberately coached him but X is acutely aware of his mother’s feelings towards his father.
During that same session X said he was frustrated that his father had money to go to court, and that his father was only doing it for “total control”. He said his father did not love him or he would not “leave us skint”. These are complaints that the mother makes as well. These are recorded in the phone call Ms J had with the mother on the same day, and it is also a recurring theme in the mother’s affidavit material. The mother told Ms J that she had the full support of Mr D and the head of the mental health team at the hospital and a psychiatrist.
Ms J records that she also rang the father to introduce herself on the same day (9 February 2017). He asked if he could meet with her the next day before he collected X from school. As X was not at school the father did not attend.
Ms J also had a phone call with Mr D that day. She records most concerningly the following:
Mr D spoke about X and feels very strongly that he should not have any contact with his father; Mr D was very adamant that Mr McGovern is a sociopath and has a narcissistic personality. Mr D said that Mr McGovern’s presentation is that of a highly manipulative man and that we need to be aware of it. Mr D also said the court report was completely biased towards Mr McGovern; Mr D stated even a psychiatrist said that whoever wrote that report should be sacked. Mr D feels that Mr McGovern is an abuser and that X hates him with a passion.
It is most concerning that Mr D who has never met the father had clearly so fully taken on the mother’s cause and advocated for her and X. Whilst the mother sought to distance herself from him later on, his involvement is most concerning and raises real questions about his professionalism.
Ms J records meeting with the mother on 21 February 2017, where the mother spoke of X’s struggles with mainstream schooling having been home schooled all his life and her feelings that the father was doing this to have total control.
The father’s counsel pointed out that the mother’s trial affidavit, affirmed only a couple of weeks before the hearing, and had made similar statements about the father seeking to control the situation. Of course the mother is also seeking total control with respect to X. The father is perfectly entitled to pursue these proceedings and I accept that he has done so because he is concerned for X’s best interests, as is the mother.
Ms J met with X on 2 March 2017. She records that X told her he had seen Mr D who told him he had high functioning autism and said he could get a test to be properly diagnosed but it will cost $500 and his mother has no money because of his father. He was again highly derogatory towards the father and Ms I. The mother claimed that Mr D talked to X about his having high functioning autism and the costs of the test. She said the amount was not correct as the assessments costs significantly more. She then claimed that she stopped taking X to him because he would talk about those kinds of things a lot. I do not accept that. It was necessary to make an injunction to prevent her from continuing to take X to see Mr D and any other medical professional. Ms J records that the mother told her on 23 March 2017 that she had been to court and that X was not able to attend counselling sessions with Mr D. This is two days after the order restraining her from taking X to see him was made.
The mother emailed Ms J on 7 March 2017 asking for a report for the next court date. She made complaints about Mr M the principal. It complained that:
Mr M did say he is not taking sides and he is certainly not taking X’s side. If only he shared as much information with me as he has with Mr McGovern. He is obviously working on the presumption that Mr McGovern will be gaining full custody. This is a child who asked Mr M to call the police if Mr McGovern got rough.
This is indicative of the mother’s attitude that permeates these proceedings that either people are for her or against her. There is no middle ground. The children must also adopt this attitude, whether conscious or not, in order to be part of her household.
Ms J records another conversation with Mr D on 9 March 2017. She refers to the mother not being in favour of X being referred to the Child & Adolescent Mental Health Service (“CAMHS”) for assistance and complained that the mother was not really helping the situation. It appears from this conversation that Mr D’s attitude was changing.
The father’s counsel suggested to the mother that X’s complaints to Ms J with respect to financial issues were similar to hers and suggested that she could not seriously state that X did not form that view because of her. She replied that he shared the same experience as her. Her answer is an illustration of the enmeshment of the mother and the children.
X had been seeing Ms J for counselling in 2015. The father’s counsel suggested that the mother stopped X seeing Ms J after she told the mother that X needed to see his father. She says that X refused to go and that the sessions were not working. The mother could have made X go if she wanted to. I find that she stopped taking X to see Ms J because Ms J was not supporting her position.
The mother conceded that Mr D, Ms J and Ms J all told her that X should have a relationship with his father.
The mother also said she lost faith in Ms J. She complained in affidavits that notes were wrong. The mother says she thought her notes would include conversations about how X was going in school and helping him stay in school. It is not surprising that her notes deal with issues that X raised and that X was most concerned about his father. I do not accept that her notes do not record accurately her sessions and conversations with the family. She does not have a position to push. She has not been called to give evidence.
I do not accept the mother’s denials that she did not subpoena the notes in the hopes that it would bolster her case. She would have known that X talked about his father’s alleged abuse with Ms J as it is clear X told her about the content of the sessions.
The mother was cross-examined about Dr N’s observations at page 17 of her report where she records that the mother said that X was no longer seeing his psychologist Ms J, stating that X refused to see her after she contacted the father. She thought it was inappropriate for Ms J to ask X if she could speak with his father. She also objected to the advice that X should be allowed to play videogames when he was with his father. She denied that she formed a negative view of Ms J because she was encouraging X to have a relationship with his father. I do not accept her denial. It was perfectly appropriate for Ms J to want to speak to the father and to gauge X’s response before doing so.
At page 18 of her report Dr N records that X said he believed Ms J was on the father’s side and reported that she had told him that he should see his father. X complains that he saw another therapist who also said he needed to see his father and expressed suspicion about the therapist saying “she was hiding things from us”. The mother says that she went to (omitted) in (omitted) to seek free counselling assistance and that X in fact talked to an intake officer who he refers to as the therapist.
DHHS
DHHS carried out a protective investigation and spoke to various family members and X. DHHS made an assessment that X was not at risk if he were to spend time with his father and expressed some concerns about X’s presentation. The mother’s response to this, as with her response to Dr N’s report, was to be critical of it and disagree with its accuracy and conclusions.
The mother said that the day time could start with a more gradual move to overnight visits. I note that the interim orders provided for the gradual introduction of overnights after a period of three hour visits and then all day visits.
Parts of DHHS report was put to the mother. Including references to the mother, W and Y all being highly critical of the father. The mother said Y did not say anything in the interview. DHHS records the mother complaining about the principal stating that he should not talk to the father about X. This is consistent with Ms J’s notes. Of course the principal is obliged to talk to both parents when they both have parental responsibility.
DHHS workers recorded the mother complaining that Dr N was biased and that she was representing herself because she believes her lawyer gave her the wrong advice and was possibly colluding with the father’s lawyer. The mother denied making the comment about the lawyer and said she did not know where they came from however her affidavit material contains several complaints about her lawyer. Consistently with her responses when other people have told her and/or X things she does not want to hear she stops seeing them. She distanced herself from X’s comments that the principal was working for the father and said that X just says things like this. I think it is more likely that X would have picked up his mother’s displeasure with him and with Ms J.
The workers referred to X immediately listing the various types of abuse the father commits against him. The workers observed that they thought he was using adult language and not the language of an 11-year-old and spoke about concepts that were more in line with adult concepts such as emails from lawyers and finances. They record that at a minimum, X appears to have been exposed to adult conversations that are very negative about his father. The mother said the list of abuses X referred to was from the sign on Ms J’s door. The mother also says that X uses quite sophisticated language words he hears from various sources. I have no doubt that at a very minimum X has been frequently exposed to negative comments about his father and about adult issues in dispute but do not accept the mother’s evidence that she does not talk about the father negatively in front of X or within his hearing. I think it is more likely that the other siblings also join in in these conversations.
Counsel for the ICL put to the mother that she received the report from DHHS in April which concluded that X was not at significant risk of harm and that if they had found that X was at risk of harm this was a reasonable excuse for the mother’s refusal to comply with orders in the contravention proceedings. Having received that report she could have taken comfort from it and offered for time to resume with the father but she did not do that.
She conceded that in spite of receiving this report and all the other input from the experts she did nothing about X seeing and talking to his father again. The ICL’s counsel suggested to the mother that this is because she just cannot support the relationship. She said she was genuinely concerned and was not taking it lightly. When this topic was explored further it was clearly uncomfortable for the mother as she did not answer the question directly and then said she still has concerns. The mother said that she is very concerned that she will lose X and is not hopeful The ICL put to her that she has known for several months she faced the prospect of X living with his father if she did not facilitate X’s relationship with him. It was suggested to her that it was too late and she had had the chance but had failed to take it.
CAHMS preliminary assessment
Dr R a clinical psychologist at CAHMS provided a preliminary assessment of X dated 17 May 2017. He observed that:
X used overly sophisticated language, which contained odd use of words and phrases. X identified a range of obsessive and compulsive behaviours. Many of these appeared repetitive in nature’ X has features consistent with ASD.
Dr R recommended a formal Autism Spectrum Disorder (“ASD”) assessment. The waiting list in the public system is 12 months. The mother emphasised Dr R’s comments that:
It is important to note that X has completed home schooling throughout his life, with little mainstream schooling completed. X’s lack of social contact / socialisation does not account for his presenting behaviours and ASD features.
I accept that is the case but as Mr H points out that if he had attended school from when he was five or six his behaviours would have been picked up then. I suspect the same is true of Z. Both parents must have been aware of their unusual behaviours indicating that they may have needed assessment and assistance yet neither took any steps to address this until these proceedings. Whilst their lack of socialisation does not explain their ASD traits, it does mean a failure to have it picked up and addressed much earlier.
Dr N
Dr N prepared a family report dated 3 November 2016. She was not available to prepare an updated report and was not available at the hearing to be cross-examined as she was overseas. Given the serious nature of the risk issues it determined that the hearing should not be adjourned and Mr H was engaged to prepare a further family report.
What is very concerning with respect to the children is their level of knowledge about adult issues in dispute and the blaming of their father for these issues. Z told Dr N about having to move three times in three years because of their father and referred to tax issues.
She observed that Z told her that he could not think of anything positive about his father.
She also recorded that during the interview with X he referred to Ms J and another therapist (who the mother said it was in fact an intake worker at (omitted)) and complained that Ms J was on his father’s side and that the therapist who told him he needed to see his father. X said “they” stopped seeing her because “she was hiding things from us” and was supporting his father. She placed emphasis on the fact that X referred to us rather than himself. The concern about this is that indicates a strong alignment and enmeshment in the mother’s household.
Mr H
Mr H conducted family report interviews with the parties, Z, X, and W on 26 May 2017. He sets out the material he read.
He refers to a convergence of events in March 2015. W became estranged from her mother; the father commences a relationship with Ms I, and the father’s time with X stopping within a couple of months.
Mr H referred to the father’s description of home life during the relationship being a “rather isolated and enmeshed family life with demarcated parenting roles”. The father said that the mother was the dominant decision-maker in their relationship. Their relationship slowly deteriorated with frequent arguments. He said after they separated it was not unusual for the mother to stop his time with the children if he did not do as she wished.
Mr H observed that:
[d]espite the extensive allegations of family violence, financial, emotional and psychological abuse referred to in Ms Donoghue’s and the older children’s affidavit material, her narrative at interview concerning the parental conflict was rather benign.
She told Mr H that she thought the father was incapable of responding to X’s psychological and emotion needs and was insensitive to his ASD. He recorded that she did not see the congruency in that fact as by not sending the children to school they missed out on early assessments and interventions.
The mother said she recognised the flaws in Mr D’s report; however it must be noted that the mother annexed his report to her March affidavit which she relied on in the court appearance the next day. I find it is more likely that the problems with Mr D only became apparent to her once the issue was raised in court and she also would have been concerned about his apparent change of mind when she read Ms J’s counselling notes.
Mr H interviewed W. He recorded that the account was consistent with her affidavit. When talking about her father she was “unrelentingly negative and resistance to information of difference or challenge concerning his parenting.”
Z’ view of his father was also “unrelentingly negative” about his father.
X was “oppositional, irritable and anxious”. He also “launched into a litany” of complaints about his father including saying his was scared of his father and his father was abusive. He said his father was abusive and mean and that he abandoned him and stalked his sister.
Mr H observed that when he asked X to give examples of the abuse he did so without context. He said his father abandoned him when he did not want do something. When he tried to explore X’s behaviour X was evasive. Mr H continued and records: “X subsequently disclosed Mr McGovern walked a few metres away from him and left him to his own devices when he was being oppositional and verbally abusive towards his father in public.” His observations at [36] of his report are important. He told X that in his opinion his father’s behaviour was reasonable in those circumstances and asked X to compare and contract his response to his mother and his father in the same circumstances. X said it was different when it was his mother but was unable to say why.
It is clear that X found the interview process confronting and difficult. W joined his interview to give him support after he became distressed but her relentless negative views about their father reinforced X’s perceptions of his father.
The ICL’s counsel then referred to the psychometric testing that Dr N performed which suggests that the mother did not score well as a good candidate for therapy because she scored as the type of personality who does not think they need to change. I am mindful that Dr N is not available for cross-examination. My concern about the mother’s inability to foster the father’s relationship with X arises from her evidence and not Dr N’s psychometric tests. The mother said that Mr H told X and Z that it was highly likely that X but would be ordered to live with his father. The mother said Mr H told X that this is his fault. I do not accept this. What is clear is that at times during the interview Mr H appropriately challenged X to take responsibility for his behaviour.
When Mr H brought the father into the room X stood in a corner and was hostile, rejecting and verbally abusive towards his father.
Mr H made some important observations in the evaluation section of his report:
[45]The children’s exposure to the parental conflict in this closed, enmeshed and highly dysfunctional environment has been mediated through their dependency needs on Ms Donoghue, in her role as the primary caregiver. As the attempted reconciliations have failed in the post separation period the level of insecurity and anxiety for Ms Donoghue and the children has escalated and this has had a circular and contaminating affect for all concerned.
[46] In these circumstances, X’s object rejection of his father is likely to be an artefact of psychological splitting. Psychological splitting is a phenomena associated with an inability to integrate positive and negative experiences. It often occurs in children subjected to long-term parental conflict. The child learns to deal with the complexity and anxiety created by their environment using reductive logic. This leads to “either or thinking” where the child chooses one parent over the other in an effort to deal with the dissonance caused by the parental conflict. This reasoning can become fixed and inflexible and grow to have a life of its own.
…
[51] The issue of cause-and-effect and the roles of the parties in these dynamics will likely require the forensic scrutiny of the Court. In this case the alignment/alienation potentially lies on a spectrum between two distinct categories of parental behaviours. The first is described as a “hybrid alignment” which has varying degrees of enmeshment and boundary diffusion between the aligned parent and the child and some degree of parental ineptness by the rejected parent. This often results in a realistic estrangement between the rejected parent and child who are unable to break the cyclical pattern of their behaviour.
[52] The second category is described as “pure alienation” whereby the aligned parent puts a spin on the rejected parent’s flaws which are exaggerated and repeated. “Legends” develop and the child is influenced to believe the rejected parent is unworthy and in some cases abusive. The child develops an anxious and phobic like response to the rejected parent and develops an “anticipatory anxiety” which, in turn, reinforces the child’s avoidance and rejection.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act 1975 indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons. These considerations include the children’s views and the weight to be given to those views, the children’s relationships with both parents and significant other family members, the parent’s capacity to provide for the children’s physical, intellectual and emotional and psychological needs, but the likely impact of change in the child’s children’s circumstances on them, the parents attitude towards the responsibilities of parenthood
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time.
X will benefit from having a meaningful relationship with both of his parents. It will give him balance and exposure to different environments. The only way to give him a chance of have a meaningful relationship with both his parents is if he lives with his father. The mother has been unwilling or unable to ensure X has a relationship with his father. It is significant that none of the children currently have a relationship with him, although for a period W did when she was outside of her mother’s sphere of influence.
I am satisfied that the evidence supports Mr H’s characterisation of the family violence as being conflict instigated, for which both parties are responsible. I find that the mother and children are enmeshed and, using Mr H’s description, it is a case of pure alienation and not hybrid alienation. It is a form of psychological abuse and is very damaging.
The circumstances of this case are such that I cannot place weight on Z and X’s views. There is no point in making any orders with respect to Z because he turns 18 in a few weeks’ time. Z does not want to see his father but it is not in his best interests to make orders in accordance with his views.
The nature of the parties’ relationships with the children has been discussed at some length. It is not necessary to comment.
The father was passive. He let the mother make the decisions. After separation he did make real attempts to see the boys and be involved with them.
There is no doubt that changing X’s living arrangements is a massive change which X will find traumatic in the short term. I am satisfied that the father will engage in the necessary supports. He is under no illusion as to the difficulties he will face.
I have real concerns about the mother’s capacity to facilitate X having a relationship with his father. It was apparent during the course of the hearing and particularly up until late in the time she was being cross-examined that the mother felt that the father was responsible for the breakdown in his relationship with X, and with Z, Y, and W, and in order for any time the father is to spend with X to be successful it is the father who has to modify his behaviour.
During the course of the hearing during her cross examination the mother changed her position with respect to parental responsibility and said that she now sought to share it with the father and she was just concerned that she have a say. My impression is that the mother made this concession and others because it dawned on her very late in the day just how real the prospect was of the court being left in a position of having to change X’s living arrangements. She attempted to ameliorate that likelihood. Unfortunately it comes far too late. The mother has been on notice for months about the possibility of a change of residence since receipt of Dr N’s report. The chronology is important because what occurred after that report was an escalation where in just a couple of months, by the end of January, the mother ceased all time between the father and X.
The parents are not able to communicate effectively and would not be able to exercise equal shared parental responsibility. Each submits that the presumption is rebutted because of abuse the other has subjected X and the other children to. The only viable option is for the father to exercise sole parental responsibility. I adopted the minute of orders proposed by the father. He will keep the mother informed of the decisions he makes.
On this basis, the presumption of equal shared parental responsibility, even if this were not the case, would not be in X’s best interest for the parties to share equal shared parental responsibility due to the dysfunctionality and dynamics in their relationship.
Whilst this family has not had family therapy, from X’s perspective he has seen a number of professionals who have encouraged him to have a relationship with his father and when X has felt that he has been pushed in a direction he does not want to go in, he shuts down and refuses to continue seeing them. What this means is that in essence the option of leaving X with his mother and siblings whilst receiving family therapy and whilst there are specific orders for spending time with the father has already been tried and failed. As the father’s time increased to overnight time the difficulties escalated resulting in there being no time spent at all. It is not surprising that X’s distress increased as he spent more time with his father because it is clear that the mother’s distress, and indeed his brothers’ anxieties, about him spending time with his father would have also increased and would have influenced X. It is also apparent particularly given that the mother has had information for months telling her that there was a real risk that one of the outcomes could be X removed from her care, the mother remained unwilling or unable to ensure that X maintained a relationship with his father.
This case is very much about balancing the risks to X and his emotional and psychological well-being in short-term but also the long-term with respect to each of the scenarios before the court. I have given this careful thought. In my view in order to give X the opportunity of being able to maintain healthy relationships with both his parents in the future and to develop social skills and the risks to X of ordering him to live with his father outweighed by the potential benefits. The opposite is true if he remains living with his mother as I cannot be confident, despite the mother now saying that she wants X to spend time with his father that she will be able to foster and encourage the relationship.
The ICL’s closing submissions were thoughtful and sensitive. She said that it is a very sad case that both parents bear responsibility and would not be helpful to be overly critical. I agree. The ICL supports the change of residence. She acknowledged that is clearly a devastating situation for the mother but relied on Mr H’s evidence and pointed out that X will not lose his connection with his mother and siblings.
The father’s counsel in his submissions acknowledged the father was not proactive enough. The mother’s allegations in her affidavit with respect to the (omitted) incident, the (omitted), the souvenirs and the (omitted) show were tested in cross-examination. All of these incidents were banal. What was significant was the mother’s willingness or need to demonise the father. I accept the father’s submissions with respect to the characterisation of these incidents.
He also submitted that the mother’s allegations ramped up in each of her affidavits. Her case outline proposed that X was at such a risk that really there should be no time (whilst the mother put it in terms of X making the decision in reality I am satisfied that this would result in X spending time with his father).
The mother found it too difficult to make closing submissions. That is understandable. It is always difficult for self-represented litigants, even in many cases that are less complex than this one. She clearly felt at a disadvantage not having legal representation and again that is understandable. As I said to her during the hearing she presented her case competently. She had clearly prepared for it including researching the relative relevant legislative provisions. She provided a detailed case outline. She was clearly prepared when she cross-examined witnesses. She is an intelligent woman and presented her case competently and as well as she could. The fact that it was too distressing for her to make closing submissions has not made any difference to the outcome of this case.
I do not accept the mother’s evidence that the father was violent, abusive and emotionally and financially controlling of her and the children. I do not accept that that was the case either during or after the relationship. That is not to say that the father does not share responsibility for the family’s circumstances.
I accept Mr H’s characterisation of it being couple violence, that is anger and yelling, and that both parties were responsible for high levels of conflict that have been going on for years. I found Mr H’s report and particularly his oral evidence insightful and compelling. It was beneficial hearing his evidence after listening to and observing both parties being cross-examined. Mr H’s descriptions fit perfectly into the nature of this family’s dynamic.
It was of some significance that the mother was not able to see inconsistencies in her evidence and her hypercritical or double standards. One example is with respect to organising the appointments with CAMHS. The mother has complained on several occasions that the father delayed in sending back forms which delayed X being assessed. She said this is because he did not want X to be diagnosed with autism. The father denies this and says that his lawyer had sent the form but it had not been received. Once he discovered this he then provided an email address and got the form back to them straight away. The mother was then critical of the father for having done this through his lawyer not having contacted CAMHS directly. However it is not at all uncommon in the course of family law proceedings when a party does have a lawyer for the lawyer to make those arrangements. There is no basis for criticising the father for doing that. It is another example of the mother viewing anything the father does with suspicion and as having an ulterior motive. What was telling was that the mother conceded whilst she was being cross-examined that she delayed contacting the father about the CAMHS assessment once she discovered that that she had to get his consent. Where this inconsistency was pointed out to her she said her delay was a week or two.
It was clear that the mother was coming to the realisation that if she was unable to show a change in attitude that there was a real likelihood that there would be a change in residence. My impression is that it is for this reason that the mother’s position changed during the hearing. It was difficult for her to articulate what arrangement she thought would work. Initially she said it should revert back to day time arrangements without suggesting a progression. Later she suggested that there be returned to day time and a slower introduction of overnights. The mother said on a couple of occasions during the evidence that the day time visits have been positive, but it was after the overnight visits commence that the problems really worsened. This is not consistent with her affidavit which as the father’s counsel pointed out was only affirmed on 6 June 2017. The affidavit does not refer to any positive interactions between X and his father. Despite the mother’s attempt to soften her position during the course of the hearing, I am satisfied that she interprets everything father does negatively and impugned him with sinister motives. She appears unable to accept that the father is genuinely concerned about the children’s best interests.
One striking example of this is the incident where the mother refers to the father and Ms I breaking into her home. Even if the Court were to accept her evidence that at the time she did not know that they had entered the home but thought that an unknown person had and had removed items, she did not change her descriptions of that event and in fact added to the detail in her trial affidavit. In her June affidavit she mentions a ring being amongst the items she believed was taken. She did not mention that in her previous affidavits.
On occasion when being cross-examined about difficult issues the mother would seek to deflect rather than answer the question.
I am satisfied, having heard from the parties, is that Mr H’s description of legends in his report is what has happened in this family. The mother denies creating and perpetrating those legends but I am satisfied that she had. Again I do not think she has deliberately and cynically in all respects, though I do think she has taken advantage and embellished with respect to some of those legends and the (omitted) incident is a clear example of this. At the very least I think she has dramatized and exaggerated this incident and involved the children in it such that they are convinced that this was a traumatic deliberate abusive intrusion by their father. Of course it would have been better for the father to have let the mother know that he was intending to come to the home, but the fact that he did not in the circumstances described above is not sinister. I also do not accept that if he had that the mother would have been happy for him to do so. The mother said she thought this was an example of family violence that was important to talk about. She was asked directly if she thought it was family violence or just a banal event. She replied that if he had only informed her and then said it was the boys who wanted her to change the locks and it also made her feel better. Initially she claimed that the father had picked the lock to stalk her. She said she did not realise at the time that he still had a key. Given that the house was in joint names of the parties, they had not had a property settlement, and it was still used as a holiday house it is difficult to see why she would think that he would no longer have a key.
Conclusion
The issue of credibility is less important in this case than the attitude of the parties. What is clear is that both parties are intelligent and articulate people. It is also clear that the family dynamic, including both parents and all four children, is dysfunctional and has been for years. It is very clear that none of the four children, adults and minors alike, are allowed to be friends with both their parents at the same time. This is damaging for all of them and that damage continues. The most striking example of this W’s complete change in attitude over a very short period of time and over what appears to be fairly innocuous household rules that she was expected to comply with.
I cannot be confident that the mother is capable of changing her behaviour and attitude towards the father and being in a position where X will be able to successfully spend time with his father. By this I do not mean that she is insincere when she tells the court that she wants X to have a relationship with his father. I believe without intensive assistance she is simply unable to do this. It is also clear that in order for W, Y, and Z to have healthy relationships that they also need assistance because they have adopted the mother’s negative views of their father. Again by this I do not suggest that the mother has deliberately manipulated the children. Rather this is a product of the enmeshed closed in family dynamic that Mr H insightfully described.
It is of no comfort to the Court that the mother says she will comply with Court orders, when she has not done so for the past six months. She said she would still be worried if X was ordered to spend time with father. I cannot have any confidence that she would comply with Court orders in the future if X remains living with her.
I understand the mother’s position and have considered it. In my view the risks to X’s long-term well-being if he remains in his mother’s care is just too great. The mother has not been able to facilitate the relationship between X and his father to date and I cannot be confident that she will be able to do so without there being the change in residence and significant assistance provided to the mother and the whole family. X needs to be given the chance to have normal healthy relationships with his parents and one would hope that it may have an influence on his siblings as well, but even if it does not I must be concerned with X. I cannot make any orders with respect to Z as he turns 18 in a few weeks’ time. I do not underestimate how difficult and distressing this will be for the mother, the father, X, Z, Y, and W. However X deserves this chance which would be lost if this radical step is not taken now.
I have largely adopted the minute of orders proposed by the father’s counsel. He has included an order that the mother attends on a medical professional to seek assistance in dealing with the change and adjusting her attitude towards the father. That professional will have the two family reports and these reasons as will any other family therapist or other medical professional involved in this case. The mother did not object to the orders as proposed when asked but I accept she was distressed at the time and felt unable to make submissions. I am satisfied that it is in X’s best interests to order the mother to engage with her own professional in addition to the family therapist. The reintroduction of the mother and the children to X and the spend time arrangements are more likely to be successful if she does. However I am mindful of the decisions of Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387, Carnegie and Ginter [2013] FamCA 331. These decisions make it clear that it is beyond the Court’s power to make unconditional final orders for a parent to engage in therapy. Neither the father, nor the ICL’s counsel, has suggested that the mother being reintroduced to X should be conditional upon the mother engaging in individual therapy. For this reason I have amended the proposed orders to impose the same obligations on her as proposed but encouraging, rather than requiring her to engage a separate professional. It also need not be limited to a psychologist or psychiatrist but could also be an experienced family therapist, many of whom are well known to the Court and are trained social workers. The ICL may be able to assist by providing the mother with some possible names.
The next few months in particular will be difficult for all members of the family. I will grant liberty to all parties to apply at short notice.
I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 30 June 2017
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