MORTONE & MORTONE
[2011] FamCA 309
•21 January 2011
FAMILY COURT OF AUSTRALIA
| MORTONE & MORTONE | [2011] FamCA 309 |
| FAMILY LAW - CHILDREN – Best interests of the children aged 12 and 16 years – Parenting capacity – Parental responsibility - Mental health of wife and impact upon children – Prospects of the children being able to change the nature of their relationship with their father – Whether children should be separated - Whether children should be removed from their mother’s care and placed with foster family - Contact parents should have with children if placed with foster family in the interim - Whether the court should make interim or final orders – Orders made contrary to clear wishes of the children |
| Family Law Act 1975(Cth) |
| APPLICANT: | Mr Mortone |
| RESPONDENT: | Ms Mortone |
| INDEPENDENT CHILDREN’S LAWYER: | Lee Dalton & Associates |
| FILE NUMBER: | SYC | 6390 | of | 2009 |
| DATE DELIVERED: | Orders made 21 January 2011. Reasons delivered |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 17,18,19,20 & 21 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE RESPONDENT: | Mr Gray |
| SOLICITOR FOR INDEPENDANT CHILDREN'S LAWYER | Ms Dalton |
Orders
IT IS ORDERED THAT, PENDING FURTHER ORDER
The husband Mr Mortone have sole parental responsibility for the children H born … September 1994 and L born … November 1998 conditional upon the children living with Mr and Ms B.
Mr and Ms B are joined as parties to the proceedings pending the determination of any application they might make to the contrary.
The husband is to ensure that Mr and Ms B are provided with a copy of these orders as soon as possible.
The Independent Children's Lawyer is to contact Mr and Ms B as soon as possible to advise them of the order.
The wife is to deliver the children to Mr and Ms B at the home of Mr and Ms G, … ,Sydney Suburb 1 (Telephone …) at about 2.00 p.m. on Saturday 22 January 2011 when Mr and Ms B arrive from Town 1, NSW.
In the event that the children are not delivered to Mr and Ms B as required by the previous order then this order is to operate as a recovery order.
The recovery order is addressed to the Marshal, all officers of the Australian Federal Police, all officers of the State and Territory police forces. Such persons are authorised and directed to find and recover the child H born … September 1994 and the child L born … November 1998 and for that purpose, with such assistance as they require.
The children are to live with Mr and Ms B and they are to be responsible for the day to day care of the children.
Following the children being physically delivered to Mr and Ms B as provided for in these orders and subject to any other order made herein, the wife Ms Mortone is restrained from contacting the children in any manner either directly or indirectly through the media of others or by any other means until further order of the court.
Subject to any other order contained herein the husband is restrained from contacting the children directly or indirectly except as permitted by the Independent Children's Lawyer and Mr and Ms B collectively.
On one occasion each fortnight (or more frequently should they desire) one of Mr or Ms B is to communicate with the wife by either email or mail to advise her of the children’s progress, activities and any matter which might reasonably be seen as of interest to the wife.
Should either child suffer any medical emergency, Mr and or Ms B are to forthwith notify each parent. In such circumstances, Mr and Ms B may, at their discretion invite either or both parents to speak with the children. In such circumstance, the injunction restraining the parents contact with the children is suspended for the duration of such visit or contact.
Each of the parents is to ensure that Mr and Ms B have a current telephone number and address for them to facilitate contact should that be required by the performance of these orders.
Should the wife choose to consult a psychiatrist, psychologist or personal counsellor she as at liberty to provide such professional with a copy of these orders, a copy of Dr W’s report provided to the court and a copy of the courts reasons for the making of the orders.
In the event that either child advises Mr and/or Ms B that they wish to have contact with, spend time with or live with the husband, then Mr and Ms B may, at their discretion, permit same. They are at such time to notify the Independent Children's Lawyer and the wife of such request and their action on same.
The court notes it is the desire of the court that the wife be permitted to spend time with the children and/or have some contact with them as soon as the court accepts evidence that her medical condition has been altered to an extent which would not expose the children to being drawn into the delusions and/or thought processes which the wife has hitherto held and which have led to the alienation of the children from their father and their community in the Town 1 region of New South Wales.
The parties are to cause the single expert to prepare a further report in relation to the children’s circumstances and those of the parties and relevant adults, at the expiration of six months from the date of these orders with the expectation that such report would be available to the court and the parties before the end of September this year.
Each party and the Independent Children's Lawyer have liberty to re-list the matter on short notice before the court at any time prior to the making of final parenting orders. The matter is to be listed before Justice Le Poer Trench should any party seek to re-list, unless Justice Le Poer Trench is not reasonably available at the time.
Should the husband have any contact with the children pursuant to these orders he is restrained from consuming any alcohol either during any period of contact nor for a period of 12 hours before hand.
Mr and Ms B are not to allow the children any kinesiology treatment without first obtaining the permission of the Independent Children's Lawyer who is to act in such circumstances on the advice of Dr W.
Mr and Ms B are at liberty to provide a copy of these orders to any school, medical practitioner, institution, body or person they consider need to know of the orders so as to allow them to fulfil their function as persons standing in loco parentis to the two subject children.
The father is to provide to Mr and Ms B a copy of the report provided to the court by Dr W, a copy of the transcript of Dr W’s oral evidence, the courts reasons for the orders when available and a copy of these orders.
I otherwise adjourn the matter to 9am on 26 September 2011 before me, Justice Le Poer Trench.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Mortone & Mortone is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6390/2009
| Mr Mortone |
Applicant
And
| Ms Mortone |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court are competing parenting orders sought by the applicant, Mr Mortone born in 1963 (“the husband”) and the respondent, Ms Mortone born in 1961 (“the wife”) in relation to their two children, H born in September 1994 and L born in November 1998.
The children find themselves in an extraordinary circumstance. They are estranged from their father. They currently live with their mother and have no meaningful contact with their father. The children’s mother is the subject of a diagnosis in relation to her mental health by the court expert Dr W. He opines that she suffers from a “schizophrenic type of illness, although not pervasively disorganising.” He opines that the children are in a folie a deux relationship with their mother and have adopted her delusions in relation to their father.
The expert recommends the children be placed in foster care for a period of time to allow them relief from their mother’s influence and illness. He considers that is the only hope they have of being able to re-establish a relationship with their father.
The children do not wish to be separated from their mother.
Mr and Ms B have been close family friends to the Mortone family and both families have belonged to the same small religious group. They have put themselves forward as a foster family for the children.
It is a most unusual step for the court to make orders in respect of a child of H’s age. The husband and the Independent Children's Lawyer both submit this is such an extraordinary case as to warrant the court making orders not only affecting a 16 year old child but also contrary to her wishes.
Orders sought by the Husband
The husband initially sought orders as follows:
MINUTE OF ORDER SOUGHT BY HUSBAND
That all prior orders be discharged.
That the father have sole parental responsibility for the children.
That for a period of 3 months or such other time as deemed appropriate the children live with [Mr and Ms B] and then with the father.
That the children spend time with the father subject to evidence from the expert.
That the children not spend time or communicate with the wife for a period of not less than 6 months and thereafter only spend time with or communicate with the children be subject to the evidence of the expert.
On the final day of the trial the husband produced a minute of further orders he was seeking and those orders were as follows:
ADDITIONAL MINUTE OF ORDERS SOUGHT BY THE HUSBAND
That pending further order:
1.The parties do all such things as are necessary to ensure that each of them and any other person by or on their behalf or at their request each of the children do not attend on any person or at any place for the purpose of Kinesiology treatment.
2.That the father have leave to serve a copy of the parenting order today upon the following:
2.1Any school or educational institution that either of the children may attend from time to time;
2.2Any medical practitioner or health institution upon whom the children may attend from time to time;
2.3[Ms M]
2.4[Ms P]
2.5[Ms D]
2.6[Ms F]
2.7[Ms R]
3.That the father have leave to provide a copy of the parenting orders made today, any reasons for judgment and the report of [Dr W] dated 11 August 2010 upon:
3.1[Mr and Ms B];
3.2Any counsellor and/or therapist upon whom the children or wither of them or upon whom [Mr and Ms B] attend for the purposes of implementation and/or facilitation of the parenting order made today.
Orders sought by the Wife
When the case opened the wife’s solicitor advised that he did not have a minute of order to provide to the court, however, he proposed tendering such a document during the trial. The document when tendered became exhibit M3. The following orders were sought:
MINUTE OF FINAL ORDERS SOUGHT BY THE WIFE
1.The children [H] and [L] live with the wife and that the wife have sole parental responsibility for the children.
2.That all existing location orders be discharged and the wife be at liberty to move to Town 2 QLD with the children.
3.That the children spend time with the father as follows:
4.Each mi-year school holiday period for 1 week.
(a) extra week during one of the mid year holiday period (at the election of the father) so that once per year the children would spend the whole of a holiday period with the father.
(b) The Christmas holiday period.
(c)Christmas day and Easter each alternate year commencing 2011.
Orders Sought by the Independent Children's Lawyer
The Independent Children's Lawyer did not tender a minute of the orders she submitted would be in the best interests of the children.
Background Facts
The following facts are not disputed and were set out in the joint chronology which was marked as exhibit “X1” in the proceedings.
The wife was born in Town 3, New South Wales in 1961 and the husband was born in Western Australia in 1963. The parties married at Town 3, NSW and commenced cohabitation on 20 January 1990 at Town 1 in rural New South Wales. They had two children together.
The first of their children H was born in September 1994 and in September 1997 H was diagnosed with epilepsy. Their second child, L was born in November 1998.
In 2004 H commenced to work with Mr J from Education Organisation 1 with positive results for her learning.
On 12 April 2006 the family flew to Town 4, Qld for a family holiday with the wife’s sister and family. On 13 April 2006 the wife went with her sister into town. While the wife was absent H suffered a seizure and was found at the bottom of a pool and admitted to Town 4 Hospital.
The wife said she was “shattered” as a result of the “drowning experience”. The wife’s sister encouraged the husband to take H to Kinesiologist, Ms M. On 28 April 2006 the wife had an appointment with Dr S and the family visited Kinesiologist, Ms M.
On 7 June 2006 the wife had some amalgams removed. On 8 June 2006 the remaining amalgams were removed.
On 9 June 2006 the wife travelled home (to Town 1, NSW) with her sister and arrived at 1pm. The wife went to bed for the afternoon.
On 23 June 2006 the wife admitted herself to hospital.
In September 2006 the wife and H visited Ms M again.
On 2 March 2007 the wife resigned from work after 20 years employment in the education field. Her stated reason for resigning was that she wanted to spend time healing H’s epilepsy and generally be at home for both the children for extra support. At that time the wife began “[physical movement/learning]” training at Learning Enhancement Services.
In mid 2007 Dr S diagnosed the husband as suffering from depression and prescribed him with medication.
On 15 September 2007 H was airlifted to Sydney Hospital 1.
On 2 June 2008 a family meeting took place involving the wife’s youngest sister Ms C and husband Mr C, the husband’s sister Ms Z and her husband Mr Z, Mr B, the husband and the wife.
On 4 March 2008 the wife caused an Apprehended Violence Order (“AVO”) to be made against the husband.
On 28 May 2008 the wife agreed to visit Dr F psychiatrist. The husband accompanied her.
The first separation between the parties occurred on 20 June 2008. The wife and the children left the family property and moved to a unit in Town 1, NSW.
In mid September 2008 the husband organised a meeting with their church leaders for the parties. The wife told the leaders that the husband “has been with many women”. The husband denied the allegation.
On 6 October 2008 the wife and children returned to live on the family property.
On 10 October 2008 the parties separated. The wife and children relocated to rented accommodation in Town 3, NSW.
On 24 December 2008 the wife and children returned home for Christmas.
In January 2009 the parties unsuccessfully attempted to reconcile.
In May 2009 H attended upon Dr G and no medication was required until she commenced to experience the recurrence of seizures.
On 28 September 2009 the wife informed the husband of their impending return to family property and on 5 October 2009 the wife and children resumed residing on the family property.
On 11 November 2009 the Court made further orders to enforce its orders for the wife to vacate the property “…” and on 12 November 2009 the wife vacated the property.
On 17 November 2009 H and the maternal grandfather attended at the family property to collect the wife’s wardrobe. The husband then caused a letter to be sent from his solicitor to the maternal grandfather stating that if the grandfather enters the husband’s property again he will be trespassing.
On 12 January 2010 the wife and children visit family in Western Australia. The paternal grandfather flew from Western Australia to New South Wales the day before their arrival. On 21 January 2010 the wife and children returned to New South Wales.
On 14 February 2010 the wife and children left Town 1, NSW and travelled to Town 3, NSW to the wife’s parent’s house.
On about 14 or 16 February 2010 the wife and children left Town 1, NSW without the husband’s knowledge or consent and travelled to Town 4/Town 2 in Queensland.
On 18 February 2010 the husband filed an application in a case which was returnable on 8 March 2010. On 8 March 2010 consent orders were made providing for the children to be returned from Queensland to Town 1, NSW.
On 14 March 2010 the wife and children moved to Town 1 Caravan Park and on 16 March 2010 the wife and children moved to Ms H’s home to live.
On 8 April 2010 the wife refused to advise the husband of the address at which the children were residing. On 20 April 2010 the wife was ordered to disclose the address at which the wife and children were residing. The wife incorrectly disclosed that she was living at the Town 1 Caravan Park with the children.
On 27 April 2010 Garden and Montgomerie, (the husband’s solicitors) received a letter from Farrell Lusher (the wife’s solicitors) regarding an alleged incident at the Town 1 Caravan Park on 23 April 2010. It was alleged the husband had been in the vicinity of the caravan in which the wife and children were living. It was alleged that L had seen his face at the window of the caravan in the night and was frightened.
On 13 May 2010 the children saw Dr L.
On 8 June 2010 the wife filed an application in a case seeking permission to remove the children to reside in Town 2 in Queensland.
On 24 June 2010 the parties attended upon the Family Consultant at the Family Court of Australia in Sydney.
On 12 July 2010 the parties and children attended upon Dr W, psychiatrist for the preparation of a single experts’ report.
On 29 July 2010 the wife and children moved to a one bedroom B & B at Town 5/Town 1.
Following 15 August 2010 the wife and children no longer attended their Church group. This was the same group to which the husband belonged.
On 25 August 2010 Dr W’s report was released to the parties’ legal representatives only.
On 2 September 2010 an Independent Children's Lawyer was appointed by the Court.
On 30 September 2010 H left Australia for a school trip to Asia.
On 1 October 2010 Dr W’s report was released to the parties and on 27 October 2010 the children attended an interview with the Independent Children's Lawyer.
On 28 October 2010 an interim hearing was conducted before me and on 29 October 2010 I delivered a judgment. The orders required the children to remain in the care of the wife as an interim arrangement.
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The Issues
The issues identified for determination by the parties are as follows:
The state of the wife’s mental health and the consequent impact upon her parenting capacities;
What is the husband’s parenting capacity?
What is the nature of H’s health and what treatment should she be exposed to?
What are the prospects of the children being able to change the nature of their relationship with their father?
Should the children be separated?
What contact should the parents have with the children in the event the court orders that they live with Mr and Ms B as an interim arrangement?
Should the court make interim or final orders?
Credit
The husband
The husband gave his evidence in a straight forward and apparently honest manner. He was not really challenged on credit. He made concessions against interest when requested to do so and where I thought it was appropriate to do so. He gave his evidence in a manner which suggested to me a high level of sensitivity to the circumstances of the wife and the children. He expressed a desire, were it possible, that the family would be reconciled and living together.
In all respects he was an impressive witness.
Unless expressed to the contrary in these reasons, I do prefer the evidence of the husband to that of the wife as I consider it likely to be more accurate and reliable.
The wife
The wife gave her evidence in an apparently honest manner. She appeared to me to experience some difficulty in answering some questions asked of her. However, the manner of her giving her evidence was consistent with the information contained about her in the report of Dr W. He noted her apparent inability, from time to time, to maintain a train of thought in a manner which enabled her to stay on a particular topic rather than straying into another area which did not address the question asked of her. Nonetheless, I did not consider this was an attempt to evade the question rather I thought it was the nature of a person who had a great deal of information she wished to give to the court.
The content of her evidence illustrated a tendency to assumption based upon a high level of suspicion in relation to the husband. She appeared to attribute to him a capacity to influence others against her which did not appear justified on the evidence which was before the court.
As will be referred to later she expressed on many occasions the phrase “we” referring to the children and her as one entity. When this was pointed out to her she then tried to use the words “I” and “the children”. This manner of delivery indicated a frame of mind which saw the children and the wife as one entity each subjected to the same impact from the breakdown of the marriage and also the distancing from the tight knit church group to which they had belonged for many years.
The wife also evidenced an understanding of a mainstream approach/suspicion to/of kinesiology. Because of this I detected, at times when she gave oral evidence, a tendency to speak obliquely about kinesiology. This was particularly so when she told me she had recently qualified in the practice of “[physical movement/learning]”. She explained what this was and how she might work with this qualification. It emerged through questioning that she had obtained the qualification through “Kinesiology Australia”. I felt that she considered the court might take a different view of the qualification and work she might do with the qualification should it be quite separate to kinesiology.
Given the matters referred to by Dr W relating to the mental health of the wife and also because of the matters set out above I do prefer the evidence of the husband to that of the wife as being more reliable where there is conflict. Unless stated to the contrary I will prefer the evidence of the husband to that of the wife.
Mr B
Mr B gave his evidence in a straight forward and apparently honest manner. He was a very impressive witness. He appeared to be very sensitive to the wife’s position and also very supportive of the children and the husband. Based on his own observations and no doubt other information from various sources, he was clearly worried about the wife’s mental health.
He displayed a very practical and sensitive parenting approach. He appeared to have a clear ambition not to make the relationship between the wife and his family any more strained than it absolutely had to be. He was obviously struggling when he was asked to give evidence which could be seen as critical of the wife. He made it clear that his family home was open to each of the parents.
Ms B
Like her husband Ms B gave her evidence in a straight forward and apparently honest manner. She was clearly endeavouring not to be critical of either parent in her evidence. She was an impressive witness.
Ms K
Ms K gave her evidence in an apparently honest and straight forward manner. She was not challenged in relation to the content of her affidavit. This is an important observation because the affidavit attributed to the wife conversation with the witness.
Relevant Law
The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must have regard to the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the “additional considerations" set out in that section.
I am required to 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 child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Affidavit Evidence
Affidavit evidence of the husband
On 1 October 2010 I made directions which required each of the parties to file and serve an affidavit addressing only the headings set out in that order. I also granted leave to the husband to be able to file and serve affidavits by Mr and Ms B. The husband filed and served an affidavit on 13 December 2010 which complied with that order.
In his affidavit the husband proposed that on an interim basis the children should live with Mr and Ms B. Mr and Ms B live in a residence built of brick and tile and there are three bedrooms. One is described as a “sleep out”. At the trial there was no issue about the adequacy of the accommodation to be offered by Mr and Ms B, although the wife did question where each child would sleep.
The husband proposed that he play a role in supervising the children and they continue their secondary education in Town 1, NSW.
The husband proposed that future communication between the parents be by email and telephone if there is an emergency.
The husband attached to his affidavit a number of emails and described the circumstances leading up to a proposed meeting with H and L on Monday 6 December 2010. That meeting did not eventuate as he was told by the person who was to transport the children to the meeting place “I am sorry but the girls would not come with me.”
At the invitation of the wife given on 6 December 2010 the husband attended at L’s presentation night. He had no direct contact with either the wife or L on that evening.
On 13 December 2010 the husband said he received a text message from L in relation to a proposal that he attend on a function at which L was to attend. The text said “I prefer u not come because I do not trust u.”
Affidavit evidence of the wife
Pursuant to the directions the wife filed her affidavit on 12 January 2011.
In her affidavit the wife proposed that the children live with her in a property she proposed to buy at Town 2 in Queensland. She proposed to live in Town 2, Qld because she had the support of her sister and family in Town 4, Qld where her parents spend three months a year. She said she had close cousins and friends in Town 2, Qld. She proposed that H would be moving to Town 6, Qld to attend TAFE and live with “My aunty [Ms BB].” The wife said she felt ostracised in her local church “whereas there are about 200 people in [Town 2, Qld] and the kinesiologists that are frowned on by my church here are members of the church in Queensland”.
The wife said that she has a good relationship with most people in the town of Town 1, NSW. She did not think she would be able to start a business in educational kinesiology in the Town 1, NSW area, although that is the area she would like to work in.
The wife annexed a letter from Mr S “of our Church at [Town 7, NSW]” to her parents. She said the letter expressed the view that kinesiology is “some kind of devilish invention leading to a loss of faith and to the separation of married couples.” The wife referred to the breakdown of her relationship with her sister who lived in Town 8, NSW. She attributed this to her sister Ms L supporting the husband in these proceedings.
The wife said her parents may move to Queensland. If the children were not permitted to move to Queensland the wife would not move. She would seek accommodation somewhere in the Town 1, NSW district.
In relation to L, the wife said she would be supervising her before and after school. She proposed H would be residing in Town 6, Qld with the wife’s aunt. She proposed L would attend Town 2, Qld State High School.
In relation to the time the children might spend with their father the wife proposed that they have school holiday time with him. If he lived closer she would propose far more extensive contact between the children and their father.
The wife proposed to make substantial contribution to the cost of travel for the children to see their father.
In relation to the time the children may spend with their father and their relationship with him, the wife said “I think it is important that they form a relationship with their father separate from the broken marriage.” There was nothing in her affidavit to suggest that she envisioned any difficulty with the children spending time with their father nor that the children would resist same.
Under the heading “Facts upon which I rely supporting the concerns of the capacity of the other parent to care for the children” the wife said “The children’s relationship with the father has broken down.” She said “I am concerned about the father’s moral issues in relation to drug taking and prostitutes.” She said “I am concerned that the father undermines my self and the children and he is manipulative of our relations with members of our church and our family and our community.” She went on to say that the children have lost confidence in their father and are frightened of him. The requirement by the Court for the wife and children to return to Town 1, NSW after the wife had taken the children to Queensland “caused much distress for myself and the children and a total loss of confidence in him (the father).” Those statements by the wife appeared to me to be at odds with her proposal for the children to spend time with the husband.
The wife proposed a method of communication by email and text message.
The wife proposed in relation to H’s epilepsy to have H treated by a specialist in Town 2, Qld. She proposed to continue with Kinesiology in addition to main stream medical treatment for H. The wife claimed that the children’s refusal to visit their father before Christmas was caused by the husband’s decision to reject the wife’s friend’s home as the location for the visit. She claimed “This undermined my parental authority over the girls and my ability to simply make them attend.”
In relation to Mr and Ms B the wife described them “as good people and have been very close friends of mine in the past but have had major health issues that would impact on their ability to care for my children.” She claimed that their accommodation would not have sufficient room for the children.
Affidavit evidence of Mr B
Mr B filed an affidavit in which he outlined his family history. He said that he had seen H and L over the past 15 years at least once a week when attending the same church gathering. They had additionally been together on social occasions and they had been frequent visitors at each other’s homes. He said that both H and L had a good relationship with his children R and K in particular. He offered himself and his family as carers for H and L should the Court determine that is appropriate. They live in a house on a large rural property approximately 1km from Town 9, NSW. He stated that there was adequate accommodation for both girls. They could continue to attend school in Town 1, NSW if they wish and that they could travel by bus.
The affidavit by Ms B is in similar terms.
Affidavit evidence of Ms K
She attested to the fact that on Monday 2 August 2010 she had a conversation with the wife where the wife said:
[H] had a seizure when we were living at [Town 1, NSW] Caravan Park but this was triggered due to fear. [The father] is part of the underworld and is working with corrupt police in the region. He had a hit man on me and detectives in Sydney have advised me to leave as soon as possible. I escaped just in the nick of time and if I had stayed in [Town 1, NSW] one more day I would be dead. There will be front page news coming soon about how [the father] is evil and an underworld figure. [The father] is a very sick man and he is evil and I would not trust him at all. He knows things and is involved in a very corrupt scary world. Money is not an issue. All my stuff is in [Town 4, Qld]. I will be doing some work where I live for cash in hand.
Ms K said that on 19 November 2010 she had a conversation with the wife in Town 1, NSW. L was with the wife at the time. The wife said to Ms K “I went back to Court last week and they tried to take my children off me by saying I have a major mental illness and was incapable of having my children and that they would be in harms way if they stayed with me.” Ms K said that she had her two children aged 17 and 7 years old with her at the time and asked her eldest child to take the youngest one from the store. Thereafter the wife continued to speak to Ms K and said:
I am not going to do the treatment plan due to not being ill. I have been advised by my solicitor not to do it. I have hired a new male solicitor as my current female solicitor is corrupt and part of [the father’s] plan to discredit me. My new solicitor will work in with my other solicitor and she has done nothing for me and is part of the corruption. They say that I have a mental illness and I have to do a treatment plan to keep my children. I am not going to do it as I am not the one who is sick. [The father] is and he should be doing something about his mental issues. He is one very corrupt person and seems to have everyone in his underground world including the Police in [Town 1, NSW] and detectives in Sydney.
Ms K says the wife then directed L to leave the store. When L had gone the wife said to Ms K:
We go back to Court on 17 January 2010 for my trial and this could take one day or up to a week. The psychiatrist we saw is also corrupt and part of the plan. My solicitor has recommended a new report from a psychiatrist. He has told me he knows the best one in Australia. I am hoping to hear when this will be, hopefully next week. Fingers crossed [the father] does not get him first. The truth will come out and it will be in all major papers. It is like Underbelly the show. [The father] is part of the underworld and is very corrupt.
…
The court told me that I was alienating the girls but in fact this was our church alienating us from the rest of the world. I have wiped them and am now documenting in my diary all movements of the children and myself to prove that I am not alienating them.
Oral Evidence
Oral evidence of the husband
The husband was cross examined by the Independent Children's Lawyer.
The husband was asked questions about H’s development. In 2008 H was home schooled. The husband said this was mainly because she was not coping well at school. She had social incapacities and was unhappy.
The last time the husband had seen the children was when he met with H to sign her passport application so that she could go to Asia during 2010. He had seen them at church, however, they no longer attend church. He saw them at the supermarket in Town 1, NSW.
The husband was asked about an incident in 2006 when the wife was admitted to Town 1 hospital. He agreed that it was in the early hours of 22 June 2006. He said the ambulance was called by the wife.
The husband was asked if he disapproved of kinesiology. He said he did. He said the main reason related to H. He said after she had eight seizures in one day they took her to see a doctor. He prescribed medication to H. After two days the wife decided to withdraw the medication and use kinesiology. The wife said the drugs were causing the seizures. He was aware that H was quite obsessed with kinesiology. He accepted that she believed in it absolutely.
The husband was cross examined by the wife’s counsel. The husband confirmed that in his understanding Mr and Ms B were opposed to kinesiology.
The husband was asked a number of questions which he answered directly. They were largely associated with historical matters which did not, in my view, touch upon the state of the wife’s health at the moment, nor the relationship between the children and the wife and the children and the husband. I therefore do not repeat that evidence here.
The husband was asked by the wife’s counsel whether he had given the girls Christmas presents. He said “No I have not seen the children personally.” He was asked why he did not attend the wife’s parent’s house on Christmas day as invited. He said “I was at a convention. It is for a few days. I have attended this for many years. He said the wife’s parents have attended those conventions in the past. He said “the children would absolutely understand the importance of the convention to me.”
The husband conceded that the wife had been the principal care-giver and educator for the children.
The husband was asked “You largely see the problems in the marriage arose because of your wife’s mental illness?” He said “No, I don’t see it as all her fault. I have regrets about matters on my part. However, in recent years I consider her mental health has significantly contributed to the breakdown.” He confirmed that in 2009 he confessed to the wife about an affair and a use of prostitutes.
Oral evidence of the wife
In her evidence in chief the wife said that her occupation consisted of home duties, employment in the education field and a physical movement/learning consultant, recently qualified. She explained that a physical movement/learning consultant worked with children and the elderly. She said she had some plans for a business in the Town 1, NSW area and she may do some further study. She agreed that physical movement/learning was part of Kinesiology. She said that it was through her connections with kinesiology practitioners that she undertook the training course.
The wife was cross examined by the husband’s Counsel. The wife was questioned about circumstances in which she has had the children treated by a kinesiologist. She said H had been treated for stress.
The wife was taken to her description in her evidence that “We were evicted” from the home. She was asked “Do you see yourself and children as a unit?” To which she replied “Yes, I think so.”
The wife was asked whether she knew she had a mental health problem in 2006. She said “I had acute depression.”
The wife was asked about Dr W’s report. She was asked whether she accepted his description that “her thoughts were indicative of a formal thought disorder.” She said “No”. She also denied that she was operating under a set of delusions. She did not accept she had a schizophrenic type illness. She did not accept she had a developing psychosis. She did not accept that anything she said about the husband could have been seen as “fanciful”. She did not accept that a “Folie a deux” existed between her and the girls. She denied that she had imposed her views on the children. She said “I have spoken the truth to them. I would have had an influence but I have not forced my own views on them. I find my best counselling sessions with the children consist of me asking questions and then just listening.”
She denied that L and H were completely under her influence. She did not accept that they had not formed an independent view about their father.
The wife gave evidence about a period of time in July 2010 when she was staying at her parent’s house. She said that she noticed a “ute” motor vehicle parked near the property. She said she became concerned it had something to do with the husband. The children became frightened. She took the children to see her solicitor on 14 July 2010 and while in the solicitor’s office H had a seizure. She said that she spoke to her friend Ms Y in Queensland about the “ute”. She did not go to the Police as they had disappointed her in the past. The wife was shown a page in her diary dated 23 July. She agreed the handwriting said “Saw dad’s ute on [… Street] second time there.” She said it was H’s writing. There was a further entry which said “Saw Dad’s Ute pass us on [… Street] Dad not in Ute.” The wife said she was driving and asked H to write it down. In relation to seeing the “Ute” near her parent’s property her friend Ms Y had told her not to go to the Police. The wife said that H’s seizure on 14 July had been fear based. The wife was asked whether any of H’s neurologists had ever told her that a seizure may be triggered by fear or fright. She replied “No.” She was asked who told her that information and she said “A number of Kinesiologists have told me that.”
The wife agreed that if Dr W were correct in his diagnosis of her condition then continued time which she might spend with the children would be very damaging to them. She agreed if that was the case, her time with the children should not continue.
The wife agreed that if the children were placed with Mr and Ms B it would be unlikely that they would run away. She said she would never tell them to run away. If the Court ordered the placement she would support it. Apart from the possibility of H suffering a seizure she did not think the children were at risk being cared for by Mr and Ms B. She agreed Mr and Ms B properly instructed would be able to deal with H’s seizure. She said “They are intelligent and articulate people and so could take instructions.” She said the husband could give them instructions as he is very well versed in how to deal with H’s seizures.
In relation to her diary, she agreed she had recorded matters critical to the husband, that the children had open access to her diary and that it was not ideal in the circumstances. She agreed the criticism of the husband could lead to them thinking things about him that she thought.
The wife was questioned extensively about statements she made to Dr W. There was no denial of the matters reported by Dr W as being told to him by the wife. The wife acknowledged that in 2006 Dr S had prescribed anti-depressant medication which also aided her sleep. She discarded the medication after a few days. She said that it did not help her sleep and it gave her restless legs. The wife told me that she now believes that in 2006 she was drugged or poisoned by the husband. She said that she was distressed about the fact that she and the girls were not included in trips to Western Australia. She asked him some questions about that. At Town 3, NSW she asks some questions and she was shocked by his reaction. She agreed that she may have told Dr W that the husband may have killed a child and she was asked “What makes you think that?” She said “I don’t know I have spoken to people in the area. I am nervous about how I got to that. I was told that it seemed that the child might have died. I did also speak to the Clairvoyant and she assured me that he is a kind person and my funds would only be going to help her out. It might be that it comes to nothing.”
The wife was asked about a passage in Dr W’s report that said “She records that Kinesiologists have told her the husband has been committing serious criminal activities for years.” The wife says “I tell kinesiology people my experiences and that relieves stress and I gain clarity. Then I can see more things, or some things. I am asked to tell them. Sometimes these things appear and frighten me and I have to get back into balance.”
The wife was asked about her assertion to the police that the husband was the father of Ms X. This was a girl who the wife knew had disappeared.
The wife was asked why she thought the husband had anything to do with Ms X. She replied “because of his reaction when I read about it in the car. It is the same type of behaviour as when he admitted affairs. It is the same behaviour pattern.”
The wife agreed there was no suggestion that he ever knew Ms X or that he knew the child of Ms X. She understood that it was a serious allegation to make to a police officer. She said “It was the state of mind I had at the time. I believe that he has had something to do with that disappearance as I sit here today.” She was asked whether she told the children about that belief. She said “I don’t know. I have not specifically told them. I admit the children have heard too much. It is possible that the children have heard it from me.”
The wife was questioned about other allegations she had made to Dr W about the husband. She believed the husband had been monitoring her. She had told the children that. She acknowledged she told the children she believed the husband pays off government entities, has other children and has had affairs. She acknowledged she believed that her solicitor was corrupt and in league with the husband. She also acknowledged she had said she was not going to be part of any treatment plan as she was not the one who was sick. The wife said she believed the husband had some relationship or involvement with Police. She could not remember whether she accused the husband of being part of the underworld in her conversation with Ms K. She denied she had told the children that Dr W was corrupt.
The wife said if there was a court order for her to undertake a course of therapy and medication she would do so. The wife told me she still believed that prescribed mediation can induce seizures. This specifically relates to medicine that had been prescribed for H.
Oral evidence of Mr B
Mr B told the court the children could live with him for as long as would be needed and that a 12 month period would not be too long. He said he had not seen the wife since 29 October 2010. Mr B said the property that he resides in is a rented property and agreed his daughter K lives with him. He proposed that K would move to the “sleep out” and the girls would occupy K’s room. He considered H and L might be disruptive in the household, however, he was prepared for that. If they refused to attend school he would not make a “big event” out of it. He would give them the day off. K is in year 12 at Town 9, NSW High School. Mr B spoke of the injury he had suffered to his back through work. He denied he had told the wife that he and his wife had sided with the husband in these proceedings. He acknowledged he did not like Kinesiologists. He said “I think it is a bit quacky.” He is a member of the same church which the Mortone family had belonged to.
He was asked what his understanding was as to why he and his wife had been asked to care for the children. He said “To my way of thinking the children have been subjected to delusional thinking to the extent that they have been brainwashed about issues involving their mother and father.” He said that he had held the view for quite some time that the wife suffered “a little bit of a psychological condition.”
He acknowledged that he had a meeting with the wife and her father on 28 October 2010. There is approximately 28 kilometres distance between Mr B’s house and that of the husband.
Oral evidence of Ms B
Ms B gave oral evidence. She was asked to consider the difficulties which she and her husband might be confronted with by having L and H residing with them. Her answers indicated that she had considered those possibilities. She answered questions about how she would deal with particular situations in relation to the children in a sensitive and practical manner. She said that she would be the principal carer for the girls if they lived in her house. She said she had a strong relationship with the girls.
She was asked what she knew about epilepsy. She said “We have had [H] stay with us and had the parents give us instructions as to the steps to take should [H] have an attack.”
Oral evidence of Ms K
Ms K gave oral evidence. She was not asked any questions which challenged her reciting of conversations she said she had with the wife.
Evidence of Dr W
Pursuant to orders of the Court, Dr W prepared a report dated 11 August 2010 (“the report”). In the preparation of the report, Dr W interviewed the wife alone, the wife and the children together, the children together and separately and the husband alone.
On 19 and 20 January 2011, Dr W also gave oral evidence in these proceedings.
Mental health of the wife
In the report, Dr W says that “…[the wife] seemed to be an intelligent person and [that] no cognitive disability was evident”. However, he said that, “[a]lthough particularly when talking about her husband, [her] manner was conspiratorial and much of what she said seemed either fanciful or was quite difficult to follow…”
In relation to the wife’s manner being conspiratorial, Dr W said “[s]he… talked… in a fairly conspiratorial way, often whispering as if she was sharing secrets”.
In relation to what the wife said being fanciful, Dr W said “[s]ome of her beliefs are quite patently fanciful, such as that he has been poisoning her…” He said “[t]here was a distinctly paranoid theme to her thinking. She seemed to use a lot of magical thinking”. Further “…she seemed to use the flimsiest of evidence to make her arguments, in a manner strongly consistent with someone operating under a set of delusions”.
In relation to his observation that the wife’s conversation with him was difficult to follow, Dr W said “[w]hen difficult to follow, firstly, she digressed and secondly, she referred to influences and connections between people which seemed rather vague and insubstantial”. He further said:
I felt that some of her thinking [in regard to the use of certain alternative health care therapies, including kinesiology] was indicative of a formal thought disorder. However I would emphasise that there are other instances of formal thought disorder which are more striking… I was particularly concerned that [the wife’s description of having “epiphanies”] represented an abnormal way of thinking. In addition, her affect was rather unusual when describing her particularly disconnected thoughts. She tended to be a bit excited, if not slightly euphoric, and at the same time rather conspiratorial… On the other hand she was also capable of reintegrating to present a more orderly account when she may have perceived that I was not accepting what she was saying…
In the report, Dr W concluded that “[t]he pattern and content of [the wife’s] thoughts are consistent with a schizophrenic type of illness, although not pervasively disorganising”. He also noted that she has a family history of psychiatric illness.
In examination-in-chief, when asked by counsel for the Independent Children’s Lawyer whether the wife has a “developing psychosis”, Dr W said: “…the short answer is yes…” He further said:
…to some extent the nub of her problem is [in]… [her] statement… that when you don’t know you think the worst... [S]he’s in the stage of – the evolution of a schizophrenic like [illness]… [I]t hasn’t… gone the whole way, but it [has] certainly progressed a fair distance… [S]he’s highly paranoid…
Dr W clarified the foregoing by saying that he does think that “…[the wife] does have schizophrenia now”. He said that “[i]t’s just she doesn’t have a severe a case of it…”
In relation to symptoms which the wife has exhibited, Dr W said: “…first… there is an illogicality to the way she sees connections between things, but also… there’s a structural disorganisation in thinking…[A]lso… all sorts of irrelevant information gets gathered into an answer to a question”
In relation to what an observer might expect to see if the wife’s condition progressed, Dr W said: “…a further progression of the delusional ideas – by which I mean the persecutory ideas… towards them becoming much firmer…”
In cross-examination by counsel for the husband, Dr W elaborated on the foregoing. He said:
...a number of [the things the wife said] sounded fanciful… [N]ot all of them… The other thing is that… she seems to have some disorder in the way she thinks… She meanders and digresses in a way which is… probably for her… a change in her manner of communication… That fits into… various forms of psychoses… Within the psychoses, there seem to be three possibilities… all… associated with paranoid… or delusional thinking… One is schizophrenia. A second… is paranoid psychosis or… disorder… The third… is a variant of schizophrenia that involves a combination of a mood disorder and schizophrenia, or a combination of bipolar disorder and schizophrenia… called schizoaffective disorder… I felt that the most likely was an evolving schizophrenic illness, not in its full blown severe form but nevertheless sufficiently serious to say that… the diagnosis is schizophrenia. It could certainly get worse, particularly without treatment… [T]he reason I didn’t think paranoid disorder was because I thought there was too much thought disorder and the delusions weren’t really organised enough, and the reason I didn’t think schizoaffective was because I didn’t get a history of the sort of characteristic mood swings… [Also] I don’t think there’s any evidence of [brain disorder or dementia]… and… [with] a family history of somewhat later onset [psychiatric illness] I would have that that it’s simply just a manifestation of a genetic predisposition…
In cross-examination by counsel for the wife, Dr W conceded that some of the wife’s beliefs are grounded in fact, including some of her allegations about the husband.
In relation to the letter from Dr F to Dr S dated 14 July 2008, Dr W said:
... I think the… key phrases are that she is a psychologically complex lady and… somewhat eccentric… I think that the shopping list of diagnoses that comes after that reflects the fact that he wasn’t sure what… the problem was, because it ranges from bipolar disorder or cyclothymia… on the one hand… [to] personality disorders [on the other]… I wouldn’t agree with any of those as diagnoses, but I would agree… with the psychologically complex and eccentric bit…
Mental health of the husband
In the report, Dr W stated that, on the part of the husband “[t]here was no indication of mental illness or personality disorder”.
Parenting capacity of the wife
In the report, Dr W stated that “…there seems little doubt that [the wife] is a dedicated parent”. However, he said “…the main issue now is whether aspects of her parenting have become quite derailed over the past two years or so by a mental illness”.
In relation to H, Dr W said “…[the wife] may not be making balanced judgments about H’s health issues”.
In cross-examination by counsel for the wife, Dr W conceded that the use of Kinesiology as a form of complementary health care in relation to H and the temporary non-medication of H are not contrary to medical advice.
Parenting capacity of the husband
In the report, Dr W stated “[the father] was clearly not very involved with the children’s day-to-day care when they were growing up, and in particular in their education”. However, he said “…there is no clear reason to think that he is deficient in this regard”. He further stated:
I note that there was a period of several months in 2006 when he more or less took over the children’s care and also that although his wife has been very critical of him in a number of areas, she has not articulated a clear argument that he was an incompetent parent
Nature of the relationship between the children and the wife
In the report, Dr W said that, during the interview, “[t]he children seemed very comfortable with their mother”.
Dr W stated that, historically, “…it seems clear that the girls were closest to their mother, who took responsibility for almost all of their day to day care as well as their activities in town starting from home day care, preschool and later school”. In relation to H, he said that “[her] relationship with her mother may have been further consolidated by her mother’s attentiveness to [her] health needs…”
Dr W said, “…as their parents’ relationship deteriorated and subsequent to separation…”, the children’s relationship with their mother “…has remained firm… Indeed it has progressively become more exclusive…”
Dr W said that, during the interview, he observed that “…the girls had become quite involved with the wife’s thinking…” In relation to H, he stated that “[she] in particular deferred to her [mother] frequently”; “[s]he also tended to affirm what her mother was saying, either verbally or with a nod”; and, “…she seemed… very eager to echo her mother’s views, both in the presence of her mother and when I saw her alone”. In relation to L, he stated that “…she seemed utterly convinced of the truth of everything that her mother has said about her father and she made it clear that she shares all of her mother’s views on this”.
In the report, Dr W suggests that, as between the wife and the children, there exists a “folie a deux”. He said:
My concern about the girls’ relationship [with their mother] at the moment is that not only are they extremely loyal to their mother and feel besieged and isolated, but that some of the things which their mother believes about their father may well be quite fanciful, yet the girls wholly accept these as well. This has been described as a form of folie a deux, in which a dominant person (the wife) who suffers from fixed false beliefs (delusions) persuades subordinate individuals of their beliefs. This is more effective if the group feel beset in a hostile environment, which reinforces interdependency. Under such circumstances, otherwise intelligent people (such as [L]) can come to believe quite fanciful and even delusional beliefs held by the dominant person.
He further states:
…[The wife’s] fear of her husband has led her to take flight on a number of occasions… When I saw them they were almost like gypsies… [C]hildren under such circumstances increasingly develop a siege mentality, and as a result they become increasingly dependent on information being processed and provided by the dominant adult, and their life becomes increasingly focused on avoiding and protecting themselves from imagined persecutors.
In his oral evidence, Dr W elaborated on the foregoing. He said: “[the children] are basically living in a bubble with [the wife]… [T]here’s a degree of self-imposed isolation… [T]he fearfulness produces a self-imposed isolation…”
Nature of the relationship between the children and the husband
In the preparation of the report, Dr W chose not to interview the husband and the children together.
In the report, Dr W said that, prior to separation, “…it seems that [L] was probably closer to her father than [H]… and this bond may have attenuated rather slower after the separation than did [H’s] relationship with him”.
Dr W said that, post separation, “…[The relationship between the children and the wife] has progressively become more exclusive to the point that neither says they wish to have any relationship with their father”. He is of the view that “[the wife] has inculcated the girls with her fears of the father, terminating the girls’ relationship with him”.
In cross-examination by counsel for the wife, Dr W was directed to correspondence by email between the husband and the children during the period of 19 December 2010 to 29 December 2010 which was marked as exhibit F10 in the proceedings. He clarified:
… [The polarised position of the children in relation to the father] wasn’t as profound as some cases that I’ve been involved in… where children would have run screaming from the room if they had been at the church meetings with the father… [S]o I didn’t put… the fear as high as that… I think when I wrote the report I may not have expressed it in quite those terms but I still would have had that qualified view of how negative towards their father they were. Not absolute but pretty deeply entrenched.
Dr W conceded that the email from the wife to the husband dated 21 December 2010, which was a part of exhibit F10, and in which she invites the husband to the maternal grandparent’s residence for lunch on Christmas Day, demonstrated a willingness on her part to put contact between the children and the husband before her personal fears.
Wishes, views and perceptions of the children regarding the wife and living or spending time with her
In the report, Dr W said that, in relation to the wife, “[H] [said] that their mother was being blamed, but that she and [L] agree with her”.
In his oral evidence, Dr W confirmed he felt H had been more of an advocate for the wife’s cause than L. He also said that H “just repeats things”, whereas L is “much more imaginative about her defence of her mother”.
Dr W further agreed the children will not be very accepting of the proposition that their mother is suffering from a mental illness. He said:
Firstly… [the wife] says she’s not, and their position would also be that she’s not…[S]econdly, children of this age group generally don’t have very much of a concept of what constitutes mental illness anyway… [T]hey don’t actually have much of a capacity to make an objective judgment for themselves about whether it’s the case.
In the report, Dr W said that, in relation to living or spending time with the wife, “[b]oth children expressed a very strong wish that they remain living with their mother…”
Wishes, views and perceptions of the children regarding the husband and living or spending time with him
Dr W report states that, in relation to the husband, “[b]oth children expressed indignation about their father and echoed their mother’s sentiments in relation to him in front of their mother, H most vigorously”. He said:
“[b]oth girls articulated virtually the same list of failures in their father as their mother had. Indeed, the list was virtually entirely composed of the wife’s complaints and none which seemed personal or unique to one or both of the girls, so they are the wife’s views, not the girls’. In addition, I formed the view that some of these complaints are probably fanciful, if not delusional, yet both children believe in them completely.
By way of example, he said:
[H] said that [the father] asks innocent questions but that underneath his questions there is much evil. She said that (seemingly innocent) conversations are his chance to manipulate and make them believe him.
Dr W notes “…[the father] felt that of the two girls, L had been the one who had most recently shown some positive sentiments towards him…”
Dr W stated that, in relation to living or spending time with the husband, “…neither [child] wanted to see their father”.
In summary, Dr W said:
I formed the view that [L] and [H] are completely under the influence of their mother and have not formed an independent view about their father or about spending time with him despite a number of their mother’s grounds for objection to the father having intrinsically next to nothing to do with the girls’ relationship with their father… [The wife] has been completely indiscriminate in the degree to which she has shared her reservations about her husband with the children to the point that although they are prepared to be civil with him, they fully accept everything their mother says about him and do not wish to spend any time with him unless there is some material benefit.
However, in cross-examination, Dr W clarified that, “[w]hen [he] wrote the report, [he] may not have expressed it… but [he] still would have had [a] qualified view of [the children’s] negative [views] towards their father”. He said their negative views of their father are “not absolute, but pretty entrenched”.
Recommendations
In the report, Dr W is of the view that, “were the Court to make orders that the girls were to spend time with their father without their mother or somebody else that they trusted being present, they would very quickly refuse”. He says: “I have no doubt that [L] would be at least as forceful as [H] in repudiating time with her father”.
Dr W said:
[t]he usual recommended management of a folie a deux is that the children are promptly removed from the person who is psychotic and they only spend time with the psychotic parent under circumstances which guarantee that the parent will not continue to inculcate them with abnormal beliefs… [However]… [t]his is a somewhat unusual family… [I]n the typical case of folie a deux, the child or children are quite a bit younger, and they seem to fit into the alternate home and shed beliefs… relatively quickly… In this case I am concerned that taking [the usual approach] may not be entirely successful… I think that there is a risk that both could run away and return to their mother… On the other hand it is possible that because both girls are quite law-abiding, they might stay with their father long enough for them to start to progressively relinquish some of the more unusual beliefs about their father… and they may be able to settle in there. However I think that they should not see their mother for several months to enable this.
Dr W suggests that:
[a]n alternative may be for the children to live temporarily elsewhere, such as with their aunt [Ms L], not see their mother, and gradually be reintroduced to their father, then be reintegrated back into his home.
However, in cross-examination by counsel for the wife, Dr W said: “I mentioned the wife’s sister as an example, simply because… both parents… said that the children knew their Aunt [Ms L] well… I wasn’t necessarily endorsing her as the person to be chosen”.
In examination-in-chief, Dr W recommended that the children be separated from the wife. He said:
…you simply have to separate [the children from the wife]… [I]t’s not simple, but that’s the only way… [T]here’s no easy way… [T]he more [non-psychotic people, who have taken on the psychotic beliefs of a psychotic person, are] back into the normal world [sic]… they gradually relinquish these beliefs… [P]robably [L] will be able to free herself from these beliefs a bit easier, and probably a bit more rapidly than [H].
He further said:
…[Separating the children from the wife is] going to be distressing… [The children] will be very worried about their mum… [I]n the first instance, they [will] believe… [it] is just part of the conspiracy… [T]hey [will] need a lot of support… [T]hey [will] need, to some extent, to be protected from themselves, because there’s often a temptation to run away or to run back… More usually [that] happens in the early… days…
In relation to the suggestion that L live with Mr and Ms B, Dr W said:
I think probably that [L] will… be distrustful of them… I think [it will take] probably several months [for change]… I think it would really be important that she was gotten into a routine, that she wasn’t isolated… that she got back to school and all these sorts of things happening so that… her focus would not be on [Mr and Ms B]… And, probably also, that [Mr and Ms B] had some support from a mental health professional…
He added: “[w]e were talking about [L] but [the foregoing] applies to both [children]”.
In cross-examination by counsel for the wife, Dr W conceded the wife views Mr and Ms B as being “in the other camp” and that she is strongly against either of the children living with them. He further conceded [the possibility that the husband may recommence seeing the children at church] “may be something that needs to be dealt with” given that Mr and Ms B attend the same church as the husband and that matter will be a delicate one to deal with given the anticipated role of that church in the husband’s life.
However, Dr W indicated that he does not think there should be a cessation in contact between the husband and Mr and Ms B. Dr W said: “…I think that would be extremely artificial… [T]he important thing… is that the children aren’t involved”.
Dr W also conceded that he has not seen Mr and Ms B. He said: “I’m not necessarily endorsing [Mr and Ms B]… [I]t’s a matter for the court…”
In examination-in-chief, in relation to the suggestion that H live with her maternal great-aunt, Ms BB in Town 6, Qld in order to attend TAFE there, Dr W said:
…while the children are… recalibrating their social judgment… it’s really important they don’t have any contact with their mother… I think that [H living with the maternal great-aunt] could work out – that could be quite a constructive thing for [H], but there would need to be a couple of things in place: [firstly] I think that the proscription against the wife having contact with her [means that]… [the wife’s] going to carry the major responsibility… [The wife] would really… need to be the gatekeeper, which is a huge responsibility on somebody who is in her state… [secondly] it would also need to be that [the maternal great-aunt] had some understanding of what had been going on between [the wife] and the girls, because she could easily… be recruited…
In relation to separating H from the wife, Dr W said:
…if it’s possible to make orders that bind the situation with [H]… and also… have the effect of insulating her from more reinforcement of these ideas, then… it’s not only going to be for her own good, but… also… for [L] too.
In relation to H, Dr W said “her social judgment at the moment does not reflect the capacities that you would ordinarily expect a 16 year old to have…” He further said that H, being a first degree relative of a person suffering from schizophrenia and having temporal lobe epilepsy, has “got a double dose… which… predisposes [her] to schizophrenia”. Accordingly, he was of the opinion that, although “there’s [not] any indication that she’s starting to develop [schizophrenia] now”, H “must be regarded as a particularly vulnerable child”.
In relation to support, Dr W said: “I would certainly offer [L] a counsellor… [A]t this point she mightn’t accept it. She might a bit later on…” He also said that “…there needs to be a counsellor available for [H] and… support for… the [maternal great-aunt] [should H be living with her]…”
In relation to reintroducing the children to the husband and the wife, Dr W said:
…I think it’s quite possible that [the father] could be introduced back into the picture when… [there is] a clear indication that [the] fearfulness [of the children] had receded into the background and that… they [are] starting to apply… the sort of normal judgments you would expect a teenager to apply. And then… it would be [a] matter of gradual reintroduction… I think it probably would need to start not so much with supervision but… on an accompanied basis… for instance, [the father] visiting Mr and Ms B’s home or them all going to some place where they could do something together… Again, I think you’re probably talking months, but… it’s hard to predict… I would tend to wait until they were both at the point where… their social judgment was up considerably and their paranoia was down considerably.
He said:
…the children would need to be sufficiently… [free of] their mother’s anxieties and making their own judgments… [They] would need to have progressed to the point that they are able to… re-establish some sort of relationship with their father – not necessarily living with him… I think they need to get beyond that point [before reintroducing the wife], because contact with their mum could easily undermine that… my guess is that it will probably take several months before really any sort of time with their father can be contemplated… [I]t could easily be three or four months… then… probably a similar sort of period before you could start to think about reintroducing the wife… something from nine to twelve months…
In cross-examination by counsel for the wife, Dr W confirmed: “…I still think that the procedure needs to be one of no contact for a period, and… down the track, a reintroduction of the wife after things have stabilised with the father…” He added that “…[T]he incident at the supermarket and the church contacts… indicate that maybe this is a case where things are going to sort themselves out reasonably quickly…”
Dr W further added:
… [W]hat I was really saying… was… that if there is possibly a halfway house, where the children have got some relationship which is not so tied up in the father’s misbehaviour, then that may enable… their preoccupation with their father’s misbehaviour to start… to dissolve… [e]ven without seeing their father or having any interaction with him… and [that] can provide a base for gradual reintroduction…
Dr W conceded that the more the wife appears to be persecuted, the less the children will accept the change.
In relation to contact between the children and the wife during the proposed period of no contact, Dr W said:
I guess that [the wife] probably should try to communicate with the people who she thinks might communicate with the children [on her behalf]… and advise… that it’s best for them to wait as well… I guess that [one] should… go through with [the children] what the orders [are]… [and] that, if their communicating with Aunt [Ms C] leads to their mum trying to communicate with them, then that may well backfire on their mother…
In examination-in-chief, in relation to the transition, Dr W said:
…any attempt to… soften the transition… simply provides opportunities for that parent to say, ‘…Look, you’re going to be going to so and so’s place… Terrible things will happen and your father is going to be able to get at you’… So generally that’s the reason that these things have to be virtually… immediate… [I]t’s just made worse rather than better… by making a more gradual transition.
He added:
…hypothetically [if]… [the wife] could persuade the court…that she could say something to the children about this transition in a positive… way… that may be a helpful thing at the time of changeover, but I still think that it would have to be… a clear cut thing with no period of contact afterwards…
He further indicated that he thought an appropriate place for that changeover to take place was the counselling section of this Court.
Dr W said:
I would expect that, whatever orders the Court makes, and even if they are orders [prohibiting contact between the wife and the children]… ultimately [the children] will have a relationship with their mother and particularly if she gets some treatment…
In relation to the treatment he would recommend for the wife, Dr W said:
…firstly… antipsychotic medications… [T]he benefits [of such medication] are: …anxiety comes down… [and] it does seem to help your mind to make better… social judgments… [Secondly] counselling support… [I]f you can get… a sensitive psychiatrist who understands that taking these tablets… [is] going to help you, and also that the illness has led to a whole lot of things happening in your life which is distressing and… help you… cope with that… [then] that will be very important.
Dr W added: “…[the wife’s] view was that the sickness lay outside of her and not inside of her… unless there is a change of heart there, I can’t really see her taking medications…”
In cross-examination by counsel for the husband, Dr W further added: “… the vast majority of people with schizophrenia benefit substantially from medications…”
Dr W indicated that any treating psychiatrist of the wife should be given a copy of the orders, these reasons for judgment and his report, but perhaps not a copy of the transcript of the proceedings. He also indicated that the Court may require the treating psychiatrist provide a report about the wife’s attendance and compliance with treatment, after which he may conduct a re-assessment of the wife, as a part of which he may speak with the treating psychiatrist.
In relation to the use of Kinesiology as a form of complementary health care in the treatment of the wife, Dr W indicated he thought that psychiatric treatment and complementary health care could work together. He said:
…I don’t know enough about Kinesiology to know… whether it’s a part of their practice to say… that psychiatric therapies [are] a waste of time… [A]s long as it isn’t intrinsically in conflict with psychiatric treatment, I don’t see any problem…
In examination-in-chief, in relation to the orders sought by the wife for the children to spend time with the husband, Dr W said: “…I just think those orders are completely unrealistic…”
Exhibits
Exhibit “F2”: Documents relating to the husband and the wife produced on subpoena by the NSW Police
A subpoena was issued to the Commissioner of the NSW Police for the production of all COPS entries, criminal histories and intelligence reports in relation to the husband; and, any or all statements made by the wife in relation to alleged criminal activities by the husband. The documents produced were marked as exhibit “F2”.
According to a COPS entry dated 25 February 2008, on that date, the wife attended on Town 1 Police Station seeking that an apprehended violence order be issued against the husband for her protection. She gave a statement in which she recounted a particular alleged incident where she claimed the husband had assaulted her:
Shortly after [H] was born the [father’s] moods started to change. [He] started to become more controlling and angry… [He] hit [her] in the past and pushed her into chairs and walls… [His] moods were gradually getting worse every year and different times of the season.
Further, that entry provides that the wife stated the husband is sick and has AIDS.
According to an Information Report Summary dated 22 April 2010, on that date, the wife again attended on Town 1 Police Station. As presently relevant, the narrative provides as follows:
[The wife] informed the author that after around 20 years of a very controlling marriage, she fled… taking her 2 daughters to Queensland [where]… she started Kinesiology treatment… through [which]… suppressed feelings and emotions were brought to the surface.
Due to these feelings and from information that her Kinesiologists have told her, she strongly believes her husband has been ‘committing serious criminal offences for years’.
She informed the author that there were too many to mention in one sitting, as it was emotionally draining… At this, [she] would become highly agitated, almost hysterical, and emphatically waving her arms… She stated she would raise several issues… The first being that several years ago, she was on her death bed… her husband was in her room, acting very strangely, said strange things. [She] would not elaborate… but stated from this she felt sure he was the one who made her sick… and had attempted to kill her.
The second was that she believed [the father] was involved in drugs. She stated she had never seen him use drugs, or seen any form of drugs in their home, but his behaviour and mood swings suggested to her that he was a user.
She then said that… [he] has had multiple affairs with young Women… fathering about 10 children. He has also used… prostitutes… She said that she has no evidence to support any of this; [he] has not made any admission to her about any affairs or any illegitimate children, nor any evidence to support her suspicions other than once driving past a young woman… several years back… [she] believed [he] suddenly acted strangely, ducking in the car and hiding his face. The young woman had a baby and toddler with her, and [she] believes that this behaviour indicated he was the father of the children. She also states that [he] has had affairs with men.
Lastly, [she] stated that due to the [father’s] patterns, her feelings, and what her kinesiologists have told her, she strongly believes that [he] is the father of [Ms X’s] child. She also believes that [he] has had something to do with her disappearance, and that… he acted very strangely. She could not elaborate further on this…
[The wife] states she has alot more information… She stated she believed she was being tracked by the [father], and attended the Town 1 Station ‘in cognito’ and left her vehicle a block away… She believes he pays off government entities to track her and the children, and to get what he wants…
The author believes the [mother] may be suffering mental health issues.
According to a COPS entry dated 5 March 2010, on that date, the wife attended on Town 10, NSW Police Station. In that entry, the following is stated:
The [mother] described the tumultuous relationship that she has had during [her and the father’s] 20 year marriage stating that [he] has had affairs and children to other women.
[She] reports that [the father] is now aware of the location of her children. There is no evidence to suggest that any offence has been committed…
Police had some concerns for [her] mental health… as she appeared to be very animated in her speach [sic] leaving her chair to act out her experiences with [the father]. Additionally, she appeared to physically shake and become highly emotional when describing the last 20 years marriage [sic] to [him]
…Police reiterate that there was no evidence of any offences that had been committed based on [her] information…
[She] alluded to being fearful of [the father] but could not site [sic] any incidents to support reasons why she is fearful…
Exhibit “F3”: Documents relating to the wife produced on subpoena by Town 1 District Hospital
A subpoena was issued to the CEO of Town 1 District Hospital for the production of records relating to the wife. The records produced, dating from 1 January 2006 to 31 December 2006, were marked as exhibit “F3”.
According to those records, on 23 June 2006, the wife was admitted to Town 1 District Hospital for several hours. She was principally diagnosed as suffering from depression. She reported that she felt depressed and unable to sleep. The short stay form provides that the wife “[appeared] to have some irrational thought processes”.
Further, notes contained in the emergency department clinical record provide as follows:
Unwell for 2/12. Depression. Long involved story including mercury toxins… see alternate therapists. Detoxing from mercury, had all fillings removed from teeth. Feels it was to [sic] much for her system. Daughter has epilepsy, feels she got the toxins from her. Daughter had seizure in pool recently, dragged from bottom of pool… feels she isn’t coping as well. Requesting sedation… States she has no desire or thought of self harm.
Exhibit “F5”: Documents relating to the wife produced on subpoena by Dr F
Documents relating to the wife produced on subpoena by Dr F were marked as exhibit “F5”. Included among those documents is an undated letter from the wife to a number of persons. As presently relevant, that letter provides as follows:
My Quest to save [H]
Since visiting [a Kinesiologist]… I have experienced… nervous breakdown…
I now believe I have stumbled across the monster that is causing havoc in our family.
Mercury and other Toxins either from exposure to farm chemicals/fertilisers or immunisation.
…
I have mercury and toxins through my body and it having [sic] a devastating effect on my life…
When [the Kinesiologist] rewired my brain through Kinesiology, she has switched a lot of things that have probably gone off track from when I was very young, I had gone into shock and poured out enormous emotions…
The depression that [H] and I have has made us feel nobody connected to us, so consequently you feel extremely friendless and lonely. I have felt nobody cared for me and even if people did convey touching feelings, I couldn’t feel this because my brain was not connected properly due to experiences and sensitiveness to many things, this including [sic] toxins and mercury exposure either from [the maternal grandmother’s] exposure or through my immunisation. The I [sic] continued to have exposure to more experiences and toxins; they began to have a crumbling effect on my life…
Mercury Toxicity is more pronounced in first-born babies, this explains why [H] is affected and not so much in [L]. Also we need to remember that [the maternal grandparents] you are both eldest children.
This in turn as passed [sic] onto our children, however the level of toxicity does not decrease in the generations following, it can actually increase, however this depends on the personality of the child, some people expel all things, others hold on to things. I believe, that because our family is sensitive we have held onto this…
[To the maternal grandmother], I often wonder, what happen to [sic] you in your early teens, for you to be diagnosed with Rhematic Fever and have to stay in bed for 12 months, I really wonder… maybe could have had some exposure to some thing… I could be completely wrong, but I have this mind that wants to find out all things!! [sic]
…
Physically, I cannot tell you all the pain I have suffered in the last 4 days, my headraces have been pronounced as I listen to my glands and hormones in my brain start up…
Also included among the documents produced is a letter from Dr F to Dr S dated 14 July 2008. Therein, he states the following:
…
[The father] tells me that immediately after [the joint session with himself and the wife, she] told him that she could not tolerate a marriage with him unless he partakes in the ‘quasi-science’ of Kinesiology and has his view of himself appropriately ‘adjusted’ but [sic] her kinesiologist…
…
From [the father’s] account of events it would seem that [the wife] is only sustaining Tegretol administration [to H for temporal lobe epilepsy] whilst Kinesiology testing reveals that the drug is effective. It is quite possible that she may discontinue treatment for this very serious illness if the ‘testing’ shows the drug to be no longer effective…
At this point I stand by my previous correspondence to you that I believe [the wife] has some significant difficulty with mood regulation and may in the future develop Bipolar Disorder or Cydothymia. I have not been able to confirm or exclude the potential diagnosis of Borderline Personality Disorder or Narcissistic Personality Disorder. These remain open.
Also included among the documents produced is a letter from Mr and Ms B to Dr F dated 2 June 2008. Therein, they state the following:
…
[The father] recently asked [us] to forward a letter to you supporting his concerns about [the wife’s] deteriorating mental state. We do so willingly…
[The wife] is a dearly loved friend of ours and our families have been friends for two generations. This letter (to [the wife]) could appear traitorous which [we] can assure… that the opposite is the case.
We have noticed (what appears to be) a deterioration in [the wife’s] mental health over the last couple of years, and are very concerned for her…
We are also very concerned about the children, what they are being told and how they are being manipulated and used as a support base for [the wife].
[The wife] doesn’t use discretion when speaking in front of the children concerning her perceived problems with [the father] e.g. referring to [him] as an evil man and convincing them that he has a mental problem.
We have also noticed that she has developed an obsession with Kinesiology… [The wife] will only admit if confronted, that medical intervention has saved [H], but prefers to attribute anything positive regarding [H’s] health, to the use of Kinesiology.
[At a meeting between the parents, other family members and friends in early March 2008, the wife] spoke for over two hours. To [us] many of the things she spoke about were without balance, some bordering on delusional. She displayed a strong victim mentality and self obsession…
Exhibit “F6”: Documents relating to the wife produced by Dr S
Documents relating to the wife produced by Dr S were marked as exhibit “F6”. Those documents comprise of notes and correspondence.
Included among the documents produced is a letter from Dr F to Dr S dated 12 June 2008. Therein, he states the following:
…
[The wife] is a psychologically complex lady…
Some of the symptomology described on the first visit does suggest possibility that she has Bipolar Disorder at worst or Cyclothymia at best. There is a substantial ‘dynamic’ component to her presentation… At present she is unwilling to accept medications… Other possibilities include Borderline Personality Disorder and Narcissistic Personality Disorder. She is somewhat eccentric raising a possibility of Borderline Personality Structure…
Exhibit “F10”: Correspondence between the Husband and the Children
Correspondence by email between the husband and the children during the period of 19 December 2010 to 29 December 2010 was marked as exhibit “F10”. In the last email of that correspondence from the children to the husband dated 29 December 2010, they state: “Mum has asked a time for us to meet with you. At the moment we are not willing to see you”.
Also included among that correspondence is an email from the wife to the husband dated 21 December 2010 in which she invites him to the maternal grandparents’ residence for lunch on Christmas Day.
Exhibit “X4”: Bundle of Notes by the Wife and L
A bundle of notes was marked as exhibit “X4”. Therein, the wife states the following:
…I have struggled with the immense grief that [the father] has lived the most incredible double life.
Mid February I fled [Town 1] with the support of the police…
[The father] has ordered me back to [Town 1] through the family court. This has challenged me profoundly… my close friends in [Town 1] are not supporting me because they are deceived by [him]…
Therein, L states the following:
1. Living in [Town 1] is hell, seeing [the father] down the street and the effect it has on me
2. Messing up school life and no friends
3. Frightened by the way he acts e.g. Violence on the farm towards [H]. Caravan park, violence Mercedes.
4. Sick of the control, want to be free
…
6. knives
…
7. Stalking mums comp at night
…
13. No one acts like him what’s he hiding. Locking house.
14. When mum was sick, dad talking to aunty [Ms C] behind mums back, deceitfulness, oppositional towards mum when sick
…
L also states the following:
I woke up at 2am… suddenly a bright torch light shone in my bunck [sic] window. I was very scared… I layed [sic] completely still for the duration because I was worried that it was my father or a man that he is in with. After, it went away I peeped out the window and saw the back of Dad walking away…
L further states the following:
Being treated like the spoilt child was really hard when I was young because of the emotional blackmail and bribes I was sucked into… [H] was always put down… Now I can see it was hard for mum for her to watch this and not be able to have a say. Mum actually acted like a proper mother should and had firm boundaries which is what every child need [sic], with dad I could do whatever I liked whenever I liked…
I’m thankful to mum for all the effort she’s put in to being a mother and all the battles she’s had to go through for me and [H]. I don’t want anything to do with my father at this point and if he stops controlling me and [H] and mum then there might be a relationship for us in the future maybe.
Also included among the notes are copies of a number of photographs taken by L. Those photographs depict a DVD, with the handwritten caption: “R Rated DVD”; a bottle of wine and two beers in the inside of a fridge, with the caption, “grog in fridge”; several cases of beer, with the caption: “grog in coolroom”; the outside of the former matrimonial home, with the caption: “our disgusting house”; a quad bike, with the caption: “bran[d] new motor bike”; and, some cash next to a computer keyboard, with the caption: “cash on computer desk”.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
The ability and possibility of the children being able to have a meaningful relationship with each of their parents has been the major focus of the evidence provided to the court. It will be the aim of the court to make orders which enable such an outcome provided it is consistent with a determination that it serves the best interests of the children.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no allegation of violence made by either parent against the other. Both have raised allegations that the children have been exposed to abuse and psychological harm at the hands of the other. I will make findings in relation to the allegations.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children have expressed a clear view that they wish to live with their mother. They have made it clear they wish to have no contact at all with their father. Given the evidence of Dr W, which I accept, that the children have been living in a folie a deux relationship with their mother, who in turn suffers from an illness of the mind, little weight can be given to their particular views.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The children have an apparently close relationship with their mother. The children have little or no relationship with their father. The children have a relationship with the maternal grandparents and other relatives on the wife’s side. The children have apparently close relationships with other persons who practice kinesiology.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In this case I determine that the wife is incapable of encouraging a continuing relationship between the children and their father. This is because of the wife’s ill health. The wife has had delusional thoughts in relation to the husband and she has shared those thoughts with the children. The husband, on the other hand, harbours a long term hope to reunite the family and I am satisfied that he would be willing to support the children having a continuing relationship with their mother provided they are not exposed to the wife’s negativity about him.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The change of children’s circumstances from living with the wife to living with Mr and Ms B is likely to have a profound impact upon them. Clearly they do not wish to live with Mr and Ms B or anywhere other than with their mother. On the other hand, I accept that the children, if ordered to do so by the court, will live with Mr and Ms B. Mr and Ms B are a family they have known for most of their lives. The children have had a close association with Mr and Ms B’s family over many years. H and one of Mr and Ms B’s children have had a close relationship over a number of years. The aim of placing the children with Mr and Ms B is to give them an opportunity to develop their own thoughts and the possibility of having a relationship with their father.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In this case there is no practical difficulty or expense to be particularly considered in relation to the children seeing either of their parents as it is envisaged, by the court, they will not see either of their parents, at least in the immediate future. The husband lives in reasonably close proximity to where the children will be living with Mr and Ms B. Should the children express a wish to spend time with him then that could be facilitated without difficulty or expense. The recommendation of Dr W is that there be no contact of any nature between the children and their mother for a lengthy period of time.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that each of the children’s parents has the capacity to provide for their physical needs. I am satisfied the wife, at this time, does not have the capacity to provide for the children’s emotional and intellectual needs because of her own mental ill health. I am satisfied the husband would be able to provide for the children’s emotional and intellectual needs if they permit him to renew his relationship with them. I am satisfied that the children’s views of their father have been distorted by the wife inculcating them with her own distorted view of the husband. That view has been moulded by delusion on the part of the wife which has been caused by her suffering mental illness. The evidence capable of being accepted as accurate in this case convinces me that the husband is a loving and capable parent.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are both female and H is now 16 years of age. They have lived in the Town 1 District all their lives. They have belonged to a small close knit community in which they will remain while living with Mr and Ms B. They have been members of a small church group of about 20 people. Whilst they live in the household of Mr and Ms B they will continue to be part of the small church group. The wife had removed herself and the children from the small church group having considered the group had turned against her and were supportive of the husband. The evidence supports a conclusion that the children enjoyed their membership of the small church group. They will continue to live in a rural environment as they have lived all their lives.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Through no fault of her own and as a consequence of her mental illness, the wife has not been able to exercise appropriate responsibilities of parenthood. She has demonstrated an inability to be discrete in relation to her views in respect of the children. She has inculcated the children with her own views in respect of the husband.
(j)any family violence involving the child or a member of the child’s family
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
I am not satisfied on the evidence in this case that there has been any family violence involving either the children or one of the parents. The evidence is that the wife has endeavoured to obtain an AVO to restrain the husband from approaching her. In March 2008 the wife obtained an AVO against the husband. I am satisfied that order was obtained as a result of the wife expressing her delusional ideas in relation to the husband and there was no proper basis for the order being made.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this case it is necessary to make an interim order because of the particular circumstances of the case. Stated simply, the children’s best interests dictate that radical and swift action take place in order to offer the children an opportunity to have a relationship with each of their parents. The wife needs an opportunity to address her mental health and attempt to have a mind which is not affected by delusion and other aspects of the particular ailment which afflicts her. The court will need to oversee the process of recovery for the children and to ultimately determine if it is possible for the children to have contact and/or a relationship with each of their parents.
The Independent Children's Lawyer has submitted that interim rather than final orders are warranted in this case. I accept that is so, should the children be placed with the family of Mr and Ms B and restricted in their contact with each parent.
(m)any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance which has not already been dealt with by me in these reasons.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence leads me to the conclusion that the wife has for a considerable period of time not permitted the husband to participate in any decision making for the children. This has occurred because of her mental illness. Further, the children have not been able to spend time with the husband or to have a proper relationship with their father because they have been inculcated by the wife with her delusional ideas about the husband and also her statements to them which have turned them against their father.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC of the Act and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children. I find that it is in the best interests of the children that they have an opportunity to develop a relationship with their father. To enable this to happen it will be necessary to restrict the children from any contact with their mother. The children will need to be sheltered for some time from the wife and those who have been influenced by her delusional ideas. The wife needs to be given an opportunity to consider the consequences for her and the children of these proceedings and the evidence which has flowed. Even at the conclusion of the evidence the wife was showing no sign of accepting the diagnosis by Dr W of her mental health. Although there was an indication from the wife that she would do what ever it took to be able to continue her relationship with her children there remained no recognition of the enormous harm she has inadvertently perpetrated upon her children.
The husband is not entirely blameless for the circumstances which have befallen this family. He acknowledged that during the marriage he used the services of prostitutes. In the context of an intensely religious family participating in a small and close church group which met weekly and had other meetings on a weekly basis, it must have been clear to him that the revelation of that secret to the wife would have a dramatic and predictable outcome. The children have born the brunt of that indiscretion on the husband’s part.
Notwithstanding the contribution by the husband to the children’s current circumstances, parents are not required or expected to be practicing perfection in their parental roles. The children are entitled to have a relationship with each of their imperfect parents provided it is in their best interests to do so. In this case, I conclude it is in the children’s best interests to have a relationship with each parent. Orders will be crafted to endeavour to provide them with that opportunity.
The evidence of Dr W convinces me that in order to achieve the stated aim of the proposed orders it is necessary to restrict the children’s contact with each of their parents for a period of time. I acknowledge such a proposal is in direct contrast with the aims and principles stated in the Act. However, absent the vehicle of deprivation of society for the children with each parent for a period of time, as recommended by the single expert, I can see no other pathway to achieving the aim of creating an environment in which the children might enjoy a meaningful relationship with each of their parents.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
The presumption does not apply where there has been family violence.
The section further provides, in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case the evidence does move the court to conclude that it is not in the children’s best interests for the parents to share parental responsibility. The evidence of Dr W convinces me the wife is not presently appropriately equipped to be able to participate in any shared parental responsibility order with the husband. This is a consequence of her current state of mental health.
It is important for one of the children’s natural parents to exercise parental authority over the children albeit in this case, restricted by the other orders which will be required to be made. The evidence convinces me if the children are to have a chance at re-establishing their relationship with their father and continue a relationship with their mother they must, for a time, be isolated from each. The timing for the children to commence seeing their father needs to be, to a large extent, in their hands. They need to seek him out. In order for that to occur it is necessary that they have the opportunity to reside in an environment which is not overlaid with their mother’s negativism and delusion about their father. Rather they should be in an environment which is supportive of both parents and where there is likely to be positive input about each of their parents. I consider the household of Mr and Ms B is as good an environment as the children could expect to be provided with for that purpose.
Section 65DAA
This section requires me to consider making an order for equal shared time for the children with each parent where I propose to make an order for equal shared parental responsibility.
The order I propose to make is for the husband to have sole parental responsibility and therefore I am not required to consider an equal time arrangement.
Determination of the Issues Identified by the Parties
The state of the wife’s mental health and the consequent impact upon her parenting capacities
I am satisfied that the diagnosis of the wife as recited by Dr W is correct. There is no evidence provided by the wife in relation to her psychiatric health, notwithstanding that it was glaringly obvious such evidence would be required once the report of Dr W was released to the parties. I am satisfied the state of the wife’s health severely curtails the parenting capacity in that she has involved the children in her beliefs about the husband. I accept a number of those beliefs are delusional. I accept Dr W’s evidence that the children will not be able to develop their own independent thoughts about the wife’s allegations whilst in her care.
What is the husband’s parenting capacity?
I accept the wife has been the primary carer for the children during the course of their life. There is nothing about the presentation of the evidence relating to the husband which suggests to me that he is incapable of caring for the children on a day to day basis. In this hearing his capacity to care for the children has not been the subject of rigorous attention because his proposal has been that the children should live with Mr and Ms B until further order.
What is the nature of H’s health and what treatment should she be exposed to?
H suffers from epileptic fits which strike her from time to time. There is an issue between the parties as to whether H’s medical treatment should be restricted only to that of a main stream medical practitioner or whether she should be allowed to receive treatment from a kinesiologist.
During the course of the hearing it became apparent that the wife accepted H should receive medical treatment from mainstream medical practitioners. She did, however, also support H receiving treatment from kinesiologists.
The husband accepts H is an advocate of kinesiology having accepted her mother’s view of same. During the operation of any interim orders it seems unlikely that H will be exposed to any treatment other than from a mainstream medical practitioner because Mr and Ms B have made it clear they do not support the use of kinesiology.
Have the children been alienated from their father as a consequence of the wife’s actions and statements to them?
I conclude that the children have been alienated from their father as a consequence of the wife’s actions and statements to them. The evidence in this regard is overwhelming and has been set out by me in these reasons. I can not see how a finding to the contrary would be possible on the balance of probabilities having regard to the evidence.
What are the prospects of the children being able to change the nature of their relationship with the husband?
At this time, the children’s relationship with their father is extremely poor and very strained and they do not wish to have any contact with him. Dr W considers that position may change once some distance has been placed between the children and their mother and they are relieved of the burden of their mother’s views and statements about their father. He said it is difficult to determine how long that might take. However, the children ought to have an opportunity to regain their own independent thought and possibly be able to renew their relationship with their father.
Should the children be separated?
The husband does not wish to have the children separated. I consider the wife probably does not want the children to be separated. The only question that arises in the question of separating the children is that H had proposed to move to Town 6 in North Queensland for the purposes of attending a TAFE college there. In those circumstances there would be a separation between the children with L proposed to remain living with the wife in Town 2, Qld.
If the children are placed with Mr and Ms B there is no question of them being separated at this time.
What contact should the parents have with the children in the event the court orders that they live with Mr and Ms B as an interim arrangement?
In this matter I have already determined that the children should have no contact whatsoever with their mother whilst they are in the care of Mr and Ms B. Should the children express a wish to have some contact with their father then that should be facilitated subject to some embargo such as the husband not consuming alcohol prior to or during any time that he sees the children.
Should the court make interim or final orders?
Having considered all the evidence and submissions made it seems that the court can only make interim orders in this matter. Interim orders would allow the wife to address the matters relevant to her mental health as diagnosed by Dr W. It would also give the children an opportunity to develop their own independent thought in relation to their father during the operation of the interim orders. It is to be hoped the distance from their mother will allow them to consider the possibility of at least some form of contact with their father.
The Orders to be made
The Independent Children's Lawyer submitted that the evidence supported the conclusion that the best interests of the children would be served by placing them in the care of Mr and Ms B as proposed by the husband. The Independent Children's Lawyer also submitted I would find that each of the parties gave their evidence honestly. That I would conclude the children have an intense relationship with their mother and she has inculcated them with her owns views in relation to their father albeit that some of those views were delusional.
The Independent Children's Lawyer was opposed to the children being split as proposed by the wife. In this respect the Independent Children's Lawyer was referring to the wife’s proposal that H should be permitted to live in Town 6, Qld with her maternal great aunt.
The Independent Children's Lawyer supported the making of interim rather than final orders. She proposed there be a further assessment of the children by a single expert in about six months following the making of court orders and that a report be available in September of this year.
The husband supported the proposal of the Independent Children's Lawyer.
The wife opposed the orders sought by the husband and supported by the Independent Children's Lawyer. The wife submitted that if the court did make orders as sought by the husband then the orders should be interim orders and operate for a period of 6 months only. She submitted against the children being split even though that was the consequence of the orders she sought.
Faced with what appeared to be an overwhelming case the wife through her counsel submitted that should the court be predisposed to make orders as sought by the husband and the Independent Children's Lawyer then:
The husband should have interim parental responsibility;
Pending further order, the children should live with Mr and Ms B. Implicit in this submission is a statement that the children should not commence to live with the husband without a court order.
If the children ask to see their father then that should be facilitated. Otherwise there should be no contact with the husband unless the parties otherwise agree and then only with the agreement of Mr and Ms B.
Should the children cease to live with Mr and Ms B the husband is to notify the Independent Children's Lawyer immediately.
I conclude the court should only make interim orders at this time. It is impossible to confidently predict the outcome of placing the children initially with Mr and Ms B and how that might impact upon the children’s relationship with each of the parents.
As stated earlier I propose to make an order that the husband have sole parental responsibility in the interim. He has a good and close relationship with Mr and Ms B and a high level of communication with them.
The children should live during the operation of the interim orders with the family of Mr and Ms B. I am satisfied Mr and Ms B will care for the children very well. I am satisfied that the children have a good relationship with Mr and Ms B.
I propose that orders should be made to facilitate the handover of the children to Mr and Ms B. The children are currently in the care of the wife and she should know that failure to cause the children to be delivered to Mr and Ms B will give rise to an immediate recovery order issuing.
Mr and Ms B should be provided with a copy of these orders and also a copy of Dr W’s report. As they will have to enrol the children in school they should be able to provide a copy of the orders to the children’s schools.
Each of the parents should be restrained from contacting the children with the exception of the children requesting contact with their father.
Mr and Ms B should be required to keep each of the parents appraised of the children’s progress. Given that Mr and Ms B have a good level of communication with the husband no specific order is required in relation to him. However, specific orders should be made in relation to the provision of information to the wife.
The wife should be permitted to publish to any psychiatrist she engages for therapeutic purposes, a copy of the court orders, these reasons and the report of Dr W.
An order needs to be made for the preparation of a further report in relation to the children and the parents at the conclusion of six months of operation of these orders. It should be anticipated that in those circumstances fresh evidence would be available to the court in about September of this year.
An injunction should be made preventing the husband from consuming alcohol during any time he might spend time with the children.
Mr and Ms B should be provided with a copy of the transcript of Dr W’s evidence in this case, his report to the court and these reasons.
I therefore propose to make orders accordingly.
I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 3 May 2011
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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