Rod & Bloomberg
[2008] FamCA 487
•27 June 2008
FAMILY COURT OF AUSTRALIA
| ROD & BLOOMBERG | [2008] FamCA 487 |
| FAMILY LAW – CHILDREN – With whom a child lives - Best interests |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 CDJ & VAJ (1998) 197 CLR 172 Mazorski v Albright [2007] FamCA 520 Neil v Nott (1994) 68 ALJR 509 Secretary, Department of Health and Community Services & JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Rod |
| RESPONDENT: | Mr Bloomberg |
| FILE NUMBER: | ADC | 4617 | of | 2007 |
| DATE DELIVERED: | 27 June 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 14-17 April 2008 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Polly Dixon & Co Adelaide |
| COUNSEL FOR THE RESPONDENT: | Ms O’Connor |
| SOLICITOR FOR THE RESPONDENT: | Respondent Father in person |
| COUNSEL FOR THE ICL: | Mr Hemsley |
Orders
IT IS ORDERED THAT
That the orders made on 22 March 2006 be varied by discharging Order 3 thereof and in lieu ordering that;
1.1The father shall spend time with the children N born on the … April 1994 and E born on the … November 1997 at all such times as might be agreed in writing between the parties and save as otherwise agreed: -
(a) From after school on Friday until the commencement of school on Monday or Tuesday if Monday is a public holiday or pupil free day each alternate weekend commencing Friday 21 July 2008 and each alternate Friday thereafter;
(b) For the second half of all gazetted school holiday periods applicable to the schools attended by each of the children in 2008 and each alternate year thereafter and for the first half of each such holiday period in 2009 and each alternate year thereafter the first half of each such holiday period;
(c)Notwithstanding order 1.1(b) from 2.00pm 25 December 2008 until 2.00pm 26 December 2008 and between those times on those days each alternate year thereafter and from 2.00pm 24 December 2009 to 2.00pm 25 December 2009 and between those times on those days each alternate year thereafter;
(d)That the weekend time provided for in order 1.1(a) hereof be suspended during all school holiday time and recommence on the first Friday of each school term;
(e)From 3.00pm to 7.00pm on the said children’s birthdays provided that if the child is in the care of the father on that day the father shall return the child to the mother between the hours of 3.00pm and 7.00pm on that day;
(f)from 10.00am to 5.00pm on Father’s Day provided that the father shall return the children to the mother at 10.00am on Mother’s Day if that day falls during a contact period.
That Orders 16 and 17 of the Orders made 22 March 2006 be discharged.
That the parties each do all such things, sign all such documents and pay all such reasonable fees as may be necessary to enrol in, and attend, the “KidsAreFirst” program run by Anglicare, South Australia and to themselves attend, and arrange for the children to attend, all such sessions as might be recommended in respect of that course.
That the Independent Children’s Lawyer shall provide a copy of these orders to the Director of the “KidsAreFirst” program.
That the parties be at liberty to provide a copy of the Courts Reasons for Judgment to the Director of the said program or any therapist or counsellor working with them or the children and shall provide a copy of the Reasons if requested to do so by any such person.
That the orders made on 22 March 2006 otherwise remain in full force and effect.
That the appointment of the independent children’s lawyer be discharged.
That all applications be removed from the Pending Cases List.
That the subpoenaed documents be returned.
That pursuant to s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rod and Bloomberg is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC4617 of 2007
| MS ROD |
Applicant
And
| MR BLOOMBERG |
Respondent
REASONS FOR JUDGMENT
Late on the second day of hearing of this matter, the Family Consultant, Mr P, gave evidence to the effect that, even if it was found that certain behaviours of the mother amounted to emotional abuse of the children by her, leaving those children in the care of the mother might be the “least worst situation” for the children.
That evidence encapsulates neatly enough a central issue confronting this court in determining the best interests of N, a son born in April 1994 and E, a daughter born in November 1997.
The proposals of each of the parties would have the children live with them and spend no, or significantly curtailed, time with the other. The foundation for each such proposal is allegations of abuse made by each parent in respect of the other.
The mother alleges, and has alleged now for 10 years, that the children are at risk of physical abuse, neglect, and emotional abuse from the father. More recently, she has asserted that the children are at risk of sexual abuse from him.
The father alleges, and has alleged now for 10 years, that the children have been, and continue to be, emotionally abused by the mother, by, in effect, a concerted campaign of negativity towards him; “coaching” of negative views about him, and the inculcation of attitudes that the father is a “bad person” or that they are at risk from him.
The father contends for Orders similar to the mother’s. He says that leaving the children with their mother, is leaving them with an emotional abuser. He contends that the abusive behaviour of the mother will never change. Indeed, in seeking an order that the children live with him, he also seeks orders that, for example, the “mother recommence psychiatric help immediately with supervision to ensure it occurs” and “the children be protected from the mother’s mental illness” and that the “mother be placed on a long-term good behaviour bond to comply with orders already made”.
Extra layers of complexity are added by the very lengthy history of litigation between these parties, findings made by judges of this court after lengthy earlier proceedings, the successful prosecution of contravention applications by the father, and expert evidence in the hearing before me.
The parties separated over ten years ago in December 1997. It is to be observed that N was then three and E had only just been born.
The first set of final orders in respect of parenting matters was made on 26 October 1999. Over seven years later, Carter J made orders that the children live with the mother and have contact with their father in alternate weeks from the conclusion of school on Wednesday to the commencement of school on Tuesday and for half of all school holiday periods together with special days.
It is those orders which have applied since that time and which both parties now seek to change.
Evidence and Findings: Overview
That these acute issues should arise at all, can be understood, partly at least, by reference to the fact that these parents have been litigating over their children for almost the whole of the approximate 11 years since they separated.
They have been litigating, then, for significantly longer than the seven years that their relationship subsisted. They have been litigating for the whole of E’s life.
The litigation has included a five-day trial before Stevenson J (Reasons and Orders, 27.2.03); a five-day contravention hearing before Dawe J (Reasons and Orders 28.5.03) in which contraventions by the mother were established and further established contraventions in hearings before Nicholson CJ (22.7.03) and Bell J (28.9.07). The Orders made by Carter J earlier referred to were made by consent after three days of hearing (22.3.06).
After that long, troubled and tortuous history, the parties again conducted a four-day trial before me. The allegations and counter allegations are, as it seems to me, almost identical to those that have been canvassed, in differing ways, in earlier trials. Certainly, the same themes emerge.
Oral evidence was given before me from the parties, a family consultant (Mr P) who has authored two reports in 2005 and 2007, and Dr B, a psychiatrist who had been seeing the children for approximately 2½ years prior to the trial. Dr S, a psychiatrist, provided a report on the mother which was in evidence, but he was not required for cross-examination.
Shortly, I will consider, and make findings about, the evidence relevant to the major issues relevant to a decision about the children’s best interests.
Those central findings will, in part, be based on my adopting findings and judgments made by each of Stevenson J and Dawe J whose Reasons were relied upon as evidence by the parties.
In adopting findings and judgments made by those judges, I will rely upon s 69ZX(3)(b) of the Act. This is a Reform Act addition to the Family Law Act and this section is, I suspect, neither widely known nor availed of. I propose therefore to discuss my reliance upon it and outline my interpretation of it.
Before discussing that matter and the findings made, it is necessary to record that I am cognisant of the mandatory legislative parameters within which the best interests of the children must be determined.
Relevant Principles: Application to the Children
When parents cannot agree about the post-separation parenting arrangements for their children, best interests is the criterion by which the court arrives at orders which, the law requires, be imposed upon the parents.
Reference to the Act makes it clear that the court’s overriding mandatory function is to determine the orders that best promote the best interests of the particular children the subject of the proceedings in the circumstances specific to them.
The court is reminded more than once (eg s 60CA; s 65AA), that a determination of those best interests is at the heart of the decision - “the paramount consideration” - when making parenting orders.
In Mazorski v Albright ([2007] FamCA 520), Brown J said (at para 2):-
“The provisions in the Act relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC.”
The purpose of each of the Primary and the Additional Considerations is, as the heading to the section makes clear, to direct a court as to how a decision is to be arrived at, about the subject children’s best interests.
The clear wording of the statutory delineation suggests to me that the “Primary Considerations” are to have particular importance but, as the word “Additional” suggests, they are to be considered in conjunction with the other Considerations and do not, per se, outweigh or “trump” the “Additional Considerations”.
The Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That it remains a broad enquiry is evident from the section itself (s 60CC(3)(m)).
Ascertaining best interests by reference to those mandatory signposts must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
“Best interests” – and, thus, the findings of fact (and values) which underpin it - is also a servant to many masters within Part VII. The Act prescribes but one method for determining best interests and that is the making of findings in respect of the matters specified in s 60CC. Those findings, then, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time. (See eg s. 61DA(4); s. 65DAA)
It is in my view, then, crucial to make findings specific to the best interests of these children and specific to the circumstances in which they find themselves. The history, findings and issues about to be discussed in some detail readily find clear reflection in the legislative context within which the current proceedings must be determined.
First, it is clear that a central issue in this case involves a collision between the Act’s two primary considerations: how might a relationship classified as “meaningful” accommodate the risks of harm alleged.
So, too, the views of now mature children are clearly important as are, in my view, the genesis, sincerity and doggedness of those views and, importantly as I see it, whether those views are the same, and held just as sincerely and doggedly, when the children are in the care of each parent.
Also vital to any decision abut the best interests of these children is a consideration of a number of other relevant additional considerations exposed by the long history of the conflict and the evidence before me.
They include, for example, those considerations enumerated at s 60CC(3)(b) (nature of relationship); (3)(c)(willingness to promote relationship); (3)(d)(changes in circumstances); (3)(e)(practical difficulties); (3)(f)(capacity) and (3)(i)(attitudes and responsibilities).
Equally, the Act’s Objects and Principles, which seek to ensure a context within which the children’s best interests are met through orders made by a court, are thrown into sharp focus by the matters just outlined.
Adopted Findings and Judgments
Stevenson J’s reasons were exhibited to the mother’s affidavit. The Independent Children’s Lawyer (“ICL”), Mr Hemsley, also sought to have those reasons received in evidence. The father, who represented himself, sought to place significant reliance upon the findings contained in those Reasons.
The ICL and the father each sought that Dawe J’s Reasons for Judgment be received in evidence. They became an Exhibit (as did Reasons for Judgment of Carter J although Her Honour’s reasons were in respect of a consent order and are not relevant for present purposes).
Legislative Basis for Adopting Earlier Findings
Section 69ZX(3) of the Family Law Act 1975 (Cth) (“The Act”) provides that:-
“The Court may, in child-related proceedings
a)receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a) (i) to (iii).
In order that I might receive submissions in respect of the interpretation of that section, I provided to each of the parties a copy of pages 70-72 of the Explanatory Memorandum to the Bill introducing it.
Relevantly, that Explanatory Memorandum provides:-
“29. Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993. It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper. The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.
30. This amendment implements recommendation 5 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists. In this regard, the provision is relevant to new section 61F (inserted by item 14 in Schedule 1) which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child.
31. This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child. It applies to all child-related proceedings. In this respect, the provision implements recommendation 48 of the LACA Report. The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse. The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.”
Section 69ZX(3) is contained within Division 12A of the Act, a Division which broadens very considerably the ability of the court to receive, and apply weight to, evidence in child-related proceedings that may otherwise be inadmissible. (See eg, s 69ZN(7); s 69ZT(1) and s 69ZX itself).
Subparagraph (a) of s 69ZX(3) appears on its face unrestrained in terms of the conclusions of fact that may be drawn from transcripts in other proceedings. So, too, the permission afforded by subparagraph (b) refers to the adoption of “any” of the named matters including, relevant to this case, any “finding” or “judgment” of “any court”. Again, the language is permissive and unrestrained.
I am, in effect, invited by all of the parties to take account of findings and decisions made by earlier judges of this court (albeit that the parties have different emphases and urge differing effects).
That a court should adopt findings by other judges about matters contentious before those other judges and, in one form or another, contentious in fresh proceedings before the court, is, as I said during the course of discussion of the topic at the hearing, somewhat “counterintuitive”- at least to me.
Nevertheless, it seems to be plain that the section permits me to do so. Moreover, the section can, in my view, be seen to have particular utility in a case such as the present where historical issues are mirrored in current issues before the court and where those issues are directly “relevant” to the best interests of children – the specific focus of Division 12A of the Act.
Further, I consider the understanding of the childrens’ predicament provided by those earlier judgments is crucial to putting the evidence – and particularly the expert evidence - before me into its proper context.
My intuitive discomfort might be more acute but for the fact that the findings upon which I place reliance are, in my view, consistent with evidence before me, my own assessment of the parties and their evidence and findings which, in my judgment, result from that evidence.
Primary Findings Adopted from Earlier Judgments
The major findings which I adopt from the judgments of Stevenson J and Dawe J are summarised as follows:
· The mother unilaterally changed the children’s surname and the school and child care without prior consultation with, or notice to, the father.
Stevenson J found that the change of surname occurred “at least as early as 2001”.
Similarly, her Honour found that the mother unilaterally moved the children’s residence from the regional town of W to the Adelaide suburb of P. Her Honour also records that, at the same time, the mother unilaterally removed N from his school, T School, and enrolled him in M School.
The mother also unilaterally removed E from her child care centre in P and placed her in the H child care centre.
Stevenson J found that the father became aware of these changes only after the event and also found that there was “no suggestion that the mother made any attempts at prior consultation with the father”.
In respect of the mother’s failure to re-enrol the children at T School as ordered previously, Dawe J found:-
“105. When pressed the wife said it was not in the best interests of the children for [N] to attend [T School] because he did not like it. Her argument was that she made the decision based on what was in the best interests of the children. Her attitude was based upon her obvious belief that the Court orders of the 6 August 2006 were wrong and that therefore she did not have to obey them.”
· The mother disobeyed a court Order to the effect that the children should return to their initial place of residence (which was situated geographically much closer to the father)
On 4 July 2002, pursuant to an application filed by the father, a Judicial Registrar ordered that the mother relocate the children to W within 21 days.
The mother reviewed that order and, on 6 August 2002, Dawe J ordered that the review be upheld to the extent that the orders sought to cause the mother to relocate the children. In lieu, her Honour ordered that within 7 days the mother re-enrol and keep the children re-enrolled at their previous school and child care centre respectively. Each was situated in W.
The mother did not obey those orders. She filed a Notice of Appeal but ultimately withdrew it on the basis that Stevenson J was to hear and determine the issue of the school to be attended by N as part of the proceedings then due to proceed to trial before her Honour.
· The father did not attend family therapy ordered by the court
Stevenson J had previously made an order, on 22 March 2002, requiring each of the parties and the children to undergo family therapy with one of two nominated practitioners.
As a result of that order, the mother and the children began attending upon a Miss C, a psychologist, on 21 May 2002. That family therapy continued until 30 August 2002.
The father did not attend for family therapy, asserting that he could not afford the fee of $160 per hour. The father said, and Stevenson J accepted, that he would have attended family therapy if the costs had not been prohibitive.
· As at the dates of the trials before each of Stevenson J and Dawe J, the children were each expressing a firm view that they did not want to see their father and did not enjoy seeing their father on contact.
· Those stated wishes by N were, as at the date of trial before Stevenson J, tainted by the pressure and influence of the mother to such an extent that little weight should be placed on those wishes.
· As at that time, N wanted a relationship with his father but was unable to express a wish to this effect because of the hostile attitude of the mother towards the father
· The mother is prepared to assume the worst of the father and to put the most unfavourable interpretation on his conduct and, in turn to use that as a foundation for negative comments made by her to the children and for justifying that the father’s time with the children should be curtailed.
· The children were encouraged by the mother to refer to their father as “the father” rather than “Dad” or “Daddy”
· The mother’s negative influence on the children is quite damaging
· The mother has inculcated in the children the view that their father is a “bad person” a “liar” and a “bastard” and has told the children to think of him in that way.
· At the time of the hearing before Dawe J, the cause of the children’s difficulty in their relationship with their father is the direct and indirect influence of the mother, rather than any actions on the part of the husband.
· Wishes expressed by N to the counsellor’s Ms H and Miss C at the time of the hearing before Dawe J were significantly and primarily due to the negative influence of the wife as were negative displays by E in respect of seeing her father.
· The mother’s negative influence was, as found by Dawe J, not based upon any appropriate or reasonable assessment of the father, but rather the wife’s unreasonable, over zealous, willingness and determination to portray the father’s behaviour in a negative fashion.
· The influence by the mother is not due to any rational perception of any possible risk to the child, but due to an irrational dislike of the husband and due to a desire by the wife to stop the husband having a relationship with the children”.
During the course of the proceedings before Stevenson J, among the various issues confronting her Honour was an assertion that the children, then aged approximately 8 and 5, were expressing apparently firm views that they did not want contact, or enjoy contact, with the father,
Stevenson J found, at paragraph 78 of her Honour’s Reasons that:-
“The wishes of a child of [E’s] age would carry little weight, even if such wishes were formed independently of the influence of the mother. As for [N], I consider that his stated wishes are tainted by the pressure and influence of the mother to such an extent that little weight should be placed on his statements to the effect that he wants no further contact with his father. As I have already noted, it was Miss [C’s] assessment that [N] really wants to have a relationship with his father but feels unable to express a wish to this effect because of the hostile attitude of the mother towards [the father].”
Her Honour asked the mother to give her Honour her opinion of the effect upon the children of an outcome, contended for by her, that would terminate all contact between the children and their father.
The mother told Stevenson J that she could see no negative implications for N.
The mother agreed with her Honour that she considered it best for E that she grows up not knowing her father, albeit that the latter comment was qualified by her telling her Honour that it may be more difficult for the mother to explain this position to E because she has not experienced “the same things [N] has been put through”.
Ms H is a counsellor formerly employed as such by this Court. She gave evidence before both Stevenson J and Dawe J. In an interview with Ms H, E was asked about her wishes in relation to contact with her father. Dawe J found that E stated:
“No. He’s bad person, my mum said don’t like him”. She also stated that her mum said “don’t go in there to see that bad person”. When asked why her father was a bad person she replied “[N] had been pinched by his father and that my mum told me that”.
Dawe J found that Ms H concluded:-
“it is counsellor’s conclusion that [E’s] perceptions are influenced by her understanding of what her mother is saying”.
The mother alleged in the proceedings before Stevenson J, that N had sustained a neck injury whilst in his father’s care. The mother’s allegation was that N had jumped off a ladder during a period of contact and suffered a neck injury but the father forced him to continue swimming lessons against medical advice.
The father said he had no knowledge of any injury and he was never given any medical certificate. The father said (and Stevenson J accepted) that he would not have allowed the child to go swimming if he had been given any independent information concerning an injury.
Stevenson J notes that “the mother admitted that she took the child to the scene of the alleged accident and, extraordinarily, she said in cross-examination; he wanted to show me where he had hurt himself”.
The reporter, Ms C, expressed concerns (as did Stevenson J) that a child would refer to his father in speech as “the father”. Her Honour records that N told Ms C that he does so “because his mother told him to call the father ‘the father’ but he calls him ‘Dad’ when he is with him”.
·Both parents have behaved in a way that has allowed the children, in particular N, to be aware of the conflict between the parents. As such both parties have had a role in the emotional harm caused to N.
In making the finding just described, Dawe J described that finding as “the reservation” her Honour had in “accept[ing] the evidence of the husband that he has not subjected either child and in particular [N] to any emotional abuse”.
Additional Matters Adopted From Earlier Judgments
Stevenson J observed that the mother’s primary affidavit in the proceedings before her, “recited a large number of complaints or concerns regarding the father’s contact…particularly with [N]”. Her Honour said “the sheer number of these criticisms” meant that the list of specific instances cited in her Honour’s Reasons “must be illustrative rather then exhaustive”. Her Honour then proceeded to list and consider a number of those specific matters.
In an attempt to be similarly illustrative rather than exhaustive I record examples and her Honour’s findings (which I also adopt) as follows.
In respect of an allegation that “[N] is not properly fed during contact periods” her Honour noted that, in response to a question from her Honour, the mother indicated that she believed N’s complaints about food implicitly.
Her Honour said “the mother’s response to my question included the gratuitous statement that the child gets up probably around noon and then he will be given something like chocolates or twisties or chips or all three”.
Her Honour concluded that she had “no reason to believe that the father fails to provide appropriate or sufficient food for the child during contact weekends. The matter of concern is the mother’s blind acceptance of the truth of [N’s] statements of criticism of the father”.
In response to an allegation by the mother that “[N] was given a box of liqueur cherries by the father”, her Honour, in accepting the father’s explanation, found that “this complaint of the mother’s is a prime example of her readiness to assume the worst of the father and to put the most unfavourable interpretation on his conduct which, in this case, was clearly well intentioned”.
A Ms SH from the H child care centre was called to give evidence by the father. She was asked by the father whether there had been any problems with staff or any other children or whether she had any matters of concern. The witness replied (contrary to evidence by the mother) that “no there hasn’t been any concern. As a matter of fact, the other children really like you being there. You know, they ask when [the father] is coming – we want to play with [E’s] dad. They actually enjoy the male contact”.
A further allegation of the mother before Stevenson J was that the father “pinches and otherwise physically hurts [N] during contact periods”. Her Honour notes that the father vehemently denied that he pinches the child and said it would be “an assault”. Her Honour found that “it may well be that the father plays with [N] more roughly than the child would like”. Her Honour went on to say “certainly I do not accept that the father would hurt the child deliberately in any way at all. Once again, the only knowledge which the mother could have any such conduct on the part of the father would be statements made by the child”.
Her Honour concludes her assessment of the allegations made by the mother by saying this:-
“In my view, these complaints on the part of the mother are more instructive as to her capacity to meet the child’s needs and her attitude to the responsibilities of parenthood than as to the capacity and attitude of the father. It is clear that the mother seizes every available opportunity to criticise the father and to enmesh the children in her highly negative perception of him.”
In the contravention proceedings heard by Dawe J, her Honour ultimately found:
“I accept that the husband at times behaved in a manner which lacked insight into the needs of the children and the possible impacts of his behaviour. However, I prefer Ms [C’s] assessment that the cause of the children’s difficulty in their relationship with their father is the direct and indirect influence of their mother, rather than any actions on the part of the husband.”
Examples of the Mother’s Current Allegations
The mother’s affidavit in chief in the proceedings before me, which commenced some six years after the proceedings before Stevenson J, is, in the light of the findings just outlined, disturbing in terms of the nature and extent of allegations made against the father and how those allegations mirror allegations and issues canvassed – and, in many cases, determined - in earlier proceedings.
Those allegations by the mother are, among others, that:
·“From the making of the first set of orders in 1999 the father proved to be an insensitive and abusive parent”
·“The children make frequent complaints about his physical abuse of them and his indifference to their feelings, needs and comfort. He would frequently smack them, punch them and pinch them”. She comments “they were deeply saddened by this seemingly whimsical abuse”.
·His parenting skills were inadequate. “He feeds the children junk food and seemed unable to respect their needs”
·“On 22 February 2005 [E] returned from time with the father alleging that both her father and a child named [D] had been sexually assaulting her. The child reported details of obscene conversations with the father including him talking about putting his face in her genital area and passing wind in her face”.
·“On the 22nd day of March 2005 [E] disclosed that the father had been touching her on her chest, her genital area and her bottom”.
·“Throughout 2007 the father’s behaviour towards the children continued to be both thoughtless and abusive”.
·In March of 2007 “the child returned from time with the father complaining that he had been punched in the arm by him and pinched by him”.
·N told the mother that “the father had on 18th day of August 2007 slapped him on the side of the face, making him cry. Around this time, the father also punched the boy in the chest”.
·“I say that for ten years the father has had an opportunity to adopt a parenting style that is not hurtful or abusive to the children. The children do not like his parenting methods, he laughs at them, invades their personal space and is physically aggressive and abusive to them. He leaves them at home alone, is careless when they are sick and pinches, hits, shouts and screams at them. He aggravates them emotionally until they are upset: he yells at other motorists, sometimes stopping them […] and yelling at these people while the children are present”.
·“In April 2007 the father took photographs of the children while they were sleeping and threatened to sell them on the internet. The children were alarmed at this prospect. The father commented to [E] that she did not look like a girl in the photos as she did not have any boobies”.
The last allegation is, in the light of other allegations made by the mother, involves as its only possible inference, an allegation of sexual impropriety. I suggested during the course of the hearing that, given the history of this matter, and the number and extent of allegations made by the mother against the father, that it seemed inconceivable to me that the father – a serving public servant – would indicate to children, whose every word he knew was monitored by the mother (and in his view embellished by her), that pictures (taken when the children were asleep) would be posted on the internet. No submission was made that it was anything other than inconceivable.
It needs to be observed that the only source of information for the current complaints made about the father is the children themselves.
The mother also deposes to the children having reported to a child psychiatrist, Dr B, that the father has committed what the doctor called “various forms of abuse” and, the mother says, as a result, Dr B has said that the children “as a direct result of this abuse…now suffer a reactive anxiety disorder”. I will return to Dr B’s evidence later in these Reasons.
The Evidence Of The Parents In The Current Proceedings
The Mother
It is necessary to record that the mother was subjected to cross-examination by the father who was acting for himself. That, I acknowledge, can impose difficulties for an opposing party, particularly in circumstances when, as here, the parties have been locked in conflict for a considerable period of time. I take that factor into account in assessing the evidence of the mother.
I also take into account, in assessing the mother’s evidence, that conflict over a long period of time tends to entrench views, including views previously expressed.
Giving due regard to each of those matters into account, I nevertheless found the mother to be a singularly unimpressive witness.
Perhaps the best example of my concerns about her evidence was her response to questions directed to her by the Independent Childrens Lawyer about her referring to the father as “the father” and the suggestion put to her that, in effect, she inculcated, condoned or permitted such a practice.
The mother responded to the effect that she doesn’t make reference to “the father” or, indeed, “dad”. She admitted she did not encourage the use of “Dad” by the children, saying, “in reality I don’t spend a lot of time on it”. When asked by Mr Hemsley whether she had taken steps to redress the use of the expression “the father” (having seen and heard what was said about that very topic in earlier proceedings), she said she “had mentioned it”.
I thought her answers to these questions evasive and her evidence utterly unconvincing. I think it highly likely that her evidence that she “mentioned” the topic to the children to be false.
The mother’s contempt for the father during the course of the proceedings was, to my mind, barely concealed and palpable.
The mother denied that she “coached” the children (the expression put to her) and further denied that she had influenced the children in negative views about the father.
I think it unlikely, as observed by Ms C in proceedings before Stevenson J that, now there is direct “coaching”. But, I do not accept her denial that she quite consciously influences the children in negative views about their father.
When asked whether the children had ever said anything positive about the father, the mother replied, to the effect: “yes, they don’t have to do swimming lessons”. That was, apparently, the only positive thing she could think of that the children had ever said about their father. That is consistent generally with Dr S’s evidence to which I will refer in a moment.
I conclude (similarly to Stevenson J and Dawe J) that the mother continues to assume the worst of the father and puts the worst possible interpretation on his conduct – and the children’s words about his conduct – and, in turn, uses that as a foundation for negative comments made to the children about their father and as a justification for suggesting that the father’s time with the children should be stopped.
It is also necessary in this context to turn to the evidence from Dr S which was contained in a report prepared by the doctor on 30 November 2007. Dr S is a psychiatrist to whom the mother was referred for the purposes of preparing an assessment for these proceedings. Dr S was not required for cross-examination and his evidence is otherwise unchallenged.
Dr S was of the view that the mother did not suffer from a psychiatric disorder of any kind. He mused with the possibility that she was suffering from a mix of anxiety and depression, but, on the mother’s most recent visit to him, the doctor thought she was, rather, “a person on a mission”.
The doctor considered that:
“… her need to protect her children as being based on real circumstances or on an overvalued idea … Given my limited interactions with [the mother] and my complete lack of interaction with her children I have no way of knowing which the more likely is; real circumstances or an overvalued idea”.
The doctor went on to say:
“From what [the mother] has told me of her life with her children I see no issue which might impact upon her parenting capacity apart from the obvious one of course; her complete inability to see any worth or value in her ex-husband being allowed to exercise his responsibilities as the father of their children. As before, I note that never having seen [the mother] in the company of her children, I am severely restricted in my ability to comment on her parenting skills”.
Dr S’s observation as to the mother’s complete inability to see any worth or value in her ex-husband exercising parental responsibilities is consistent with my own impression of her and her evidence.
I consider the following evidence from Dr S, recorded in his report dated 30 November, 2007 and based on four consultations with the mother in 2006 and again on 4 and 30 November, 2007, to be important:
“In terms of the issue of possible alienation of the children from their father by [the mother], I would suggest that this is a foregone conclusion. I would suggest this for a number of reasons.
I do not believe that it is possible to spend 10 years and in excess of $80,000 in litigation without developing a considerable degree of enmity towards the other party, particularly when the court process has been pursued on the basis that the other party is harming the children.
Secondly, [the mother] is simply unable to see her ex-husband in a good light but she has no difficulty at all in listing all of the defects that she believes that he has in his character, especially as they relate to her and the children.
Thirdly, [the mother] firmly believes that her son [N] has wanted to have little to do with his father from virtually when the marriage ended, when [N] was 3½ years of age. I find it difficult to comprehend that a 3½ year old boy could hold such a view. [The mother] on the other hand does not.
Given that she believes that [N] has wanted nothing to do with his father from a very young age and that [E] has also held this view for at least several years, I see no reason why [the mother] would take any action at all to prevent the possible alienation of the children from their father.
Whether [the mother’s] action on this issue has been one of actively promoting to the children the idea that they should have little to do with their father because he is simply not a good person or whether it has been one of passively accepting the children’s de novo negative statements about their father, I have no way of knowing.[1]
[1]For ease of reference, I have added the paragraphing to what was an entire paragraph in the report.
I agree with the opinions there expressed. I, too, have no way of “knowing” the last mentioned matter. However I am firmly of the view that it is significantly more likely that the mother has been actively promoting to the children a negative view of their father.
Finally, Dr S said in his report:
In concluding I would make two points. Firstly it would seem to me that in the past 15 months [the mother] has done her best to passively let events unfold, by allowing Dr [B] to carry out his work and by not pursuing legal action during this time. It was on this basis that I congratulated her on her efforts. Secondly my concluding point in my letter to Dr […] [the referring GP] in April 2006 was that …
I expect that this matter will gradually come to some sort of conclusion (by the children themselves determining that they wished to have little to do with their father) in the next year or so particularly in [N’s] case and that [E’s] will follow soon after. Whether or not this will be a good outcome, I have no way of knowing. But I do consider it unfortunate that the children will have been involved in so much litigation for so much of their childhoods.
I can only state that I continue to hold that view.
The father
Just as with the mother, account should be taken of matters which might affect the impression gained of the father’s evidence.
First, I am acutely aware of, and have made allowances for, the fact that the father was self-represented during the course of the hearing and prepared all of his own material.
I am mindful that this fact may have created for him some disadvantages, and I have sought to be particularly careful when assessing his evidence (and submissions) to bear that in mind. (I have in mind, for example, what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510, that: “…a frequent consequences of self-representation obviously is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy”.)
The spotlight of scrutiny can, as a result, shine more brightly on the self-represented party. That said, self-representation can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. That was in my view exemplified in the present case.
In his Atkin lecture in 2002 “The Misnomer of Family Law”[2] , Mr Justice Wilson (UK) made the following observations:-
“…I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants like the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem most be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the children between them will proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation”.
[2] Published at >
I consider that the father’s self-representation provided, here, an opportunity to observe, and gain insights into him as a parent.
Secondly, the history of this matter cannot be ignored in assessing the father and his reactions and demeanour. That history, in my view, bears out the complaint of the father, voiced frequently during the hearing, that it is the mother who has been found to have breached orders and it is the father who has been accused – consistently and over a long period of time – of behaviour, some of it heinous, that has not been found to have had any foundation.
The frustration inherent in again facing allegations – including sexual allegations in respect of which the mother’s counsel ultimately (quite properly) conceded could not result in findings - so many years after separation and to again be facing the prospect of having no face to face relationship with his children is, in my view, self evident. My assessment of the father, his behaviour, and his evidence must, in my view, bear that important consideration in mind.
Finally, the father was in this case required to hear from two expert witnesses the opinion that, even if I should find the mother has emotionally abused the children, the result of that finding should nevertheless be that his contact with his children should be significantly curtailed.
I also note and generally agree with the assessment of the father given by Mr P in his most recent report and think is summarises well my own observations and assessment of the father:
“33. [The father] generally presented as calm, and focused on the children’s well-being … even when discussing issues that he was clearly frustrated, distressed, or angry about. There was also some evidence of anxiety and emotional distress, especially early in the interviews. He was overtly concerned that he would not be listened to, and that he would be negatively prejudged about what he had to say. He willingly acknowledged that he sometimes became “defensive” during events in the legal process, and this has not assisted him in effectively presenting his views at times. It was apparent, however, that when [the father] is treated with courtesy and respect, and a willingness to listen with an open mind is communicated, he has a good capacity for reciprocating that behaviour”.
Having said that I agree with that, and bearing clearly in mind each of the factors earlier outlined, it is nevertheless necessary to observe that the father can be, in many respects, “his own worst enemy”. Indeed, I said to the father during the course of the hearing that he ought consider that precise proposition.
That comment was made in the context of his having previously threatened to walk out of the proceedings for the third time. In addition, it was necessary for me to intervene on a number of occasions when the father interrupted witnesses or allowed his exasperation to find voice. On a number of occasions it was necessary for me to tell the father that his interruptions and behaviour were “silly” and were neither assisting his case nor the proceedings.
Even allowing for frustration and upset, the father’s behaviour was at times, as it seems to me, childish and impetuous. It was also evidence, in my view, of a man who experiences significant exasperation when matters considered by him to be self-evident truths are not accepted by others as such, and of an inability on his part to contain either his frustration or his inclination to be dismissive of others in those circumstances.
I assess the father as worried that the absence of a face to face relationship with him will see the extremely negative perceptions of him which he (and I) believe are inculcated in the children by their mother become their exclusive perception of him.
Whilst the father’s frustration found voice so too, in my view, did his deep, genuine and abiding love for his children find expression in this physically imposing man – who I might describe, in popular parlance, as a “man’s man” - becoming tearful and distressed at the prospect of his time with the children being stopped or significantly curtailed.
Despite the behaviour by the father to which I have referred sometimes “getting in the way” (and, in one case, precipitating me, regrettably, to lose my temper with him) I assess the father to be essentially a witness of truth.
When the father swears that he does not abuse his children in any of the senses attributed by the mother, I believe him. When he denied, specifically, that he engaged in the abusive behaviour of which the mother accuses him, I believe him.
The father is a large, imposing man who has, for many years, worked as a public servant. In many respects his bearing and demeanour could be seen as overbearing or intimidating. Although I did not find him so, I can see how others, including, for example, Dr B in this case, might do so.
It is also easy for me to imagine, for example, that what the father might think is perfectly normal play “between blokes” is experienced by N as something rougher. I also consider, in a similar vein, that the father would not be an easy man to talk to about issues such as that. Again, I don’t find it difficult to imagine that N might have difficulty in telling the father things contrary to his views.
I also have no difficulty in imagining (as an example) that the father might during the course of rough play or an account of activities by N refer to him as “a sook” or something similar. I am also not convinced, perhaps as a result of the characteristics earlier mentioned, that the father is a man possessed of great insight into his children’s needs (a characteristic shared, in my assessment, by the mother).
When, for example, the mother alleges that N describes being hit or punched by his father and of his alleged apparent indifference to N’s feelings, I have no difficulty in seeing how, in his mother’s household that would be expanded into a form of abuse (see eg. her reference to “whimsical abuse”) whereas, in the father’s household the same non-malevolent incident might have seen N upset with his father but with the father (a) telling N that he was silly to get upset and (b) the father perceiving (and honestly telling all) that he had done nothing wrong.
The father said, and I accept, that time with the children proceeded (relatively speaking) uneventfully during the time that a bond imposed on the mother as a result of a successful contravention application by him was in place.
The allegations of sexual impropriety against the father were raised shortly after that bond expired.
When I asked the mother’s counsel what evidence could be relied upon to support the allegations of sexual abuse (either as to occurrence or as to unacceptable risk), she (with respect rightly) conceded there was no evidence which could sustain either such finding.
The father denies any sexual impropriety of any sort with either child. I believe him. I note that, in December 2007, when N saw the family consultant, Mr P, he reports:
“[N] also made reference to experiences when he was ‘little’ when he woke up at [the father’s] house, and his pyjamas were on the floor. He added ‘I’m pretty sure it was him ([the father]) who did that. [N] did not add more to the disclosure and was encouraged to discuss it with his psychiatrist”
I think the use of the word “disclosure” is unfortunate. It is a “loaded” word connected with assertions of child sexual abuse. In the context just described, it is by no means clear to me that it is a “disclosure” of anything with sexual content or, indeed, a “disclosure” in any sense of the word.
Dr B makes no mention in his report of any “disclosure” along those lines. Dr B, as a mandatory notifier, notified the relevant State child welfare department about two specific alleged incidents of physical abuse (neither of which I believe occurred) but made no such notification in respect of any alleged “disclosure” with sexual overtones as described by Mr P or at all.
In addition, despite speaking to expert report writers Ms C and Ms H in 2003, Mr P in 2005 and seeing Dr B monthly for over two years, there is no evidence of any such “disclosure” otherwise being made by N.
In the most recent family report by Mr P he says that:
67. The children’s statements for this report and the previous report indicate that they have been directly influenced in the formation and expression of their negative statements about [the father] by [the mother]. The information obtained for this report also indicates that [the father] has spent many years attempting to provide loving and competent parenting, and to have a good relationship with the children, while having his efforts being actively undermined by [the mother]. It was also evident from the information obtained for this report, that [the father] is supportive of the children’s relationship with [the mother], while he also has a focus on her negative attitudes towards his role.
68. In a situation where one parent is characterised by children as wholly good and the other parent as wholly bad, a great deal of pressure can be placed on the rejected parent, who can then react towards the child in a hurt and angry way. From [the father’s] account the children’s rejecting behaviour can be difficult to manage. From his account in interview, however, he does not blame the children for this behaviour, and he works to provide them with reassurance and support. In observed interactions he demonstrated a good capacity for managing himself when the children were acting in a rejecting or withdrawn way.
I accept that evidence.
The Evidence and Opinions of The Current Family Consultant
Mr P’s First Report and Opinions
Mr P’s first report was dated 20 October 2005. The report indicates that he had access to information on the court file as at 5 October 2005. He conducted interviews with the children and parties on that same day.
Paragraph 39 of Mr P’s first report says this:-
“The information obtained for this report indicates that the children have a close and positive relationship with [the father] when they are with him, that he makes a significant positive contribution to their lives, and that cessation of contact would involve significant emotional loss for the children”.
Additionally, in that first report, Mr P concludes:
“… If [the mother’s] proposals are accepted, the children will have no further contact with [the father]. Given [the mother’s] hostile attitudes towards [the father] it is unlikely that there would be any reconciliation in the relationship between the children and [the father] in the medium term future if contact ceased. In the short term some stressors on the children would be removed, but at the cost of the relationship to [the father] and the need for a relationship with both parents.
…
42. If [the father’s] proposal is accepted then the current arrangements will continue, and the children will spend significant amount of time with both parents. Information obtained for this report does not indicate that a reduction of the children’s time with [the father] is in the children’s best long term interests and their need to have a positive relationship with both parents.
The ultimate conclusions reached by Mr P in his first report are reached in the light of (or, perhaps, in spite of) the history of the matter and findings of earlier courts previously outlined.
They are also reached in the light of (or, perhaps, in spite of) the following, each of which is referred to by Mr P:
(1)The children arrived for the interviews during a week of the school holidays when they had been in the father’s care. The children were observed to be “ … interacting with [the father] in a warm, friendly, and comfortable manner”.
(2)Many of the children’s statements “… had the manner of being well rehearsed”
(3)E described her experience of the father as “wholly negative” and the mother “wholly positive”.
(4)E made a number of significantly negative comments about her father, including that he “hurts my brother and me”;
(5)E was “unequivocal” in an expressed wish to live with her mother and to “ … have no further contact …” with her father.
(6)N was not as absolute in his characterisation of the father and the mother as wholly negative and wholly positive respectively, but he was still “strongly aligned” with his mother.
(7)N was “strongly focussed” on complaints about his father’s care including that he sometimes “hits him” and once “punched me in the stomach” and “if I get hurts, he laughs”.
(8)N was “unequivocal in his expressed wish to have no further contact with [the father]” citing in particular the behaviour just described and that his father hits him for no reason.
Mr P considered it notable, as do I, that the negative things said by the children about the father were not mirrored in their observed reaction to him.
Further, not only did the children’s statements have an observed “rehearsed quality” about them but Mr P also says something which I regard as very significant:
“It was notable that this professed reluctance to see [the father] was no longer evident after they left [the mother]. They were observed to greet [the father] warmly when they saw him again, and both sought physical proximity with him”.
Mr P noted that, upon initial meeting, the children were observed to be interacting with the father in a “warm, friendly and comfortable manner”. He reports that “each parent provided appropriate reassurance and guidance for the children’s activities and provided each child with sensitive and affectionate attention”. After some initial quietness on N’s part “each parent effectively engaged him in communication”.
Mr P observed “no significant differences” in the children’s behaviour with each parent “expect for the children’s professed reluctance to see [the father] again in communication with [the mother] at the end of the observed interaction with her”.
I interpose here that the father’s evidence before me was (and it seems, has been before earlier courts) that, when the children are with him, after an initial period of “settling down”, they do not exhibit, in neither words nor conduct, any of the behaviours or words observed by Mr P when in their mother’s presence and which are otherwise alleged by the mother.
The father asserts (and has always asserted) that, when the children are with him, they are happy, loving children who relate to him warmly. He told Mr P the same thing.
Mr P ultimately concluded that the then existing parenting regime should stay in place, namely that the children live with the mother and have contact with the father on alternate weekends from Friday afternoon until Tuesday morning and, in the intervening weeks, from Monday afternoon to Tuesday morning (that is five nights per fortnight). Half school holidays was also provided for in those orders.
Mr P also concluded in that first report:-
“It is evident that the children have become closely aligned with [the mother’s] position in relation to [the father]. If it is accepted that [the mother’s] concerns about [the father’s] behaviour towards the children are either not soundly based, or not of serious concern in relation to the children’s well-being it will be important for the children’s contact with [the father] to continue”.
Mr P’s Current Report and Opinions
Mr P’s current report (dated 18.12.07) recommends that “the children live with [the mother] for the majority of the time” and (presumably consistent with that) that “the children spend regular time with [the father] for a day each week or each fortnight and in association with special occasions”.
It will be plain from that which has just been outlined that this recommendation involves a significant change from his opinion expressed some two years previously.
Understandably enough, the father sees this report as adverse to him. Whilst it is certainly true that its recommendation is adverse to the father’s case, the report, as I read it, and the oral evidence of Mr P as I understand it, do not involve adverse views about the father’s capacity to parent or, in one sense, his capacity to provide a meaningful relationship to the children.
Mr P’s true position is, in my view, perhaps best illustrated by poignant oral evidence given during the course of Mr P’s cross-examination by the father. At this point, the father had heard Mr P give evidence that his time with the children should be significantly curtailed:
[THE FATHER]: Don’t worry about me; I’m talking about the children themselves. They’ve been actively and – from your comments, abused – emotionally abused by the mother, and you’re saying, “Leave them with the mother”? --- That’s what I’m saying, yes.
So you actively encourage child abuse? --- No, I don’t.
Well, you just said that. You’re leaving the children with the mother. That what you recommended? --- That’s right.
Well, that’s abuse. How is it going to stop? On the history of what’s been going on in this court for the last eight to 10 years – [E] is nearly 10 - I mean even one day – do you really think that I’m going to be able to change their view, their attitude towards me, on the basis of one day after 13 years of continuous emotional tension from the mother? --- I think, if you’d be willing to accept some very limited time with the children for the time being, there’s a chance that your children will really appreciate that.
You believe ---?--- There’s a chance that your children will feel that wishes and views have been respected and accepted. I think there’s a chance that over time – that their relationship would improve – with you would improve a great deal.
The Independent Childrens’ Lawyer addressed a similar issue in his cross-examination of Mr P:
MR HEMSLEY: … I put the proposition to you that limiting the father’s time in the way that you have will effectively end the father’s relationship? --- I can’t predict the future, but my best estimate would be that the best chance these children have for a good relationship with their father in the future is for him to accept and respect the wishes that they are expressing now, along with – I think as I have recommended in my report – some limited and regular time in which they can have some experience of what he is actually like.
…
And really what you are saying is that, to progress here, both of them are going to have to address those issues as well, because it won’t work with the father addressing those issues if they go and spend thirteen days out of fourteen in an environment that’s, on the assessment of Ms [C], frankly poisonous? --- Perhaps I need to be clearer on my earlier answer, but as I suggested the possibility – or the best possibility of a good long term relationship , I am really talking about years here and I am really talking about the independent perspectives that the children will be able to gain as they gain more independence from both their parents and are able to have separate and perhaps even adult comprehension of what has been happening in their lives.
[THE FATHER]: I will be retired by then
HIS HONOUR: Stop it please.
MR HEMSLEY: So that is certainly in the short term, do I read that as a concession that there certainly may be some difficulties in [the father] even getting to spend a single day a week or a fortnight with the children? You would expect that? --- I don’t know about difficulties [in] getting to spend the time, but I certainly wouldn’t be surprised if there was continuing difficulties in the relationship. What I would hope, if I am taking an optimistic view, is that the children would have an experience of their views and their wishes being respected by [the father], which may enable some improvement to occur”.
HIS HONOUR: …The net result of that – a difficult process, as I understand what you are saying – is that notwithstanding the fact that if I find that this behaviour by the mother has occurred consistent with what Ms [C] is talking about, living in the predominant care of their mother might be to leave them in the predominant care of an emotional abuser. That might be the least worst situation for these children at the moment? --- That’s right.
In my view, the views of the children – or, more accurately, what the court should make of the expressed views of the children - are inextricably linked to this central proposition advanced by Mr P.
In particular, when the children are so adamant about their fixed views, and have been for a long time, and when the expressed views about one parent are wholly positive and the other wholly negative, and where the father says they are not the words (or actions) exhibited by the children when they are with him, a question might be seen to arise as to the importance of the veracity, or genuineness, of those views.
I specifically asked Mr P about that topic:
HIS HONOUR: “In order to accept that, is it a precondition that I should find that they are expressing their true wishes or does it not matter? --- I believe that they are expressing their true wishes. How those wishes were formed is another whole question again.
Well, assume they were formed via the process, for example, that Ms [C] speaks about. Just assume that for the moment. Assume that was the process that formed those wishes. What regard should I have to those wishes if they were formed in that way? That is the first part of the question. The second part of the question is, why should I then give credence to those wishes, formed in that way, in the way you have just suggested? --- I think over the course of years views are built up or can occur as a result, as I suggested, that children in order to cope will align with one parent or the other, and those views are authentic and they are genuine views, although they might be formed in circumstances which are unhealthy. To disregard or defy those views may have quite a damaging effect, I believe, on the children’s well-being”.
I returned to the topic at another point in the evidence of Mr P:
HIS HONOUR: … in order to accept the proposition that you have just advanced, do I need to find that the children, in saying the things that they have said, are expressing their true wishes? --- I have no reason to believe that they are not expressing their true wishes.
But if I find that they are not – in other words, if I find, for example, by reason of the process identified by Ms [C], that in fact they are telling people what Mum wants them to say – lets put it in simple terms – does your proposition still hold? --- I believe that if they were saying what their mum wanted them to say six years ago – what I hear them saying in 2005 and 2007, I believe that they are expressing what they actually feel.
I other words, it has become their reality? --- That’s right.
The Evidence and Opinions of The Childrens’ Psychiatrist
Dr B, who is a child and adolescent psychiatrist, first saw the children in June 2005 and continued to see them approximately monthly for over two years after that. He authored a report on 27 August 2007 which is in evidence and he was cross-examined.
In closing addresses, each of Ms O’Connor and Mr Hemsley sought, in effect, to downplay reliance on the evidence of Dr B. (The father sought that, in effect, I disregard the evidence of Dr B). That approach by counsel was, perhaps, prescient; in many respects I found the evidence of Dr B unsatisfactory.
The Report
Dr B’s report concludes as follows:
“I recommend that the children have no further contact with the father. If the children continue to see the father it is my opinion they will develop significant further psychological damage which could eventuate in a major depressive disorder. I am of the opinion that there will be no detrimental psychological impact from not having contact with the father.”
The doctor says further in his report:
“It is my opinion that the children suffer from reactive anxiety disorder. It is my opinion that this is as a result of emotional and physical abuse associated with contact with the father”.
And, further:
“It is my opinion that the father does not respect the fact that the children exist as individuals in their own right and that they have emotional and social needs as individuals. He believes that he has a right as a father to have contact, that he is non-supportive of the mother and that he does not have an awareness of the best interests of the children”
The doctor says “[t]hroughout these two years, the children have consistently complained of the fear and distress at having to stay with their father. This distress is expressed in a variety of ways, but is always discussed in detail at every session”.
The references made by the doctor to the specifics of what N has told him include:
“… he is always being put down and teased”
“He feels embarrassed that father makes frequent references to having a girlfriend and other inappropriate sexual reference”;
“There has never been any expression of affection towards the father nor any desire to see the father.”
“[N] has alleged that father has hit him or slapped him …”
As to references made by the doctor as to what E told him, the doctor reports:
“She says “just cos I’m a girl, he thinks he’s the boss of me. I hate him pinching my bottom and try and walk fast in front of him so it won’t happen. I try and stick up for myself but he shouts at me. He’s always saying something about ‘your crazy mother’”
A number of observations about Dr B’s report should, in my judgment, be made in assessing the weight to be attached to the opinions expressed by him.
First, although the doctor himself does not place this caveat on his opinions, it seems to me important to observe that he saw the children as a therapist. That is, his task was to treat the children as they presented rather than applying appropriate scepticism to all data (including what the children say) or focussing on the veracity of that data each of which ought, in my view, inform reports with a forensic purpose. An illustration of the distinction is given, in my view, by the report of the psychiatrist, Dr S, in respect of the mother and, in particular, the parts of that report earlier quoted.
Secondly, the opinions of Dr B are not informed by any input from the father. The circumstances surrounding why this is the case are somewhat controversial and, given the space they occupied during the hearing, should perhaps be referred to in some detail.
There was what I would describe as “an attempted meeting” between the doctor and the father on 23 August, 2007.
The accounts of the father and the doctor about the facts leading up to this meeting differ. The father alleges that he attempted to telephone the doctor twice. The doctor said he didn’t recall that. The father alleges the doctor saying words to the effect, “what are you going to do if you can’t see your children”. The doctor does not recall that, but doubts he would have said it. In respect of these factual matters leading up to the attempted meeting, I prefer generally the evidence of the father. The doctor answered many questions with “I can’t recall” or similar and I thought his evidence generally unconvincing in respect of those matters.
At the “attempted meeting” on 25 August , the doctor quotes the father as saying to him:
“When discussing concerns raised by [N], [the father] became angry and belligerent. He said, ‘[N] is telling you crap. It is all what his mother tells him to say’. When attempting to explore the issue, [the father] said, ‘Listen to what you’re saying. You have decided I’m a monster. You have no concept what you’re talking about. You need help. I feel sorry for you not doing your job”
The father does not accept much of what the doctor says of his behaviour and, in particular, denies being aggressive or intimidating toward the doctor. Yet, the father admits telling the doctor that he thought he was “an idiot” and a “moron”. Despite the father’s attempts to downplay his tone and manner, I can’t conceive that these words were delivered in calm and measured tones or that his behaviour generally would fit that description. I accept this exchange occurred as the doctor describes it.
Thirdly, the father alleges that the doctor had a preconceived adverse view of him as a result of things said to the doctor by the mother and the children. He attempted, he says, to give the doctor a folder (which, I gather, contained documents relating to the history of the matter which the father regarded as relevant) but the doctor refused to take it saying that he was there to have a conversation and the documents may or may not be relevant. The father uses, primarily, this fact and the telephone calls earlier referred to as a basis for confirming his view that the doctor had a preconceived view about him.
I do not accept the causal connection mooted by the father. However, I consider that the two matters just enumerated each (and in combination), together with the reports of the children of abuse, and fear of and antipathy toward the father, impacted on the doctor’s opinions of the father. In short, I consider that, by the time the doctor saw the father and witnessed the behaviour just referred to, he was of the view that what the children said of him and their relationship with him was true. In my judgment, this significantly impacted on the doctor’s ultimate conclusions. Putting the father’s hyperbole to one side, I think there is truth in his statement that the doctor had already formed a very adverse view of him and that this was important in informing the doctor’s ultimate opinions.
Fourthly, the two central ultimate opinions offered by the doctor are not qualified in any way. The doctor opines that no detrimental psychological impact will result for the children from not having any contact with their father. Further, the doctor’s recommendation that there be no contact is, it seems, informed by his opinion that there is a direct causal relationship between seeing their father and the development of significant further psychological damage and the potential for a major depressive disorder.
The ultimate opinions need to be put in context: a psychiatrist is asserting, in a report for an ICL for use in court proceedings, that an adolescent boy has never shown affection toward one of his parents in circumstances where no collateral data has, apparently, been obtained or assessed and in circumstances where it is known that there is a 10-year pattern of intractable conflict and in circumstances where such an assertion is contrary to the evidence contained in Mr P’s first report; contrary to evidence before earlier courts and contrary to the evidence of the father (which I accept)
Fifthly, the ultimate opinions advanced by Dr B in his report sit in stark contrast to the two fundamental rights of children set forth as Principles in s 60B and in contrast to the “benefit of a meaningful relationship” to which s 60CC(2)(a) refers in the context of assessing the childrens’ best interests.
Sixth, the report does not acknowledge, or indeed mention, as collateral data of significance, the then 10-year history of the dispute between the parties. In particular, no mention is made of that history in the context of arriving at an opinion as to the cause of the childrens’ reactive anxiety disorder. No circumspection is demonstrated in the report about accepting at face value the statements of the children when they present (having been in the company of their mother) when three earlier expert reports flag as issues of significance the influence of the mother on the words and actions of the children and observed differences in the children when with each parent.
Seventh, in the then two-year period in which he had been seeing the children, the doctor had never observed the father with the children
Eighth, the doctor makes no reference in his report to having considered any collateral data generally (for example from the childrens’ school).
Ninth, there appears in the report no exploration of the statement, apparently from an adolescent child, that “There has never been any expression of affection towards the father nor any desire to see the father.” By contrast, a similar statement made by the mother to Dr S appears to have rung, for that doctor, alarm bells (as in my judgment it ought to have).
Tenth, taken as a whole, the statements by the children recorded in the report require, in my view, significant further amplification, explanation or analysis if they are to found an opinion that, in the childrens’ best interests, there should be no contact with their father.
Finally, and probably as sub-set of the last-mentioned matter, no context is given by the doctor for any of N’s assertions. For example, it is not clear why a reference by the father to a girlfriend (if in fact any such reference was made in that way to N by the father which I doubt) in conversation with N should be regarded as an “inappropriate sexual reference”. Yet, the use of the word “other” in the passage from the report quoted above suggests that it is. No other examples are given of N recounting alleged “inappropriate sexual references” by his father.
So, too, no context, occasion or specifics are given of the alleged hitting or slapping (save for two specific matters to which reference is about to be made) by which the broad veracity, or true import, of the general allegation recounted can be assessed.
It is common ground that N is frightened of injections. It is also common ground that he was, whilst in his father’s care, administered a flu injection. The father says, and I accept, that this was done at a medical centre with the injection being administered by a nurse.
Dr B records:
“[N] says he was scared of having the needle and tried to resist. He claimed the father slapped him in the face”
The father does not deny N was scared. He does not deny that the child was resistant. The injection to a scared and resistant child, administered by a nurse, was administered, according to the father, by him holding N’s arms down to allow the injection to be administered properly. He denies slapping N. I believe his account and, specifically, believe him when he says he did not slap N.
Dr B also refers to an incident said to have occurred, apparently, on the same day. According to Dr B, N “claims that the father pushed him into a waste bin, yelled at him, hit him in the face and then punched him hard in the stomach”. The father denies any such incident took place, saying that he could recall smacking N (on the bottom) on only one occasion in the previous twelve months. Again, I believe his evidence and, that being so, call into question the veracity of the account given by N as reported by the doctor.
E alleges, that her father pinched her. This allegation, too, has its historical counterparts (including, it should be noted, E saying that the mother told her that the father pinched N). The father also denies any such conduct saying that, in his view, such behaviour would be sexually inappropriate. Again I believe his denial.
In my judgment, the matters enumerated and discussed above cast a significant shadow over the evidentiary value of Dr B’s report and the ultimate opinions it espouses.
Dr B’s Cross-Examination
Much of the cross-examination of the doctor was directed toward the issue of the veracity of the children’s accounts to him.
For example, he was asked whether he “believed what the children were saying implicitly”. He said that he assumed the children were communicating the things they did for a reason that was in accordance with their own perception of what is in their best interests and according to their level of maturity and development at the time of expressing those views.
When asked whether he accepted what the children said “as if it was real” the doctor responded by saying in effect that “it is a reality to these children”; that “their words are now a belief that has been developed for whatever reason.”
I asked the doctor about those views in the context of a potential finding that the mother had emotionally abused the children. Initially, the doctor demurred somewhat, indicating that I would need to be satisfied about a number of things before coming to that conclusion about the mother. Later, I returned to that issue with him:
HIS HONOUR: Doctor, here’s where I’m a bit confused again, you see. When I asked you before about drawing a conclusion that the mother had emotionally abused the children as a result of those things that I put to you, you essentially said that I had to treat that with circumspection and that I had to take account of a number of things, and I wrote them down. I had to look for, in reaching that conclusion: insecurity, anxiety, failure to thrive, developmental problems and academic and social problems. Now, I think as a result of your evidence I can safely conclude that certainly [N] has each of those things. So, if I’m drawing a conclusion of emotional abuse, those things are present, thereby allowing me to draw that conclusion. Right? --- Yes.
I am to conclude that the father has emotionally abused the children because – I took you down as saying – he expects the children to do particular things. I conclude from that, plus the factors that you’ve just referred to, that he’s emotionally abused the children. But, having read all the things that Mr [P], Ms [C] and Stevenson and Dawe JJ have said about the mother, I’m not to conclude that she’s emotionally abused the children Is that a fair summary and, if it is, why should I conclude things that way? --- No. I think I was agreeing that there was emotional abuse on both sides.
I see? --- I think the issue is what effect that is having on the children.
Yes, I see. And the answer to that, I think – well, not the answer perhaps, but the manifestation of that is that the effect it’s having, put in its most neutral terms, is that the children saying the things that they’re saying, and I should give credence to that. That’s effectively the summary I think, isn’t it? --- Yes.”
And, on a similar theme:
HIS HONOUR: “So if you do it long enough, frequently enough, severely enough, comprehensively enough and breach court orders, we eventually get to a point where the court has to say, ‘Bad luck, the horse has bolted’. That’s really what it comes down to doesn’t it? You’re nodding your head? --- Yes.
…MS O’CONNOR: Your Honour, I’m just a bit concerned about that last statement … “the horse has bolted … could mean a whole lot of things …
…
HIS HONOUR: Yes? --- Yes. Well, we’re specifically referring to the terminology used by children to communicate their perception of emotional distance from a parent.
Yes? --- And it has continued for such a long time that we accept it’s unusual in the extreme but it’s become a part of their belief system, feeling safe, thought, and that’s what I think you’re referring to – the situation now.
How do I unscramble the egg for them? If I say that this has become their belief system and, ‘Gee, isn’t it dreadfully sad?’ and if I find that this belief system has arisen because, over a long period of time, the mother has breached court orders; has inculcated this feeling in the children about their father, and if I find that’s without foundation, then what you urge me to do? And I think Mr [P] clearly says the same, right? In other words he would urge me to do the same; is to say, ‘Well, that may have occurred in the past, but that’s what you’re confronted with, your Honour, and if you’re fair dinkum about the best interests of the children, then you would have to accept that as a reality and take the pressure off them”. Does that in broad terms - - - ? --- Yes
- - - in crude terms, perhaps, essentially summarise what you’re trying to tell me? --- Yes, your Honour.
I took the doctor’s ultimate opinions to be underpinned by two central planks.
First, I took the doctor to be of the opinion that if, as the father asserted, the children are attached to him then, as they develop, grow and mature, they will make their own inquiries and develop their own relationship with him independently of anything I might find the mother has or has not done or is likely to do in the intervening time.
Secondly, I took the doctor to be of the view that it didn’t matter what the source of the conflict was for these children, he believed they couldn’t cope. He said words to the effect of, “if the conflict can’t be stopped, the time has arrived for exposure to the conflict to stop”.
However, whilst the doctor (and, to a certain extent, Mr P in his most recent report and his evidence) speak of the effective irrelevance of the objective truth of the children’s statements, each place reliance, as it seems to me, upon the words used by the children to each of them as true expressions of the childrens’ reality.
I am not convinced that is the case. An essential – perhaps the quintessential – problem in this case, is that I have grave doubts that what the children express to each of the doctor and Mr P is, in fact, their views. If that is right, proceeding on the basis that their expressed views are their reality is to proceed on a false premise.
I would feel significantly more comfortable about accepting the proposition that their expressed views represent their reality if it weren’t for the history of this matter which includes numerous pieces of evidence calling that into doubt typified, for example, by the comment by Mr P in his first report quoted earlier that, “it was notable that this professed reluctance to see [the father] was no longer evident after they left [the mother]” [emphasis added].
Furthermore, in Dr B’s case, I considered that his evidence in the witness box differed to that expressed in his report. The former, more in accord with the overall evidence of Mr P, seemed to me to be different in character to opinions offered in his report.
In particular, I find it difficult to shake the strong impression, gained from reading and re-reading the doctor’s report, and listening to his evidence, that an assumption underlying the doctor’s opinions are factual premises that the father has been, and is, physically and emotionally abusive and that it is the father and his actions and attitudes who is the source of the childrens’ problems as distinct from the parents conflict generally, and as distinct from any emotional abuse on the part of the mother.
If I am right about that, and I think I am, I consider those premises are, with respect, misplaced.
Conflict and Evidence From The Childrens’ School
Whilst the long and ugly history of litigation is an important factor in this case, and has been commented upon, it needs to be borne in mind that this trial emerges from its own application made after consent orders which, in turn, were made about two years ago.
The mother deposes that the catalyst for the current application was a conversation that occurred between her and Dr B on 21 August 2007. The mother says Dr B
“...advised me that children should not spend any more time with the father. He was most emphatic about this and was clear that the children should not go to the father on the 29th day of August 2007, the next period of time with him. On the 30th day of August I filed an application seeking orders that the children live with me and they not be required to spend time with their father …”
Earlier in that affidavit the wife makes the broad allegation that, since the final consent orders made in March 2006 “the father’s behaviour towards the children continued to be both thoughtless and abusive”.
In that affidavit she deposes to four specific incidents said to have occurred consequent upon the consent orders (which, as previously noted, provided for the children to spend six nights per fortnight with the father and eight with the mother).
The four specific incidents deposed to are:
·March 2007 N returning from his father’s complaining that he had been punched in the arm and pinched;
·April 2007 “the father took photographs of the children while they were sleeping and threatened to seel them on the internet” and told E “that she did not look like a girl in the photos as she did not have any “boobies””;
·June 2007 the children were ill;
·21 August 2007 N told the mother that the father had, on 18 August 2007 “slapped him on the side of his face making him cry” and around this time “also punched the boy in the chest”.
As previously mentioned, each of those specific allegations have direct echoes in allegations of the same type and nature made by the mother for many previous years. What was “new” after the final consent orders were made in March 2006 was the reporting of them by the children to Dr B.
Whilst it might be thought axiomatic that, in general terms, 11 years of litigation between the parties is productive of conflict for the children, the mother’s evidence (denied, it should be noted by the father) is in respect of four specific incidents.
It is in that context that a rhetorical question is posed by the father. Because changeovers occur at school and because there isn’t, and hasn’t for many years, been any form of direct contact between the parents, and because the children are, after an initial period of settling down, happy, content and cheerful during his time with them, the father asks rhetorically: “what is the conflict to which Dr [B] and Mr [P] refer and which appears to underpin much of their opinions”?
Whilst it seems to me that the father is somewhat lacking in insight (as is the mother) in failing to appreciate how the ugly and fractured relationship between them does not have a plethora of indirect adverse effects on the children, nevertheless, with that caveat, it seems to me that the father’s question has a foundation of significance.
It seems to me important in that respect to turn to evidence from sources outside of the parties (apart from Mr P and Dr B) in attempting to assess the impact the conflict experienced by the children from spending time with their prospective parents. In that respect, as previously commented upon, that type of evidence (leaving aside earlier judgments and reports) is remarkably thin.
However, I do have evidence constituted by the children’s respective school reports for the year 2007. (Exhibit ICL 4).
E’s report reveals a grading on 46 separate criteria. In all but two her rating is “Satisfactory achievement” or “Good achievement”. The other two are recorded as “Partial achievement”. In addition her “Effort/Attitude” is assessed across 11 subject areas. All are satisfactory bar two and in respect of each of those two, the assessment is “Excellent”.
It is, it seems to me, important in the context of the picture otherwise presented by Mr P and Dr B to record that the general comments made in E’s 2007 report about her:
[E] is a friendly and cheerful member of the class who has made steady progress in all areas of the curriculum throughout the year. It has been pleasing to see [E’s] confidence develop. She has improved with her oral language and general pronunciation of words. [E’s] handwriting has been excellent especially over the last two terms. She is now writing more legibly and taking more care with the overall presentation of her book work. In English, [E] has made steady progress in the genres covered this year. In Reading, [E] has displayed some difficulty in decoding unknown words and needs to put into practice strategies taught to her during Guided Reading. In Maths, [E] has worked to the best of her ability to grasp concepts taught in both Number and Space and Measurement. In Art [E] has displayed the technique of sketching and has produced some very good pieces of work. It has been a pleasure having [E] in the class. We wish her well in Year 4.
Of particular note, in the current context, is that the children had been spending six nights per fortnight with her father and eight with her mother until 21 August 2007, when the mother, apparently acting on the advice of Dr B, stopped the father from seeing the children. Proceedings for contravention resulted in reinstatement of that time. Despite what one might think would be the conflict and disruption consequent upon same, no specific comment is made about any such disruption, change in behaviour or the like in E’s school report and her progress is reported as “steady” and it is reported that her confidence has in fact developed during 2007.
N’s report sees him measured across eight subject areas. In all but two of those, his “effort” is measured as “of concern” and his best achievement is a “satisfactory achievement” in one subject with the balance being either “partial achievement” or “minimal achievement”.
Reports from individual subject areas include that he “needs to improve his concentration skills and not allow himself to be distracted by others in the class” and that he “displayed little enthusiasm”. In English the teacher records “Despite careful structures put in place and classroom support during Term 3, N did not hand up any major pieces of work for assessment, both written and oral. While he would work during class time he did not support his effort by completing tasks for homework”. A similar comment is made by the “Society and Environment” teacher who reports that “[N] did not hand up his major project”.
Interestingly, N’s report card includes provision for comment by the student. N says:
“This year I have learned more stuff in Maths, RE, English etc. Since this year I have been liking to do my homework and paid attention in class when doing work. All the years that I have been at school I was not doing my homework not caring at all about it and not listening to class but when I came into Year 7 I was starting to do work in class and homework at home. When I first started Year 7 in 2007 I was getting more friends and people asking me to play handball and other stuff with them. The two teachers I have liked in the last two years were Mr Z and Mr G. When I first came to the school I was thinking I would not fit in at [M School] but the first day I came I had about seven friends. In 2007 I have been looking forward to next year in 2008 where I will be in high school. Since I came to [M School] in 2003 I have like being here but next year I got to go to high school and make new friends. When I was in Year 3 I was thinking I would not make it to Year 7 but I did. To me this year has been the best because I got new friends, Year 7 jumper and being in games with other people.”
His class teacher records these general comments about him:
“During Term 4 [N] was far more settled which was reflected in his attitude towards his school work as well as his relationship with his peers. In order to maintain such progress that [N] made he needs to become more self confident in his own ability in all of the key learning areas and needs to realise that he is capable of producing work of an acceptable standard.
Completing homework and assignments remained an issue for [N] and it is something he needs to work hard on especially when it involves assessment tasks.
I would like to offer [N] all the best as he begins his high school education”.
The 2007 academic year included the period from approximately February through August when the children were spending six nights per fortnight with their father and eight per fortnight with their mother. Thereafter between about September and the date of the report they were not seeing their father.
The reports indicate N having been absent for 31 days during 2007 and late on ten occasions and E being 25 days absent and 11 days late
The father sought to make much of the children’s absence from school in particular, absences which “were unexplained” (Exhibit F4). In the absence of additional or further evidence, I don’t place particular weight on that factor. I am not prepared to arrive at conclusions about whether one party or the other is any better at facilitating homework, having the children attend school or having them attend school on time from the reports nor to draw any inferences generally from the reports about the general parenting capacity of each of the parties.
However, it is noteworthy that, in general terms, E’s school report is not, to my mind, indicative of a child in crisis. Indeed, the report seems to me to paint a picture of a happy child whose confidence is growing and who appears to be achieving consistent with her inherent capacities.
It is to be observed that the conflict between the parties in this case has been in place for the whole of E’s life. It is to be further observed that the comments about E are made against the background of the disturbance to her care arrangements in the 2007 academic year.
N presents a different picture in terms of his academic progress and enthusiasm. Interestingly, however, his self reporting is of a boy whose concerns about “fitting in”, making friends and the like upon changing to the school (as a result of the unilateral actions of the mother) have resolved over time and a boy who is, on his own report, actively looking forward to commencing his high school education in 2008.
His achievement levels might be described as poor as might his general enthusiasm for his school work and his participation in academic activities. There is no suggestion, however, in any evidence before me, that there has been a marked, or even noticeable, deterioration in either performance or attitude either in 2007 or at all.
Moreover, there is no evidence before me from the school (which N has attended, as at 2007, for about five academic years and E for three) that either of the children have made any complaints about violence or abuse of any sort, nor are there any reports that any teacher or other person associated with the school has observed any bruising or had any concerns about the children save in the academic sense already referred to.
Nor is there any reference whatsoever in the evidence before me from the school of the children expressing to anybody at the school any wish or desire to not leave the school with either parent nor are there any reports of any difficulties having the children attend school that are attributable to one parent or the other nor any reports that the children are seeking to leave school or seeking not to return to the care of either parent.
I am struck by what I see as the difference between N’s self reporting (and general comments made by his teacher) and Dr B’s summary of N’s mental state examination, that he was “…downcast and morose. His conversation was quiet and subdued. His mood was restricted and anxious. He had an expression of hopelessness”.
In comparing those things, I am also reminded of, and struck by, the comments of Ms C, made, now, many years ago in oral evidence before Stevenson J but just as powerful – and, in my view, insightful and correct – as they were then:
“ …[N] is caught in the middle of the battle and he has to be loyal to his mother because he lives with his mother. My view is that he really wants – would like to have a relationship with his father but he is prevented from doing that by his mother’s attitude. He sees his father as being his mother’s enemy and he is only eight years old. What kind of sense does a child make about all of that? So I see that as being more just frustration and anger at the whole process, the whole situation.
[N] has had many years experience of saying things to his mother that his mother wants to hear. He is really constrained. As I said before, he is constrained from having a relationship with his father and he has to – he is not allowed to say those things at home. He is not allowed to say whether he enjoys anything. That may not be because the mother has said “You must not say these things” but intuitively he knows that his mother does not want to hear these things, that his mother needs to hear that his father is a bad person. So this child is being inducted into this kind of situation and his view of his father has been quite clearly clouded.
I wouldn’t say that it is the mother’s coaching but I think it is the culture of the family where they all talk about the father in negative terms and these children know that they can only talk about him in negative terms. That then reinforces the mother’s view that the father is a poor parent and the children having contact with him is not good for them, so I see it as becoming a vicious cycle.
My view about it is that [N] is not allowed to say anything positive about his father when he is at home and he can only say things like “My father pretends to care about me”. He is not able to say “My father cares about me” even to himself.”
Those chilling words resonate for me through all aspects of the evidence in the hearing before me, including the evidence of Dr B and Mr P.
Exhibit ICL 1 is a report from the Department of Families and Communities prepared in respect of this family. That report says:
It is considered that the Court would benefit from giving reconsideration to the recommendations in [the Department’s] previous report [dated 29 June 2005].
…
In relation to the content of that report it is noted three of the notifications raised, alleging emotional abuse of the children were confirmed “based on the chronic and acrimonious relationship between the children’s parents”. The rationale for this decision is reproduced as follows:
This is evidenced by the emotional state of the children and in particular [N’s] physical symptoms of anxiety disorder. It is evident that both parents have a role in contributing to this emotional abuse. In regards to the alleged physical and sexual abuse an outcome Abuse Not confirmed is recorded due to insufficient evidence on the balance pf probabilities. [emphasis in original]
Put in crude terms, it is tempting to conclude that conflict and adverse comments about the father are made upon presentation of the children to people whose views are likely to be made known to a court. By contrast, when left to their own devices, including making statements to people like those associated with their school, their concerns are much more those that might be expected of children of their age even if, in the case of N and E, they have had to endure the burden of having these parties as parents.
Veracity, Reality and Two Worlds
As will, I think, be clear, even from the passages of evidence quoted earlier by me, I have struggled with the issue of whether, as both Dr B and Mr P suggest (albeit, perhaps, from slightly different starting points), the children’s expressed views represent ‘their reality” and ought be given credence irrespective of the veracity of the statements.
The first question which arises for me is, “which part or parts of the expressed views and to whom is their reality”. While the children are speaking with one voice, it may be possible to argue that they are “expressing their reality” but what of the situation where they are not.
Even where there is (apparent) unanimity in expressions by the children, the question remains, in my view, just as pressing.
Do I take as the “children’s reality” their “cool and withdrawn” manner and their “mov[ing] away or turn[ing] away from the father when he approached” or their “shrugs, grunts and monosyllabic answers” with their father as noticed by Mr P? Or is their reality, as the father reports (and which I accept) that they are “easy-going and fun-loving” during block periods of time once they settle in with him but then this changes, as the father alleges, “ … when they know they’re going to their mum” becoming “more distant and less co-operative in the day or so before they return”?
Which “reality” should I act upon? Why is one “reality” to be preferred over another? Why should I consider what they say to Mr P (or indeed anyone else, including the father) as their “reality” when I know what they have been through for the last 11 years?
An additional question, which I regard as equally acute and fundamental to the decision I have to make, arises in the context of the children’s “realities”.
If, as I find is the case, the mother loses no opportunity to denigrate the father and to denigrate him to the children and to promulgate what I have found to be false complaints about the father’s treatment of the children, what will be the “reality” of their perception of their father if they continue to live with the mother and not see their father?
As an example, the mother alleges (as she does now and as she has apparently done since 2005) that the father has behaved in sexually improper ways with the children. If this assertion is (as I think is highly likely) in fact, false, the children will be living with this “reality” with nothing but input in respect of it from the mother if, as suggested, the father is to have no contact at all with the children. Can it be said that this will have “no detrimental psychological impact” on the children? I think not.
The issue is, of course, broader than that one example. I find it inconceivable that the “reality” for these children, if the father is excluded form their lives, will be anything other than their father being portrayed in a wholly negative way by the mother.
I consider it highly likely that the “reality” for these children in that event will be the inculcation of views about the father that are negative and which are also likely to include (in my view false) views that their father is a danger to them both physically and sexually. It is difficult to imagine a more heinous “reality”.
I struggle to see how, in the light of conduct such as that by the mother, and the inculcation of that “reality” for the children, there is likely to be the “reapproachment” Mr P suggested in the poignant interchange with the father earlier quoted.
If – I repeat, if – that was to occur as an optimistic scenario might envisage, it occurs, on that scenario, at a time and pace dictated by the children. Axiomatically, it seems to me, that can only occur when they are “psychologically free” to do so – a time (given what these children have had to endure) not necessarily determined by chronological age, including attaining adulthood, but, rather, when they might assert their own views contrary to their mothers.
The mother, to use Dr S’s words, has a “ …complete inability to see any worth or value in her ex-husband being allowed to exercise his responsibilities as the father of their children”. It seems to me that the exclusion of the father from their lives risks that being the childrens’ perception of their father – a perception and role antithetical to the Objects and Principles of the Act.
In short, how are the children to, as it were, find their own way to their father in the future, if, in the interim, they are to have not only no contact with him, but to have inculcated and/or supported views and attitudes toward the father that do not represent the reality of who and what he is as a father?
It seems to me that, with respect, Dr B does not at all take these issues into account in assessing that there will be “no detrimental psychological impact from not having contact with the father”.
Whilst not taking these issues into account, in terms, Mr P appears to me to acknowledge these issues in suggesting (in his report) that there be limited time with the father.
Discussion of Proposals, Alternative Proposals and Orders
Parental Responsibility
By operation of law, each of these parties has parental responsibility with respect to the children. Parental responsibility is defined in the Act (s 61B) to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Save as the court orders, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly ordered. But, because this court proposes to make parenting orders there is a statutory presumption that the parties shall have “equal shared parental responsibility”.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the bests interests of the children for that presumption to be rebutted.
Although “parental responsibility” is defined, “equal shared parental responsibility” is not.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
In this particular case, the terms of the section must be considered against the background earlier outlined.
The capacity of these parents to agree upon the issues required by the Act to be the subject of joint discussion and agreement is, in my view, non-existent and likely to remain so. That incapacity is exacerbated in my view if parental responsibility is to be shared “equally”.
While the Act requires active co-operation and consultation in respect of major long-term issues when parties share parental responsibility (not merely when they have equal shared responsibility), nevertheless, an order for equal shared parental responsibility, to my mind at least, implies a greater and/or more frequent level of those activities – a situation highly likely to lead to yet further conflict which is contrary to the children’s best interests.
Accordingly, in my view, it is not in the best interests of these children for the presumption to apply and I find that it is rebutted.
However, that does not mean, in my view, that an order for “sole parental responsibility” in favour of one parent ought necessarily follow.
An order for “sole parental responsibility” in favour of a party means, it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children - is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. Moreover, in a case such as the present, it has the potential to say much about the role of a parent in the children’s lives.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is judged to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The very differences that militate against an order for equal shared parental responsibility can, equally, militate against an order for sole parental responsibility: the exclusion of one parent becomes more acute.
For those reasons:
· I consider the presumption of equal shared parental responsibility is rebutted;
· I do not propose to make an order for sole parental responsibility;
· I do not otherwise propose to make an order for the allocation of parental responsibility
the result of which is that each of the parties will continue to have parental responsibility for long term issues..
Time and Best Interests
That being so, it is not necessary for me to specifically consider the provisions of s 65DAA.
There is, in my judgment, little doubt in my view that what is best for these two children is for the conflict between their parents to end, for the mother to cease denigrating the father to the children and to accord to the children the right to know, be cared for and be loved by their father and for the father to look beyond who is “right” and “wrong” and to accept that the views of others who disagree with him may have validity and do not require an immediate emotional response.
I assess the prospects of any of those things occurring in the children’s best interests to be minimal.
I assess the prospects of professional assistance rendering these parents more capable of achieving those goals to be poor. However, the Independent Childrens’ Lawyer and Mr P each suggest that all hope ought not be abandoned in that respect. Specifically, they refer to the “KidsAreFirst” programme run by Anglicare SA.
Mr P says it is excellent. In effect, he suggests, correctly, as it seems to me, that as part of any orders that are made, the opportunity for the parties to receive assistance ought be availed of.
It is frequently said that the utility of ordering parties to attend therapy or programmes such as the one just mentioned is questionable. That may be so, but the circumstances of this case are exceptional as it seems to me and, in my judgment, the childrens’ best interests require me to “force” the parents to try the programme referred to. I will make an order to that effect.
Order 15 of the current parenting Orders provides, in effect, that no sessions with counsellor’s or therapists should occur without the husband’s consent. That order is, in my view important. But, in light of what I have had to say about the foundations of Dr B’s report and evidence, I will order in addition that any such therapist or counsellor to whom the children are referred or taken shall receive a copy of these Reasons.
Interim Orders and Review
I canvassed during the course of the trial a possible alternative proposal that would see the matter reviewed by me in, say, 12 months.
A primary concern underlying that thought was that the father contended (in evidence which I accept) that the children behave quite differently, and express quite different emotions, when they are with him and are not at all the children described by the mother or Dr B. That evidence is supported by evidence before Stevenson J.
As noted earlier in these Reasons, Mr P noticed, in his first report, a marked difference in the behaviours and attitudes of the children toward the father depending on whether the mother was present. He considered it significant. He considered the mother had a direct role in shaping the views, behaviours and attitudes of the children toward the father. I have made findings agreeing with that.
There is, though, no evidence – particularly expert evidence – which encompasses observations and collateral data gained during visits in the parent’s respective home environments and during day to day activities with each parent.
Such data might ideally also include good examples of what the children were expressing when in those respective environments (allowing, perhaps, some insight into the issue of the childrens’ “reality” discussed earlier).
I consider the evidence in this case deficient in these respects. (I hasten to say this is not necessarily a criticism – I am acutely aware of resource issues affecting all aspects of court proceeding).
With that in mind, I considered adjourning the matter for about 12 months and framing interim orders which would encompass a process similar to that described.
A number of things persuade me against this course. Most importantly of all, I could not persuade myself that the net potential benefits outweighed exposing the children to yet more scrutiny and prolonging these proceedings into their 12th year.
Lives With and Time
In my judgment, the children are not subject to abuse, violence, neglect or ill treatment in the father’s care as alleged by the mother. I find, however, that they are subject to the emotional abuse described earlier in these Reasons in the care of the mother.
However, contrary to the proposition put by the father to Mr P in the witness box, it does not follow that the children should, as it were, automatically live with him.
I find that the mother has been the predominant caregiver for the children. Mr P is of the view, and I accept, that removing them from their mother would come with dramatic emotional consequences for them.
Moreover, it is not clear to me just what time arrangements would, or could, be facilitated for the children with their mother. For example, the father’s position appears to be that, while he says he is supportive of the mother having a relationship with the children, that time comes with many, if not all, of the conditions contained in his Response.
I am by no means convinced that any time arrangements with the mother (whatever they might be) would be without conflict and a plethora of problems for the children, albeit it, perhaps, with different “labels”
The mother’s proposal involves the children living with her and spending no time with their father and, so it would seem, no, or insignificant, communication in any other form.
That result would appear to accord with the ultimate view of Dr B. For reasons earlier outlined, I do not accept that ultimate opinion. Nor do I give significant weight to the doctor’s evidence generally or many of the doctor’s opinions.
I have already said that such a proposal runs contrary to the Objects and Principles of the Act. The Objects and Principles are, like the Act’s mandatory Considerations, not immutable edicts, but pointers to best interests. However, in the light of those Objects and Principles, I consider it important to seek a strong evidentiary foundation pointing to the best interests of the children requiring such a result.
I am not persuaded that any sufficiently strong foundation exists in the present case.
I do not accept that the children are subject to abuse, violence, neglect or ill treatment in the father’s care.
On the mother’s proposal, they would have no relationship with their father let alone a “meaningful relationship”.
I consider that the children need time with the father within which they can experience their father for themselves.
Although I have many concerns about Dr B’s evidence, I clearly cannot, and have not, ignored his assessment that the children are suffering from a reactive anxiety disorder.
His posited causal relationship between the children seeing their father (or the actions of the father) and that condition is a different matter. It is not apparent that the doctor considered alternative causal factors generally or, specifically, the history of parental conflict to which the children had been exposed and the role of the mother’s emotional abuse in arriving at that conclusion.
As earlier observed, Mr P’s second report arrived at different ultimate conclusions to his first.
The children are older, of course, yet, it seems to me that many of the observations – the factual foundations upon which the ultimate opinions are based - are remarkably similar to the first report.
There is, for example, a repeat of the well rehearsed litany of complaints about the father and the childrens’ expressed views revealing the mother being wholly good and the father wholly bad (something which Mr P referred to as “remarkable”). In the first report, N was “…unequivocal in his expressed wish to have no further contact with [the father]; in the second report he was “… adamant that nothing could be done to improve his relationship and the only solution was to have no contact with him”
The first report saw the father having five nights a fortnight (four nights one week and one the other week) and a recommendation from Mr P that this continue. By the time of the second report, Mr P was of the view that this should change to “… regular time with [the father] for a day each week or each fortnight and in association with special occasions” and that “[he] is able to attend and participate in all relevant school events and continues to be involved in major decision making about the children’s lives”.
Naturally enough, it is necessary to seek the foundations for that change in opinion. There appear to be five:
· The original arrangements, in order to work “… effectively for the children, both parents would need to make significant changes to their behaviour and attitudes … [and] this has not occurred”;
· It was “strongly evident” that the current “8/6” arrangement was “ … not working effectively for the children”;
· In order for what is effectively an almost equal time arrangement to operate effectively for the children there needs to be high levels of co-operation, mutual respect, and communication between parents which qualities were absent here;
· The process of attributing one parent as wholly good and the other wholly bad appears to have intensified since 2005;
· The observations of the children with their father in 2005 were in contrast to their expressed views; in the 2007 interviews, “… this was not present”
The notion that the recommendations in 2005 were made on the basis of some vision of changed attitude and co-operation is in light of the history of this matter pre-2005 as, putting it at its kindest, surely the triumph of hope over expectation. I find it difficult to see how, if the previous history of this matter was properly taken into account, that view could be arrived at. Also, I find it difficult to see, reading the 2005 report as a whole, how the recommended continuation of the “5/9” arrangement was dependant upon a change to a then 8-year history of conflict and litigation.
It is not clear what the factual foundation is for the opinions as to intensification and lack of efficacy contended for. It seems – perhaps understandably - that Mr P has placed considerable reliance on the opinions of Dr B (see, for example, pars 64, 65 of his report and his evidence in the witness box).
My concerns about the foundations for those changed opinions, when combined with the other findings made, leads me to consider simply allowing the present (8/6) time arrangement to continue.
Yet, I am concerned, as it seems to me I must be, by Mr P’s clear view that the current arrangement “or any similar arrangement” is “clearly untenable”.
Mr P seemed to me to be child-focussed and to have applied appropriate balance in his assessment of the father and appropriate scepticism to the statements of the mother and of the children. His stark and clear opinion cannot, it seems to me, simply be ignored without a good foundation for doing so.
My earlier comments record some concerns I have about Mr P’s analytic process, but they are not of such a sufficiency that I can dismiss the clearly expressed opinion just referred to.
I am, for the reasons given earlier, circumspect about the utility of Dr B’s ultimate opinions emanating from a therapeutic (as distinct from a forensic) process. I have, for the reasons given earlier, discounted the weight to be given to his opinions. However, I do not ignore, nor discount, his diagnosis per se of the children.
Conclusions: Best Interests and Orders
It may be, as Mr P suggested to the father when being cross-examined by him, that the selfless, loving decision for this father to take if he was making the parenting decision would be to “back away” and allow the children to find their way to him in their time and in their way.
Doing so would undoubtedly require (as Mr P clearly acknowledged) enormous courage and strength of character. It would also require the father to accept that a woman who has been found to have flouted court orders and to have emotionally abused his children would obtain a result that, as it were, achieved her ultimate purpose.
But the task of a court is different. Its task is to arrive at a decision it considers in the best interests of these two children which it will force upon both parents. That decision is, in turn, not a decision which an individual judge would necessarily make as a parent (even if perfect empathy is possible, which it is not). Rather, the court’s decision must be based on as sincere and cogent an analysis of the evidence as is possible within an imposed statutory framework.
It seems to me that the evidence compels a conclusion, given what I have said above of my pessimism about the parents bringing about the changes that are really necessary to benefit these children, that the best interests of these children require:
· The children continuing to live predominantly with their mother;
· The amount of time they spend with their father being reduced;
· Them nevertheless spending regular time with their father;
· Them spending sufficient quantity of time with their father to allow them to experience him and his parenting;
· That time preferably being “down time” on weekends, by which I mean that the time can be used on social and leisure activities which the children are likely to find enjoyable;
· In that respect, significant time in school holidays;
· That the children be given the opposite message to what the mother seeks to give by the father spending time with them on special days.
On balance I consider that the father should spend time with the children from after school Friday until before school Monday (or Tuesday if a public holiday or pupil-free day) each alternate week as well as special occasions.
It seems to me that the other orders (made, I note, by consent) on 22 March 2006, which have continued to pertain since then should remain in force. The importance of each of them remains on the evidence before me.
I will simply amend those orders to reflect my judgment.
I order accordingly.
I certify that the preceding two hundred and ninety-one (291) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 27 June 2008
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