SANDEX & BONDIR
[2017] FCCA 79
•24 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDEX & BONDIR | [2017] FCCA 79 |
| Catchwords: HELD – Orders made for the Father to retain sole parental responsibility, for the children to live with the Father and to spend very limited time with the Mother. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B(2), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 |
| Applicant: | MS SANDEX |
| Respondent: | MR BONDIR |
| File Number: | MLC 1139 of 2008 |
| Judgment of: | Judge Bender |
| Hearing date: | 12 September 2016 |
| Date of Last Submission: | 14 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Mr Allen |
| Solicitors for the Respondent: | Macgregor Barristers & Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms Agresta |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
The Father have sole parental responsibility for all major long term parenting decisions relating to the children X born (omitted) 2002 (‘X’) and Y born (omitted) 2004 (‘Y’).
Before any major long term parenting decision is made in relation to X and Y the Father communicate with the Mother by text or email:
(a)The nature of the decision to be made;
(b)His views as to what should be done; and
(c)Requesting that the Mother provide a response within seven days thereafter.
If the Mother provides a response pursuant to the Father’s request as set out in the foregoing order, the Father shall consider it, and upon making any determination as to that decision, notify the Mother accordingly.
Should the Mother fail to provide any information to the Father with the seven day period as provided in Order 3(c) hereof the Father shall make the decision without further consultation with the Mother.
X and Y live with the Father.
The Mother spend time and communicate with X in accordance with X’s wishes, save for special occasions as set out in Orders 10 (a),(b),(c),(d) and (e) of these orders.
The Mother is permitted to attend X’s (hobby omitted) sporting events, debating and special events only if invited by X to do so in writing including text message.
The Mother spend time and communicate with Y as follows:
(a)during the school term once per month on the first Saturday or Sunday of the month between 10.00am and 4.00pm on whichever of those days he does not have extra-curricular or sporting commitments (or if he does that the Mother must ensure he attends);
(b)commencing term 1 holidays 2017, during the school term holidays from 3.30pm or the conclusion of school on the last Friday of term to 5.00pm on the first Sunday (i.e the first weekend) of the school term holidays; and
(c)during the long summer school vacation holidays commencing the first Friday after Christmas Day in the 2017/18 long summer vacation from 5.30pm Friday to 5.00pm Sunday and each alternate weekend thereafter subject to any other orders being in force and subject to the Mother being available to care for Y.
The Mother otherwise spend time and communicate with X and Y as follows:
(a)from 10.00am to 4.00pm on Boxing Day in even-numbered years;
(b)from 10.00am to 4.00pm on Christmas Day in odd numbered years;
(c)from 10.00am to 4.00pm on Mother’s Day in each year;
(d)On each of X and Y’s birthdays from 3.30pm to 5.00pm on a school day, with X and Y to be collected from school, and from 2.00pm to 6.00pm non-school days ((omitted) for X and (omitted) for Y);
(e)from 12 noon to 6.00pm on (omitted) in each year (the Mother’s birthday);
(f)by telephone each Tuesday with the Mother to initiate the call to X and Y between 7.00pm and 8.00pm, such calls to be made to X and Y’s mobile phones that have been provided by the Father and the Father to ensure X and Y’s phones are charged and have the necessary funding to enable X and Y to receive calls; and
(g)otherwise as agreed between the parents in writing by text message.
The Mother’s time that would otherwise take place in accordance with these Orders be suspended on Father’s Day and on the Father’s birthday between 10.00am and 4.00pm ((omitted) in each year).
The Father ensure X and Y attend an appointment to meet with Ms B, at his expense, at least once every four months or as otherwise directed by Ms B for a period of twelve months from the date of these orders (to monitor how X and Y are and make any recommendations).
The appointment of the Independent Children’s Lawyer be extended for twelve months from the date of the final orders or seven days from the conclusion of the last appointment with Ms B pursuant to paragraph 12, whichever is the latter and the Independent Children’s Lawyer is requested to liaise with Ms B to receive her feedback on how X and Y are and Ms B’s recommendations.
The Independent Children’s Lawyer have liberty to apply on short notice.
In the event the Mother is willing to attend a clinical psychologist who is familiar with family law matters the Mother shall advise the Independent Children’s Lawyer of the name and contact details of the psychologist and the Independent Children’s Lawyer is to provide a copy of the judgment of Judge Baker of 4 March 2016, a copy of the family report of Ms B dated 13 July 2016 and a copy of the judgment and final orders made in this matter to the psychologist.
Changeover is to take place at X and Y’s school and if not at school at the McDonald’s fast food outlet situated at the corner (omitted), (omitted) unless otherwise agreed by the parents in writing including text message.
Each parent is entitled to obtain copies of all school photographs, school reports, newsletters, notices, information pertaining to X and Y’s education, progress, school activities, parent teacher interviews, extra-curricular events and other circulars as may be available from the school and usually available to parents, at each parent’s expense.
The Mother is permitted to attend any school concerts and sporting events, for Y, at times when Y is in the Mother’s care pursuant to these orders, or as otherwise agreed between the parties.
Each parent is permitted to attend parent teacher interviews separately with the Mother’s interview to be in the absence of X and Y.
The Mother is restrained from making any decisions about X’s and Y’s education or their involvement in school events and communicating such decision to X and Y’s school/s without first obtaining the Father’s written consent.
Each parent must advise the other parent as soon as practicable of any serious illness or injury suffered by either of X and Y when in that parents care and provide details of the nature of the illness or injury suffered, the details of the treating practitioner and provide any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The Father is authorised to provide a copy of these Orders to X and Y’s school/s and their treating medical practitioners.
Each parent is restrained from denigrating the other parent in the presence or within the hearing of X and Y or allowing any other person to do so.
In the event X and Y are travelling outside the State of Victoria for the purpose of holidays the travelling parent give the other parent at least seven days written notice of the intention to travel and ensure that the other parent has contact details for X and Y whilst they are away.
Each parent keep the other informed of their current residential address and telephone number on which X and Y can be contacted and each parent is otherwise restrained from attending at or upon the other parent’s residential address without the prior written consent of the other parent.
Pursuant to section 64(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’) the Mother be restrained from making any application under Part VII of the Act in relation to X and/or Y without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit Court of Australia and for that purpose:
(a)the Mother must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;
(b)unless otherwise ordered such application is not to be served on the Father or any other person; and
(c)if possible, any such application for leave be listed before Judge Bender.
IT IS NOTED that publication of this judgment under the pseudonym Sandex & Bondir is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1139 of 2008
| MS SANDEX |
Applicant
And
| MR BONDIR |
Respondent
REASONS FOR JUDGMENT
Introduction
This very sad matter again returns to the Court in relation to the living arrangements for the parties children, X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”).
On 5 March 2015 Judge Baker delivered judgment and made final parenting orders after a seven day final hearing. Her Honour’s orders were upheld on appeal on 29 October 2015.
Judge Baker’s orders provided for the Father to have sole parental responsibility for X and Y, for X and Y to live with the Father and to spend time with the Mother each Sunday from 10:00am until 6:00pm for a period of two months and thereafter each alternate weekend from after school Friday until 6:00pm Sunday, each alternate Tuesday from after school until 7:00pm, by telephone each Monday and Thursday between 7:00pm and 8:00pm, for half of the school holidays and on special occasions.
On 19 November 2015 the Mother filed an Initiating Application seeking orders that Judge Baker’s orders of 15 March 2015 be discharged, that she have sole parental responsibility for X and Y, that X and Y live with her and spend time and communicate with the Father at such times and dates as ordered by the Court and only after he has completed an anger management course and a parenting course.
At the conclusion of the final hearing, Counsel for the Independent Children’s Lawyer handed up a detailed minute of orders sought by the Independent Children’s Lawyer. The Independent Children’s Lawyer’s proposed orders are:
“1. All previous parenting orders be discharged.
2. That the Father have sole parental responsibility for all major long term parenting decisions relating to the children X born (omitted) 2002 (X) and Y born (omitted) 2004 (Y) (collectively “the children”).
3. Before any major long term parenting decision is made in relation to the children the father communicate with the mother by text or email
a. the nature of the decision to be made; and
b. her views as to what should be done; and
c. requesting that she provide an answer within 7 days thereafter.
4. That if the mother provides any information pursuant to the father’s request as set out in the foregoing order, the father shall consider it, and upon making any determination as to that decision, notify the mother accordingly.
5. That should the mother fail to provide any information to the father within the seven day period as provided in order 2 hereof the father shall be entitled to make the decision without further consultation with the mother.
6. The children live with the Father.
7. The Mother spend time and communicate with X, as agreed between X and the Mother, save for special occasions pursuant to these orders.
8. The Mother is permitted to attend X’s (hobby omitted) sporting events, debating and special events, if invited by X.
9. During school term the Mother spend time and communicate with Y once per month on the first Saturday or Sunday between 10 AM and 4 PM, on a day where he does not have extra curricular or sporting commitments (or if he does that the Mother must ensure he attends).
Specific times
10. The Mother otherwise spend time and communicate with the children as follows:
a. from 10 AM to 4 PM on Boxing Day in even-numbered years;
b. from 10 AM to 4 PM on Christmas Day in odd numbered years;
c. from 10 AM to 4 PM on Mother’s Day in each year;
d. On each of the children’s birthdays from 3:30 PM to 6 PM on a school day, with the children to be collected from school; and from 2 PM to 6 PM non school days ((omitted) for X and (omitted) for Y);
e. from noon to 6 PM on (omitted) in each year (the mother’s birthday);
f. the Mother’s time that would otherwise take place in accordance with these orders is suspended on Father’s Day until 4 PM and on the Father’s birthday between 10 AM and 4 PM ((omitted) each year);
g. during school holidays the Mother spend time with Y from 3:30 PM or conclusion of school on the first Friday to 5 PM on the first Sunday (i.e. the first weekend) of school term holidays and;
h. during the long summer school vacation the Mother spend time with Y each alternate weekend from 5:30 PM Friday to 5 PM Sunday subject to any other orders being in force and subject to the Mother being available to care for Y;
i. by telephone each Tuesday with the Mother to initiate the call to the children between 7 PM and 8 PM and the father ensure that the mother has a telephone contact number to facilitate this order;
j. otherwise as agreed between the parties in writing by text message.
11. The Father must ensure the children attend an appointment to meet with Ms B, at his expense, at least once every three months for 12 months from the date of these orders (to monitor how the children are and make any recommendations).
12. The appointment of the independent children’s lawyer be extended for 12 months from the date of final orders or 7 days from the conclusion of the last appointment with Ms B pursuant to paragraph 7, whichever is the later.
13. In the event the Mother is willing to attend a clinical psychologist, that the independent children’s lawyer is authorised and permitted to provide a copy of the Judgment of Judge Baker of 4 March 2015, a copy of the family report of Ms B dated 13 July 2016 and a copy of the judgment and final orders made in this matter to the psychologist, who must be familiar with Family Law matters, and for this purpose the Mother must notify the ICL of the contact details of the psychologist.
14. Change over is to take place at the children’s school unless otherwise mutually agreed and all other change over take place at the McDonald’s fast food outlet at the corner of (omitted), (omitted).
15. Each parent is entitled to obtain copies of all school photographs, school reports, newsletters, notices, information pertaining to the children’s education, progress, school activities, parent teacher interviews, extra curricular events and any other circulars as may be available from the school and usually available to parents, at each parent’s expense.
16. The mother is permitted to attend any school concerts and sporting events, for Y, at times when Y is in the Mothers care pursuant to these orders, or as otherwise agreed between the parties.
17. Each parent is permitted to attend parent teacher interviews separately.
18. Each parent must advise the other parent as soon as practicable of any serious illness or injury suffered by either of the children when in that parents care and provide details of nature of the illness or injury suffered, the details of the treating practitioner, and the Father must provide any necessary authority for the mother to be provided with information from such treating practitioner.
19. Each parent is restrained from denigrating the other party in the presence or within the hearing of the children or allowing any other person to do so.
20. In the event the children are to be removed from the State of Victoria for the purpose of holidays the travelling parent give the other party at least seven days’ written notice of the intention to travel and ensure that the other parent has contact details for the children whilst they are away.
21. Each parent keep the other informed of a current residential address and telephone number on which the children can be contacted and each parent is otherwise restrained from attending at or upon the other parent’s residential address without the prior written consent of the other parent.
22. That the mother be restrained from making any application under Part VII of the Family Law Act to any court having jurisdiction under the Act without the leave of a Judge of the Federal Circuit Court and if practicable any such application for leave be listed before Her Honour Judge Bender.
The Father seeks that orders be made in the terms proposed by the Independent Children’s Lawyer save for three amendments as follows (and adopting the numbering of the Independent Children’s Lawyer’s proposed orders):
7. The Mother spend time and communicate with X subject to X’s wishes, save for special occasions pursuant to these orders.
10. i. by telephone each Tuesday with the Mother to initiate the call to the children between 7:00pm and 8:00pm, such call to be made to the children’s mobile phones and the Father to ensure the children’s phones are charged and have the necessary funding to enable the children to receive calls.
22. Pursuant to section 64(2)(g) of the Family Law Act 1975 (Cth) the Mother be restrained from making any application under Part VII of the Family Law Act without first seeking ex parte and obtaining the leave of a Judge of the Federal Circuit Court and for the purpose of such: (a) must file an application setting out the specific orders sought, and an affidavit setting out the evidence and reasons sought for seeking the orders; and (b) unless otherwise ordered by the court such application is not to be served on the other party or any other person; and (c) any such application for leave be listed before Judge Bender.
The Father also seeks two additional orders to those proposed by the Independent Children’s Lawyer. They are:
1.The Mother shall not make any decisions about the children’s education or the children’s involvement in school events without first obtaining the Father’s consent; and
2. The Father be permitted to provide a copy of these orders to the children’s school/s.
Background
The Mother was born on (omitted) 1971 and is aged 46 years. She is employed as a (occupation omitted). She has not repartnered.
The Father was born on (omitted) 1969 and is aged 48 years. He is currently unemployed having not been in paid employment for over two years. He has not repartnered.
The parties commenced cohabitation in 1996 and married on (omitted) 1999. They separated on 31 August 2007.
The Mother commenced proceedings in the Federal Circuit Court on 8 February 2008.
On 27 Ms J 2008 final parenting and property orders were made by consent. The parenting orders provided for the parties to have equal shared parental responsibility for X and Y, for X and Y to live with the Mother and spend time with the Father on alternate weekends and time in the alternate mid-week for a total of five nights per fortnight, for school holidays and special occasions.
Prior to the making of the final orders on 27 June 2008, the parties, X and Y attended upon Ms J who prepared a family report dated 17 June 2008.
On 10 December 2013 the Mother issued an urgent application seeking a recovery order and suspension of time on the basis the Father had over-held X and Y.
On 19 December 2013 the parties, X and Y attended upon Dr L for a child inclusive conference pursuant to section 11F of the Family Law Act 1975 (“the Act”). Interim orders were made listing the matter for final hearing, for the parties to attend a post separation parenting course, for the preparation of a family report and that X and Y’s living arrangements resume in accordance with the parenting orders of 27 June 2008.
Pursuant to the 19 December 2013 orders, the parties, X and Y attended upon Mr T who released a family report dated 31 July 2014.
On 3 September 2014 orders were made for the Mother to attend for a psychiatric assessment. The Mother attended Dr T and he prepared a psychiatric assessment of the Mother dated 17 November 2014.
The final orders made by Judge Baker arising from litigation are set out in paragraph (3) of this judgment.
On 24 April 2015 and 9 June 2015 the Mother filed Contravention Applications alleging multiple breaches by the Father of Judge Baker’s parenting orders. These applications were heard by Judge Baumann on 3 August 2015.
In relation to the Contravention Application filed 24 April 2015, Judge Baumann found the Father had breached paragraph (4)(c) of the 5 March 2015 orders by failing to facilitate telephone calls between the Mother and X and Y on 30 March 2015 and 13 April 2015 only. Judge Baumann dismissed all counts raised in the Contravention Application filed 24 April 2015. Her Honour also dismissed the Contravention Application filed 9 June 2015 in its entirety. His Honour imposed no sanctions on the Father and amended order (4)(c) of Judge Baker’s orders to clarify phone communication between the Mother and X and Y. He ordered the Father contribute $500 towards the Mother’s costs.
The Mother filed further Contravention Applications on 27 October 2015, 1 December 2015, 18 January 2016 and 3 May 2016.
When the Mother’s current Initiating Application first came before the Court on 19 May 2016, the matter was adjourned to 20 July 2016.
Orders were made by consent providing for the Mother to have liberty to withdraw all her Contravention Applications and for the parties, X and Y to attend upon Ms B on 23 Ms J 2016 for the preparation of a family report.Ms B prepared a family report dated 13 July 2016.
In Ms B’s family report she recommended that X and Y live with the Father, that he have sole parental responsibility, there be limits regarding the Mother’s participation, attendance and correspondence with X and Y’s school and extra-curricular activities and that the time X and Y spend with the Mother be suspended until the Mother engaged in therapeutic counselling to ensure:
“she strengthens her own psychological health especially in relation to her lack of insight and capacity to consider how her behaviour and narrative contributes to the children’s current difficulties and lack of bond in the parent-child relationship”.
Given the matters raised and recommendations contained in Ms B’s report on 20 July 2016, orders were made adjourning the matter to 28 July 2016 for an urgent interim hearing, for the urgent appointment of an Independent Children’s Lawyer and for the Mother to file an affidavit addressing the matters raised in Ms B’s report.
The Mother swore an affidavit on 26 July 2016 in response to Ms B’s report. In her affidavit the Mother expressed her belief that the comments made to Ms B by X and Y of the difficulties in their relationship with her and their wish to live with the Father and spend no or minimal time with the Mother did not reflect their true feelings but were because:
“Both the children are extremely smart and understand anything they say to someone such as a report writer will get back to the respondent father consequently they repeat what he tells them to say and are unable to be truthful, as they are fearful of further and continuing retribution from him especially after witnessing him hurt me – in a kids mind if he does that to my mum, what will he do to me and as a response to his continuing threats to hurt me and inferred intimidation to hurt them.”
On 28 July 2016 the matter was listed for an urgent final hearing on
12 September 2016 and interim orders were made as follows:
9. The Mother’s time and communication with the children X born (omitted) 2002 (‘X’) and Y born (omitted) 2009 (‘Y’) (‘the children’) be suspended save as provided for in this order.
10. The Mother is to have telephone communication with the children each Monday with the Mother to initiate the telephone call to the children’s mobile phone or phones with such communication to take place from 7.00pm until 7.30pm.
11. The Mother be permitted to:
(a)attend a parent/teacher interview in the first week of September provided that such attendance shall not include the children and can be accommodated by the child’s school; and
(b)attend as part of the audience only on the Thursday night performance of the school production in which X is participating.
The Evidence
It is my usual practice when writing a judgment to consider the evidence of the parties prior to that of the experts. In this matter however, the evidence of the report writer is central to the case and the evidence of the Mother in particular. Accordingly, Ms B’s evidence will be considered first.
Ms B
Ms B is a child and family counsellor and a Regulation 7 family consultant with the Federal Circuit Court of Australia.
Ms B prepared a family report dated 13 July 2016. Ms B adopted her report when giving her viva voce evidence at the final hearing.
In her family report at paragraph 10 when discussing the Mother, Ms B notes that the Mother:
“appears highly suspicious and unfavourable in her views of the Father as someone who she experienced as manipulative, controlling and threatening, in addition to the view that the Father is fundamentally untrustworthy and subsequently neglectful of the children’s wellbeing.”[1]
[1] Paragraph (10) of Ms B’s family report dated 13 July 2016.
In paragraph (11) Ms B sets out that the Mother believes that X and Y are “not coping”. Ms B notes that when she challenged the Mother that she is the only one who has that view given past reports and current interviews with X and Y, the Mother is reported to have responded: “I am the Mother, I know best”.
Ms B summarises the Mother’s concerns for X and Y at paragraphs (12) and (14):
“12. Ms Sandex believes that any disclosures by the children that suggests they are settled, well adjusted, developing well and happy living with their father is because the children are ‘clever’. Ms Sandex believes the children are ‘smart’ to ‘tell you what they need to knowing its going to Court’. Ms Sandex claims the children continue to inform her the father ‘still makes threats to hurt me and the children’. Ms Sandex stated the father has told the children, ‘if you don’t do what I say I will hurt your mum’. Ms Sandex stated this is consistent with the children reporting to her that the father ‘told them to run away from me’ despite this contradiction discussed in previous family reports.
…
14. In explaining her concerns for the children, Ms Sandex stated she believed the children are not adequately cared for by the father with regard to their school work, homework, nutrition and health needs. When suggested the children appear to be doing well, by their own admissions in interviews, including participation in a broad range of activities, strong connections with peers and a high opinion of their teachers, Ms Sandex responded, ‘they are doing well because of my assistance’.
In paragraph (18) of her report Ms B writes that the Mother felt that her interview with Ms B had not allowed her to focus on her concerns for the children, but rather was more focussed on the parental relationship and specifically the Mother’s views of the Father. Ms B writes that the Mother again explained that her concerns for the children relate to the Father’s neglect of their medical needs, school work and poor nutrition.
Ms B writes in paragraph (11) that she sought to explore with the Mother the issue of the tensions and difficulties in her relationship with X, as had been reported by X in interview. Ms B notes the Mother provides a contrary picture describing their relationship as “we are very close”. Ms B then makes the following observation”
“This contrary view was consistent throughout the interview. When suggested for example that X complains that her mother attends all debating nights (unlike other parents) Ms Sandex stated her daughter especially asks her to go.”
In paragraph (18) of her report Ms B notes that the Mother refutes that there are any issues in her intimacy and bond with X and Y, that she believes they regularly ask to return to live with her, that they fear the Father and are forced to do things that appease the Father, for example play (hobby omitted) rather than (hobby omitted).
In paragraph (15) of her report Ms B writes that there appeared to be no recent events or change in circumstances following the orders of Judge Baker, given the Mother often referred to past experiences and views that had been provided for and addressed in previous proceedings. In response to this observation Ms B notes that the Mother believes the Court did not adequately address her allegations of domestic violence.
Ms B then writes that given the allegations of violence and the Mother’s concerns this issue has not been adequately addressed in previous proceedings, the PPP screening tool was used to assess risk in accordance with the Family Violence Best Practice Principles (2012). Ms B sets out that the PPP tool analyses risk by reference to three factors: the potency, pattern and primary perpetrator of the violence.
In paragraphs (44)-(70) of her report, Ms B sets out in considerable detail the PPP screening tool risk analysis of family violence undertaken with the Mother. At paragraph (71) she sets out her conclusion drawn as a result of the PPP assessment tool undertaken by the Mother as follows:
“The PPP Assessment Tool indicates that the risk to the mother and children as posed by the father is not evident. The risk of exposure to future family violence appears to be invalid, with no evidence of any escalation of violence, nor any evidence that supports the mother’s disclosures. There are no indicators that the children face any risks of harm in the father’s household, as there is no supporting subpoenaed material to support the allegations of violence. Certainly the children do not present as fearful of the father as it appears Mr Bondir has a loving relationship with them. The fear and stress identified by the children themselves was in relation to concerns for their mother’s response to repeated reports of their desire to have less time with her as they seek to be supported in their interests, wishes and activities not currently supported during time with the mother.”
When discussing the Father, at paragraphs 19 and 20, Ms B in her family report states the following:
“19. Mr Bondir presented as a person who was cooperative and gentle, as he appeared open and genuine. Mr Bondir presented his concerns respectfully even when in contradiction to that of the mother, as he did not present as unfairly critical or judgemental of the mother, but rather appeared to need assurances that the mother’s time with the children is in the children’s best interests given his view that she continues to expose the children to her negative narrative of the father…
20. Mr Bondir describes the children as settled and happy in his primary care. He stated, “Us three are great”. He explains the children are progressing at school, that they are well engaged with their peers, and actively involved in extra curricular activities when spending time in the father’s household.”
In paragraph (27) of her report Ms B writes that the Father told her he does not undermine the opportunity for X and Y to have a relationship with the Mother and that he expressed a wish that they were able to have meaningful relationships with both parents.
In paragraph (27) Ms B further provides as follows:
“Mr Bondir stated, “I wish things were better” for the children with the mother, but he observes the children to be doing well in all other aspects of their school live and activities. Mr Bondir stated he engaged the children in counselling following Final Orders as required, and with no issues identified for Y, the counsellor recommended ongoing appointments for X given she had identified issues in her relationship with her mother. Mr Bondir expressed disappointment that despite invitations from the counsellor for the mother to participate, she refused. Mr Bondir was clear, he was not present for the appointments, and only met with the counsellor for the purpose of feedback that related to supporting improvements in household routine”.
In relation to the counselling referred to by the Father, Judge Baker in Order 10 of her orders of 5 March 2015 required the Father to forthwith “arrange counselling for the children from a suitably qualified and experienced counsellor to assist them in the adjustment of their living arrangements.”
In paragraph (13) of her report Ms B sets out that when she explored with the Mother why she didn’t participate in counselling with X, the Mother explained that the purpose of the counselling was not to deal with tensions and difficulties in her relationship with X and she therefore did not attend. Ms B indicates that when she suggested to the Mother that this was not responding to X’s need or strengthening a relationship that X had identified as problematic, the Mother explained that X and Y disclosed to her that the counselling session occurred with the Father present and therefore any information that the counsellor had would have been tainted by the influence of the Father.
In paragraph 28 of her report, Ms B describes X as a delightful, insightful and mature young person who impressed with the openness and frankness of her experience of her parent’s separation and the events that have occurred in relation to a change of residence in March 2015.
In paragraph (30) Ms B notes that X is very aware of her mother’s views of the Father as a dangerous, manipulative and intimidating parent. Ms B notes however that X is insistent that this is not her experience of the Father and in contrast she experiences her mother as domineering, controlling and threatening. X complained to Ms B of her mother insisting that she text and phone her or that she couldn’t see her friends. X also complained about the Mother’s insistence that she not have the mobile phone that she uses when with her father whilst in the Mother’s care. X was especially critical of the Mother not supporting her attendance at (hobby omitted) on the premise that the Mother tells her “you have been manipulated by your father to play (hobby omitted) so I’m not going to be manipulated into taking you’.
Somewhat succinctly Ms B notes that X told her that ‘we (being she and the Mother) always end up fighting”.
In paragraphs (31)-(32) of her report Ms B states the following:
31. The writer was very impressed with X. She was engaging, outgoing and had a wonderful personality. She is strong, possibly stubborn, righteous in her views, and was undoubtedly frustrated that her feelings and views are not more seriously considered by her mother. The writer believes that any bond and intimacy between them has been disrupted by the mother’s lack of insight into this wonderful young lady who is very insightful into her parents discord. X stated that If she was a divorced parent she would ‘never put my kids through what I have been put through’. She describes her father’s messages as supportive of his wish for the children to have a relationship with her mother, in contrast to her experience of her mother as constantly critical and suspicious of her father. X views her mother as ‘unreasonable’ as she believes she is more focused on ‘destroying the other parent’ rather than any focus ‘on the kids’.
32. In the absence of a nurturing and warm relationship with her mother, X appears to have independently formed key relationships with other mature women that she relies on for emotional support, as she clearly does not have any confidence to confide in her mother. This is very disappointing, and certainly the writer observed X as emotional and sad that she felt she could no longer resolve the conflict and tensions between herself and her mother, as she finds herself increasingly angered and disconnected to her mother, including her clear statement that it was her decision to ‘run away’ from her mother on two occasions. Sadly if X was given the choice to determine her own time with her mother, the writer fears that it may be no time at all.”
Ms B reports that X appears to be developing well whilst living with the Father and that she is clearly self-motivated, engaged and well-adjusted to her secondary schooling and home environment.
In paragraph (34) Ms B described X’s relationships with her parents as follows:
“34. X spoke lovingly about her father, she was able to describe the differing parenting styles of her parents when she is ‘angry’ and was able to identify that her father is the most calming influence. X was unable to feel confident that any disputes or tensions with her mother are resolved other than her mother presuming she is ‘right’ with X feeling dissatisfied with the outcome as she appears to be building resentful feelings towards her. X was especially uncomfortable with the way in which her mother engages her school life as she views it as interfering and intrusive, including the mother’s numerous emails to teachers and appearances at regular events that other parents do not attend, for example, debating nights.”
Ms B concludes her discussions of X in her report at paragraph (36) as follows:
“36. A growing pressure has emerged about the need for X to talk about her wishes and feelings with regard to how she spends time with both her parents, especially with her mother. Although X would prefer that there would be an end to court proceedings and involvement with professionals, she also does not want decisions to be made that changes her life without any consideration for her feelings and views. The writer believes that in order to support X’s time with her mother, that the mother will need to seek ongoing advice from professionals that are trained and skilled to understand how the mother needs to behave to ensure that the child experiences the mother as interested and valuing the relationship, as her emotional absence and inability to validate the child’s views appears to be negatively impacting on the formation of a parent-child bond.”
Ms B describes Y in paragraph 38 of her report as initially presenting as a shy and introverted boy but one with a happy and relaxed disposition. She notes Y does not exert himself whilst in the presence of his sister, who is clearly the more dominant character. She notes that this does not seem to concern Y.
In the second paragraph (38) of her report Ms B sets out that Y described feeling “nervous and worried” in relation to the interview and then stated as follows:
“He is well aware of past interviews, reports and outcomes, and the consequences of his mother ‘overreacting’ when she reads comments they have made to past family consultants. Y was therefore hesitant to describe any wish to change the current arrangements with the mother, although he corroborated with his sister’s disclosures that there were many tensions and issues relating to the current arrangements. This especially related to his mother’s failure to support his interest to train and attend (hobby omitted) in addition to the requirement that they are not allowed to take their mobile phones to their mother’s household.”
In paragraph (40) of her report, concluding her observations of Y, Ms B states as follows:
“40. The writer holds grave fears and is deeply concerned for the long lasting difficulties in Y’s emotional development and interpersonal relationships in his future. Undoubtedly his experience of his family involves unacceptable long-standing hatred, anger and hostility that are clearly unpleasant and confusing for Y, especially in context of numerous allegations against his father and the deleterious consequences. Further, that he is clearly overwhelmed by his parents discord as he becomes embroiled in his parent’s conflict, making the task of maintaining a positive relationship with both parents, untenable. Y expressed a wish for his parents to be cooperative and friendly, as this would enable him to ‘spend time with both of them without upsetting the other parent’.”
Under the heading “Evaluation” Ms B states the following:
“41. One of the most striking features of this matter is the response to the mother, which requires cautious and comprehensive consideration when determining future remedies. Although it is clear that the children, especially X, expressed a strong wish to have less time with the mother, what is important when exploring and understanding the causes of this behaviour is to understand that although it is common for children to have times when they are upset, negative and angry toward one or both parents during the divorce transition, the writer suspects that these children are pained by loyalty conflicts as they are made to feel like they have to choose between their parents given the mother’s negative narrative of the Father.
42. It is not unusual that for a child aged 8 and above, that when they are exposed to their parent’s prolonged conflict, that they can be overwhelmed by a parent’s negative views of each other. This is especially so when there has been an intense level of litigation and conflict, as is the case in this matter. For children like X and Y who have experienced this situation since separation, they are most susceptible to becoming alienated, as they tend to view one parent as all good and the other as all bad. However, the writer did not observe the children as exhibiting obsessive hatred of the mother, nor make various claims against her or absurd complaints. There was no ‘borrowed scenarios’ that were broadcasted by the father, as they appear to describe issues that relate to their own direct knowledge and experience of the mother to justify their rejecting stance. There was no suggestion that their views were influenced by a parent, especially with X, who presented as very forthright and independent in her opinions and wishes
…
72. What has further exacerbated their negative response to the mother is the children’s exposure to the mother’s narrative and position as she presents as a hostile and manipulative parent who is highly critical of the father. More concerning is the mother’s efforts to portray herself as the victim of the father’s manipulative and dishonest actions, which can only be interpreted as self-serving and ego-centric, as she ignores the undoubtedly humiliating and confusing experience for both children...
73. The writer is concerned that the children are highly exposed to the mother’s emotional reactions and views, particularly those deep feelings of resentment relating to the father. Ms Sandex appears to rid herself of any blame by actively seeking to prove that Mr Bondir is totally inadequate, irresponsible and dangerous for the children. In her effort to seek validation, she may enlist a great deal of support from family, friends, the children’s immediate community and other professionals. And so, her own perceptions of the father as dangerous and inadequate are reinforced by those friends and professionals, further fuelling all the disputes, as she attempts to present as compelled to fight to protect the child from the danger of the other parent. Ms Sandex convinces herself that the other parent is harmful and it is her duty to save the children from this parent.
74. Given the mother’s narrative and views of the father can extend to family, friends and the school environment, this appears to be placing pressure on the children as X increasingly reports dissatisfaction with her mother’s involvement in her school life. X identified positive relationships with peers and teaching staff at her school, and engagement in a range of activities that she was separate to any involvement of her mother that she viewed as a disruption only further building resentment and disapproval of her mother. This may need to be considered by way of further Court direction that limits the entitlement of both parents to attend school events that are ordinarily attend by parents.
75. When considering recommendations, the writer acknowledges that this matter may be dependent on the Court’s determination of evidence in light of the severity of the mother’s allegations. However, should the children’s highly rejecting position and subsequent vulnerability be the result of evidence that supports a ‘realistically estranged’ dynamic, the writer questions if the current arrangement of time is not meaningful to the children. This is on the basis that the mother vigorously resists any suggestion that her own severe parenting deficiencies have negatively impacted on the parent-child relationship. As there is an urgent need to validate the children’s experience and allow them to be heard.
76. Certainly the writer would always support ongoing participation in therapeutic counselling and education for all family members. There is always the hope that improvement can be made by helping parents gain a better understanding of how their post separation behaviour has affected their children, although the writer agrees with past reports that the prognosis for any change in regard to Ms Sandex is poor. As noted by Dr T, Ms Sandex, “Therefore represents a considerable risk to the children’s welfare in respect to her lack of support of their relationship with the father”. As a result, some form of direction from the Court regarding a suspension of time for the children with the mother is supported by the writer until Ms Sandex is engaged in therapeutic counselling with a skilled expert who is trained in family law cases where a matter is suggestive of gatekeeping and alienation. The writer believes that such Court direction helps take the pressure of X and Y to decide. Given the potential pressure and exposure to the mother’s negative views, shorter periods of time with the mother may be helpful, in order to assist the children to rebuild a relationship with the mother without any intrusion by her into their living and school environments.”
Ms B made the following recommendations in her report:
·That the children live with the father.
·That the father has sole parental responsibility of the children.
·That with regard to any information or knowledge of the children’s progress, the mother should put this in writing to the father for him to respond within 14 days.
·That there are limits regarding the mother’s participation, attendance and correspondence with the children’s school and extra curricular activities.
·That the time for the children with the mother be suspended until the mother is engaged in therapeutic counselling to ensure she strengthens her own psychological health especially in relation to her lack of insight and capacity to consider how her behaviour and narrative contributes to the children’s current difficulties and lack of bond in the parent-child relationship.
·That upon engagement in counselling, the children spend day time only with the mother each alternate weekend (for example four to six hours), on the basis that the time does not prevent them from participating or attending any extra curricular activities.
·That any further professional intervention should be time limited and reviewed to ensure the children’s psychological and emotional wellbeing is not compromised. Should this occur, then the Court may be required to consider an arrangement for the children where they are supported to have a relationship with one parent, but not the other, and that the question of whether that should be the father or mother be dependent on the testing of evidence.
·That the Independent Children’s Lawyer be given the discretion to provide a copy of this family report to the school principal and any other professional or organisation that becomes involved with the family.
When giving her viva voce evidence Ms B indicated that she met with X and Y again on 2 September 2016 in the company of the Independent Children’s Lawyer. When commenting on her second meeting with X and Y it is Ms B’s evidence as follows:
“It was, from my perspective, interesting to meeting them again on a second occasion. Not often something we do in family reports. So I thought it was interesting to observe them as presenting consistently to me, as they did in the previous interviews, in terms of their personalities; in terms continuing to express their views about their time with their mother. There was many things that they responded to questions by the ICL, without my interference, that was consistent with their responses to me.
In relation to the discussions she had with X and Y about their experience of the suspension of time between the July orders and when she saw them in September, it is Ms B’s evidence that X expressed a sense of relief and felt, for the first time, that her voice had been heard.
Ms B also noted that X spoke of hoping that her mother was actually hearing her voice and the fact that X was hoping that to be the case gave Ms B the hope that X does want a relationship with her mother.
In relation to Y, Ms B confirmed that he still wants to spend time with the Mother, but at the same time he told her that in the last three months he had felt like he was “in a better rhythm.” Ms B’s evidence is that Y talked about the consistency of knowing what was going to happen every day, which very much related to his sporting interests which are not necessarily supported when he is with the Mother.
Ms B states that she is very pleased that X and Y present with quite independent views about their relationship with their mother and their wishes to spend time with her. In particular, she is pleased that Y, despite the position of X, was able to quite separately say “I’d actually like to see Mum”, even if he would like that time to be restricted.
Ms B was questioned about the recommendations in her Family Report. It is her evidence that she is no longer recommending that there be a suspension of time and that she said to X and Y, and particularly X that “not seeing your mum is not a solution here.” It is Ms B’s evidence that a solution must be found, and not just for the next four years, but for the next forty years as it is important that X and Y have a relationship the Mother.
It is Ms B’s evidence that X’s view is that she has engaged in counselling but the Mother has never participated and that her relationship with her mother will only improve if she sees changes in her Mother. It is X’s view there is nothing more that she can do at this time to improve her relationship with the Mother.
It is Ms B’s recommendation that there should be specific orders made for X to spend time with her mother for special occasions only, but otherwise there should not be any orders for regular time between X and the Mother. Rather, it is Ms B’s evidence that the “best of the worst” options available to the Court at this stage is to enable X to make the decision herself as to the time she spends with the Mother.
In relation to Y, Ms B had put to her the Independent Children’s Lawyer’s proposal that in addition to special occasions, Y spend one day per month with the Mother during the school term (this time not to be overnight), a weekend in the term school holidays and alternate weekends in the long summer vacation.
It is Ms B’s evidence that she would support this proposal, but she expressed concern about how Y would experience that time without X being there as X is very protective of Y and in X’s absence he could be susceptible to pressure from the Mother.
Ms B had put to her the Independent Children’s Lawyer’s suggestion that a way of monitoring how X and particularly Y are coping with spending time with the Mother, is to ask the Court to make an order that X and Y meet with Ms B every three months at the Father’s expense and that the Independent Children’s Lawyer stay involved for a further 12 months.
Ms B responded that there were positives and negatives to the proposals. The positives were that Y, a reserved character, would not be required to meet anyone else and this would give him a process which allows his voice to be heard. The negative was Ms B’s concern that the Mother would not perceive any assessment made by her as neutral and therefore not accept any recommendations made by her.
Ms B was asked whether X and Y need to be given a break from proceedings given they had been in the Court system since they were aged six and four respectively. Ms B was very strong in supporting this suggestion. She questioned whether X and Y were actually starting to experience some form of system abuse. She made the observation that from X and Y’s point of view, the circumstances for them haven’t changed enough that their disclosures need to be reviewed.
The Mother’s cross-examination of Ms B
The cross-examination of the Mother by Ms B was most informative, as much from the questions put by the Mother as from the answers given by Ms B. Because of this it is my intention to set out those questions and Ms B’s responses in some detail.
The Mother:
“Is it possible that these children have spoken to enough people who haven’t listened to them and haven’t respected their wishes and they would have just said whatever they had to protect me and themselves so it was over quickly?”
Ms B:
“No, I don’t – I don’t believe that that’s possible at all. And I don’t believe that’s possible because when you meet someone like, particularly, X who is very independent in her thoughts, she is not presenting as aligned with one parent’s view. She sees herself as very separate to her parents, which is appropriate at her age and stage of development. The main message that continued throughout the interviews which was repeated on the second interview was the only person not listening to them is their mother and that this caused absolute genuine distress and, I think, some sadness for X.”
The Mother:
“Is it possible that as these children just want it all to end that, as research suggests, they may align their comments with the parent they live with and see the most, instead of actually being their true thoughts?
Ms B:
“No, I don’t believe that either. If you think about the things that they’re really distressed about, I think it’s reasonable to expect them to be distressed. So when they’re distressed that on the Sunday they have to get out of their clothes and get into a school uniform … that’s a very distressing experience. So when they complain about things like not being supported to do an activity simply because the mother’s version of that activity is that that would mean supporting the other parent who is a manipulative, threatening dangerous person; then actually what we’re doing is we’re creating a split … So I think that what we’re actually seeing from X is partly a valid rejection of some of her experiences of mum, but I actually think what she’s rejecting is just what occurs for this transition from this highly conflicted split world that she can’t navigate any more.
…
Y’s more sort of laid back and he can seem to manage those transitions a little bit easier, but I don’t think he will tolerate it any better or easier in time. So it’s not about an alliance with one parent.”
The Mother:
“Ms B, is it possible that, from what you’ve just said then, that it’s actually an alliance with stability, rather than a rejection of me? So if the tables had been turned and the children were living primarily with me, they would have felt the same going to the father? … it’s possible that it’s more of an alliance with the stability, the issues are more about what’s different between the two homes or households?”
Ms B:
“I think that depends on how you define what creates stability for a child and what we know is that stability is a result of a regular, reliable attachment with a nurturing primary carer. And the way in which they describe their experience with the mother is that it’s not reliable, it’s not predictable and it’s not nurturing. It’s highly rejecting. X will say every time I speak to her, even during the recent period of suspension of contact, her reporting to me on that second interview was that the phone calls continued to be very distressing to her. It’s a sense that she is never good enough, that mum is always critical of her, never able to acknowledge any of her benefits and if there is any benefits that occurs in a world with dad, then she will reject that as an achievement. And if there is any achievement then, from X’s point of view, mum wants to identify that as her own doing, associate it with her own efforts. And so X just doesn’t have any connection with her mother. She doesn’t have any intimacy, and which I think is the greatest threat to any stable, consistent, constant, predictable, nurturing relationship and it is that that she is no longer able to tolerate.”
The Mother:
“Is it possible that the father is using the situation of the children living with him as increasing empowerment and continuing the perpetration of family violence towards me by using the children as weapons?”
Ms B:
“I didn’t see any evidence of that
…
I saw two wonderful children … I think that they are their own individual wonderful personalities who have a capacity to have a great future. I see them thriving in many ways. I don’t see any evidence that we would expect to see if they were living in a household where their entire psychological health was being threatened. I don’t see poor self-esteem. I don’t see truancy. I don’t see disconnection from a social network … – I just can’t see how – that just doesn’t fit into what we know are the indicators or presentations of children that would otherwise be living in a household where their entire psychological health is threatened.”
The Mother:
“Do you agree … research suggests … that that children exposed to family violence are more likely than those not experiencing violence to become victims or perpetrators of further violence?”
Ms B:
“Certainly, there’s research to support that. I think the difference in this case is that I don’t hold the view that these children are victims of domestic violence.”
The Mother:
“Is it possible when speaking to professionals, the children are so fearful of potential retribution from the father that they just say whatever he instructs them to say and behave how he instructs them to behave?”
Ms B:
“No, in this case, I would say quite the contrary. Their information to me was, prior to the mother entering the room for observations, that there was quite considerable distress around any potential consequences from their mother should they be presenting in any way suggesting to me their true feelings about time with their mother.”
The Mother:
“Is it possible this is easier for the children because they are aware how much I love them and that my love is unconditional and that no matter how upsetting their comments may be to me, they will never lose my love?”
Ms B:
“I don’t think X feels loved by her mother at all.”
The Mother:
“Is it possible this is easier for the children because they have no fear of me and know there would never be any retribution from me?”
Ms B:
“I don’t think there was anything easy about these children having to come see me following quite lengthy proceedings and having to, once again, discuss their family situation which, for both of them, they simply want to have a sense of getting on with the things that are important to them without what is clearly ongoing exposure to parents’ differing views.”
The Mother’s:
“Is it possible that parental alienation which can be the act of a parent coaching or convincing a child to break away from the other parent by way of brainwashing the child into thinking badly of the targeted parent, often to the point of them refusing to have anything or little to do with that parent, is an action that has been happening in this situation; in this case from the father?”
Ms B:
“No, I don’t, mostly because the father didn’t present as unsupportive of encouraging time for the children with their mother. I would say that there would be more risks, in fact, for alienation with the mother should they live with the mother in this case because the mother clearly broadcasts her views of the father as very dangerous, intimidating and someone that they should fear. And therefore they would, in fact, be more at risk should they be living with the mother – of alienation. I don’t believe it’s occurring in this matter in terms of any alliance with the father.”
The Mother, having asked Ms B about the PPP Assessment then asked her how she could be sure she would have been able to determine whether the Mother had been a victim of family violence perpetrated by the Father.
Ms B:
“…it’s not my role to determine that … It was my understanding that in previous proceedings that the allegations were the same; that the matter had been tested and there was an outcome to that proceeding which resulted in the change of residence. When I raised that with the mother she said she felt that her allegation of domestic violence was not treated adequately by the court, so I felt that it was an opportunity for her to have another opportunity to express what her story is and her experience of that. What I can say is that the children didn’t present as being able to mirror that that is, in fact, their experience of what has occurred in terms of what they’ve been exposed to. So whilst the mother may or may not have experienced that, it’s not for me to determine. What I can say is that there’s certainly no presentation by these children, not just in terms of their lack of disclosures but in terms of how they’re presenting that suggests that they have been exposed to domestic violence in the way in which the mother is describing it.”
The Mother:
“Is it possible the father may have been manipulating you to achieve his own agenda?”
Ms B:
“I don’t believe so in this case.”
The Mother:
“Is it possible that what you were being told could have been good acting from an expert manipulator”
Ms B:
“I was more impressed ... what I’m told by the children. I – I – you know, my report is really very much and my views are really very much based on providing to the court the experiences of the children, the views of the children, and how they present. In terms of how the parents present and their own views, they’ve got an opportunity to do that through affidavit and through this process, but the children don’t, so my main interest is to give the court an understanding of my views of the children’s experience of their relationships, the difficulties in those relationships, but also the potential.”
The Mother put to Ms B that X is embarrassed by the Father and will tell her at sporting events and presentations that she is glad he’s not there.
Ms B:
“They presented as very much having a great confidence in their father. I thought their insights into his parenting style were interesting in terms of how he deals with conflict but particularly X because she is quite a challenging adolescent … it was interesting on the second interview – currently the father coaches the son’s (hobby omitted) team, but, when I asked about next year, X said, “No, no, no. It’s fair that he should coach mine next year, and he’s coaching my (hobby omitted) team next year.” So, I – you know, I’m not sure if that would happen if a child was really embarrassed about their father.”
The Mother advised Ms B that the children reported to her that during their family report interview Y hit X across the face because X had said “what did you say that for?”, that Y hadn’t liked this comment and that X had then started abusing Y and yelling at him. Ms B responded that this incident did not occur, but that:
“They were playing a game, and I think she was losing, and she told him to f-off, and I had to calm her down. There was no other episode that occurred. She’s a pretty firey girl.”
The Mother:
“Why do you think the children would report something like that to me?”
Ms B:
Because I think they really don’t know how to get their truth through to the person that’s not hearing them. I think that they may, in fact, be reporting to the mother what either they think she wants to hear to be able to keep some sort of connection with her. They know that she doesn’t accept their view. They know that she has a view that’s contrary to theirs. They just want to feel some possible connection in the way I can reconnect and find some alliances to say the things that you want me to say, and, you know, prior to the mother coming in the room, Y was in tears. He was very fearful of seeing the mother. I was quite concerned about him … I think they experience Mum as a very overwhelmingly controlling, dominant character. I’m not confident that they would be able to say or do anything with the mother that they know is contrary to her views because the fear that – that she will be very, very angry. Y talks about that she yells at him three or four times a day, and that if he moves into the room she follows him … that she berates him, and that it’s this constant sort of verbal attempt to change his view to align with hers, so why would he say anything other than what he knows she wants to hear, because he wants to keep a peaceful relationship. He doesn’t want to experience her like that because that has, in fact, been the experience he reports.”
The Mother:
“Are you saying that you believe that the children think that I want to hear that they are fighting and arguing between each other?”
Ms B:
“I think that they expect that what pleases you is any sort of report that suggests they’re not doing well with Dad and they would be better off with Mum.”
The Mother then asked the following series of questions:
The Mother:
“Is it possible the children’s alleged comments to other professionals and yourself about me are actually how they feel about the father and they are hoping a report writer will see the real picture?”
Ms B:
“I don’t have that view, no.”
The Mother:
“Is it possible that as you have read all the previous reports in this case before speaking to the parties and writing the report that you had unconscious bias?”
Ms B:
“No.”
The Mother:
If your Honour determines that I have insight into the children’s needs and am a reasonable person with unconditional care and love for my children, how does that change your recommendations?”
Ms B:
“I think that what’s important here is what the children are experiencing, and, again, my presentation to the court in these matters is for the court to consider the children’s experiences, the children’s views, and how we observe their relationships with both parents. There has to be – it has to be something that looks healthy and meaningful to the child, even if the parent believes that their interaction is meaningful and healthy.”
At the conclusion of the Mother’s cross-examination of Ms B, Counsel for the Independent Children’s Lawyer put one further question to Ms B as follows:
“Just in regard to the issue of insight, in your assessment of the mother as part of the family report process … did you form a view as to whether the mother was insightful in regard to her children’s situation – in regard to her own responsibility for this situation?”
Ms B responded as follows:
“No. I would have real concerns about the mother’s capacity to actually know who her children are and have insight into what their needs are – more importantly. I think that – I think that a parent needs to have greater insight into what the impact on children is when your narrative is so negative of the other parent. … we know that children naturally want – and want to feel loved by both parents despite their decision to separate … any sort of continual I would call almost obsession with needing to prove that this person is dangerous … is lacking any insight into how these children need to be supported to have a relationship with both parents … So the evidence for me of this rejection of Mum is really probably showing that there has been quite a long period of time that this relationship has been deteriorating. I suspect that it’s not something that has happened post change of residence.
…
…when a parent is presenting the other narrative of this parent being dangerous, then it’s in fact that parent destroying this child’s opportunity for relationship with themselves, and if she had any insight – which also has been highlighted in other reports. I did discuss with Mum, you know, “What did you think of the report from Dr T or that other report” and – just to see if it triggered any capacity for her to take on, and all she wants to do is reject the opinion of that professional and – and – and personalise it in a critical kind of way rather than miss the opportunity to hear that people really want these children to have a relationship with her.”
The Mother
The Mother sought to rely on every affidavit filed by her in relation to both these proceedings and the proceedings before Judge Baker. The Mother was only permitted to rely on those affidavits filed specifically for the purpose of the application currently before the Court given the matters raised in her previous affidavits have been dealt with by Judge Baker.
Accordingly the Wife relied on her affidavits sworn 27 October 2015, 19 November 2015, 25 November 2015, 1 December 2015, two affidavits sworn on 18 January 2016 and further affidavits sworn on 9 March 2016, 3 May 2016, 7 July 2016 and 17 August 2016.
In the Mother’s affidavit sworn 17 August 2016, under the heading of “BRIEF OVERVIEW” the Mother encapsulated her evidence in relation to the parenting matters before the Court. In paragraphs (4), (5) and (6) she deposes as follows:
“4. It is my evidence that since the Final Orders were made in March 2015 changing residence from myself to the Father, the children’s lives have been detrimentally impacted upon in a significant way due to the Father’s lack of parenting capacity which I will refer to below. I say that his manipulation and intimidation of the children and his detrimental attitude towards me which he inflicts on the children with his behaviours and attitudes is impacting on the relationship between the children and me.
5. It is my case that the impact of the domestic violence perpetrated by the father upon myself and the ongoing impact on the children has not properly been addressed in the legal proceedings. I suffered physical violence towards me by the father that I did not report out of fear, embarrassment and shame combined with emotional and psychological violence including manipulation, threats and intimidation for which there is rarely physical proof, much of which was witnessed by the children but the children have also had years where they have experienced the father’s threats to hurt me if they don’t follow his instructions and so I believe that consequently they are unable to be honest and truthful. The Family violence has extended to more manipulation, intimidation and threats over the years and continues with power and control towards myself and the children. I am worried every day about how his behaviour could be detrimentally impacting on the children.
6. I also believe that the Father is not capable or willing to the same degree that I am to provide for the children’s physical, emotional and psychological well being including the essential aspects of their school and medical issues.”
In relation to the Mother’s belief that X and Y’s schooling has suffered since they moved to the Father’s care because he does not value education, the very good student reports for X and Y were discussed with the Mother.
In relation to Y, tendered into evidence were his Semester 2, 2015 report and his Semester 1, 2016 report. In the reports Y is recorded as achieving either at the standard expected or above the standard expected at that time of year and the comments in relation to effort, behaviour, respect, homework and attendance were all excellent.
Tendered into evidence was X's Semester 2, 2015 report as well as the Certificate for Academic Excellence that she was awarded for year 8 in 2015. Across all subjects X was shown as performing above or well above the standard expected at the time of year, such that the level of her performance was either at year 9 or year 10 level.
The Mother grudgingly conceded that X and Y’s reports were positive but was quick to point out that there is more to education than academic performance, inferring that X and Y were somehow struggling socially or emotionally.
In relation to X, it is the Mother’s evidence that X should have received the academic excellence award as she is in the accelerated learning program and in that context downgraded X’s achievement and referred to X’s report as an average one.
It was put to the Mother that nowhere in X’s report was there adverse comments about her having issues in the classroom, such as being domineering and not relating to peers which is a concern the Mother raised in her affidavit material. The Mother responded that the report is written to give X confidence that her behaviour is improving.
When it was put to the Mother that Y should be very proud of what he has achieved in his first year of high school given his excellent report, it is the Mother’s evidence that he should not be particularly proud. She noted that when living with her, the first thing that would occur when Y received a school report is that she would “sit down with Y and discuss his report.”
It is the Mother’s evidence that the Father is not able to assist X and Y with their schooling and that they are constantly contacting her seeking her advice and assistance with their homework. It is her further evidence that they also contact her for school supplies as the Father does not provide them.
The Mother is also very critical of the Father for not attending parent teacher interviews, information evenings about excursions and other school events. It is her evidence that it is X who has to complete any documentation required by the school as the Father is not able to do so.
In relation to the Mother’s allegations that the Father doesn’t attend to X and Y’s health issues, she makes complaint that the Father is a heavy smoker and as a result X and Y are exposed to a smoke-filled environment much of the time from which they cannot escape.
The Mother makes complaint that in 2015 Y came home with horrible blisters on both his feet which had not been properly treated by the Father.
The Mother also makes complaint that X and Y have gained excessive weight since going into the Father’s care. She believes this reflects poor nutrition when with him.
In cross-examination, the Mother agreed that she had taken both X and Y to see her local general practitioner Dr B on 22 September 2015 because of her concerns they had put on weight.
Dr B’s records for this visit were placed into evidence before the Court. Those records disclose that the Mother was concerned that X had put on too much weight. The Mother raised the possibility of pregnancy being the cause.
Dr B’s notes from this appointment set out that X agreed she is carrying a little weight but told him she had only had her period two days ago.
In relation to Y, Dr B’s notes from this appointment set out that Y is overweight and that they discussed this in general terms.
What was of interest in Dr B’s notes is that both X and Y told him that they are living with their Father and that all is going well. They generally talked positively about living with him. From reading Dr B’s notes, X and Y’s comments appear to have been made in the context of the Mother having told him that X and Y were struggling living with the Father. Dr B’s notes indicate that X and Y’s comments of being happy with their current living arrangements were something that was voluntarily said to him and not in response to any questioning from the doctor.
When the Mother was asked about the positive comments that X and Y made to Dr B about living with the Father, the Mother denied hearing those comments even though she was sitting in the doctor’s rooms with them.
What was also of concern was Dr B’s performing a pregnancy test on X. Whilst it is the Mother’s evidence X did not know that the test occurred it is nevertheless disturbing that the Mother considered her fourteen year old daughter could be pregnant.
Also tendered into evidence were X’s medical record of 26 November 2015 when the Mother took her to see Dr M. Dr M’s notes disclose that again the Mother was still concerned about X’s weight gain as well as stretch marks on X’s body. Dr M’s notes show that X’s weight had actually reduced since she saw Dr B. Dr M assured the Mother and X that stretch marks can be normal during puberty. Dr M’s notes indicate that X is in the healthy weight range. Quite pithily Dr M appears to have advised the Mother that what is important is to pay attention to healthy eating rather than weight loss.
It is the Mother’s evidence that she doesn’t believe that the Father is providing proper school lunches for X and Y, reporting that X and Y have complained to her of this. The Mother referred the Court to a memorandum from X’s health and physical education teacher of 13 April 2016 that was sent to the school’s welfare offices in which it is reported that X told her she only had a “couple of rice cracker things” for lunch as there had been no food at home over the last couple of days.
The Mother makes complaint that because she is highly allergic to anti-inflammatory drugs, X and Y could also be allergic to similar medication. The Mother complains that the Father has not noted this as a possible health risk for X and Y in the documentation provided by him to their school.
Y hurt his finger at the Mother’s home which required him to attend hospital and have stitches. The Mother is highly critical of the Father for taking Y to his own doctor to have the stitches removed rather than following the Mother’s directions for the finger to be treated by her medical practitioner.
The Mother makes complaint that the Father has taken X to his optometrist who has prescribed glasses rather than taking X to the optometrist of her choice who had previously seen X.
A major bone of contention between the parties is the sport that X and Y play. It is the Mother’s evidence that both X and Y want to play (hobby omitted) but have been forced to play (hobby omitted) against their wishes now that they are living with the Father as (hobby omitted) is the Father’s sport of choice, having been a very good (hobby omitted) himself in his youth.
It is the Mother’s evidence that she is not prepared to perpetuate the Father’s intimidation and manipulation of X and Y to play (hobby omitted) by taking them to (hobby omitted) when they were in her care on alternate weekends. X and Y are therefore unable to play (hobby omitted) on the weekends that they were with the Mother.
It is the Mother’s evidence that Y used to play (hobby omitted) but that this stopped hallway through the 2015 (hobby omitted) season after Y went into the Father’s care.
The Mother agrees that she spoke or wrote to Y’s class teacher asking him to keep Y’s (hobby omitted) in the classroom and not let Y take it home because there was a real risk the Father would destroy the (omitted).
It is the Mother’s evidence that when X and Y spent time with her on alternate weekends from after school Friday to Sunday evening, she would require X and Y to change back into their school uniform before returning to the Father on Sunday evening as the Father would either not return or damage X and Y’s clothing that had been bought by her.
A further major issue between the parties relates to X and Y’s mobile phones. Each parent has provided X and Y with a mobile phone. It is unclear who provided X and Y with a phone first. When X and Y are with the Mother, she requires them to put the mobile phones provided by the Father into his letterbox and they can only use the mobile phone that is provided by her when they are with her. It is the Mother’s evidence that she believes that the Father has tracking devices on X and Y’s mobile phones that are provided by him and further that he has blocked the Mother from being able to telephone or text/email X and Y on the phones provided by him. This is why she needs to provide them with a telephone that she can use to contact them when they are in his care.
It is the Mother’s evidence that she has a close and loving relationship with both X and Y and that they are constantly telling her that they love her and that they want to return “home” to live with her and to only spend time with the Father.
In the matter of Bale-Sutch & Bale-Sutch (No 2) [2010] FamCA 20 where His Honour Justice Cronin considered an application in the terms sought by the Independent Children’s Lawyer and supported by the Husband. His Honour held at paragraph (175) as follows:
“Section 65D provides that in proceedings for a parenting order, the Court may make such parenting order as it thinks proper … To allow the husband to make an application at any time he felt aggrieved may have unfortunate and inappropriate psychological consequences for the children. That is undesirable. In my view,
s 65D is sufficiently wide and it would be proper in the circumstances, to make an order that the husband not make any application for parenting orders in the future without leave of a judge of this Court.”
It is the submission of the Independent Children’s Lawyer, supported by Counsel for the Father, that to enable the Mother to make further applications for parenting orders without leave of this Court would place X and Y at risk of considerable psychological harm.
It is submitted on behalf of the Independent Children’s Lawyer that it is apparent from the evidence that the Mother cannot and will not accept any other version of X and Y’s relationship with the Father than her own and is not open to undertaking the therapy that might assist her in being able to understand and accept their point of view. Because of this, the Independent Children’s Lawyer submits there is a real risk that the Mother will not accept the decision of this Court if it is not in the terms sought by her.
It is therefore submitted on behalf of the Independent Children’s Lawyer and the Father that this Court must consider it to be in the best interests of X and Y to make an order that the Mother be required to seek the leave of the Court. It is argued on behalf of the Father that such application be on an ex parte basis, because of the unnecessary stress it would cause X and Y if they were aware of any further applications by the Mother prior to leave being granted by the Court. It is also argued it is unfair to put the Father to the expense of further litigation prior to any leave being granted to the Mother to make a further application.
Section 60CC (3)(m): any other fact or circumstance that the Court thinks is relevant.
As set out in paragraph 219 of this judgment, Ms B is the fourth expert to provide a Family report in this matter since the parties’ separation. In addition, Dr T prepared a psychiatric assessment of the Mother in 2014.
A perusal of all reports prepared in this matter reveal a very consistent theme running through all of them. A review of those reports is as follows:
a)Ms J – Family report dated 17 June 2008, paragraph 60:
“While Ms Bondir claims she encourages X and Y to maintain their relationships with Mr Bondir, it is my view based on the history of the time the children have spent with Mr Bondir and the current arrangements that Ms Bondir does not overly encourage the children to spend time with Mr Bondir but only agrees to the children having a minimum of time with Mr Bondir. It is my view that Ms Bondir does not object to X and Y moving constantly from carer to carer throughout each week but she does not facilitate X and Y spending more time with Mr Bondir. It is my view that it is X and Y’s right to spend more time with Mr Bondir rather than with others. Mr Bondir does facilitate X and Y maintaining their relationships with Ms Bondir.”
b)Dr L – Child Inclusive Conference Memorandum to Court dated 19 December 2013 under the heading “Risk Factors”:
·Ms Sandex alleges that the Father is emotionally abusive and manipulative of the children and has made threats to harm them or other family members if they are non-compliant with his demands; she alleges a history of family violence pre-separation and a pattern of ongoing intimidation and control towards her since separation…
·Mr Bondir alleges that Ms Sandex is unsupportive and deliberately obstructive of his relationship and time with the children, making plans for the children during his time, overholding them and pressuring the children to remain in her care…
Under the hearing “X”:
·X reported that she did not spend time with her father in accordance with the orders for shared-care because her mother did not let her father collect her from her activities during the week…
·X gave multiple examples of parental gatekeeping by her mother, consistent with the report of her father.
·X reported that she wanted to spend greater time with her father than she does currently…
Under the heading “Y”:
·His views were consistent with his sister’s, noting that he did not spend as much time with his father as he would like because his mother sometimes keeps him home so he can go to activities…
·Like his sister, Y expressed an interest in having more time with his father over the long summer holidays…
Under the heading “Future Directions”:
·This preliminary assessment of the children’s views does not support the mother’s allegations about the risk of harm to the children in their father’s care…
c)Mr T – Family report dated 31 July 2014, under the heading “The mother”:
“17. The mother maintains that the marriage was a violent one and that the father has “a volatile temper”. She believes the children have been witness to violence “their whole lives” and states that she continues to remain fearful. She stated that “I am scared of him.. (I) can understand two kids being scared of him”.
18. In terms of the current dispute, this remains the mothers overriding rationale – that she is extremely concerned about the children and their time with the father and adamantly believes the children are not only frightened of their father but have been intimidated and threatened to the point where they are unable to tell anyone for fear of harm, from the father, to themselves or to the mother.
…
23. The mother also believes the professionals involved with the children to this point, including the previous Report writer (Ms J June 2008) and in particular the recent interviews and Court Memorandum by Dr L (dated 19/12/2013) have failed to understand the issues involved and detect the fear that drives the children. The mother stated that “our lives have been put through hell by people like you” and was very concerned that this writer would also not understand the children’s real issues. She was also concerned the father worked for a counselling group and questioned if there were connections between various professionals.”
Under the heading “The father”:
“27. The father characterises a long history of difficulties with the children’s arrangements. He states that over the years he has attempted to keep the situation calm by essentially not pursuing any issue and acceding to the mothers wishes. He states he has been more and more concerned for the children as he believes they have had to hide their closeness to him from their mother or actively engage in subterfuge so as to keep the relationship.”
Under the heading “Y”:
“41. When asked if he thought his mother was okay with him seeing his father he stated, “No”. When asked what does she say he stated, “when we go and see him she doesn’t think it’s the right thing and we get into trouble and she yells at us.. she says you gotta do the right thing and not go to dads”.
…
46. Y also stated that he wished to live with his father. When asked if he thought his mother understood this he replied, “no.. mum says dad makes us say that..”. When asked how he dealt with this he stated” I don’t really say anything to her .. but he (dad) doesn’t make us say anything”.
…
49. The writer also asked Y if he remembered what happened after they went to the Court interview last year. He stated: “that night she started yelling and screaming at us for about half an hour to an hour.. then she just ignored us for that night and the next night”.
Under the heading “X”:
“57. In terms of time with her father, X stated “she thinks that we don’t want to see him at all,, she thinks we don’t like him because she doesn’t like him.. but we do.. but I see my dad less than my mum..”
…
59. She stated “I would like to be living with my dad”. When asked to explain more she replied “because mums over-hard, she’s trying to help me but she pushes me too much.. she always says (I) should do more”.
…
63. It would appear that X feels that she can talk with her father and that he has a good understanding of how she feels, but she does not feel that her mother listens to her.
…
66. Overall X was very clear that she wished to live with her father if she was able to, or at the least spend more time with him. She appeared to be less sure about practicalities however and very concerned about what her mother’s reactions may be. She did not feel she was able to communicate her wishes clearly with her mother.”
Under the heading “Evaluation”:
“75. In other words, notwithstanding the mothers concerns that the children have been intimidated and threatened by their father to present a particular view, the writer is very clear that the children’s views (above) are representative of their own thoughts and their experience of the world. These children’s views did not present as those of children who had been purposely coached or children under duress or threat, at least not by their father.
76. If anything, the writer would suggest the children are unwilling or unable to express how they feel to their mother for fear of retribution at worst, or, at best, out of a certainty of causing major upset. Children tend to avoid such confrontations if they are able. And it would seem that the way in which the children have managed their mothers open hostility and discounting of their father is to basically shut down from any discussion about such with her. This ‘chameleon’ like quality of some children in high conflict situations and their need to adapt to each ‘caregiving environment’ can in fact add to a parents confusion or misreading of a child’s needs. The writer suspects there are elements of this for the mother.
…
79. The writer would also raise concerns in terms of parental quality, in particular the mother’s capacity for insightfulness and empathic attunement with the children. These are key elements in quality parenting and the concern is that the mothers hostility towards the father and unwillingness or inability to recognise any positives in the children’s relationship with him (contrary to the children’s own expressed views) can be very damaging for the children and only further the gap between the children’s reality and their mothers…
80. It would also appear that both children feel their father to be more attuned and insightful and supportive of their own experience. In the writers opinion this is more in keep with the creation of a parenting environment that is developmentally helpful and appropriate for growing children.
81. In that respect it is not surprising to the writer that both children have expressed a wish to live with the father or least to spend more time. It would seem also that there is less pressure and a more relaxed environment at the fathers and both children appear to be drawn to such. The children also have a very strong bond with each other and share a similar view.
d)Dr T – Psychiatric Report of the Mother dated 17 November 2014 under the heading “Opinion”:
“1. As indicated, Ms Sandex does not describe symptoms of a psychiatric condition. At no stage has she undergone psychological or psychiatric treatment. Given the severity of the abuse she alleges, this is a surprising finding.
2. Her presentation and account were unconvincing. Essentially her memory and recall were selective and whilst she was able to provide details of the accounts and her assessments with Ms J, Dr L and Mr T, she made no reference to their positive comments towards Mr Bondir and negative comments towards herself.
3. She was unable to consider these latter contributions to the children’s difficulties, and given that she does not suffer from a serious psychiatric condition and is a woman of average to above average intelligence, I consider that her poor recall in respect to those matters occurs as a result of her conscious wish to not recognise and/or accept those factors operating within herself.
4. Ms Sandex demonstrated little in the way of insight or capacity to consider such contributions to the children’s current difficulties. She therefore represents as a considerable risk to the children’s welfare in respect to her lack of support of their relationship with their father. As noted by Dr L, her account is suggestive of gatekeeping and alienation. Given the lengthy period which has evolved since the marriage ended the prognosis for any change in regard to Ms Sandex is poor.
e)Ms B’s evidence is set out in detail in this judgment.
As can be seen from the review of the various experts over many years, there is a constant theme of the Mother not supporting X and Y’s relationship with the Father and of her rejecting the children’s views of their positive experience and love of the Father in contrast to her entrenched belief that he is abusive and manipulative and that X and Y are scared of him.
Despite the consistency of X and Y’s telling all the report writers of their close and loving relationship with the Father and their wish to have a relationship with him, the Mother cannot and will not accept that this reflect their genuine wishes.
Presumption of Equal Shared Parental Responsibility.
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence, or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
The Father and the Independent Children’s Lawyer propose orders be made that the Father continue to have sole parental responsibility for X and Y.
As was set out in paragraph 216, Judge Baker made a finding that there was family violence perpetrated by the Father on the Mother and as such the presumption of equal shared parental responsibility was rebutted.
Judge Baker also made findings that the parties are completely unable to communicate or effectively cooperate in such a way that they would be in a position to make joint decisions for X and Y.
If anything, the parties’ ability to communicate is even worse than it was when this matter was before Judge Baker. It is very apparent from the evidence given by the parties that there is no possibility of that situation improving anytime in the future, particularly given the Mother’s fixed view of the Father as violent, manipulative and abusive.
In those circumstances it is quite apparent that the only order available to the Court that is in the best interests of X and Y is one for the Father to have sole parental responsibility for X and Y.
Consideration of Equal Time or Substantial and Significant Time
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Where an order is made for a parent to have sole parental responsibility for a child, the Full Court in the matter of Goode & Goode (2006) 206 FLR 212 held that the Court should still consider whether it is in the best interests for the child to spend equal time or significant and substantial time with that parent.
In this matter the Independent Children’s Lawyer and the Father are proposing that X and Y live with the Father and spend very limited time with the Mother.
It is their submission that the Mother’s inability to accept and support X and Y’s positive relationship with the Father and her continuous exposure of them to her very negative views of the Father as a violent, manipulative and abusive parent is such that both X and Y are now rejecting spending any lengthy time with their Mother. Both children feel that their mother does not listen to them, does not respect their wishes and actively interferes in their recreational pursuits on the basis that those pursuits have been suggested by the Father.
The Mother is seeking Orders that X and Y live with her and spend “some time” with the Father. It is noted however that the Mother did not put a proposal to the Court as to what that time should actually be and whether it equated to equal time or significant and substantial time.
Conclusion
This is an extraordinarily sad matter. X is fourteen, nearly fifteen and Y is twelve, nearly thirteen. Both are delightful, intelligent, articulate children.
Their parents separated over nine years ago.
After the parties separated, X and Y remained in the primary care of the Mother and initially spent limited time with the Father, primarily as a result of the Mother’s reluctance to support X and Y spending extended time with him.
Ms J prepared a family report in June 2008 which recommended that X and Y live in a shared care arrangement with the parties. Consent orders were made on 27 June 2008 which provided for the parties to have equal shared parental responsibility for X and Y, for them to live with the Mother and spend five nights a fortnight as well as school holidays and special occasions with the Father.
The matter returned to Court in December 2013 as a result of an urgent application brought by the Mother for the return of X and Y to her care after she alleged they had been over-held or abducted by the Father.
It was found by the Court that X and Y had not been abducted by the Father but had run away from the Mother to the Father’s care as she had not permitted them to be with the Father in accordance with the existing orders.
After a seven day final hearing before Judge Baker, orders were made for the Father to have sole parental responsibility for X and Y, for them to live with the Father and spend time with the Mother each alternate weekend from after school Friday until 6.00pm Sunday, each alternate Tuesday from after school until 7.00pm, by telephone each Monday and Thursday, for half of school holidays and on special occasions.
The Mother appealed the decision of Judge Baker. Her appeal was dismissed.
The Mother continues to be of the very strong view that Judge Baker’s decision was wrong and that X and Y’s lives have been detrimentally impacted in a significant way since Her Honour’s orders were made in March 2015 due to the Father’s lack of parenting capacity, his manipulation and intimidation of them and his negative attitude towards the Mother which he inflicts upon the children.
The Mother instituted the proceedings that are currently before the Court less than two years after Judge Baker’s decision. The Mother makes multiple complaints of the Father’s inability to support X and Y’s schooling, to provide them with even basic care and of a continuation of his long standing intimidation, manipulation and violence that pre-dates the parties’ separation.
In relation to the current proceedings, X, Y and the parties were interviewed by Ms B for the purposes of a family report.
Ms B is the fourth report writer to interview X and Y for the purposes of family law proceedings since the parties’ separation.
In her family report and her viva voce evidence, Ms B set out the very strong views of the children that their experience of the Father is the antithesis of that which is described by the Mother.
X describes a loving, caring, supportive relationship with the Father and a very strong wish to continue to live in his care.
X spoke lovingly about the Father to Ms B. She describes him as being a calming influence when she gets angry, in contrast to the Mother who always presumes she is right and who harasses and badgers X rather than listening to her views. This causes a great deal of conflict in the mother/daughter relationship.
X told Ms B that she experiences the Mother as domineering, controlling and threatening. X told Ms B that her mother does not listen to her views or wishes and that “I have tried to say everything to Mum, but she does not listen.”
X expressed very similar sentiments to Mr T in 2014 when she spoke to him for the purposes of a family report for the proceedings that were heard by Judge Baker.
It is the evidence of Ms B that X does not have a nurturing or warm relationship with the Mother.
X is now expressing very strong wishes to spend minimal time with the Mother and ideally no time at all. In discussion with Ms B, X indicated a willingness to see her mother for special occasions such as birthdays and Christmas but that otherwise she did not want to spend regular time with the Mother and in particular she did not wish to spend any overnight time with her.
Y has also been impacted by the Mother’s inability to accept that he has a positive and loving relationship with the Father and that he does not experience him as a violent, manipulative, threatening presence but rather as the parent who is supportive, nurturing and understanding of him and his needs.
Like X, Y is quite fearful of the Mother. In particular, he is fearful of her reaction to him saying or doing things that she does not agree with. He expresses a very strong wish to continue to live with the Father. Unlike his sister he wishes to spend time with the Mother albeit on a limited basis and not overnight.
The Mother rejects outright that the views expressed by X and Y of how they see their relationship with the Father and with her as being a genuine reflection of how they feel.
It is the Mother’s evidence that she believes that X and Y are not expressing their genuine views to Ms B, or any previous report writers, because they are so fearful of potential retribution from the Father that they say whatever he instructs them to say and behave however he instructs them to behave.
It is the Mother’s evidence that X and Y display overt physical affection towards her when they see her, that they tell her that they love her and that they wish to return to live with her and just spend time with the Father.
It is the Mother’s evidence that she believes that the way X and Y behave towards her and what they say to her is the true reflection of how they feel and that what they have told Ms B and the previous experts seen by them is as a direct result of their ongoing fear of and manipulation by the Father.
It is the evidence of Ms B that X and Y are thriving in their father’s care. She notes that X and Y make no complaints of the quality of the Father’s care in the context of him not providing adequately to meet their physical day-to-day requirements.
Rather than X and Y expressing any fear of the Father, it is Ms B’s evidence that it is the Mother that X and Y are more fearful of.
When giving her viva voce evidence, Ms B described how during her interview with Y, he was in tears and was genuinely fearful of seeing the Mother. Y was scared of what the Mother’s reaction would be to his reporting to Ms B how he felt in terms of where he wants to live and his experiences of the Mother. Ms B describes Y telling her the Mother will be very, very angry and further describes him telling her about the Mother yelling at him three or four times a day, following him when he goes into another room and berating him in a verbal attempt to have him change his view to align with hers.
When cross-examining Ms B, the Mother put to Ms B an incident that she said X and Y told her had occurred whilst Ms B was interviewing X and Y. The Mother reported X and Y told her whilst with Ms B that X hit Y and they yelled at each other. Ms B was very clear that this incident did not occur.
When the Mother asked why X and Y would tell her that incident had occurred when it is clear that it had not happened. Ms B’s response is very telling. She said:
“I think they really don’t know how to get their truth through to the person that’s not hearing them. I think that they may, in fact, be reporting to the mother what either they think she wants to hear to be able to keep some sort of connection with her. They know that she doesn’t accept their view. They know that she has a view that’s contrary to theirs. They just want to feel some possible connection…”
It is Ms B’s further evidence that in her view Y would likely say anything that the Mother wants to hear because he wants to keep a peaceful relationship with her. Further he does not want to experience the Mother as angry and berating him, this being his regular experience of the Mother.
The Mother cross-examined Ms B at length in relation to her family report, the observations and assessments made by her of X, Y, herself and the Father, and her recommendations.
The Mother put to Ms B her explanations and beliefs as to why X and Y told Ms B they have a positive relationship with the Father and a fractured relationship with the Mother and why those comments are not an accurate representation of X and Y’s true wishes.
Ms B’s very detailed and comprehensive answers to each of the Mother’s propositions are also set out at paragraph 74 to 88 of this judgment. Ms B explained why she did not accept the Mother’s propositions and was instead of the belief that X and Y are not victims of domestic violence at the hands of the Father and that their description of the relationship that they have with each of their parents as set out by her is an accurate and genuine reflection of how X and Y feel based on their own life experiences.
Despite hearing Ms B’s evidence, it is apparent from the Mother’s closing submission that she does not accept any of Ms B’s evidence, just as she has not accepted the evidence of all the experts who have previously given evidence very similar to that of Ms B.
In her closing when discussing the Father, the Mother had the following to say:
“I understand and can accept the Father has numerous good points and is necessary in the children’s lives but he was incapable of making any positive comments about me. The Father demonstrated an appalling attitude towards me and lacks the insight to see how he is inflicting his attitudes on the children and how his attitudes towards me may be detrimentally impacting and influencing the children. He has nothing positive to say about me and he is instead blaming me for everything with no acceptance of responsibility for the impact his behaviour and attitudes may have in causing and continuing issues our family faces. He seems to be able to convince himself and attempts to convince others that he does nothing wrong and he is of the impression that his own beliefs and stories are the truths”
The Father’s lack of insight into the childrens needs and wishes, his lack of parental capacity, which is reflected in his inability to parent responsibly and effectively, confine his attitude towards me, which he inflicts on the children whether consciously or unconsciously, and his inability and unwillingness to communicate or facilitate or relationship with me, is having a detrimental and potentially lifelong effect on the children.”
The Mother’s closing comments above, rather than describing the Father are sadly, a summary of her own short comings and behaviours as a parent.
Whilst the Father is not a perfect parent, I am satisfied that X and Y are well cared for by him. I am satisfied that the Father, X and Y have a close and loving relationship and that X and Y find him to be attuned to their needs and wishes and someone with whom they can communicate and who listens to and takes on board their views and wishes.
There is no doubt that the Mother loves X and Y and wants what is best for them.
However, the Mother cannot accept that she is presenting with a truth that is highly distorted. Ms B describes the Mother as being absolutely vigilant in believing that her truth is the truth and this distorted truth means that her interpretation of everything X and Y are saying or doing is highly contaminated by this.
It is Ms B’s evidence that there is a disconnect between how the Mother is perceiving what X and Y are saying or doing compared to what X and Y are actually saying and doing.
The Mother’s inability to believe X and Y and take on board their wishes has resulted in them now needing to limit their interaction with her because of the psychological and emotional impact on them of having to try and accommodate their reality with the Mother’s continued alternate narrative.
It is the evidence of Ms B that in all these circumstances, limits must be placed on the amount of time that X and Y spend with the Mother until she engages in therapeutic counselling to strengthen her own psychological health, particularly in relation to her lack of insight and capacity to consider how her behaviour and narrative contributes to X’s and Y’s current difficulties and the lack of bond in the parent/child relationship.
Because of the Mother’s current behaviour and attitudes, Ms B also recommends that limits be placed on the Mother’s participation, attendance and correspondence with X and Y’s school and extra-curricular activities.
The Mother has given very strong evidence that she cannot and will not attend therapeutic counselling because of the significant impact to her mental and physical health such counselling would have as it would require her to revisit what she describes as the extreme domestic violence she suffered at the hands of the Father.
In these circumstances, the orders proposed by the Independent Children’s Lawyer and the Father are the only ones that can be seen to be in the best interests of X and Y.
It is apparent that the Mother cannot and will not change her views of the Father and more relevantly cannot and will not change her views of the nature of the relationship that X and Y have with him.
More tellingly, it is very apparent that the Mother will continue to present her view of that relationship to X and Y and reject any contrary views that they try and express to her.
The Mother will not have the relationship with X and Y that she wishes to have and they desperately deserve and need if she does not engage in therapeutic counselling to assist her to separate her own feelings from those of Y and X and to develop the requisite insights as to how her behaviour is responsible for the deterioration and fracturing of her relationship with her children and what she needs to do to repair that relationship.
I encourage the Mother to undertake the recommended counselling but accept that making an order requiring her to do so would be fruitless given the Mother’s current resistance to such treatment.
It is very clear from the Mother’s evidence and particularly the submissions made by her after hearing what was very compelling evidence from Ms B, that the Court must have a concern that the Mother will not accept the findings made by the Court in this matter and continue to pursue parenting orders in the belief that X and Y are at risk in the Father’s care.
It is the very clear evidence of Ms B that to require X and Y to meet with further experts and to be submitted to ongoing litigation is not in their best interests. As such it is quite apparent that an order as sought by the Independent Children’s Lawyer and the Father restraining the Mother from issuing further proceedings without leave of the Court is an order that must be made in the best interests of X and Y.
The Father seeks that any application for leave to make application for parenting orders pursuant to Part VII of the Act by the Mother be heard on an ex-parte basis. It is argued that X and Y would be placed under unnecessary stress if they were aware the Mother had made such an application prior to leave being granted. It is also argued the Father should not have to incur the further costs of such an application.
I am of the view an order that any application to appeal by the Mother to make further application for parenting orders be heard on an ex-parte basis is also in the best interests of X and Y and an order in these terms will be made.
I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 24 January 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Remedies
-
Procedural Fairness
-
Injunction
0
2
2