Seabrook and Seabrook
[2018] FCCA 2311
•21 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEABROOK & SEABROOK | [2018] FCCA 2311 |
| Catchwords: FAMILY LAW – Parenting – change of residence sought by the father – two children, aged 15 and 13 – strong views – views influenced by mother – children not spending time with the father – mother has a personality disorder – consideration of risk of psychological and psychiatric harm to the children of living with the mother or of changing residence to the father – psychological treatment of the mother ordered – no change of residence. |
| Legislation: Family Law Act 1975, ss. 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65Y, 67ZD |
| Cases cited: H v W (1995) FLC ¶92-598 |
| Applicant: | MR SEABROOK |
| Respondent: | MS SEABROOK |
| File Number: | MLC 5078 of 2016 |
| Judgment of: | Judge Baker |
| Hearing date: | 17-20 July 2018 |
| Date of Last Submission: | 20 July 2018 |
| Delivered at: | Hobart |
| Delivered on: | 21 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sweeney of Counsel |
| Solicitors for the Applicant: | Robinson Gill |
| Counsel for the Respondent: | Mr Werner of Counsel |
| Solicitors for the Respondent: | CBD Family Lawyers |
| Counsel for the Independent Children’s Lawyer |
| Solicitors for the Independent Children’s Lawyer | Victoria Legal Aid |
ORDERS
THE COURT ORDERS THAT:
The mother and father have equal shared parental responsibility for the children [X] born 2002 and [Y] born 2004 (“the children”).
The children live with the mother.
The children spend time with and communicate with the father in accordance with their wishes.
The mother and father keep the other advised of their residential addresses, mobile telephone numbers and email addresses.
The mother keep each of the children advised of the father’s residential address, mobile telephone number and email address.
The mother keep the father advised of each of the children’s mobile telephone numbers.
The father be permitted to send text messages to the mobile telephone numbers of each of the children and letters, cards and gifts to each of the children to their residential address.
The father be and is hereby authorised to communicate with any medical practitioner, specialist and mental health practitioner upon whom each of the children may attend from time to time, the mother keep the father advised of the names and contact details of such professionals.
The father be and is hereby authorised to communicate with the Principal, teachers and other professionals at the school(s) including the school counsellor at which the children attend and receive copies of all documents ordinarily provided to parents including school notices, reports and photograph order forms.
The father be at liberty to provide a copy of these orders to any such person referred to in Orders 8 and 9 to facilitate such communications.
The father be at liberty to attend any school function to which parents are ordinarily invited and any extra-curricular activity or sporting activity in which the children or either of them are engaged when the children or either of them make a written request (text/email) to the father for him to attend.
The father be at liberty to attend parent/teacher meetings at the children’s school and the father shall advise the mother of the date and time when he will attend.
The mother notify the father in writing 14 days prior of any overseas travel of the children or either of them of the travel dates and whereabouts of the travel.
The mother make the children available to meet with the ICL for the purpose of explaining these orders.
The father be at liberty to produce to the Magistrates’ Court of Victoria copies of any and all documents or evidence produced in these proceedings in defence of any application made by the mother and/or the children for an Intervention Order under the Crimes (Family Violence) Act or any like legislation.
The mother, at her expense, forthwith undertake therapy with a qualified health professional nominated by Dr T, Psychiatrist (‘the nominated health professional’) for the purposes of addressing and treating the personality disorder identified by Dr T in his report dated 1 December 2016, and for the purposes of enabling her to gain insight into her past behaviour; and for the purpose of her being able to promote a relationship between the children and their father.
The mother shall provide a copy of Dr T’s report dated 1 December 2016, Dr N’s reports dated 25 August 2016 and 6 July 2018 and a copy of the Reasons for Judgment and Orders to the nominated health practitioner and any other mental health practitioner and general medical practitioner upon whom she may attend.
The mother shall authorise the nominated health professional to provide a report to Dr T and a copy to the father, at the mother’s expense, when she has completed such treatment as is necessary or sufficient to:
(a)enable her to gain insight into her past behaviour; and
(b)is then able to promote a relationship between the children and their father.
The appointment of the ICL be discharged upon completion of order 14.
IT IS NOTED that publication of this judgment under the pseudonym Seabrook & Seabrook is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
MLC 5078 of 2016
| MR SEABROOK |
Applicant
And
| MS SEABROOK |
Respondent
REASONS FOR JUDGMENT
Introduction
The father of the children [X], born 2002 (‘[X]) aged 15 years, and [Y], born 2004 (‘[Y]) aged 13 years (‘the children’), has sought a change of their residence and a three month suspension of the mother’s time and communication with them.
The mother opposed the change of residence. The children have been living with her since separation, and have not spent time with the father since September 2017.
Background
The parties met in 1994 and commenced cohabitation in 1996. They married on 1998 and separated on 9 May 2016.
The parties separated in 2011 for a period of five months. They attended marital counselling with Ms L fortnightly until their final separation. They divorced on 17 June 2016.
In early May 2016, the father returned home from a business trip to the (country omitted) and was arrested at Melbourne Airport on arrival. He was bailed to appear at the Melbourne Magistrates Court on 12 May 2016 in respect of assault charges and an intervention order, that the mother had obtained ex parte whilst he was away.
Without warning, the mother moved out of the matrimonial home with the children whilst the father was away. She communicated with him during the trip, and he had no idea of what she had planned. He also communicated with the children and they appeared happy.
Upon the father’s return to Melbourne, he did not know where the children were living. The mother removed them from their school to home school them and disconnected her telephone and email addresses.
On 5 July 2016, the children started spending supervised time with the father for one hour each week.
Apart from interviews and therapeutic sessions, the children have not spent any time with the father since September 2017.
The father is 48 years old and is employed as a (occupation omitted). He has a new partner, Ms N, who lives with him in the former matrimonial home in Suburb A. She has two children, a 17 year old girl and an 11 year old boy. They live in the children’s former bedrooms.
The mother is 53 years old. She is a full-time homemaker and the primary carer of the children. They live in Suburb B, which is a 60-90 minute drive from their school at School 1 in Suburb C.
Relevant procedural history
The father filed his initiating application on 3 June 2016. The first return date was on 28 June 2016. Judge McGuire made interim orders, amongst other things, about the children’s schooling; the children’s time with the father each Tuesday between 5:00 p.m. and 6:00 p.m. to be supervised; the appointment of an Independent Children’s Lawyer (‘ICL’), the appointment of Dr N to prepare a Family Report, and a watch list order.
On 30 August 2016, a property order was made in respect of sale of properties and disclosure. Parenting orders were made for the appointment of Dr T to assess both parties and for the appointment of Ms T (‘Ms T) to undertake reportable family therapy.
On 6 October 2016, interim parenting orders were made that the children’s time with the father occur as agreed, as requested by the children, supervised by Ms C, and from 9 December 2016 time to be supervised at a family contact service.
On 22 December 2016, an order was made that the mother be restrained from taking the children to psychologist, Dr E. The matter was adjourned to 27 March 2017 for final hearing.
On 3 March 2017, interim consent orders were orders were made providing that the parties have ‘joint parental responsibility’ (on 19 February 2017 this order was amended to equal shared parental responsibility); the children live with the mother; they spend time with the father as agreed; the watch list order be removed; the final hearing date of 27 March 2017 be vacated; and the parties attend Ms T for therapeutic counselling and abide by her recommendations.
On 13 June 2017, Judge McGuire made a final property order by consent. On 26 September 2017 the final property order was set aside by consent and another final order was made. The parenting proceedings were adjourned to 26 February 2018.
On 26 February 2018, further parenting orders were made permitting the father to attend the children’s school requiring the mother to notify the father of any illness of the children; requiring the ICL to obtain a report of Ms T of the progress of family therapy; and to exhibit the report by affidavit and provide a copy to Dr N and Dr T. The matter was listed for final hearing on 17 July 2018.
Proposals
At the commencement of the hearing both parties sought an order for sole parental responsibility for the children. During the hearing the parties agreed that an order be made for equal shared parental responsibility.
The father sought orders that the children live with him and the mother be restrained from communicating, or attempting to communicate, with the children for three months. Following these three months, the children are to spend time with and communicate with the mother every alternate weekend.
The mother sought orders that the children live with her and spend time and communicate with the father in accordance with their wishes.
At the beginning of the trial the ICL sought orders consistent with the recommendations of Dr N that the children live with their mother and spend time with their father as per their wishes.
At the end of the hearing, the ICL provided a more detailed minute of orders sought. She sought essentially that there be orders for equal shared parental responsibility, that the children live with the mother and spend time with the father as per their wishes, with the mother to facilitate such time upon their request, as well as various other orders.
At the end of the hearing the father proposed further orders if a change of residence is not ordered, namely that he:
…be at liberty to produce to the Magistrates Court of Victoria copies of any and all documents or evidence produced in these proceedings in defence of any application made by the wife and/or the children for an Intervention Order under the Crimes (Family Violence) Act or any like legislation.
2. The wife, at her expense, forthwith undertake therapy with a qualified health professional nominated by Mr V, Psychologist or Dr T, Psychiatrist (“the nominated health professional”) for the purposes of addressing and treating the personality disorder identified by Dr T in his report of December 2016.
3. The nominated health professional report to Dr T (or the ICL) as to when the wife has completed such treatment as is necessary or sufficient to
a. enable her gain insight into her past behaviour; and
b. is then able to promote a relationship between the children and their husband.
4. The wife forthwith deliver up her passport to the Registry at this Court to be held by the Registry Manager until the earlier of:
a. The completion of the report by the nominated health professional;
b. The youngest child attaining the age of 18 years; or
c. Further order of this court.
The mother did not oppose orders 1 and 2. She opposed order 3 on the basis that there was no intention for the appointment of the ICL to be extended, and it was submitted that there should be finality to the proceedings.
She also opposed order 4, on the basis she has complied with an order to give the father 14 days’ notice of her intention to travel overseas with the children and she has always returned with them.
Documents relied upon
The ICL and both parties relied on the affidavits of Dr N filed 23 May 2018 (exhibiting report dated 25 August 2016) and 6 July 2018 (exhibiting report dated 6 July 2018), and the affidavit of Dr T sworn 14 December 2016.
The father relied on his affidavits sworn 2 June 2018, 9 February 2018 and 26 June 2018, and the affidavit of Ms P, sworn 16 July 2018.
The mother relied on her affidavits filed 24 June 2016, 24 August 2016, 16 November 2016, and 15 March 2018. She also relied on the father’s affidavit sworn on 28 July 2016.
The mother and the ICL relied on the report of Ms T dated 9 March 2018, which was exhibited to an affidavit on 18 July 2018.
In his case outline filed 13 July 2018, the father relied on the report of Ms T dated 9 March 2018. The report was not exhibited to an affidavit until 18 July 2018, although an order was made on 28 February 2018 that the report be exhibited by affidavit. Once it was exhibited by affidavit, counsel for the father asked counsel for the ICL when Ms T would be attending the Court for cross-examination, and was told she would not be attending. Counsel for the father did not oppose the report exhibited by affidavit being admitted into evidence, but submitted that no weight should be placed on it.
Issues
The main issue is the residence of the children and whether they should remaining living with the mother, or whether there should be a change of residence to the father, and a suspension of any time or communication with the mother for a period of three months, and thereafter spend alternate weekends with her.
Credit of the Parties
I consider that the father was a credible witness. He was responsive and a witness of truth.
The mother was not a witness of truth. Her evidence was unsatisfactory. She was not credible. One example was when she lied about her solicitor requesting her to obtain a statement from [X] about the father.[1] I agree with counsel for the father that the mother was a deceitful witness. This will become apparent as I discuss the evidence throughout these reasons.
[1] Exhibit F4.
In closing, even her own counsel submitted the following about her:
I concede the wife was not a good witness. Your Honour is not going to accept much of what she says as truthful, and certainly not without some… facts in support… she had difficulty answering simple questions, she impressed as somebody who had little apparent capacity for objective recollection, she was hopelessly loose with her words, and a glaring example for that was what she said about her lawyer’s involvement in the case of exhibit F4, which needed to be retracted at the peril of a conflict of interest being created between solicitor and client.
Her claims…in cross-examination that the husband was physically violent to the children – they were not contained in her first police statement or her affidavit; they weren’t put to the husband in cross-examination, and I accept… that the usual adverse inference will follow. Your Honour will probably find that her explanation of coincidence for the children making reports to the police on the Monday after the Friday on which she was served with an application for the change of residence puts too much of a strain on human experience, and Dr N said she’s the type of person who thrives on the drama of a hollow suicide attempt. You know, get all the knives out of the house, let’s make a big deal about it.
That’s a character trait, in my submission, that fits the profile of that parent who spent one and a half days in the witness box, and in all the circumstances, and the absence of some sort of circumstantial support, independent corroboration or inherent plausibility, your Honour cannot safely accept as reliable anything that she said on affidavit, in the witness box, to Dr N, to Dr T, or to the school. Now, your Honour is probably asking why am I discrediting my own witness in that fashion …
The answer is because your Honour should be finding that the email that she sent to the school on 8 June 2018 about [Y] suffering depression and anxiety has no objective basis as a matter of probability. The wife’s own evidence, when she was challenged… was to the effect that her words were probably a bit harsh… that was probably true. She speaks…she fires from the hip in the witness box, and she fires from the hip at her computer on Saturday morning when she’s writing emails to the school, when a thought bubble enters her head; the same sort of behaviour that, in my submission, as a matter of probability, she exhibited when she sent that email on 8 June this year.
I agree with the mother’s own counsel that I cannot accept as reliable anything she has said, unless there is some other evidence to support her.
The Expert Evidence
Dr T
Dr T prepared a report dated 1 December 2016. He had perused the first report of Dr N when he did his report. Dr T was cross-examined. He indicated during cross-examination that he had not read the second report of Dr N, which was prepared in July 2018. Counsel for the ICL informed him about Dr N’s recommendations and that the children had not seen their father since September 2017.
Dr T wrote of the mother:
Ms Seabrook’s account was unremittingly critical of the husband who she described as violent, threatening, castigating, demeaning of the children, a liar, someone who is dangerous, fears that “he will hurt us, the girls and me”, and was capable of killing her based on what she saw of him in the last two weeks prior to the separation. The precipitant appears to be the husband’s statement to Ms Seabrook that the family’s source of income from the business was now in doubt and that their lavish lifestyle and her trips with the children overseas would have to end.
Throughout her account, Ms Seabrook impressed as grandiose, non-compliant with court orders, giving the impression of being someone who is very much a law unto herself. Whilst Ms Seabrook spoke of her fear of the husband and the danger he posed, I gained the distinct impression that he is much more fearful of her that she is of him, and that through her lawyers, is very much controlling the litigation process. Ms Seabrook’s view of the husband was trenchantly negative, unchanging, and she was unremittingly critical of him.
At no point during the assessment did she appear to have considered the children’s needs of their father or her part in what appears to be the highly damaging children’s involvement in this current situation in which the children’s acting out and self-harming behaviours are used as further ammunition to attack the husband. There is further indication that the girls’ psychologist has similarly been swept up in all of this, whilst Ms L with whom Ms Seabrook appears to have previously had a good working therapeutic relationship, has now been eschewed.
Dr T diagnosed Ms Seabrook with a Personality Disorder with Cluster B (Borderline) and Narcissistic features.
The father impressed Dr T as loving his daughters.
He spoke warmly of them, had set aside considerable sums of money in order to give them a good start in life, but generally found himself marginalised in regard to decisions related to their education and other matters and is devastated by his current circumstances whereby they have turned against him, are rude and abusive, and refuse to have contact with him.
Of the mother Dr T wrote:
she impressed as hardly the kind of person who would allow herself to be bullied and to the contrary, I gained the distinct impression that she was the one who is in control of the home and her relationship as detailed with the girls appears inappropriate, over-involved, enmeshed, and controlling of every aspect of their lives to the point where holidays are spent almost exclusively in the company of their mother, touring the world, attending (hobbies) together…
Dr T noted with great concern that the children were so aligned with their mother that they were beginning to act out aspects of the conflict with threats of self-harm and actual self-harm, and remained directly resistant to any contact the father. He wrote:
the general depiction of the relationship by Dr N and Mr Seabrook’s account is consistent with a “folie a trois” whereby the children have come totally under the spell of their mother who essentially dominates and dictates all aspects of their lives, share her worldview, and in particular, her view of the husband, and are aligned with their mother against him, a situation which is highly damaging to the girls’ normal development and mental health, which points to difficulties in the future with their separation and individuation from their mother, who appears totally dependent on them, and describes them as her reason for living.
Dr T was of the view that the mother is disturbed in her psychological functioning, has no insight in regard to that disturbance of the impact of her behaviour is on the children. It is his view that there is no hope of the children having a relationship with their father while they remain living with or under the mother’s control. He wrote:
whilst I have not assessed [X] or [Y], having read the copious material provided in the report of Dr N, I consider they are at grave risk in regard to their mental health and are already demonstrating disturbed functioning with self-harm acting out behaviours.
In respect of the father, Dr T was of the opinion that he is likely to have consumed too much alcohol on occasions and may well have been inclined to speed in his motor-vehicle, but he does not consider that those behaviours point to any severe disturbance on his behalf. ‘I do not consider him a risk to the children and he impressed at interview as having a genuine love for them.’
During cross-examination, Dr T agreed that he asked the mother whether the father had ever threatened the girls or physically hurt them. He wrote ‘her response was “well, he never said the actual words,” but then added that he had spoken of other people who he had intended to harm, people who he’d punched and bashed.’ He agreed that this was an accurate reflection of the notes he made and did not sit comfortably with the mother’s evidence that the father was violent to the children, physically assaulted them and threatened them.
He agreed that it is very worrying that the mother’s disturbed psychological functioning is an entrenched condition, and is not likely to change without either insight or considerable treatment.
He agreed that there is a great risk to the children’s psychiatric health now and in the future. He considered that the risk was continuing and had been there for some time at the time he assessed the mother.
He believes that, if the children remain under the care of the mother, they will not be able to be free and will not be able to develop in a normal sense. He agreed that they could engage in further self-harm and further suicide attempts.
Dr T said that a personality disorder requires psychotherapeutic treatment. Such treatment could take a number of years, and would require the mother to be invested in the process. He considered that some sort of motivation involved, such as a change in residence, could provide an incentive.
Dr T stressed the importance of the release of his and Dr N’s report to the treating psychologist or psychiatrist, so they know what they are dealing with and to provide them with context.
When asked how a change of residence could be done given the empowered and emboldened characteristics of the children, Dr T answered:
… it’s a weighing up of comparative risk,…where children are aligned, that’s where the damage is because they have a need to maintain the alignment for reasons which we’ve kind of touched on. There’s little doubt that any of that’s going to change whilst they remain with their mother, I think, on the basis of what you’ve just told me and the answers that I’ve – questions I’ve been asked before, and it’s very difficult for the court because it’s a risk also – and I think Dr N who is…by no means a wilting violet in these matters, and she often works very, very hard with the alienated children…I think what Dr N is saying is it’s so far gone down the track, it’s difficult to see how it can be reversed. The only way I could understand it would be that there have to be very strong orders about it or…and…, the father hasn’t had an opportunity to have any time with the girls and that moratorium may well be worth a try. But…it is a risk… if the children are left there…long-term risk… I think, of staying with the mother far outweighs the risk involved in trying to make a change…that’s my view…I haven’t seen the girls, but…I’ve seen many children like this. And often, the pressure…on the girls is such – or the children is such that to comply, that they feel very afraid. But they actually haven’t had an opportunity to spend time with him for some time, if not for a very long time…
Dr T believes that, if there were to be a change in residence, the children may act out for some time, might run away and could demonstrate some self-harm behaviours. When asked about the best approach to a change in residence, he responded: ‘it’s not about treatment at the moment. It’s about firm orders’. He indicated that the change in residence should be ‘pretty immediate’, a sudden process, with a three month moratorium of time with the mother, including telephone and face-to-face time. He agreed that an option would be to order a change of residence on an interim basis, then adjourn and see if it is successful. He explained the process he was describing as a ‘hard Brexit’.
He recommended that the ICL and ‘someone like’ Dr N or Mr V should tell the children about the change in residence, if that were to be ordered. He agreed that in such circumstances there should be a restraint on the mother disclosing this information to the children until told by the independent persons.
To ensure the children’s mental safety in the future, he recommended that they should have treatment beginning as soon as possible. He explained:
Well, that’s what my concern was… they shouldn’t continue with that clinician, but someone who…is experienced in the area, you know, like…Mr V or someone… – the children need support. That’s what they need because they’re feeling very obliged to do something at the moment to align with the mother against the father. And clearly, he’s not a risk. He’s not a risk. So they’re safe in his care and they need some proper treatment and the mother may need some orders from her Honour as well. But that’s for the court.
Dr N
Dr N prepared two reports dated 26 August 2016 and 6 July 2018. She was not required for cross-examination by any party. After Dr T gave evidence on Wednesday 18 July, I requested that Dr N attend the Court to give evidence. She was provided with a transcript of Dr T’s evidence. Dr N attended the Court on 19 July 2018 and was cross-examined.
In her report dated 25 August 2016, Dr N wrote that:
…I am not sure that Ms Seabrook has the capacity to refrain from sharing her information with the children, and some of the dynamics in the family seemed so chronic that I suspect she has difficulty recognising how her behaviour influences the children.
If Orders are made for the children to see their father, it seems likely that their ‘protests’ will become more flagrant.
In the Summary and Recommendations section of the report dated 6 July 2018, Dr N recommended that the children spend time and communicate with their father in accordance with their wishes. She wrote:
if the children do not see their father, and it is difficult to envisage how Mr Seabrook’s proposals could practically be put into place, it is likely that they will continue to have psychological and emotional difficulties into their adult hood. While they may continue to blame their father for all the problems in their lives, I suspect that interpersonal relationships with others are going to be very difficult because they have never had to deal appropriately with conflict or have an appropriate reference point of usual human interactions.
While Mr Seabrook considers that the children might come to live with him as a way of helping them to become clear minded and reasonable about their difficulties with him and learn to resolve conflict in an appropriate way, I consider that the opportunity has passed and the children are too far along in a developmental stage for this to be a viable or appropriate alternative.
Nevertheless, I should emphasise that I have great concerns for both girls. Ms Seabrook does not appear to appreciate that the children have ambiguous feelings for their father and at some point in the future they are likely to judge her harshly for her role in these disputes…I cannot recommend the children moving to live with their father as this appears to be destined for further conflicts, disputes and emotional and psychological disturbance. I recommend that the children spend time and communicate with their father at their wishes.
Dr N wrote about a more positive presentation of the children at the second report interviews. Counsel for the father asked, irrespective of what the children were telling her, if they were at the time suffering from depression and anxiety and not enjoying life, would that put a different complexion onto the one that has been given. She answered:
It would but…my impression of the children…is that a lot of the symptoms are about attention seeking and exaggeration of psychopathology which I describe about the children…claiming proudly that they’re disturbed and things like that. So if Ms Seabrook was writing to the school about the children’s mental health and the children were telling me about the mental health, I might take both of these with a grain of salt, as well.
When asked whether she would take comments about self-harm and suicide with a grain of salt too, she answered ‘yes…in this case, yes, I would.’ She did not inquire of any doctors about whether or not the attempts of suicide were serious. She accepted that it was important to know if these were serious attempts or attention seeking behaviour. Her impression after talking to the children was ‘that it was not serious’, explaining that ‘they were very proud of their attempts-their descriptions of what happened suggested mostly attention-seeking behaviour.’
Dr N reported a discussion she had with [X] about a suicide attempt. She believed it was clear that this was not a serious attempt at suicide, saying, ‘it’s not the way kids talk about suicide.’ She agreed that, regardless of whether or not the attempt was serious or attention seeking, one must be careful, saying:
if you suggest that her attempt is not serious or it’s not to be taken seriously, that’s more likely to increase the behaviour…It’s not good for kids to be making suicide attempts for attention-seeking. I imagine if I had written my report that this was just attention-seeking, then that was likely to increase the behaviours because Ms Seabrook appears to be an important factor in the attention-seeking behaviour by giving that behaviour lots of attention and exaggerating by taking all the knives out of the house and enjoying the drama of it, so there’s a risk in me over-emphasising self-harming behaviours as likely to increase it. The issue for the kids is that the type of attention-seeking behaviour is more…associated with borderline personality traits, the idea that you do something just for attention. And if you look at patients who have borderline personality traits, that’s what they do. They make quasi-suicide attempts for attention, get everyone involved in it, enjoy the drama of it. So it’s a risk.’
Dr N remarked that:
Ms Seabrook impresses as a being a very dominant person in the family, and certainly dominating the children. My concern is that Mr Seabrook appears to have been very much on the bottom of that hierarchy in the power in the family. And one of the problems with the children is their sense of power and superiority over their father.
In respect of Dr T’s view about a change in residence, Dr N does not believe that a harsh intervention is appropriate in this case ‘for lots of reasons.’ She noted that Dr T, who came to a different conclusion to her, recommending a ‘hard Brexit’, had not seen the children. She noted:
they are physically imposing children. They are…twice the size of me…even when I saw them in 2016, they could have easily passed for 18 to 20 year olds. Their demeanour is assertive and confident despite all of these issues behind. And I certainly don’t consider them to be healthy psychologically or psychiatrically, and that the risks in the future are pretty huge that they will not go very well…Physically, practically, I just cannot see this working. The children…take themselves out of school, whether it’s at their mother’s encouragement or persuasion, to go to a police station. These aren’t shrinking violets. These aren’t delicate, sensitive little girls. These are children who have been over empowered their whole life. I’ve got no doubt that their mother is a very dominant figure in their life, and that she perverts and distorts their thinking at times.
Dr N said that a harsh intervention is inappropriate, due to the risk of self-harm, when the children have already learnt that self-harm is a very effective way to get attention; and due to a disturbance to their current positive trajectory of a sense of newfound optimism, friendship, and bonds at school.
Dr N did not make any recommendations in her latest report about treatment for the children. I asked her whether she believes that they should be psychiatrically examined. She did not believe that they should be. She said that they are not fragile children. She agreed with Dr T that it is likely that interpersonal relationships with others in the future will be a serious problem, mostly because they have been highly indulged, and the father has taken a compliant approach throughout their childhood. She was of the view that they are likely to have some serious psychological problems in the future. She said that when she saw them in 2016, she may have agreed with Dr T that they will have psychiatric problems in the future. However, when she saw them in May 2018, she liked their positive approach and outlook. She did not expect that they would be doing well at school or that their attendance would be good, but they seemed happier in themselves.
In respect of Dr T’s view of the risk of psychiatric harm of living with the mother and not having a relationship with the father outweighing the risk of harm to the children of a change of residence, Dr N answered that therapy and a change of residence can work when children have had a previously very good and strong relationship with both parents. She did not:
get a sense that their relationship with their father was ever very strong, and the problems in the family are that Ms Seabrook is most dominant, the children second and Mr Seabrook very, very, very third in that. So not very much power in the family and that the children have always felt superior to their father…the reason therapy works is that there’s usually some ambivalence in the children…there is a little bit of ambivalence in the children… The problem with the observation and which Dr T hasn’t seen is the observations of the children with their father in that he made various attempts, and his attempts were not very good. They weren’t very skilful. They couldn’t capture any of that ambivalence and…It just poured into this sort of dismal – everybody lost hope. Mr Seabrook lost hope. The children lost hope… It was silent in the end. It tells me that Mr Seabrook probably doesn’t have the skills to capture that and that their relationship with him wasn’t strong enough to begin with.
Dr N was of the view that there are physical risks to the children if there is a change in residence because the children are so empowered. They are more likely to run away and do what they think they are supposed to do, including self-harm attempts, making shows of behaviour, exaggerating psychiatric issues to get attention and having a real level of genuine emotional disturbance. She described the idea of physically forcing the children into a car as ‘ludicrous.’
The second level of risk is likely to be another long period of emotional disturbance and disturbed behaviour because they think they are unhappy and depressed.
And then what Dr T is talking about is this long-term risks for the rest of their life. I just expect that those are probably chronic. And it’s not determinative. I mean, lots of people have bad and terrible family experiences in their childhood. It doesn’t mean that that is what you are going to become. You can grow beyond it. You can find mentors. You can find other people. You can have the intelligence enough to be self-reflective and work on what you think you should change and change. It happens all the time…
Dr N reiterated that there is a risk of self-harm for the children if there is a change in residence. Even though she believes that [X]’s alleged suicide attempt was a cry for attention, this behaviour is more likely to increase because, with quasi-suicide attempts, children want to prove that their distress was real and that it has not been taken seriously, and they will show how it will be taken seriously, ‘as blood will be shown next time.’ Dr N believes that these children have learnt that that is the way to appropriately or inappropriately express disturbance.
Dr N believes that in May 2018, the children presented with a good trajectory ‘in terms of themselves and how they feel about themselves.’ She does not believe that they can or should go through another period of disruption and disturbance after their ‘pretty terrible childhood so far, and then the long-term psychiatric issues are pretty much long-term… I take a pragmatic view to that and say that is constant, and I expect it. And I am not even sure that that is possible to be turned around at this point.’
Ms T
On 30 August 2016 and 3 March 2017 it was ordered by consent that the parties and the children attend clinical psychologist Ms T (‘Ms T’).
The counselling involved an assessment of each family member, 36 therapeutic sessions between January 2017 and February 2018, and follow up sessions.
Of the assessments of each family member, Ms T reported that ‘[i]n general the parents’ presentations were in keeping with what was contained in Dr N’s report.’ She noted that the children ‘presented as physically older than their years and precocious in their manner.’
During individual reviews in early February, [X] told Ms T that she had no interest in her father or pursing any relationship with him. She thanked Ms T, but added: ‘there is nothing you or my mother can say at this point that will lead me to change my mind’. [Y] also said she did not want to see him, and told Ms T that she would refuse to see her father further and was not interested in any therapy process involving him.
Ms T reported that ‘the therapeutic process has clearly broken down at this stage and it does not appear to be viable to attempt to involve family members in further sessions aimed at facilitating Mr Seabrook’s relationship with [X] and [Y].’
It was Ms T’s view that the children, ‘would not be willing or ready to engage in any further family therapy work for some considerable period of time, and it may also be some time before they are ready to undertake further individual therapy work.’
Discussion about the Expert evidence
Both Dr T and Dr N were impressive witnesses. They are experienced experts in their fields of expertise. The significant issue of difference between them was their respective recommendations about a change in residence for the children.
I was asked by counsel for the father to prefer Dr T’s recommendation about taking his ‘Brexit’ approach of making firm orders for a change of residence. I was asked by counsel for the mother and for the ICL to prefer Dr N’s recommendation of no change in residence. Counsel for the ICL submitted that the ICL did not ‘cavil’ at all with the evidence of Dr T, apart from his recommendation.
Dr N had the advantage of interviewing and observing the children twice, whereas Dr T did not interview them. She had also read Dr T’s report before she prepared her second report, and she read the transcript of Dr T’s evidence before she gave oral evidence.
Dr T was at a disadvantage by not having read Dr N’s July report before he gave evidence. Dr N had included short video observations of the children with the parents. In her oral evidence, Dr N described the children as physically imposing children, who could have passed for 18 to 20 year olds. She said that she suspected if Dr T had seen the children, he may have taken a different view about recommending a change of residence.
I therefore do not agree with the submission of counsel for the father that Dr T had the report of Dr N’s observation of the children and he was in a no worse position than her. In his report, he wrote that he had not assessed the children, as he had read the copious material from Dr N. He wrote that his report needs to be read accordingly. As I have said, when Dr T gave evidence, he had not read Dr N’s second report, which contained details of her observations of the children some two years later in May 2018, and he had not seen the videos of them. Dr N considered the ages of the children, the damage they have already suffered from the conflict, the lifetime of indulgence, the contempt they have for their father and the ongoing risks they face if the conflict continues.
I accept the submission of counsel for the father that Dr N accepted a suggestion from him that this is the last chance for the children to test a change of residence. However, when she was asked whether she would concede that a change in residence was worth a try, she answered that she would ‘just say that she has seen the children and Dr T has not.’ She suspected that had he seen the children, he might have a different opinion. She did not think it was necessary that he should see them. She did not change her opinion that a change of residence was unlikely to work.
After considering all the evidence, I will make a determination about which recommendation I prefer.
It was submitted by counsel for the father that little weight should be placed on the report of Ms T, because she did not attend the Court for cross-examination.
Whilst I take into account that Ms T was involved with the family for a period of over 12 months until early March 2018, and the family therapy was unsuccessful, I do not place weight on the contents of the report.
Relevant Law
In respect of parenting proceedings under Part VII of the Family Law Act 1975 (‘the Act’), s.60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that, when a court is determining whether to make a particular parenting order in respect of a child, the child’s ‘best interests’ is the paramount consideration.
When determining what is in the best interests of a child, a court must consider the considerations set out in s.60CC of the Act, informed by s.60B of the Act.
Section 61DA provides a presumption, that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if not in the best interests of the child. If the presumption of equal shared parental responsibility applies, a court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable. If the Court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for the child to spend substantial and significant time with each of the parties.
I turn to consider the relevant matters pursuant to s.60CC of the Act.
Primary considerations
Section 60CC(2)
(a)’the benefit to the child of having a meaningful relationship with both of the child’s parents’
This consideration is informed by s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
The preferred approach to this consideration is to consider the prospective benefit to the child of having a meaningful relationship with his or her parents.[2]
[2]McCall & Clark (2009) FLC ¶93-405 [119].
The term ‘meaningful’ is not defined in the legislation but has been the subject of a number of judgments.
In Mazorski v Albright,[3] Brown J considered the dictionary definitions of ‘meaningful’ and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[4]
[3] (2007) 37 Fam LR 518.
[4] Ibid 526-527.
The children do not have a meaningful relationship with the father currently, and are unlikely to have one in the future if they remain aligned with the mother. Having regard to the expert evidence, I consider that it is in their best interests to have a meaningful relationship with their father in the future.
If the mother has intensive therapy to address her personality disorder and invests in this process, so that she gains insight into her disturbed functioning and how it impacts on the children, and thereafter promotes a relationship between the children and the father, there may be a benefit to the children of having a meaningful relationship with her.
Section 60CC(2)
(b) ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.’
In s. 4(1) of the Act, abuse, in relation to a child, means:
…c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or…
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b) the Court is to ‘to give greater weight to the consideration set out in paragraph (2)(b).’
The mother commenced these proceedings by alleging that the father is an unacceptable risk to the children. She has alleged, amongst other things, that he is a thief, an alcoholic, a person who kills animals, and a person who obstructs justice with a police officer friend. At the final hearing, as articulated by her counsel, she changed her case so that the father ‘no longer poses an unacceptable risk of harm to his children by reason of a violent disposition or psychiatric condition.’
Dr N was of the view in August 2016 that the children have no fear of the father.
They are firmly aligned with their mother, but there is no sense that they are scared of their father. Rather they are over-empowered and appear to take the attitude that they will receive approval by being rude and rejecting of him.
In her July 2018 assessment, Dr N was of the same view that there was no sense of fear by the children of the father. ‘They consistently described their father is abusive towards them but showed derision and contempt for him, amidst demands that he admit to their abuse of them.’ Dr T did not consider the father a risk to the children.
Much focus was placed on an email exchange between the mother and [X], which is evidence of the mother’s abuse of her. The mother wrote the email to [X] at school two days after she had received an email from the father informing her about how well his time with the children had gone.
28.03.17: email from wife to [X]
· “your meltdowns are affecting us all, its too much for [Y] and too much for me”
· “We all have pain, not just you”
· “You have to stop, you cannot be trusted with any information”
· “You talk to my sister as though you are a grown up or her friend- “insulting”
· “Ms P couldn’t believe you ate a pie on Sunday, neither could I or [Y]”
· “You say you have issues, then you were throwing yourself at him”
· “you are inconsistent and confusing and is sending the wrong message to everyone”
· “you looked as though you were ‘competing’ with [Y] on Sunday for his attention”
· “SHUT UP. [Y] has things to say and YOU DON’T LET HER TALK”
· “Stop threatening to kill yourself. ITS SELFISH.”
· “BRAT”
· “You insult me in every way”
· “You take my love for you and twist it to your financial advantage with threats”
· “Your life is shit because you do nothing about your shitty behaviour”
28.03.17: email from [X] to wife
· “You don’t understand how much the words you say affect me”
· “I’m sorry I will change I do confuse myself”
· “Please don’t say anything to [Y], she hates me enough as it is”
· “Love you more than the world”
28.03.17: email from wife to [X]
· “Your teachers state you are a distraction to yourself and others. SELFISH”
· “ENOUGH”
· “SHUT UP SHUT UP SHUT UP”
· “Enough with your shitty effort in class NOW”
28.03.17: email from [X] to wife
· “mum I am seriously so sorry”
28.03.17: email from wife to [X]
· “could you please send me the email I just sent you back to me. Don’t ask why and could you please not talk to anyone about what happened this morning not because I am ashamed or embarrassed but because I need you to be private.”
28.03.17: email from [X] to wife
· “yes mummy, I do understand the gravity of what I have done.”
· “I will keep this email and read it every day until I change, I promise that will be soon”
· “I would appreciate just one more chance”
· “I cried for the whole first period class regretting the names I called you”
The mother admitted during cross-examination by the father’s counsel that these emails were abusive of [X].
Dr T said that the email is ‘extremely berating, controlling and manipulative,’ and he agreed that it is psychiatrically damaging. He said that the mother is not allowing a relationship between [X] and her father. In respect of the email from [X] to the mother stating ‘you don’t understand how much your words affect me. I’m sorry. I will change. I do confuse myself,’ Dr T said it is extremely damaging, as the child’s own beliefs get turned around on the basis of the manipulation and the need to please the parent. He said that if the mother’s attitude is still consistent with this, there is a risk if the children remain under her care that they will not be able to be free and will not be able to develop in a normal sense. He agreed that prognostically, they could engage in further self-harm. Dr T said that the mother’s request to [X] for the email to be sent back was very manipulative and deceitful. He was of the view that if the children remain living with the mother and this type of behaviour continues, the father will never have a relationship with the children. This will be psychiatrically damaging for them.
Dr T agreed with counsel for the mother that the children’s behaviour in acting out aspects of the conflict, aligning themselves with the mother, and self-harming can be explicable by the children managing conflict between the parents, but in this case he felt that there was more than this ‘going on’. He said that in his experience, where children are pressured to align themselves with one parent against the other, that is particularly damaging. He said:
many children grow up in conflicted homes...but I think, when they’re dragged into a conflict, and used as weapons against another parent, and seen as objects rather than individuals, and are encouraged to develop particularly negative views of the other, and are forced to, in line with this document…I think that’s particularly corrosive.
The evidence of Dr T about the mother’s email was that emotional, psychological and psychiatric damage could occur to [X] if this was consistent and repetitive behaviour by the mother towards her.
Dr N agreed that the mother’s email was brutal and psychiatrically and psychologically damaging. She agreed that for a child who had attempted suicide just months before, regardless of whether or not this was a serious attempt, such an email was the sort of thing that could tip a child over the edge. She agreed that these emails were devastating ‘stuff,’ which had a ‘devastated effect’ on [X].
Dr N suspects that such behaviour has been happening for the entirety of the children’s lives.
Dr N wrote in her second report that she was of the view that the children have been psychologically damaged by both parents. They have been distressed and disturbed by their exposure to their volatile relationship. ‘Cognitively they choose to hold their father responsible for this. It appears that their alignment with their mother is influenced by Mr Seabrook’s narratives around Mr Seabrook being entirely responsible for all the negative issues in their lives.’ They have been manipulated and influenced by their mother. She has shared her contempt of the father and provided highly melodramatic re-enactments and interpretations that are then adopted by the children.
Dr N’s view was that the father’s behaviour, actions and attitudes appears to be a significant part of the children’s disturbed functioning. She described the father as likely to be ‘somewhat tactless’, and that these transgressions are magnified. He has admitted to having a conversation about [X]’s weight and calling her fat, but asserted this occurred in the bedroom and was overheard. He acknowledged conflict with [X]. He acknowledged volatility in the parties’ relationship to which the children have been exposed. He admitted using ‘profanity’ in front of [X]. He acknowledged speeding with the children in the car.
There is a need to protect the children from exposure to further conflict between the parents, and from further risk of psychological and psychiatric damage.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] told Dr N in 2016, ‘I can choose if I see him. I am now the age I can choose.’ Dr N wrote that she has been told this by her mother, her best friend’s mother, Ms A, and her great aunt. Dr N wrote ‘[X] added with some pleasure “if we are screaming and crying it’s not like you can take us in the car now” to suggest that she understood a determinedly resistant approach is likely to be successful.’
[X] told Dr N that she was also annoyed that ‘the judge’ said that she had to see her father and ‘couldn’t believe it.’ Dr N asked [X] about her father’s allegation that when he was away, she had spoken normally to him by text and telephone. She acknowledged this, explaining ‘we didn’t want to say anything – we were really scared he would find out.’
Dr N asked [X] how she would feel about ‘a judge’ telling her that she would have to see her father and she responded ‘I honestly feel I will kill myself… I will not [see him].’ Dr N wrote that she repeated the phrase used by her mother in her interview with her, ‘it took me six days to get over the last one [visit at Ms L’s rooms].’
In her July 2018 report, Dr N described [X] as looking much older than her years. She had direct eye contact and spoke in a forthright and articulate way. [X] told her that she does not want to see her father because she has ‘so much anxiety about being around him.’ She complained that he ‘hurts’ her and ‘hurts my family’. Dr N wrote, ‘Being made to live with her father, [X] felt would cause her to revert her progress and turn her from her present trajectory’ with life being ‘“so much better” now’.
In 2016, [Y] told Dr N that she ‘hates’ her father and cannot find anything positive about him. She said that she was ‘scared of him’ and that he often ‘hurt’ her and her mother. In respect of the arrangements for her to see her father, she told Dr N that she, her mother and sister were travelling to Adelaide for a holiday on the train when they heard. They could not believe the news that she would be required to see him. She told Dr N that she began crying and decided with [X] that they would not do it. She said ‘I just don’t want to see him at all and he knows that because we have told him.’ Dr N asked [X] what she might do if a judge told her that she had to see her father and she complained, ‘we don’t get a choice in it.’ [Y] said that the best option was to see him at Ms L’s.
In her July 2018 report, Dr N described [Y] as looking much older than her age. She impressed as a forthright young woman with good eye contact and spoke confidently. Dr N reported that [Y]:
has strong feelings against her father and believes that he “hasn’t changed”. She expressed anger that he “still wants a relationship with us” and claimed that his pursuit of legal proceedings showed a lack of sensitivity to her needs (“he still wants to force this thing going on.”)
During cross-examination, Dr N said that in May 2018, the children’s dispositions had improved:
I quite liked what I saw in 2018 because they seemed to have got some strength from the outside. And sometimes that’s part of natural development. Or, as I put in my report, that perhaps there’s some good role models that they are looking for and hope they were at their school where, you know, kids can grow beyond their parents or their family and things like that.
I accept Dr N’s opinion that the children are manipulated and influenced by their mother. She reported that the mother appears to share her contempt of Mr Seabrook with the children and provides highly melodramatic re-enactments and interpretations that are then adopted by the children. Her manipulation of [X] was evident in the email exchange dated 28 March 2017. Dr T had the same opinion of the mother’s influence on the children.
Where a child expresses views about his or her welfare, the child’s views must be considered together with any factors the Court feels are relevant to the weight given to the child’s views. In H v W,[5] Fogarty and Kay JJ noted:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day-to-day experience the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child's stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implications. Ultimately the overall welfare of the child is the determinant.[6]
[5] (1995) FLC ¶92-598.
[6] Ibid [1].
In R and R (Children’s Wishes) (2000) FLC ¶93-000 (‘R and R’), the Full Court cited with approval the principles relating to children’s views outlined in H v W,[7] noting that:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.[8]
[7] (1995) FLC ¶92-598.
[8] R and R (2000) FLC ¶93-000 [54].
In R v R (Children’s wishes) (2002) FLC ¶93-108 (‘R v R’), a child refused to spend time with the father. There were no significant allegations of abuse, neglect or family violence. A key issue at the trial was the mother’s attitude towards the father’s relationship with the children. The father alleged that the mother’s negative view of him had influenced the views of the child.
The trial judge found that the mother had disingenuously employed the wishes of the children to validate her case and stated:
…I was not convinced, by any measure, that [the mother] overtly encouraged C (and the children generally) to have contact with their father despite her evidence to that effect. In my view, from her evidence and also from her demeanour, I have the distinct impression that she was moved to rely conveniently upon the children's wishes and did little, if anything to actively promote to them the advantages of contact and to present the husband in a positive light. I have no doubt that had she done so the position would be markedly different from that of today.[9]
[9] R v R (2002) FLC ¶93-108, [55].
On appeal, the mother argued that the trial judge had failed to attach sufficient weight to the wishes of the child. The Full Court held as follows:
His Honour took the view that the wife had played a significant part in the formation of C's wishes. He rejected the proposition that she had appropriately encouraged C and J to attend on contact. He said that he had no doubt that she conveyed to them by either the spoken word or by her conduct or demeanour that she did not favour contact. He remarked that to take a passive position is equally infectious as to verbally express opposition. He said either way he was satisfied that she made her position clearly known to J and C.[10]
[10] Ibid [122].
I am of the view that the evidence of the children’s views needs to be seen in the context of the mother’s influence upon them. The evidence indicates that she has manipulated them and they have aligned themselves with her in their contempt of the father. As Dr T wrote, ‘the children have come totally under the spell of their mother who essentially dominates and dictates all aspects of their lives, share her worldview, and in particular, her view of the husband, and are aligned with their mother against him…’
Therefore, having regard to their ages, I recognise that the children need to be listened to, but also recognise the influence the mother has had on them. In these circumstances, I shall weigh up all the evidence and apply their views in a common sense way as suggested in R and R.[11]
Section 60CC(3)(b)
[11] (2000) FLC ¶93-000.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children do not have a close relationship with the father. The mother has made sure that is the case. The children behave negatively towards the father to gain the mother’s approval.
The children are enmeshed in an unhealthy relationship with the mother. Their relationship was described by Dr T to be a ‘folie a trois’, and the children are under her spell.
There is no evidence to persuade me that the children have close relationships with any extended family.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The mother removed the children from their school without consulting the father and engaged them in home schooling.
The mother unilaterally moved the children’s place of residence.
The mother has failed to facilitate the children spending time with the father.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The children have been maintained throughout their lives to have a privileged lifestyle.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children will find a change of residence emotionally traumatic. It is probable that they will refuse to go home with the father. [X] understood two years ago that a resistant approach is likely to be successful.
I consider the father’s evidence, that he believes that there will be minimal difficulty in implementing his proposal for a change of residence, demonstrates an unrealistic view about the practicality of a change of residence.
He has attended Relationships Australia in respect to parenting teenagers and sought the assistance of other qualified people in respect of the challenges ahead. He is confident that he can manage the transition of the children away from the mother. He will have the assistance of a close friend, Ms P, and the respondent’s sister Ms R to support him. He believes that his friends and relatives can help him collect the children because they are parents of great kids, and are well aware of the circumstances of the past two years.
He indicated that he expects the children will not be happy at all initially, when informed of the proposed change of residence. He does not believe that they will go to him submissively and do as they are told. He believes that there will be hours of discussion. With the support of family and friends, who may be able to explain to them why this may be a good idea for them, and with a court order, he hopes they will comply. ‘The court has made an order, and I think they’re respectful enough to understand the Court has made an order.’
He does not have a plan of where the changeover is to take place. He said ‘somewhere public…The exact location… I haven’t thought about it in any great detail.’ In answer to a question from counsel for the ICL of how he proposes the children get to a meeting with him, he said ‘I naïvely thought that Ms Seabrook may support that, but on the assumption that Ms Seabrook doesn’t support that, then their aunty will hopefully collect them.’
He recognised that the children will be distressed at being removed from the mother’s care, but he intends ‘to take the steps necessary to impress upon them the need to reconnect with me and to rationally adjust to accepting me as their father.’ He has been advised by Mr V to take them to (location omitted) for three weeks for the purposes of reconnecting. He intends to fly and believes he can get the children to the airport. He does not think that they will resist. He is confident that, provided he is given unfettered time with the children, they will adjust to living with him in a new environment over a short and medium term.
He intends for the children to live with him at the former matrimonial home and for his sister, Ms I, and her children to support them through the period at home. This is despite the children and his sister not having seen each other for several years prior to separation in 2016. His sister’s children are 17 and 12 years of age and:
are well known to and like the girls. I anticipate that this arrangement would continue for about three months or as long as necessary to stabilise an environment at home. Thereafter I will look to a changed arrangement that includes my partner and her two children.
During cross-examination, the father was asked about what he thought the children will think about Ms N’s children currently sleeping in their bedrooms. He said, ‘I haven’t thought about it. But I imagine they would initially be not entirely happy.’ The children have not met Ms N’s children. He was asked where Ms N and her children will move, if his children are ordered to live with him. He answered, ‘we haven’t worked it out yet, but we are both in agreement she is moving out. It doesn’t really matter, if we have to get short-term accommodation, long-term accommodation, lease a house for 12 months.’ He was asked when he would see Ms N. He answered that there will be an opportunity to catch up when the girls are at school. He agreed that he has been living as a family unit with Ms N and her children since November 2017. They will recommence living as a family unit, depending on how the first three months goes with the children. He said that Ms N is supportive and in agreement with this arrangement. When he was asked how that may impact on the girls, he imagined that ‘there will be issues, and they will be the normal issues.’
He also intends to move [Y] from School 1 to School 2 where he believes she will better develop. He is waiting until the Court makes a decision about the children’s residence before he makes a decision about [Y]’s schooling. He has made some enquiries with School 2 about availability of a place, but said that he has not given a great deal of thought about considerations which might affect his decision to change schools.
If the children live with the mother and do not spend time with the father so that they have a relationship with him, they are likely to suffer further psychological and psychiatric damage. Unless the children can have some independence from the mother, and a relationship with the father, there is a risk of long-term psychiatric and psychological damage to them.
If there is a change in residence, there is a risk of further conflict and further emotional and psychological disturbance. Dr N’s evidence was that the children are too far in their developmental stage for a change in residence to help them become more reasonable about their difficulties with the father.
Dr T believes that firm court orders should be made to change residence, such as a change in residence and a suspension of any time or communication with the mother.
The children are strong-minded. The father believes that discussions with the assistance of friends and family will help the children to move residence to him. They have had months of therapy and supervised time, which did not improve their relationship. They were under the influence of the mother during this therapy, however I am not persuaded that it is likely a three month break from the mother will change their entrenched views.
If a change of residence occurs, I consider that it is likely that the children will use forms of self-help such as running away or seeking the assistance of police and that it is likely that they will act out, or self-harm to get attention to their situation.
I consider that the father’s plan to get the children to go home with him or get them on a plane to go interstate is unrealistic. The children are both around 70 kilograms. [X] is 171 centimetres and [Y] is 178 centimetres. They are strong-minded and empowered children.
Dr N’s view was that she was not sure he had the skills to overcome the children’s resistance. I am not persuaded by the father’s evidence that he has the skills to make this work.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This sub-paragraph is not relevant.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I accept Dr N’s assessment that both parents have deficits in their capacity to meet the children’s needs.
Both parents have little insight into the children’s emotional needs by exposing the children to adult conflict. Having regard to the evidence, I agree with the opinion of Dr N that throughout the marriage the parents’ relationship was likely characterised by significant conflict and dysfunction to which the children were exposed.
The father took a passive role in the decision making relating to the children during the marriage. He conceded that he allowed the mother to determine matters relating to them. This meant that the children became aligned with the mother and empowered against him.
There are three events which occurred during 2017 which affected the children’s relationship with the father. The first was when he discovered where they were living. The second was when he attended a parent/teacher interview. The third was in November 2017 when he sent boxes to their home without informing the mother or the children that he was doing this.
Although the father would not accept that the children do not trust him because they have told Ms T and Dr N this, and that he has a lack of understanding about boundaries and their feelings, he admitted that his delivery of paintings and the girl’s possessions to them was not a ‘great move.’ He accepted that he should have obtained the mother’s approval and she could have warned the girls. He admitted that he should not have told the mother he knew where they lived. He admitted that he should not have sped as often as he did in the car with the girls.
He could not accept that an option could be to accept what the children say, to not pursue residence and say to them that he is here for them. He was asked whether he believes that his relationship with the girls will be affected if he does not listen to what they say. He believes that family, friends, and their aunties can sit down together to explain what is to happen in the short-term. Based on the evidence provided by the experts and some of the emails he has seen between [X] and the mother, he said it is not an option at the moment to listen to the children.
I agree with the assessment of Dr T that the father is emotionally naïve. I consider that the evidence supports Dr N’s opinion that he lacks the skills to build sensitively a relationship with them.
The mother does not have the capacity to provide for the emotional needs of the children. She manipulates and influences them. She has no insight into the impact of her disturbed psychological functioning on her relationship with the children. She has no insight into her own relationship with the children. She continually exposes the children to her contempt and dislike for the father.
I agree with the submission of counsel for the father that ‘alarm bells are ringing’ that the mother has been to the Centre Against Sexual Abuse (‘CASA’) and could give no adequate explanation about this.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
[X] was diagnosed with ADHD when she was at School 3 and was prescribed Ritalin which she continues to take.
In her first report, Dr N wrote that the children presented as highly indulged children whose maturity and capacity for rationality is distorted by their degree of self-entitlement. Both children are over empowered and have used threats of violence and self-harm to manipulate others.
They have lived a life of privilege and have had regular overseas holidays. [Y] proudly reported to Dr N that she has visited every Disneyland in the world. Since separation, the mother has taken the children on a number of overseas holidays between June 2017 and January 2018. In 2017 they went to (country omitted) in June, the (country omitted) in November, and (country omitted) in December. In 2018 they went to the (country omitted) in January and (country omitted) in July.
Dr N noted that the children appear over their lifetimes to have had little appropriate criticism or reality testing. They reported to her a history of problematic relationships with peers and difficulties with emotional regulation.
The mother took [X] to a psychologist, Dr E, from October 2010. She has had 37 sessions. She was having difficulties at school and was diagnosed as having features consistent with ADHD. [Y] saw Dr E from July 2012 and had 12 sessions. She was being bullied at school and being aggressive at home. Both girls made complaints about their father. [Y] returned to therapy in May 2016.
Dr N explained that parents with personality disorders are ‘more likely to give negative experiences to their children and increase the likelihood that they will also have personality disorders.’ She did not believe that the children have borderline personality disorders.
The father was diagnosed with an Adjustment Disorder with Anxious Mood, due to the totality of the stressful circumstances of his estrangement from his children in the circumstances of the Intervention Order, the failure of attempts of supervised time, and the pursuit of him by the mother’s lawyers.
The mother was diagnosed by Dr T with a Personality Disorder with Cluster B (Borderline) and Narcissistic features.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties have been irresponsible by exposing the children to their conflict. They have both been irresponsible by indulging them and failing to reality test them and to appropriately criticise them.
The father has demonstrated irresponsible parenting by speeding with the children in the car.
He has taken a conciliatory approach during the marriage and allowed the mother to dominate in the parenting of the children, which has had negative consequences for his relationship with the children. There is evidence that he has struggled to assert parental authority over them.
The mother has an irresponsible attitude to parenting. She has manipulated and influenced their relationship with the father. She has empowered them to be contemptuous of him and rude to him.
The mother has involved the children in the disputes and the proceedings. She has shared information with them about the proceedings. She involved them in her ‘ruse’ when they all communicated amicably with the father in May 2016, whilst at the same time planning to leave the matrimonial home and to obtain an intervention order.
Another example of her involvement of the children in the dispute was the attendance of the children at Suburb C Police Station on 12 February 2018 to complain about the father, after he served the mother with an application for residence of the children on 9 February 2018. I do not accept her denial that she involved them. I have no doubt that she was complicit in respect of their attendance at the station to give a statement to the police about their father. I consider that she told the children about the father’s application for residence.
I consider that the mother told the children the court date of 17 May 2018 for the Intervention Order breach. [X] was aware of what was occurring that morning. I reject the mother’s evidence that [X] was referring to the father’s birthday or the parties’ divorce.
The mother has not ensured the children’s regular attendance at school. She agreed that, from the date of separation until the children stopped attending school in December, there was an excuse about two or three times per week for them leaving early or not attending. She further admitted that 2016 and 2017 were ‘horrible’ for their absences from school. She further accepted that absences in 2018 were ‘pretty abysmal’.
The mother admitted that the children did not attend school on the day following occasions when they were spending time with the father, and also on the day of seeing him. When she was asked why the children needed a whole day off, when school finished at 3:30 p.m. and the meeting with the father was not until 5:00 p.m., the mother replied ‘The amount of anxiety they both had leading up to and post each catch-up was huge…The anxiety they had leading up to each appointment – each catch up, be it Ms T or Mr Seabrook – was a minimum of two days pre and post.’
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On 5 May 2016, the mother attended the Police Station and provided a statement detailing allegations of family violence committed by the father. He was on a business trip in the (country omitted) and was not aware of this.
This statement is annexed to the mother’s affidavit affirmed 23 June 2016, in which she explains that the statement details ‘some recent examples of Mr Seabrook’s behaviour towards me and the children. They are not isolated examples. They are indicative of the type of conduct to which the Girls and I have been exposed regularly for years.’
Her police statement provides the following allegations:
Mr Seabrook is extremely controlling and intimidating to me and the two children. He has shown behaviour over the past 10 years which is quite concerning and bizarre to say the least. On one occasion he made admissions to myself that he had a kangaroo killed and dumped at his ex-brother in laws door step to send a message. He made those admissions proudly and had no shame in his actions, if indeed true.
Mr Seabrook monitors my emails, phone calls, activities and controls my life to the point that when he is working from home I leave the house and busy myself elsewhere. I do so to avoid confrontation. He is a binge drinker and sometimes drinks alone in excess which only aggravates him and becomes a time bomb ready to go off…
The children have been witness to several incidents and feel intimidated by their father to the point of expressing suicide. When [X] was 7 years old, Mr Seabrook said to me that he could not even look at a photograph of her because “she was so fat she was disgusting”, “do something about it”. In 2010, when [X] was 8 years old I observed a significant behaviour change in her. When I asked her about it she told me that she wished to commit suicide. She stated she was being bullied by a group of girls at school and by her father.
In June 2011, Ms Seabrook hit fever pitch, I remember on one particular evening he was screaming in front of the kids “this is just fucking bullshit I might as well leave”, I told him to go. He picked up a chair and threw it against a wall and the children were crying under the dinner table…
Prior to the father returning home from his business trip in May 2016, without his knowledge, the mother vacated the matrimonial home with the children, ‘[i]n the circumstances, I believed I had no choice but to flee the matrimonial home with the Girls while Mr Seabrook was overseas and terminate all possible means of contact when he returned.’
On 9 May 2016, upon the father’s arrival in Melbourne, he was met by four or five police officers, who arrested, charged and bailed him to appear at the Melbourne Magistrates Court on 12 May 2016. He was charged with assault-related offences relating to three alleged incidents in October 2015, April 2014 and June 2011. He was also served with an intervention order, restraining him from returning home and from contacting the mother or the children. He was travelling with a business colleague when this occurred, and was ‘humiliated’. He initially thought when he was being approached by the police that something terrible had occurred to the mother or the children.
The application for the intervention order contained the following allegations of family violence:
The Resp is extremely controlling, abusive and intimidating toward AFM and two children. Family Violence has been ongoing within household for approximately 10 years with specific incidents outlined. In 2010 [X] was showing concerning behaviour so the AFM approached her. [X] stated she wished to commit suicide because of constant bullying from the Resp and girls from school. The Resp would often bully and make fun of [X] regarding her weight and physical feature. In March-April 2014 the family took a holiday to (country omitted) where an assault took place. The Resp was asked by AFM to remove his shoes and he reacted by pinned her arms against the wall. Both children were witness to this incident and were extremely distressed. In mid-October 2015 the AFM was preparing to take the children to school when an argument occurred and another assault took place. The Resp grabbed the AFM by the throat and threw her head into the wall. He then released the grip from neck and pinned her arms to the wall. Both children witnessed this incident and were screaming and crying in fear. There have been several other incidents of unlawful assault where Resp screams in the face of AFM where she feels fearful for her safety. AFM concerned FV will escalate upon Resp return from overseas holiday on 05/05/16 due to this being first time AFM reported to Police. Police believe an IVO is necessary to protect AFM and children.[12]
[12] Affidavit of Mr Seabrook sworn 26 June 2018, Annexure S-002.
The father denied these allegations when he appeared in court in relation to the intervention order on 5 September 2016. He consented to an amended order.
He was prosecuted for breaching this intervention order on 9, 11 and 27 May 2016. He described these breaches as ‘technical’ at best. He denied all of the charges. He was advised he could receive a diversion, and was willing to do so, however the mother did not give the required consent. He decided to contest the charges. The charges were struck out prior to the hearing, after an agreement was made with the police that he not make an application for his costs. The two year intervention order remains in force until 4 September 2018.
In his affidavit sworn 27 July 2016, the father denied the mother’s allegations of family violence. He said that he had been subject to verbal abuse and humiliation on many occasions and often in the presence of the children and friends. He said that the mother abused him in front of the children, and encouraged the children to do the same. He said:
It is not uncommon for [X] and I to have a “stoush” based upon [X] acting in a critical or defiant way toward me. In these circumstances the wife invariably supports [X] and encourages her in this regard. This unfortunately meant that arguments took place in the presence of our children and at times in the presence of friends and relatives. The wife did nothing to prevent this and indeed quite the contrary.
He denied ever having been involved in animal cruelty. He also denied that [X] witnessed him ‘extinguish a cigarette on her pet dog and then kick it’ as suggested by the mother, saying that ‘[X] would never say such a thing. She has never raised the alleged incident with me and I have no doubt that she would have no difficulty doing so had I engaged in such outrageous behaviour.’
He denied that he drinks on most days, admitting that he may have a beer after work every second day during the week. He denied that he is dependent on alcohol. He also denied that he drinks to excess, except when he is out with his friends or at events such as New Year’s Eve. When he overindulges he maintains a friendly demeanour, is not aggressive, is not agitated and is not otherwise unsociable.
He admitted that he occasionally drives ‘in excess of the speed limit particularly when travelling to (omitted)…’
He admitted that he urinated around the side of the house of his friends, the (omitted), whilst having a cigarette during a social occasion.
On 9 February 2018, the mother made a complaint about the father to the police for breaches of the intervention order. He was interviewed on 25 February 2018. He denied that the charges constituted a breach, but pleaded guilty, as he was advised, in order to avoid further prolonged litigation.
The father deposed in his affidavit sworn 26 June 2018 that:
I have not engaged in family violence towards the respondent or the children…At no stage has the respondent or the children expressed a fear of me and at no stage have I attempted to scare or intimidate my family members. I accept that there have been a number of arguments that erupted between us usually caused by the respondent's insistence that she travel internationally each school holidays to expensive locations. The respondent regularly made bookings for air travel and accommodation without consulting me and this created ongoing tension between us.
I have never been physically violent to the children nor have I intended to be emotionally harmful in any way. I deny that I was ever cruel to animals, and the allegations made against me are simply untrue. I consider that the allegations now made by the respondent are made for strategic purposes and motivated by her wish to exclude me from the children's lives.
The respondent's allegations that the children are scared of me is completely false. They were certainly not scared of me during the marriage or during the limited time spent occasions since separation have displayed no signs that they are fearful of me. I have not at any time during my parenting of the children, sought to or had the impact of scaring the children. I believe that the respondent has raised issues of domestic violence as it relates to the children solely for her irrational self-serving purposes.[13]
[13] Ibid [15]-[17].
During cross-examination, the father denied all allegations of physical family violence. He explained that the reason he did not confront the allegations specifically in his affidavit dated 3 June 2016 was because he denied them.
In respect of the mother’s allegation about the June 2011 family violence incident that ‘he picked up a chair and threw it against the wall and the children were crying under the dinner table’, he said this was a ‘half-truth’ His recollection was that he got up off the table after he and the mother had an argument and pushed the chair back against the wall. He denied the children were under the table crying.
In relation to the incident in (country omitted), the father admitted that he pushed the mother, however this was an act of self-defence as ‘Ms Seabrook was yelling at me, she was throwing things around the room.’ He also said:
Ms Seabrook and I had a relatively volatile relationship. Ms Seabrook had bitten me until I bled before, She has punched me in the stomach… I don’t consider a push away from me to protect myself as…family violence.
He told Dr N:
“I pushed her yes”. He said he could not remember the context but stated that conflicts with Ms Seabrook sometimes became physical, describing that this was a mutual response. He gave the example that a few months prior to their separation, Ms Seabrook had bitten him and drawn blood. He alleged that another time Ms Seabrook had punched him in the stomach. He thought that some of these interactions were light-hearted and made in fun but also said there was physical altercations between them conducted out of anger. He said “Ms Seabrook has a mouth on her and so do I. Ms Seabrook does most of the screaming in the house and mostly with [X] and mostly about her medication” to argue that Ms Seabrook is verbally aggressive…
When I asked Mr Seabrook about Ms Seabrook’s allegations that he had arranged to have a dead kangaroo placed at his former brother-in-law’s home as a particularly cruel joke due to his brother-in-law’s dietary position (i.e. that he is a vegan), Mr Seabrook denied it...
Similarly, Mr Seabrook adamantly denied that he had ever spoken about killing kittens by crushing them with his work boots (“absolutely – it didn’t happen. It’s a lie”).
Apart from the (country omitted) incident, the father denied that he ever laid a finger on the mother.
He agreed that he called the mother a ‘money-hungry bitch’ in front of [X]. He explained that he believed she was listening to music at the time, as she had her headphones on.
The mother claimed in her affidavit that ‘if Mr Seabrook did not like the conversation or the way the girls failed to engage with him, his response was “fuck the three of you, I’m going to bed”’. The father denied that this ever happened.
The mother agreed during cross-examination that she said the father has a history of personal violence against her and the children. She thinks he is a thief. She believes he killed some kittens when he was young. She admitted that she tried to tell Dr N not to look for his violent history because he has a friend, who is a police officer, who is going to pull the file.
During cross-examination, she alleged that the father has assaulted the children, and that he had hurt [X]. She agreed that several years ago, she let the children believe that he punched one of them in their childhood.
During her interview with Dr N, [X] alleged that the father used to call her names and constantly yell. She also said that he was physically abusive by punching her in the stomach and pushing her off chairs. [X] alleged ‘once when I was having Ritalin for ADHD, I didn’t want to take it and I felt uncomfortable with the label and he threw me off the chair and was yelling at me.’
The father denied hitting [X], and also denied that the only way he could get her to take her medication was to use profanity and force. He said ‘I have used profanity before, yes. I’ve never laid a – I have not smacked my kids on the bum since they were 2.’
The mother has applied for an extension of the intervention order. It was listed on 10 August 2018. She told Dr N in May 2018 that the father is ‘still committing family violence’ and that she greatly fears him.
I do not accept the mother’s evidence about the family violence allegations. I do not accept her evidence that the father has assaulted the children. I consider that she has exaggerated incidents of conflict to suit her own purposes. I have no doubt that throughout the marriage there has been verbal abuse and conflict to which the children have been exposed. I note what Dr N wrote:
No doubt the children have had been distressed and disturbed at times by exposure to their parents’ volatile relationship. Cognitively, they choose to hold their father responsible for this. It appears that their alignment with their mother is influenced by Ms Seabrook’s narratives around Mr Seabrook being entirely responsible for all the negative issues in their lives.[14]
[14] Dr N, Supplementary Psychological Report dated 6 July 2018, 21.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I agree with Dr N that if a change in residence is ordered, the children will be subjected to further conflicts, disputes and psychological disturbance. Interim orders will also likely subject the children to further litigation.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
I agree with the submission of counsel for the father that the mother is deceitful and manipulative. One example of her deceit was her ‘ruse’ to leave the matrimonial home with the children.
Her manipulation of the father in these proceedings was demonstrated after 20 December 2016, when the father filed an application in a case seeking residence of the children, and restraining the mother from communicating or attempting to communicate with them. On 22 December 2016, there was insufficient hearing time, so the matter was set down for final hearing on 27 March 2017. The father met the mother at her request on 8 January 2017. She ‘implored’ him to withdraw the court proceedings. She assured him that she would co-operate to ensure that he would be able to resume a meaningful relationship with the children. He agreed to vacate the hearing date on 27 March 2017.
Then, on 28 March 2017, she sent an abusive email to [X] after the father informed the mother that his time with the children went well.
At this final hearing, after the proceedings had been on foot for around two years, she changed her case from the father being an unacceptable risk to the children, and argued that it is now too late for a change in the children’s residence or for them to spend time with the father.
It is understandable that the father would feel aggrieved by the mother’s manipulation of the proceedings. She has behaved with little regard for the importance of the children maintaining a relationship with him.
Parental Responsibility
The presumption of equal shared parental responsibility does not apply, as there are reasonable grounds to believe that family violence and abuse has occurred in this family. Both parties sought an order for equal shared parental responsibility, supported by the ICL. I am of the view that it is in the children’s best interests that both parents are involved in decisions for the children’s long-term welfare and will make the order.
Live with and spend time arrangements
Equal time for the children with each parent is not in their best interests and is not reasonably practicable. I am of the view that significant and substantial time with each parent would be in their best interests, but it is not reasonably practicable. There are difficulties of implementing such an arrangement, having regard to the developmental ages of the children, their stature and personalities.
I consider that the father’s proposal that the children’s residence be changed so that they live with him on a final basis, their time with the mother be suspended for a period of three months, and time with her then move to each alternate weekend, is not in their best interests. I accept Dr N’s evidence that if there were to be a change, there is likely to be another long period of emotional disturbance for them and disturbed behaviour, with further acting out, self-harming, or resorting to self-help, such as running away. I consider that it is likely that the children will suffer further trauma and damage. I consider that even with ‘firm orders,’ this is not reasonably practicable, due to the difficulties of implementing such an arrangement for the same reasons given above, the father’s limited parental capacity to implement this arrangement, and the impact this arrangement would have on the children.
The mother’s and the ICL’s proposal that the children live with the mother and spend time with and communicate with the father in accordance with their wishes means that the father is unlikely to spend time with the children, having regard to their alignment with the mother. The children are likely to have psychological and emotional difficulties into their adulthood, if they do not see their father. There is a long-term risk of psychiatric damage. It is necessary for the welfare of the children for the mother to undertake effective psychotherapy, invest in her treatment, change her attitude to the father and give her approval to the children, so that they can have a relationship with him. Such treatment is likely to take some time, as indicated by Dr T.
This has been a very difficult decision. I have considered all the evidence and weighed up the risks of the two options for the children’s living arrangements. The children have had a ‘pretty terrible childhood.’ They have been exposed to the conflict between their parents for a long time. This, together with the mother’s influence on the children and the father’s passive approach, which has enabled the enmeshment between the mother and the children, has damaged them. They are not healthy in a psychological or psychiatric sense. Dr N agreed with Dr T that there are long-term psychiatric risks for the children, although she did have some optimism for them when she saw them recently. However, I accept her opinion that the children should not go through another period of disruption and disturbance. I accept her opinion that they are too far along in a developmental stage for a change of residence to be ‘a viable or appropriate alternative.’
The ICL did not seek an order that the mother attend therapy, on the basis that even if an order is made, there will be no value to it, unless she does it voluntarily.
The mother agreed through her counsel to undertake therapy in accordance with the additional order 2 proposed by the father. I will make an order for her to undertake therapy for the purpose of treating her personality disorder identified by Dr T, and also for the purposes of enabling her to gain insight into her past behaviour and to promote a relationship between the children and the father. She did not agree to the additional order 3 proposed by the father, that the nominated health professional report to Dr T as to when she has completed such treatment as is necessary or sufficient to enable her to gain insight into her past behaviour and then be able to promote a relationship between the children and the father.
The father sought an order that the mother’s passport be delivered to and held in the Registry until the earlier of; the completion of the report by the nominated health professional; [Y] attains the age of 18 years; or further order. Counsel for the father submitted that this order should be made to provide an incentive for the mother to undergo therapy. It was submitted that the order could be made in respect of the children’s passports as an alternative. It was submitted that if the mother wants to ensure that overseas travel continues at the same rate that it does, this will motivate her.
This order was opposed by the mother on the basis that she has always returned the children to Australia after overseas travel.
Section 67ZD of the Act provides that the court may order that the passport of a child and of ‘any other person concerned’ be ordered up to the court on such conditions as the court determines, if the court considers that there is a possibility or a threat that a child may be removed from Australia. There is no evidence of a threat of removal of the children from Australia. There is no evidence that the mother is a flight risk or will not return the children to the jurisdiction after an overseas holiday. I do not consider that it is appropriate to make an order pursuant to this section.
I note that the mother requires the father’s consent for overseas travel pursuant to s.65Y. An order made by consent on 3 May 2017 provided that the mother give the father 14 days’ notice of any overseas travel for the children and removed their names from the Watch List. She nevertheless needs to obtain the father’s consent for such travel. The ICL sought that this order be made on a final basis, and I will make it.
The mother needs to change her attitude to the father and to change her negative influence on the children about him. She needs to invest in her treatment and to be aware of the risk of long-term damage to the children’s mental health if they do not have a relationship with their father. The mother has heard the expert evidence of the risk to their mental health and problems they are likely to have in respect of interpersonal relationships.
In particular, Dr N pointed out that the mother does not appear to appreciate that the children have ambiguous feelings for their father, and at some point they are likely to judge her harshly for her role in these disputes. This should be an incentive for her to invest in treatment. Her treating psychologist will have a copy of these Reasons, so the mother will not be in the same position as with her previous therapist to have Dr T’s diagnosis of her described as ‘ludicrous.’
I am of the view that the mother’s therapist should provide a report to Dr T when she has completed treatment, at her expense. The report also needs to be provided to the father and I will order that he be authorised to obtain the report. If a report is not ordered, he will not be aware that she has completed the treatment.
In respect of future treatment for the children, I do not intend to make an order for further treatment. The father did not seek an order. Counsel for the mother submitted that it was the mother’s position that the children not have treatment. The ICL did not seek an order for treatment of them. Dr N did not make any recommendation about treatment for the children. In answer to a question during her oral evidence about whether they should be psychiatrically examined, Dr N answered that this was not necessary.
It is open to the children to spend time with and communicate with the father at their choosing, although this is unlikely to occur in the short-term. However, they need to know that this option is open to them, and the ICL will be explaining the orders to them.
I will make orders in the terms of the ICL’s proposals about telephone communication and the other orders which were not opposed.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 21 August 2018
Key Legal Topics
Areas of Law
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Family Law