Sloane and Mayer
[2017] FCCA 2920
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SLOANE & MAYER | [2017] FCCA 2920 |
| Catchwords: FAMILY LAW – Interim parenting – whether a child should live with Father or Mother – where expert evidence suggests child in an enmeshed relationship with Father and alienated from Mother. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MS SLOANE |
| Respondent: | MR MAYER |
| File Number: | WOC 720 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 16 November 2017 |
| Date of Last Submission: | 16 November 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Rebecca Bailey & Associates |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | Kennedy & Cooke Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Reynolds |
| Independent Children’s Lawyer: | Maguire & McInerney Lawyers |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The mother have sole parental responsibility for the child X, born (omitted) 2006 (‘the child’) in relation to the care, welfare, and development of a long term nature involving the children to include:
(a)The education of the children both current and future;
(b)The child’s health; and
(c)The child's location of living.
The child live with the mother.
The parties do all things necessary to engage Dr J, clinical psychologist to undertake family therapy in accordance with the recommendations of Dr H in her report dated 16 October 2017 with the cost of such therapy to be equally shared between the mother and the father.
The Father be restrained from approaching or communicating with the child except in accordance with the recommendations of Dr J.
Leave be granted to the Independent Children's Lawyer to provide a copy of the report of Dr H dated 16 October 2017 to Dr J.
Each party be restrained from showing the child any document filed or correspondence relating to these proceedings or discussing any aspect of these proceedings with the child or within the hearing of the child.
Both parties be restrained from denigrating the other parent or members of their family and hearing or presence of the child and shall do all things necessary to remove the child from other persons who may be denigrating the other parent or members of their family in the hearing or presence of the child.
The parents facilitate the child attending the Wollongong Federal Circuit Court Registry for Dr H to explain the Orders to the child or if Dr H is not available another Family Consultant.
The matter be adjourned to 28 February 2018 at 2.00pm for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Sloane & Mayer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 720 of 2017
| MS SLOANE |
Applicant
And
| MR MAYER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born (omitted) 2006. X is currently 11 years old and lives with her father. These Reasons for Judgment explain why, on an interim basis, the Court has decided that she should live with her mother and not have any contact or communication with her father for a period of time.
Background
X’s mother is the Applicant. She is 48 years old and currently lives with her mother in (omitted), a (omitted) suburb of Sydney. X’s father is the Respondent. He is 50 years old, and lives in the former family home in (omitted), on the (omitted) of New South Wales.
X’s parents started to live together in 1996. X was born in 2006. The family moved to (omitted) late in 2014. On either account of the parental relationship, it was not always a happy one. Certainly from 2014 onwards it is the Court’s impression from the evidence filed by both parents that the relationship deteriorated. In May 2017, the Mother told the Father that she wanted to end the relationship. X became increasingly involved in the unfortunate and acrimonious separation of her parents.
X’s relationship with her mother became increasingly distant. The Mother alleges that the Father has alienated X from her. The Father alleges that the Mother has become estranged from X, because of her own actions. By the time of the interim hearing on 16 November 2017, the Mother had physically vacated the home and was living at (omitted).
The competing proposals
The Mother, and the Independent Children’s Lawyer (ICL), both proposed interim orders for sole parental responsibility to the Mother, that X should live with the Mother, that the family engage in family therapy, and that for the time being, there be no contact or communication between the Father and X. The orders sought by the ICL are reproduced in the first schedule to these Reasons.
The Father’s proposal is set out in the case outline that was filed on his behalf on 11 October 2017. He sought an order that X live with him, and spend time with his mother during the day, both midweek and on weekends, but progressing to overnight over a period of time. He too proposed that the family engage in family counselling. The orders sought by the Father are reproduced in the second schedule to these Reasons.
The material before the court
At the interim hearing, the Mother relied on the following documents:
a)Notice of Risk, filed 5 July 2017;
b)Amended Initiating Application, filed 12 September 2017;
c)Affidavit of the Applicant, sworn 22 June 2017;
d)Affidavit of the Applicant, sworn 12 September 2017;
e)Affidavit of the Applicant, sworn 19 October 2017;
f)Affidavit of Ms C, sworn 19 October 2017;
g)Affidavit of Ms L, sworn 19 October 2017;
h)The Single Expert Report prepared by Dr H, dated 16 October 2017; and
i)Case Outline document filed 20 October 2017.
At the interim hearing, the Father relied on the following documents:
a)Response, filed 8 September 2017;
b)Affidavit of the Respondent, affirmed 7 September 2017;
c)Affidavit of the Respondent, affirmed 7 November 2017;
d)Summary of argument document (handed up at the Interim Hearing);
e)The Single Expert Report prepared by Dr H, dated 16 October 2017; and
f)Outline of Case document, filed 11 November 2017.
In the ICL’s case, reliance was placed on the following documents:
a)The Single Expert Report prepared by Dr H, dated 16 October 2017.
b)Case outline document dated 24 October 2017.
c)A chronology prepared by the ICL.
The Evidence before the Court
As well as the material referred to above, the Court had the benefit of a number of documents that were tendered into evidence:
| ICL1 | Dr H's Report |
| R1 | Letters from (omitted) Clinic |
| R2 | Notes from Mr N |
| R3 | Contact times between mother and child |
| A1 | (omitted) Medical Centre |
| A2 | Subpoena from (omitted) Clinic |
Dr H also gave evidence on 16 November 2017. She was examined by Ms Reynolds, Counsel for the ICL, Mr Macpherson, Counsel for the Respondent Father, and Ms Bailey who represented the Mother.
The Issues
The Court had to decide where X lives, and what contact and/or communication she has with the parent with whom she is not living. There was also a substantial issue, from the Father’s perspective, about the weight that should be placed on Dr H’s report. It must be recognised that whilst the opportunity was given to the parties to cross-examine Dr H, there has not yet been any testing by way of cross-examination of the evidence given by either parent, let alone the other witnesses in this case.
In terms of issues, the submissions before the Court were often framed in terms of the Father alienating X from her mother, or the Mother being estranged from X. In circumstances where it is not possible to test the evidence of either parent, the Court believes it would be unwise to characterise its role in terms of making findings about alienation or estrangement. It can note, of course, the opinion expressed by an expert. Given the reality that the parents’ evidence has not been tested, however, appropriate caution must be exercised in interpreting Dr H’s report. The focus of the Court must be on making orders that are in the best interests of X, having regard to the applicable law, which will be discussed below, but without getting bogged down in issues of terminology.
Applicable law
The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Outline of reasons for judgment
These Reasons for Judgment will commence with a detailed consideration of Dr H’s report, as well as an assessment of the validity of the critique made of the Report on behalf of the Father.
The remaining evidence will be considered by reference to the considerations set out in s.60CC of the Act.
Dr H’s report
Dr H’s report dated 16 October 2017 was based on interviews held on 18 and 19 September 2017. For present purposes, the focus will be on the parents and X. They were each interviewed, and observations were made about interactions. Whilst Dr H had available to her all the documents available as at the date of interviews, by the time she was cross-examined on 16 November, she had received any other documents that had been filed and which were available to the Court.
At page 5 of the Report, Dr H provides a useful executive summary, which is reproduced below:-
| Issue | Evaluation |
| (a) the benefit to the child of having a meaningful relationship with both her parents; | It would be beneficial for X to have meaningful relationships with both parents |
| (b) whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; | Yes. Exposure to the toxic marital dynamic is psychologically harmful. The father is abusing X by alienating her from her mother, and by spousifying her |
| (c) any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views; | X wants to live with her father and spend little time with her mother. No weight should be placed on those views. X cannot evaluate objectively |
| (d) the nature of the relationship of the child with each of the child’s parents and other persons including any significant other persons; | X is enmeshed with her father. She displays groundless phobic avoidance towards mother and maternal kin |
| (e) willingness & ability of parents to facilitate child’s relationship with other parent; | The mother seems willing and able. The father seems unwilling and unable |
| (f) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents or any other person with whom the child has been living; | If lives with her father she will soon reject her mother completely. If X’s principal residence is changed she will be upset. She would probably refuse to return from the first weekend visit to her father. |
| (g) the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs; | The father has been the main caregiver. He can provide adequate physical care and warmth but will stunt the child’s psychological growth. The mother is deemed to be the more adequate parent |
| (h) the capacity and willingness of parents to follow professional advice or recommendations about the child; | Both declared willingness to follow professional advice. Their responses to this report should illuminate this issue |
| (i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents; | Both have met their responsibilities to reliably provide for the child materially |
| (j) the effect on the of any family violence to which the child may have been exposed to; | The present situation exposes the child to acrimony from her father to her mother. |
| (k) the mental state of the both parents in so far as it relates to parenting issues; | The mother shows normal parental reflectiveness, the father does not |
| (l) the nature of the parents’ relationship and the impact of this relationship on the child; | Toxic. Deleterious. |
| (m) the effect on the child of spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to: · implement such an arrangement; and · communicate with each other and resolve difficulties that might arise. | Unworkable. There is no communication or shared decision-making while both parents live under one roof, so no realistic prospect of collaborative problem-solving across two residences. Any attempt to implement such an arrangement would rapidly produce intractable alienation. |
| (n) Any other matter the Court Expert considers relevant. | Alienation causes serious adverse consequences for children. Individual psychotherapy usually makes the problem catastrophically worse. Early, expert family intervention sometimes works. There may still be time to prevent irreparable harm in this case. |
An important issue in this case, from the Father’s perspective, was whether Dr H was entitled to form the conclusions that she did, reflected in the above summary, based on the material that was available to her.
In her report, the Court finds that Dr H was very careful to set out the source of the information that is recorded in certain key parts of her report. For example, at paragraphs 7-9 inclusive, it is clear that Dr H is merely recording what the Mother told her. At paragraphs 10-12, she is merely recording what the Father told her. At paragraph 13, she records summaries of information provided to her by both parents. At paragraph 14, she records and summarises the Notices of Risk filed by both parents. At paragraph 16-38, Dr H records her observations of both parents in interview. Some of these observations are important and will be dealt with below.
For example, at paragraph 17, Dr H records that the Mother’s preference at the time of interviews was for week-about shared care, a proposal that she justified as being “fair”. Dr H challenged the Mother about the appropriateness of a “fair” solution. She records the Mother as saying that: “It would kill Mr Mayer if X did not live with him.” These observations were unchallenged by the Mother in cross-examination, and are, in any event, consistent with her own evidence before the Court. What is significant from the Court’s perspective, of course, is that by the time of the interim hearing, the Mother’s position had changed considerably.
The Mother’s case, of course, was that her position changed because of Dr H’s report.
In the same way as Dr H challenged the notion of fairness at paragraph 17, she also challenged the mother at paragraph 23, where she records:-
Ms Sloane responded calmly and rationally to my challenges about her warped information processing – such that her thinking showed “idiot optimism” and “idiot compassion,” and that by staying in a war zone, she was forcing X to pick a side and hunker down in the trenches. She conceded these flaws in her thinking, justifying her persistence by reluctance to leave without X.
An implicit, if not explicit part of the Father’s case was that Dr H was biased against him, and ipso facto biased towards the Mother. The Court ultimately concludes, on the evidence before it at this stage, that there is no substance to the Father’s concern. Dr H’s obvious challenges of the Mother’s attitudes about X seem inconsistent with the assertion that she was biased towards the Mother.
At paragraph 25, Dr H makes what the Court considers to be some important observations about the Mother’s attitude towards the Father. The significance of this is the contrast it creates between the Father’s attitude towards the Mother, which will be discussed below. Dr H records that the Mother did not allege any risk of immediate harm for X in the Father’s care. The Mother was not concerned about the Father’s use of marijuana. Indeed, she described the Father as a “reliable parent who would not physically harm or neglect his daughter”. Her concerns relate to psychological harm. She considers that the Father depends on X emotionally, which could constrain the child’s normal growth to independence.
The above quote is from the Report. Dr H was not suggesting that the words found at paragraph 25 are the precise words used by the Mother, nor was that necessary, the Court finds, in order for weight to be given to any conclusions that the Expert forms based on this and other observations.
One of the issues in this case relates to parental attitudes and insights. At paragraph 28, Dr H states:-
In response to my outline of research findings about the harm to children caused by triangulation into parental conflict, Ms Sloane indicated that she realised that by staying in the house she was exposing X to a harmful relational dynamic, justifying her persistence as driven by fear she might never see her daughter again if she left. She said that it would be financially difficult but not impossible for her to move into rental accommodation before the property settlement was finalized.
Again, the significance of this is found in its contrast to the Father’s attitude and insight discussed below. As it turns out, the Mother did move from the home after the release of the Report.
Dr H then moves on to record her observations about the Father. At paragraph 30, she records:
Mr Mayer described his parenting plan as for the child to live mainly with him and see the mother only sometimes based on X’s need “to build trust for Ms Sloane again and this can only happen when Ms Sloane stops lying. She lies about obvious stuff every day and X is fully aware of it.” He claims that when Ms Sloane behaves in a way that the child can respect it will be possible for the child to spend more time with her but this will have to happen slowly. He asserts that until now Ms Sloane will not face the reality of her bad behaviour. He vaguely described her weaknesses as a parent as “liar, manipulator, controller, disrespectful selfish.” The examples Mr Mayer produced when probed for specific details seemed specious…
In cross-examination, and in his affidavit, the Father takes umbrage with Dr H’s description of his proposal for X spending time with her mother as recorded in that paragraph. The Father’s proposal contained in his Response, filed 8 September 2017 was that for a period of six months of X spending time with her mother each Wednesday from 7.30 am to 9 am, and then each Saturday from 9 am to 5 pm. The Court observes that this seems a modest proposal and one which Dr H would be well entitled to characterise in the manner that she did.
The Father’s criticism at paragraph 30 really misses the point. In his affidavit of 7 November 2017, at paragraph 19(j), he challenges Dr H’s recount of events. Dr H was cross-examined by Mr Macpherson, the Father’s Counsel. There was nothing in her cross-examination which would cause the Court to be concerned about whether she would make an accurate record of the Father’s description that is referred to at paragraph 30. The obvious question needs to be asked: why would an independent expert create the account of what the Father said to her during an interview? In any event, the stark differences in the parental attitudes towards each other start to become apparent at paragraph 30 of the Report.
At paragraph 31, Dr H records:
Mr Mayer opined that the mother-daughter relationship problem is caused by Ms Sloane's Narcissistic Personality Disorder. He said he had arrived at this diagnosis from Dr Google. He had considered psychopathy as a differential diagnosis but his final diagnosis for her was “malignant covert NPD”. Mr Mayer reported that he came to the conclusion (with the internet as his expert) that the best survival mechanism for living with someone with NPD was a technique called “grey rock” - which means making no reaction to any provocation from the person with NPD, refusing to become involved or to be goaded into any childish behaviour by the bad behaviour of the other person.
In the Father’s affidavit, he takes umbrage at Dr H saying that he arrived at the diagnosis of Narcissistic Personality Disorder “from Dr Google”. The Court interprets paragraph 19(k) of the Father’s affidavit of 7 November 2017 as an attempt by him to justify the diagnosis that he formed about the Mother. The extraordinary irony of the situation is not missed by the Court. On the one hand, the Father’s Counsel seeks to undermine the weight to be given to Dr H’s expert report. On the other hand, the Father seeks to uphold his completely lay assessment of the Mother suffering from Narcissistic Personality Disorder.
The real significance of paragraph 31 of Dr H’s report is the Father’s admission that he changed his behaviour towards the Mother, which is by no means inconsistent with the Mother’s experience of increasing isolation from X. Indeed, at paragraph 32, Dr H records his decision “with the benefit of the insight obtained from the internet to shut down completely towards Ms Sloane, to be silent and not to engage with her in any extended conversation.” The potential impact of the Father’s change in behaviour towards the Mother on his daughter X, and how she might interpret or seek to understand his actions, does not appear to have been even considered by him. The Father’s affidavit did not appear to challenge this observation as recorded by Dr H.
Paragraph 33 of Dr H’s report contains this important observation:
Mr Mayer conceded that this hostile marital dynamic was likely to be very unpleasant and confusing for X. He said that he had suggested that Ms Sloane move out at least four months ago but that she had refused to because she was afraid that her daughter would shut her out completely. He endorsed the mother’s fear that X would reject her (indeed had already rejected her). He gave several examples of his daughter’s disrespect to her mother such as “giving her the finger” or telling her mother “I hate you”. I asked him whether he considered that this was acceptable behaviour. Mr Mayer confirmed that he did not think it was acceptable but he had not chastised the child or insisted that she apologise to her mother. He claimed that formerly he used to be a very supportive co-parent who used to say: “Don’t you speak your mother like that” but he would no longer do so. He said “I’ve done my job and I’ve been made a fool of. It’s up to Ms Sloane now to solve the problem”.
In the Father’s affidavit, the only challenge he makes to paragraph 33 is as regards the time period referred to in the second sentence i.e. he asserts it was eight months, not four months. There was no other challenge to paragraph 33. The significance of paragraph 33 must be self-evident. The Father concedes that he did nothing to respond to X’s increasing disrespect towards her mother, thus tacitly condoning it. He explicitly concedes that his behaviour changed. His feelings manifest that he had been made a fool of. His abrogation of responsibility as a parent to deal with X’s resistance was that it was now the Mother’s problem.
Paragraph 34 is just as important:
Mr Mayer said that it was important for X to have a relationship with her mother. However, this struck me as lip service as he could not list any benefits of the relationship for X. Further probing about the question of possible benefits elicited only reiteration of the mother’s short-comings as a parent, principally that she “continually lies”. Approaching the issue from a different angle, I asked what X would lose if her relationship with her mother lapsed- what she or may have lost so far. Mr Mayer could not identify any possible lost benefits. When asked specifically about social capital which seems to be imperilled (for example X’s relationships with maternal kin, relationships facilitated by her mother with her cousins and her Melbourne friends (omitted), (omitted) and (omitted)) Mr Mayer was dismissive. While he agreed that these connections could only be maintained via the mother he indicated that he considered the affectional ties of little worth, based on his low regard for parents of the children involved. Likewise, when asked to describe some happy memories of earlier times in family life he could not remember any. In response to probes about the holiday in (country omitted) which the mother had described as very happy Mr Mayer said that he was friendly, engaged, adventurous, loved exploring other cultures and had encouraged X to engage with the (country omitted) people whereas “Ms Sloane doesn’t know how to have fun.” He claimed that Ms Sloane only went on holidays as a witness to the fun that he had with his daughter, that she was “only there for the glory” which was “creepy”.
At paragraph 19(n) of his affidavit of 7 November 2017, all the Father states is that he was not given sufficient time to answer the question, because each time he started to respond, Dr H rephrased the question. This, of course, is entirely consistent with Dr H’s observation that the Father seemed unresponsive to her questions about the important issue of the benefits of X having a relationship with her mother.
At paragraph 36, Dr H records:
Mr Mayer explained that when he told X that she would have to visit her mother on alternate weekends X had said she “doesn’t feel safe with Ms Sloane.” (From his reported conversation, it was clear that he and X refer to Ms Sloane as “Ms Sloane” not “Mum”) Mr Mayer could not cite any evidence that the mother had ever harmed the child or done anything to make the child believe that she would be harmed, except that after returning from the cruise the mother had stayed two days longer with the maternal grandmother than he and the child had been expecting. Mr Mayer said that X now has a little bag hanging around her neck in which she keeps a penknife, a crystal and some coins - lest she be stranded somewhere with her mother. The penknife is for self-defence, the crystal is some sort of mystical protection and the coins are to help her escape/ call for help. Mr Mayer agreed that it was magical thinking for X to believe that these talismans were protective- especially when there is objectively no threat. However, he had said that he had not wanted to take the little bag away from X “because she is only a child” who needs something to help her “when she feels unsafe with her mother because she cannot trust her.” He agreed that phobic avoidance of undesired contact with people who were not objectively harmful would not be a useful way for X to go through life, but repeated that it is up to the mother to solve this problem.
In his affidavit, the Father denies that he told X that she would have to visit her mother on alternate weekends, even though that is his proposal after the passage of time. He denies that X calls her mother Ms Sloane. He denies that he did not want to take the bag away, but concedes that he did not take the bag away. Again, the Father misses the point. Whether he told X about his parenting proposals, and whether X calls her mother Ms Sloane is subsidiary to the obvious concerns expressed in paragraph 36 about the inappropriateness of the Father’s actions in supporting X’s subjective fears about her mother, that had no objective basis. From any perspective, the Father’s actions signal an attitude of indifference about X’s relationship with her mother and significant lack of insight about how X would be experiencing his action.
Paragraph 37 of Dr H’s report is not challenged by the Father in his affidavit. He does not deny, for example, that in response to a question about what X would miss if she never saw her mother, he said, “I don’t know. X is just a handbag or an accessory to Ms Sloane”.
At paragraph 38, commencing at line 7, Dr H records the Father’s response to the issue of him showering and sleeping with X:
Mr Mayer agrees with Ms Sloane that they were never a good co-parenting team as they have different ideas about parenting. He denied that he has inappropriately involved the child in this dispute or shown her Court documents. Mr Mayer denied that he ever demeans the mother in front of the child. Although he admitted he will “question Ms Sloane firmly” to get an answer if different accounts of the same event are given by child and the mother, he denies that this is denigrating. He said that the mother may have potential to improve her parenting with professional help although it is his understanding that people with Narcissistic Personality Disorder become very destructive once they decide to discard a close relationship. Mr Mayer became distressed and briefly tearful when discussing the mother’s request (via a solicitor’s letter) for him not to shower with or sleep with his daughter. He seemed to take this as a malicious accusation of paedophilia by the mother used as a tactic in a legal dispute. He displayed no awareness that most people would consider that co-sleeping and co-bathing is not normal for father and a daughter on the cusp of puberty. In other words, Mr Mayer’s response indicated that he was unable to consider this child welfare issue on its own merits because he was captured by his feelings of aggrievement about an intentional slight by the mother. It was notable that Mr Mayer's answered some questions about his working alliance with the mother as though these were questions about his relationship with his daughter.
The only challenge he makes to this paragraph is a denial that he became teary. There was no denial to Dr H’s, nor indeed elsewhere in his evidence, to the assertion that there was a period when he not only slept with X but showered with her. His lack of insight about these issues is significant from the Court’s perspective.
Dr H conducted psychological testing with the parents. The test results are described at paragraphs 39-50 of the Report. For present purposes, given the issues that the Court has highlighted about parental attitudes, and insight, the focus will be on the psychological testing relating to parental reflective function. Dr H deals with this test at paragraphs 48-50:
48.Parental reflective function or PRF refers to what is measured in an assessment of mentalization capacity about parenting. I probed the PRF of the adults assessed using the interview techniques and discourse analysis methods of the Parent Development Interview, although the whole PDI could not be administered and scored due to operating constraints. The PDI is a well-validated measure of child-parent attachment. Attachment in this context is defined as “the bond between a person who needs protection and the person(s) he or she turns to for protection and comfort (regardless of whether they provide these). It is also the reciprocal bond of the caregiver to the protected person.” (IASA Family Court protocol) Patterns of attachment are manifest in an individual’s discourse style describing motivated behaviour in child-parent interactions.
49.The mother’s PRF seems normal whereas the father’s PRF seems poor: marginal at best. The mother could speculate about the child’s inner world, including where there was a conflict of interests. For example, in discussing the impact on X of being caught in the middle of parental conflict Ms Sloane opined that X sided with her father because she felt safer to “go with the strong guy.” Ms Sloane showed some capacity for shifting perspectival stance. She could conjecture fluently about how X’s thoughts and beliefs which differed to hers and could imagine why X’s lived experience led her to feel more positively about her father. In contrast, Mr Mayer seemed unable to imagine that X might have views which differed from his. He could not imagine that X had ever felt positively towards her mother or valued the mother more highly than she now does, and became very dysfluent when asked to speculate about such topics. He imputed to the child the same feelings towards the mother which he expresses (disapproval, moral revulsion) using the same vocabulary which the child later used (creepy, scary). When asked to explain X’s motivated behaviour he spoke vaguely in generalisations and platitudes, whereas the mother could construe the child’s meaning-making in terms of cause-effect sequences. Ms Sloane’ s discourse suggests that X is real in her mind as a separate individual whereas Ms Mayer’s discourse suggests he sees the child as an extension of himself.
50.The hallmark of a reflective parent is the capacity to recognise negatives aspects of themselves which may impede parenting. If we cannot admit to our flaws we cannot correct them. If we are unaware of our ignoble motivations and unhelpful emotional states we are not well placed to constrain them. At times Ms Sloane replied to questions or made comments making explicit the inferences she had drawn that I was construing her behaviour from within a different frame of reference than her own, and either rebutted or agreed with the implied criticism. Mr Mayer never made any comparable comments. He seemed to equate my abstention from explicit challenge as uncritical endorsement.
These Reasons for Judgment have already identified what the Court considers to be the stark contrast between the parents. This is further exemplified at paragraph 49 above. The conclusion that Dr H forms at paragraph 50 is supported not just by the test results, but by the other information that she was able to obtain during the course of the interviews.
From paragraph 51, the focus turns to X. At paragraph 52, Dr H records:
X could not explain in specific detail why she disliked any of the maternal kin she derided. She agreed that her mother’s family had been kind and attentive to her in the past, but spoke of those attentions dismissively. She said she does not know anyone in her father’s family.
Paragraph 53 states:-
X said she “never really liked Mum” and that in recent times her Mum had been “scary and creepy”. Asked to give examples of “scary” X said: “a couple of months ago Mum stood in my doorway watching me fall asleep”. X also said it was scary “the way she touches me. I passed her a glass of water and she grabbed my fingers and didn’t let go. She said to me “I know this is hard for you”. X took this to mean that her mother was expressing sympathy about knowing that her parents were separated under the same roof, but opined “it was fake sympathy”. Q: “How would you know if it was real sympathy, what should she do?”. A: “Hug me but I don’t like it if she hugs me, it’s too tight”.
At paragraph 54, Dr H records X’s statements about her mother lying.
At paragraph 56, Dr H records:
In response to the questions “Do you have any other worries?” X replied: “That the Judge will make me go and live with Mum”. She added: “If the Judge said it was okay to live with Dad and go to Mum on weekends I could manage with that”. A: “Anything else you would like to tell the Judge?” A: “I really don’t like my Aunt Ms R. She’s really creepy. None of Mum’s relatives are allowed in the house.” Q: “Why says they can’t come in?” A: “I guess the Court said they couldn’t come. Mum said one day that ‘Ms R’s here’ and Dad said that they weren’t allowed in the house for some reason so Ms R had to stay next door. The Court told Dad to call the police if any relatives come to the house. Mum laughed when Dad said he was going to do that and Dad called the police and the police came. I felt bad about the police knowing my house. Anyway, the police told Ms R not to come into my house so she stayed with the neighbours.”
Were this not a case that involves competing assertions of alienation and estrangement, it is quite possible that X’s views, as expressed above, would receive considerable weight, given her obvious maturity. The allegations made, however, lead the Court to be extremely cautious about placing weight on X’s views, at least for the time being. The Court is interested, however, to observe X’s perspective on an event when her father called the police because maternal relatives had visited at the Mother’s request. Her statement: “The Court told dad to call the police if any relatives come to the house” tends to give credence to the Mother’s concerns about the Father telling X too much about what is happening. It is also, obviously, a distorted perception of what took place.
Dr H administered tests on X. At paragraph 57, she describes the results of the child – parent relationship scale:
X completed self-report measures which probe a child’s attitude towards her parents and parental conflict. The Child-Parent Relationship scale (McIntosh) asks the child to rate from 1-5 how often it is true that a parent understands/ is interested/ would help with a problem. X rated Dad 15/15 and Mum 3/15. This extremely polarised view – that one parent is perfect and the other completely useless – was consistent with the Parent Report Card (Berg-Cross) X completed for each parent. The child is asked to rate a parent A to F (4-0) on 24 items. X added another item “Is honest with me.” Her mother achieved D- average, her father A-. It was interesting to note that X was reluctant to award her mother an A on any item even when her comments indicated high marks were deserved. For example, “Doesn’t scream at me when she is angry.” X hesitated about grading this item, saying “Maybe C’ whereas she had swiftly and apparently reflexively awarded Fs to most other items. Probing revealed that her mother NEVER screams at her when she is angry. I said, “Oh so she is perfect on that one, is she?” whereupon X changed the grade to A. Interestingly that was the one of the only 2 items on which her father was awarded only a B.
At paragraph 58, in discussing the results of the children’s beliefs about parental divorce scale, Dr H records that X’s responses indicate she entirely blames her mother for the current situation and is completely aligned with her father. In relation to the results of the Caught in the Middle scale, X’s responses indicate she often feels caught in the middle of her parent’s conflict. At paragraph 62, there is a discussion of the results of the projective task adapted from the Kvaebek family sculpture tool. Paragraph 62 states:
X’s first choice was to place her father’s figurine on top of her central position. Then she placed her mother’s figurine at a distance of 20 centimetres from her own – the maximum possible on the sheet. X said “That’s Mum now.” Q: “Now? How about a year ago?” X moved her mother’s figurine closer, about 8.5 centimetres from her own position. She elaborated “I never really liked her. I never trusted her. She scares me a bit.” X’s third choice was her best friend A (placed contiguously to her own central spot) then her Melbournian friend (omitted) (also placed contiguously, but on the other side). Lastly, Melbourne friends (omitted) and (omitted) were placed 1.5 centimetres from X’s position. X commented on how much fun it was when these friends came to stay for a week in 2016, and that Mum was friends with their parents but Dad was not. She said that she can talk to (omitted) on Mum’s phone but “Dad doesn’t have the number”.
Paragraph 63 sets out the observations between X and her parents:
X was observed briefly with her father when he brought her to interview, then with her mother and then again with her father. When observed with her mother X was cold and unfriendly, but not rude or aggressive. She did not reply to her mother’s greeting of “Hi darling” and responded tersely if at all to her mother’s subsequent conversational overtures. Mother and daughter were sitting in facing armchairs. X could maintain eye contact with her mother although she did not smile. Her non-verbal behaviour spoke of contempt rather than fear. Ms Sloane attempted conversation in a blithe spirit. She was warm and friendly towards X despite the child’s lack of responsiveness. X made some minimal polite responses to topics I introduced (such as reasons for being vegan versus vegetarian, fun things about the (country omitted) holiday.) When it was time to go, Ms Sloane havered about whether she would go home first or go to straight to Sydney, noting that the dog needed walking. X said: “Go to Sydney.” Ms Sloane still hovered at the door, apparently loath to leave - perhaps vainly seeking a fond farewell. Ms Sloane said: “See you Wednesday’ and blew a kiss to X, who remained silent and impassive. When X was observed with her father she was much more responsive and animated. She greeted him with a smile when he entered, then initiated and sustained continuous physical contact by stretching out her feet to tickle his toes withers. He was affectionately responsive. X made suitable contributions to the conversational topics I introduced (such as food vegans can order when dining out) and maintained eye contact with her father while speaking. Their relationship was warm. Mr Mayer was suitably validating of X’s conversational contributions.
From paragraphs 64-73, Dr H refers to the various collateral sources that she considered. At paragraphs 74-76, Dr H summarises her clinical findings:
74.Neither parent has physically abused or neglected the child. The father may be prone to use maladaptive means of tension-reduction (such as excessive use of marijuana), but drug misuse is not identified as the determining consideration. Neither parent is in psychiatric crisis. Some dysfunctional personality traits must be assumed in both parents for such a toxic relational dynamic to have developed and persisted, but the father is deemed to be much more maladjusted than the mother. In response to adverse Court outcomes the Adjustment Disorder suggested for both parents by PAI results seems more likely to develop into a more serious mental health disorder in the father than the mother as Mr Mayer is socially isolated, has no identity validation outside the parenting role, shows distorted information-processing, and has been reporting low mood and sleep disturbance since May 2017. His state of mind with regard to attachment seems to flip between preoccupied (X, the separation) and dismissive (everyone else) whereas the mother appears to value all her attachments. The mother is deemed a normative parent who vacillates ineffectually because she is at a loss about how to protect her daughter from the effects of the father’s acrimony about the family break-up.
75.The father narcissistically over-values his role of centrality in the child’s life while devaluing the child’s other affectional ties and actively undermining the child’s relationship with the mother, shows grossly disproportionate responses to objectively benign situations – such as calling the police when the maternal aunt called in to give X a gift – and markedly less capacity for shifting perspectival stance than is normal. He prioritizes his emotional needs over the child’s developmental needs. He has no insight into the inappropriateness of subverting the family hierarchy/ generational boundaries: in fact, he feels offended that others could construe such norm-breaking behaviour as grooming X for an inappropriate intimacy.
76.X seems to have normal intelligence and social-emotional adaptiveness, but her information-processing is distorted as she has an enmeshed relationship with her father and has been triangulated into the parental conflict. The father and the daughter seem to be delusional about the mother’s potential harmfulness. The child was not observed to show any sign of feeling intimidated or threatened by the mother. No evidence emerged of a realistic basis for the child’s rejection of her mother and maternal kin. X indicated values some peer relationships which are mediated by the mother and devalued by the father. The parenting alliance seems always to have been problematic and is completely dysfunctional now.
The Court observes that Dr H was balanced, for example, attributing dysfunctional personality traits to both parents. Her discussion of the Father as “narcissistically” overvaluing his role of centrality in X’s life, is a clinical opinion that she is entitled to express in the circumstances. Likewise, her assessment in paragraph 76 that X is in an enmeshed relationship with her father, and triangulated into the parental conflict.
The description of Father and daughter being “delusional” about the Mother’s potential harmfulness is, again, a clinical opinion Dr H was entitled to make, given the material before her. Dr H’s conclusion that there was no evidence of a realistic basis for the child’s rejection of her mother and maternal kin, is an assessment she was not only entitled to make on the basis of the material before her, but is an assessment entirely consistent with the evidence before the Court.
Dr H’s synthesis and evaluation commences at paragraph 77. She discusses the implications of the application of the ASPECT evaluation scale. At paragraph 80, she again emphasises the differences between the parents in their ability to conceptualise X’s predicament from a child’s point of view. At paragraph 81, she draws the sharp contrast between the Mother and the Father. At paragraphs 82 and 83, she compares the considerable bitterness and animosity that the Father has towards the Mother, and the little bitterness the Mother shows towards the Father.
At paragraphs 84-85, Dr H refers to what she described as “grooming behaviour”. This appears to have caused the Father much offence, given the cross-examination of Dr H on this topic. Paragraphs 84 and 85 state:
84.Grooming behaviour is a risk factor which should be considered. Grooming is a process by which an adult gains psychological ascendancy over a child via various sorts of boundary-violating behaviour which escalates in time to gross violations of a child’s personal sovereignty/bodily integrity. A variety of boundary-violating behaviour has been reported for Mr Mayer, in addition to the co-sleeping and co-bathing. For example, the mother alleges he immediately involved the child in the marital dispute once she announced her attention to formally end their relationship, and that he maintains close physical proximity with the child in the home – such as watching television with his head in her lap. The child may feel the need to meet her father’s needs for intimacy by maintaining unbroken physical contact with her father – as I observed at interview. Playing footsies struck me as an unusual public display of affection, perhaps less surprising in a courting couple than in a father and daughter. Mr Mayer invites X to cross the generational divide in various ways. From his reporting of his conversations with the child about the mother it was clear that Mr Mayer spoke of Ms Sloane as “Ms Sloane” rather than “Mum” – a blatant denigration of the mother’s family role-status as well as a subversion of the family hierarchy. A further inversion of the hierarchy is that he answered some questions about teamwork as though they applied to himself and X rather than about himself and Ms Sloane.
85.It is not normal for a girl of 11 to shower with her father or sleep in the same bed with him. The father resents the legal correspondence on the issue. He considers it acceptable that the child sleep in his room. Co-sleeping beyond early childhood is a hallmark feature of enmeshed parent-child relationships. Co-sleeping reflects inappropriate intimacy which serves the father’s needs rather than the child’s: since he has no other human attachments, and is a poor sleeper it may be reassuring for him to have the child near so he does not feel utterly alone and abandoned. This must be deemed a risk factor for child safety if the mother were to leave the father and child living alone.
Dr H is explicit – the grooming she was referring to was not in the context of sexual abuse or an allegation thereof. The grooming Dr H refers to is all about psychological ascendancy over a child by way of various boundary-violating behaviours.
At paragraph 87, Dr H concludes that X’s rejection of her mother is not realistic estrangement, but alienation:
On the basis of aggregated information, it is my concluded opinion X’s rejection of the mother is not realistic estrangement but alienation. “The term realistic estrangement is used to indicate that a child has rejected a parent for reasonable or valid reasons – that is, as a result of bone fide abuse, neglect or markedly deficient parenting” (Reay 2015, p 197). Nothing has emerged from this assessment to suggest the mother is not a normative parent. The term parental alienation is used to indicate that a child has rejected a parent for weak, trivial, frivolous or absurd reasons. In the table below are listed defining features of alienation, all of which are present in this case
| Feature of alienation | Present? |
| A campaign of denigration against the rejected parent | ü |
| Child gives specious justifications for the rejection | ü |
| Lack of ambivalence on the part of the child | ü |
| Child’s uncritical support of the alienating parent | ü |
| Child shows no compassion, remorse or guilt towards the rejected parent | ü |
| Child describes borrowed scenarios | ü |
| Blanket rejection of the family of the rejected parent | ü |
| A goof prior relationship between the rejected parent and child | ü |
| An abrupt worsening of the relationship between the rejected parent and the child | ü |
On an objective assessment of the material before the Court, it is not possible to fault Dr H’s assessment that the various features of alienation that she refers to are, in fact, present in this case. Moreover, the presence of these factors is, more often than not, established by the Father’s evidence, let alone the Mother’s allegations, and often by what the Father and X themselves told Dr H.
From paragraph 88, Dr H expands upon, and then considers the implications of, her assessment of alienation. She is clearly hopeful, for example, that if a decisive intervention is now, there is some hope that X could return to a more normal relationship with her mother. Dr H is also very clear, however, about the adverse consequences for X if there is no swift, decisive intervention.
It is clear from Dr H’s report that she recommends specialist family therapy. Indeed, she recommends Dr J, and the Father ultimately accepted that she would be appropriate to provide any family therapy.
At paragraph 90, Dr H explains why, if there is a reversal of the care arrangements, the alienating parent must be excluded for a period of 3-6 months. She explains that is to allow the rejected parent the unimpeded opportunity to reconnect warmly with the child, correct the child’s mistakes in thinking and reinstate normal generational boundaries.
At paragraph 91, Dr H deals with one of the Court’s greatest concerns in this case, if her recommendations were to be implemented:
Courts are often loath to order a change of residence if substantial upheaval to the child’s living situation is implied. For example, if such a move would imply a change of school, separation of siblings and/or adjustment to life in a blended family. In this case the practical impediments are not so great. X is an only child. If Ms Sloane found local accommodation a change of school may not be required, but the Court should also consider whether Orders for a change of residence could become unenforceable. Adolescents have been known to vote with their feet if the parents live in close proximity, especially in late stage, severe alienation. If making enforceable Orders for an immediate change of residence for X implies that she and her mother should move to (omitted) or Sydney for 4-6 months this would certainly be disruptive – although not as deleterious at this stage of X’s education as a change in last term Year 6 or first term Year 7.
At paragraphs 92 and 93, Dr H continues to explore the impacts on X:
92.Divorce smashes a child’s assumptive world: the comforting illusions of a beloved only child that her family is a safe haven, and that she is the centre of her parents’ universe. It is frightening for to children to believe a parent deliberately means them harm – an inference which children may draw when parents inadvertently hurt the child (such as by getting divorced). To restore moral order in the universe some children reject as unreliable and deceptive the parent who is perceived as the destroyer of stability and cling to the parent perceived as a strong, constant and true. Such age-regressed clinging is very likely to feature in an enmeshed parent-child relationship, such that of Mr Mayer and X. Phobic avoidance of the other parent worsens if the idealized parent encourages the child to demonize the other. Having the power to reject provides the child with the illusion of control, which helps combat anxiety. Such behaviour is understandable in context, but in the longer term it is a maladaptive way of managing discomfort and uncertainty in relationships.
93.It is not good for a child to heartlessly reject a parent without a good reason. If children are enabled by one parent to treat the other with disrespect, if their childish petulance and/or phobic avoidance of difficult reality is permitted to drive decisions about custody and contact which should be made by adults, then those alienated children become drunk with power. As a result, they do not learn how to make the treaty with reality which is necessary for a healthy psychosocial adjustment. Research has found poor psychological outcomes for some children who rejected a normative parent without justification. Furthermore, in retrospect, those individuals expressed regret that wiser heads did not prevail to prevent them from recklessly severing valuable family ties when they were too psychologically immature to make objective evaluations of their own best interests. (cf Baker, 2007). Currently X is disrespectful to her mother, apparently remorselessly so. To allow this bad behaviour to continue would impede X’s psychosocial adjustment. No one gets to choose their parents or the quality of their parents’ pair-bond. X is not her own creation. Mr Mayer and Ms Sloane are the only two people in the world who could have created the unique combination of genes and epigenetics that produced her. She needs help to find a way of honouring both these attachments.
Dr H discusses, at paragraph 94-96, whether there is a risk of filicide. The Court does not accept that there is a risk in this case, and nothing more will need to be said about it. However, at paragraph 97 she discusses the potential impact on the Father of orders that remove X from his care:
I assess Mr Mayer as a narcissistically self-absorbed man with fixed, egocentric ideas about his centrality in his child’s life and fixed, delusional ideas about the malevolence of the mother, and nothing much else to give his life focus, meaning or purpose. Therefore, I predict that he would feel emotionally devastated if the Court orders a change of residence for X, and would ruminate bitterly and destructively during his lonely, sleepless nights. If Mr Mayer’s mental state with respect to parenting did not normalize during a period of no-contact period (and there is no reason to assume that it would do so spontaneously) there would be a risk of X reverting to maladaptive strategies to alleviate attachment anxiety once contact with her father resumed, which would be much less likely if the family had completed Dr J’s program.
The importance of family therapy, in conjunction with any order, is self-evident.
Dr H recommended that X live with her mother and have no contact or communication of any time with her father for six months, or until family therapy has been completed, whichever happens first. The matter would still probably need judicial determination in her opinion.
Dr H was cross-examined by Mr McPherson, Counsel for the Father. It was suggested, for example, that Dr H had not given adequate consideration to the emotional turmoil that the Father would have suffered when he was, in effect, rejected by the Mother on separation. Dr H described the Father’s response to the separation as consistent with his pre-existing personality disposition. She explained that she had taken this into account but, even so, that the Father’s reaction to the separation was not the main concern in this matter.
Dr H was taken to the various concerns that the Father expressed in his affidavit, about her report. She described them as “quibbles” that were not critical to the recommendation she made. The Court agrees, in the circumstances, that that is the case. Indeed, the reasons for judgment above, where they refer to paragraph 19 of the Father’s affidavit of 7 November 2017, do indicate that the matters he raised were inconsequential in the overall scheme of things. The Court might have chosen to use a word that might be received less pejoratively than “quibbles”.
Counsel cross-examined Dr H about making factual assumptions, but Dr H emphasised that much of her report merely records what the parents and X told her. She firmly rejected the proposition that she did not like the Father (an implicit allegation of bias), but accepts that she might have made some minor errors in recording what the Father might have said. Indeed, she accepted that she might have misread the Father’s psychologist’s handwritten notes.
Dr H was challenged about not having placed enough weight on the Father’s assertion at paragraph 12 of the Report:
…that it is important for the child to have a relationship with the mother.
Dr H dismissed this, saying, “words are cheap.” The Court infers, consistent with other parts of Dr H’s report, that what she meant is that the Father’s words were inconsistent with his actions, many of which are catalogued in her report. To that extent, Dr H is correct.
In relation to the contradiction in the Mother’s prior proposal and her current one, Dr H readily acknowledged that the contradiction evidences poor judgment on the Mother’s part. Indeed, she was critical of the Mother for knowing that she had a poor partner for so long and doing nothing about it. She described the “irrational things” that the Mother had said. It could hardly be said, with great respect to Counsel for the Father, that Dr H was not being even-handed in her criticism of the parents.
The purpose of the cross-examination by Counsel for the Father was obviously to convince the Court that it should place less weight on Dr H’s report. The Court’s own rigorous assessment of the report, discussed above, demonstrates that Dr H was quite entitled to form the conclusions she did, based on the material before her.
In closing submissions, Counsel for the Father pointed out that the Father’s own psychologist did not describe the Father as having narcissistic personality traits. That is so. What is unclear, however, is whether the Father’s treating psychologist had the range of information available to him that Dr H had.
When the Father’s psychologist’s file was tendered, to suggest that there was no evidence that the Father lacked insight, again, the concern is that the Father’s presentation to his psychologist was entirely based on self-report, whereas Dr H had multiple perspectives on the same issue presented to.
Counsel’s criticism of Dr H as being antagonistic towards the Father and unequivocally accepting of the Mother’s version of events is simply incorrect. Dr H was balanced, in that she was critical of both parents, and very clearly set out the sources of the information she had available to her, how she used this information together with testing, and the conclusions drawn from the same. The Court does not accept the submission that Dr H’s evidence was tainted, contained speculation and reflected a dislike for the Father.
During submissions, Counsel for the Father provided the Court with a written summary of argument which focused on Dr H’s report. It is important that the arguments contained therein be addressed, even if in an abbreviated manner.
The point is made that the parties have not been cross-examined. The Court recognises and acknowledges this, in the context of assessing the weight to be given to Dr H’s evidence. In an ideal situation, the parties’ evidence could have been tested. That was not possible. Indeed, it was almost remarkable that the Court was able to accommodate an interim hearing that involved cross-examination of the Expert in the timeframe that it did.
The point that was emphatically made on behalf of the Mother and the Independent Children’s Lawyer is that the child in this case is all but alienated from her mother. The relationship subsists by a gossamer thread. It was thus important for them for the issue to be dealt with expeditiously but in order to do justice to the Father, it was just as important for him to have the opportunity to challenge the expert evidence, which he did. The limitations on relying on the expert evidence alone are duly limited. At the end of the day, however, Dr H’s report, and her evidence, was both independent, and expert.
Counsel for the Father’s submissions draw attention to the fact that the Report does not refer to any members of the Father’s family, but the expert did speak with members of the Mother’s extended family. It is asserted that this is yet another example of partial treatment that would lead the Father to perceive Dr H as being biased. The Court does not accept this submission. At no point in the Report does the Father refer to any member of his family who is involved, in a meaningful sense, in X’s life. Even X acknowledges this in what she told Dr H.
The input from the members of the Mother’s family was, in the Court’s view, minimal. Indeed, the Court has specifically excluded, in its consideration, paragraph 94-96 of the Report. An independent expert does not become biased simply because he or she forms an adverse view of one party to litigation.
The submissions express concern that Dr H had not adequately considered the drastic impact on X of making the orders proposed. The Court does not accept this submission. Dr H was aware of the issue. The Report recognised the possibility that, in effect, X would vote with her feet. What the Report concluded, however, was that this was a lesser risk to X than remaining in her father’s care.
There is a complaint about the Expert reaching a conclusion based on untested allegations. The Court does not accept this submission. It is this Court’s view that Dr H would have been entitled to reach the conclusions she does based on the information provided by the Father and X alone, without reference even to the Mother.
There is reference to the:
…unprofessional way that some of the father’s answers to questionnaires were obtained.
Dr H was cross-examined about this and the Court accepts her explanation.
There is a vociferous complaint about Dr H making:
…unfounded, disgraceful and degrading suggestions that the father is grooming his daughter. The inference being he is an incestuous paedophile.
This has been discussed above. The Report makes it clear that Dr H is referring to a grooming behaviour in the sense of psychological ascendancy, and not incest or paedophilia.
The Court mentions, in passing, that the references to academic literature in the summary of argument is unhelpful and inadmissible. The Court places no weight on it whatsoever.
There is no substance to the concerns expressed on behalf of the Father about the process used by Dr H to conduct the report interviews, the methodology that she adopted, the conclusion she formed and the recommendations she makes. It bears repeating that it is this Court’s view that Dr H could have reached her conclusion on the basis of the Father’s own evidence and what X told Dr H.
The Court places considerable weight on Dr H’s report.
The Remaining Evidence, and Best Interests of X
There is no doubt that there is a benefit to X of having a meaningful relationship with both her mother and father. There is a tenuous grasp by the Mother on a meaningful relationship with X which, on the regrettable evidence before the Court, can only continue and improve if X is living with her mother. X has a strong, but unhealthy and enmeshed relationship with her father. Nonetheless, the Court believes that that meaningful relationship could subsist a period of up to six months of no contact or communication with her father, provided therapy occurs during this period.
This is a need to protect X from the risk of psychological harm, if she is to remain in her father’s care. The Court notes that abuse is defined in s.4(1) as including serious psychological harm. The Court believes that the loss of X’s relationship with her mother, based on the advertent or inadvertent actions of her father, would constitute serious psychological harm. That is certainly the effect of the expert evidence before the Court. The Court’s impression from the material before it, and certainly from Dr H’s report, is that the environment in the Father’s household is one that is toxic so far as X’s relationship with her mother is concerned. X needs to be protected from this.
X has expressed strong views which have an irrational foundation. The Expert strongly suggests that X’s views cannot be relied on. The Court agrees.
X’s relationship with her father was characterised by Dr H as enmeshed. The co-sleeping and co-showering are the physical manifestations of this, but, arguably, the more insidious manifestations are the psychological ones referred to by Dr H. X’s relationship with her mother is tenuous but once was an appropriate and healthy one. The Court accepts Dr H’s expert evidence that it can be restored provided X is returned to her mother’s care, is shielded from the Father’s influence and provided therapy takes place. The benefit of X living with her mother is that she will have a benefit to a relationship with her extended maternal family, which is quite unlikely to happen in the Father’s care.
The Court accepts that making the orders proposed by the Independent Children’s Lawyer and the Mother, will be a drastic change in X’s life. It will be disruption on a very significant scale. The Court is satisfied, however, that this is, in fact, the lesser evil in this case. The Court is satisfied that X’s relationship with her mother should be prioritised over the adverse impact on her of moving from her home, school, community and friends, at least for the time being.
The Mother seems aware of the challenges that she faces in facilitating, and supporting X through a difficult period of change in her life. She appears to have considered the possibility of relocating back to an area which will enable X to return to her school. This will be a mitigating factor. Removal of the Father from her life, at least for a period, will be another change in X’s life. However, the expert evidence suggests the relationship is an unhealthy and enmeshed one and thus it is necessary.
The Court notes that both parents have agreed to the engagement of Dr J to provide specialist family therapy. In the circumstances, the arrangements for X to spend time and communicate with her father will be the subject of expert intervention and can be reviewed as the need arises.
There are concerns about the capacity of each parent to meet X’s needs. The Expert was quite scathingly critical of the Mother for her inaction. The Court recognises the possibility, indeed, perhaps even the probability, that once the evidence of the parents is tested under cross-examination, the conclusion may well be that the Mother could have done far more to prevent X’s alienation from her and enmeshment to the Father.
Nonetheless, the concerns about the Father’s capacity to meet X’s psychological needs are, according to the expert evidence, the major factor in this case. If X’s relationship with her father is enmeshed, as the expert suggests, X will not be able to individuate at a time of her life when she should be. At a time of her life when, arguably, she needs a strong maternal figure in her life, the Father’s actions (whether advertent or inadvertent) have alienated X from her mother. This reflects poorly on the Father’s capacity to adequately parent X.
Issues of parental attitudes also arise in this case. Whilst the Mother is by no means free from criticism, the Father’s lack of insight was highlighted many times to the Court through his own evidence and in Dr H’s report. He genuinely seems to have no idea about the longer-term potential impacts on his daughter of what he has done (or allowed to happen) to distance X from her mother. Most of the evidence in support of this is found in the Father’s own evidence.
There is no guarantee that this order will not lead to further proceedings. Indeed, as it is by definition an interim order, more proceedings are likely. The Court accepts, however, there is a risk that X will struggle to abide by these orders and may go through a tumultuous time period of adjustment in living with her mother. However, it must be equally recognised that even if the Father’s proposal were adopted, given the toxic environment that appears to have been created in the household, it is possible that X would not have abided by even the orders he proposed. In the circumstances, the orders that the Court proposes to make are the best it can do.
The Mother and Independent Children’s Lawyer propose an order for sole parental responsibility. The Court accepts that, in the circumstances of this case, an order for equal-shared parental responsibility could not possibly work, even putting aside the risk issues in relation to X’s psychological health.
Orders in X's Best Interests?
The Court believes that, in the difficult circumstances of this case, the orders proposed by the Independent Children’s Lawyer, supported by the Mother, are in her best interests. An essential component of these orders, however, is the engagement of Dr J to provide specialist family therapy.
Order 8 proposed by the Independent Children’s Lawyer is that Dr H, or another Family Consultant, explain these orders to X. That may be difficult to arrange in a timely fashion. The order will be made, but will also provide for the Independent Children’s Lawyer to explain the orders to X.
The Court declines to list this matter for final hearing, at least for the time being. It would like to be informed as to the progress of family therapy. The matter will be brought back for mention in late February 2018 so the Court can be apprised of developments with regards to therapy. An expedited hearing may be possible.
The Court believes that it will be important for these orders to be implemented immediately. Orders will be made, therefore, for X to be present at the Court when these Reasons for Judgment are published, and the orders made. The transition from the Father’s care to the Mother’s care will be facilitated as sensitively as possible, having regard to available resources.
The Independent Children’s Lawyer will have leave to relist on 72 hours’ notice.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 7 December 2017
Schedule 1
Orders sought by the Independent Children’s Lawyer
PENDING FURTHER ORDER IT IS ORDERED:
That pending further order the mother have sole parental responsibility for the child X born (omitted) 2006 in relation to the care, welfare, and development of a long term nature involving the children to include:
2.1 The education of the children both current and future;
2.2 The child’s health; and
2.3 The child's location of living.
That the child live with the mother.
That the parties do all things necessary to engage Dr J, clinical psychologist to undertake family therapy in accordance with the recommendations of Dr H in her report dated 16 October 2017 with the cost of such therapy to be equally shared between the mother and the father.
That pending further order the father be restrained from approaching or communicating with the child except in accordance with the recommendations of Dr J.
That leave be granted to the Independent children's lawyer to provide a copy of the report of Dr H dated 16 October 2017 to Dr J.
That each party be restrained from showing the child any document filed or correspondence relating to these proceedings or discussing any aspect of these proceedings with the child or within the hearing of the child.
That both parties be restrained from denigrating the other parent or members of their family and hearing or presence of the child and shall do all things necessary to remove the child from other persons who may be denigrating the other parent or members of their family in the hearing or presence of the child.
That the parents facilitate the child attending the Wollongong Federal Circuit Court Registry for Dr H to explain the Orders to the child or if Dr H is not available another Family Consultant.
That the matter be listed for final hearing.
Schedule 2
Orders sought by the Respondent Father
That the child X (“the child”) born (omitted) 2006 live the Father;
That the child spend time with the mother as follows:
a. For a period of six (6) months:
i.Each Wednesday from after school with the mother to collect the child from school at the commencement of time and deliver the child to the father at the conclusion of time;
ii.Each Saturday from 9am to 5pm;
b. For a further period of six (3) months
i.Each Wednesday from 7.30am to 9.00am with the mother to collect the child from the father at the commencement of time and deliver the child to school at the conclusion of time; and
ii.Each alternate weekend from 6.30pm Friday to 5pm Saturday;
c. Thereafter:
i.Each Wednesday from 7.30am to 9.00am with the mother to collect the child from the father at the commencement of time and deliver the child to school at the conclusion of time; and
ii.Each alternate weekend from 6.30pm Friday to 5pm Sunday;
That the parties participate in family counselling.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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