Somerville and Somerville and Anor
[2014] FCCA 695
•21 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
SOMERVILLE & SOMERVILLE & ANOR [2014] FCCA 695
Catchwords:
FAMILY LAW – Interim parenting – children in care of the Secretary pursuant to earlier interim orders – whether they should be restored to the mother’s care – weight to be given to expert evidence – where there are serious issues raised about the mother’s mental health.FAMILY LAW – Interim property – where mother in sole occupation of the family home – where Secretary proposes transitioning care of children back to the father – where properties are mortgaged, rented out, and in need of renovations – order for sole occupancy – father to contribute to cost of mother’s rental out of rentals received from properties.
Legislation:
Family Law Act 1975 (Cth) – ss.60CA, 60B, 61DA, 61DAA, 60CC, Part VII and Part VIII
MRR v GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346
Applicant: MR SOMERVILLE
Respondent: MS SOMERVILLE
Intervenor: DEPARTMENT OF FAMILY & COMMUNITY SERVICES
File Number: WOC 1043 of 2012
Judgment of: Judge Altobelli
Hearing dates: 11 & 13 March 2014
Date of Last Submission: 13 March 2014
Delivered at: Sydney
Delivered on: 21 March 2014 REPRESENTATION
Counsel for the Applicant: Ms Gillies
Solicitors for the Applicant: Rita Thakur & Associates
Counsel for the Respondent: Mr Miller
Solicitors for the Respondent: Rossi Simicic Lawyers
Counsel for the Intervenor: Mr Anderson
Solicitor for the Intervenor: Crown Solicitors Office
Counsel for the Independent Children’s Lawyer: Mr MacPherson
Solicitors for the Independent Children’s Lawyer: Legal Aid NSW (omitted) ORDERS
(1)All previous orders and parenting plans are discharged.
THAT PENDING FURTHER ORDER:
(2)The Minister for Family and Community Services be granted sole parental responsibility for:
(a)X (“X”), born on (omitted) 2006, presently aged 7 years, 8 months;
(b)Y (“Y”), born on (omitted) 2005, presently aged 9 years;
(c)W (“W”), born on (omitted) 2003, presently aged 10 years 4 months; and
(d)Z (“Z”), born on (omitted) 2002, presently aged 11 years 8 months
hereafter collectively referred to as “the children”
(3)The Minister or the Secretary as delegate of the Minister shall determine where and with whom the children live.
(4)Pursuant to s.68B and 67ZC of the Family Law Act1975 (“the Act”) the First Respondent, Ms Somerville (“the mother”), is hereby restrained by injunction from:
(a)spending any time with any or all of the children;
(b)approaching, communicating or contacting by any means, including through any third person other than the Secretary, any or all of the children;
(c)entering or remaining in or being within 200 metres of any place of education or residence of any of the children and contacting by any means, including through any third person other than the Secretary any place of education or residence of any of the children;
(d)be restrained from removing or attempting to remove any or all of the children from his or her place of residence or educational facility;
(e)harassing, molesting, stalking, threatening or causing bodily harm, to any or all of the children or any person in whose care any of the children are placed in the exercise of the parental responsibility of the Minister pursuant to Orders 2 and 3 herein.
(5)A Police Officer may arrest the mother without warrant, pursuant to s.68C of the Act, if such Police Officer believes on reasonable grounds that the mother has since the orders were made, breached the injunction contained in paragraph 4 of these orders and it is taken for the purposes of this order that each of the injunctions in paragraph 4 relate to the personal protection of the children or any of them.
(6)The father shall spend time with, or the children shall live with the father at times and places and on conditions, including supervision, as determined by the Secretary.
(7)The father shall have telephone contact with the children at times and on conditions determined by the Secretary.
(8)The father shall keep the Secretary informed of his home address, email address and contact telephone numbers.
(9)The father shall not consume alcohol during any time when the children are in his care and shall not be affected by alcohol at any such time.
(10)The father shall obey all reasonable directions given to him by the Secretary including but not limited to completing anger management course(s), working collaboratively with any agency to which he is referred to assist in the father’s care of the children, presenting the children for and facilitating the participation of the children and the father in any counselling to which they may be referred by the Secretary.
(11)That the mother is and shall be hereby restrained from:
(a)Applying for a passport in the name of any or all of the children;
(b)Applying for a passport in the name of herself and any or all of the children;
(c)from removing and/or causing or allowing any or all of the children to be removed from the Commonwealth of Australia.
(12)That the mother shall forthwith surrender the passport of each of the children to the Registrar of the Court, if she has not already done so.
(13)The Marshall of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either parent from removing or attempting to remove the said children from the Commonwealth of Australia.
(14)The Commissioner of the Australian Federal police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the children on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children at all flights leaving any international airport in all States and all Territories of the Commonwealth of Australia and maintain each of the children's names on the Airport Watch List until the children attain the age of 18 years.
(15)A reference to the Secretary in these orders is to be read as a reference to the Secretary and/or a delegate of the Secretary.
(16)Liberty to relist granted to the Secretary or Independent Children’s Lawyer on 48 hour’s notice.
(17)The Wife be restrained from residing within a two kilometre radius of the Husband’s residence.
(18)The Wife be restrained from attending any of the schools which the children attend.
(19)The Wife be restrained from attending upon or approaching the Husband’s residence and further from attending within 200 meters of the Husband’s residence.
(20)Should any of the children come into the care of the Wife, she is to immediately inform the Husband by telephone of that fact and their whereabouts and make the children available for immediate collection by the Husband.
(21)The Wife be restrained from making further alterations to the property.
(22)Within 28 days of these orders the Wife vacate the property at Property M1 and the Husband have the sole occupation of the property and the Husband shall ensure that he will be responsible solely for the payment of all outgoings in respect of the property including mortgage payments, payment of council and water rates and building insurance and further the Husband shall ensure that he applies the entire amount of rental income received from the property towards completing the construction work to the property commenced by the Wife and the balance in reduction of the mortgage loan secured on the property and the Husband shall account to the Wife for the entirety of the rental income received by him.
(23)Simultaneously with vacating the property the wife provide to the husband all keys associated with the property at Property M1, and that the Wife’s name be removed from, and the husband’s name added to the registered key set for Property M1 at (omitted) locksmiths.
(24)The wife be restrained from approaching within 200m of Property M1.
(25)The Wife shall be restrained from removing from Property M1, the safe and the three safe keys and the Wife shall further ensure that the safe is left open and unlocked.
(26)The Husband is to pay to Wife $200.00 per week from the time she vacates Property M1, New South Wales.
(27)Costs be reserved.
THE COURT NOTES THAT:
(28)The terms of exhibit DG2 (transition plan).
(29)Directions regarding an adjourned date have already been made.
IT IS NOTED that publication of this judgment under the pseudonym Somerville & Somerville & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY
WOC 1043 of 2012
MR SOMERVILLE Applicant
And
MS SOMERVILLE Respondent
DEPARTMENT OF FAMILY & COMMUNITY SERVICES Intervenor
REASONS FOR JUDGMENT
EX TEMPORE
Introduction and Background
1.In the matter of Somerville, I provide the following oral reasons for judgment. The application relates to four children: Z, who is 12; W, 10; Y, 8 and X, 7. The applicant is their father, he is 35; the respondent is their mother, she is 39. The issue before the Court is what interim orders should be made, both in relation to the children and in relation to property matters.
2.The background matters are, in my opinion, more than adequately set out in the chronology that is contained within counsel for the Independent Children’s Lawyer’s outline of case document, reproduced in Schedule One to these reasons.
3.The competing proposals were as follows: the Secretary of the Department presented a proposed minute of order, reproduced in Schedule Two to these reasons, together with a transition plan, which was in evidence. For all practical purposes the Secretary’s proposal was supported by the Independent Children’s Lawyer and supported by the father. But in addition the father seeks orders 2 to 8, inclusive, of his proposed minute of order and in that regard, his minute of proposed orders is reproduced in Schedule Three to these reasons. In relation to property, the father agitates for orders 12 to 16 of his minute of order, again attached in Schedule Three to these reasons.
4.The mother’s proposal is contained in a separate minute of order, reproduced in Schedule Four to these reasons.
5.The major issue to be resolved is who should have parental responsibility in relation to the children, where they should live, whether and if so on what terms there should be contact between the children and the parents. There are also some discrete interim property issues.
6.In very general terms the children, who are presently in the care of the Department will, in accordance with the proposals of the Secretary, the Independent Children’s Lawyer and the father, remain in the care of the Department with the care gradually transitioning on a daily basis to their father. On the mother’s proposal there would be a complete reversal of the existing arrangements, so that the children come into her care and spend time with their father.
Applicable Law
7.In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
8.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.
9.At the very core of Part VII of the Family Law Act 1975 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.
10.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.
11.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.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a 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.
12.In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
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".
13.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.
14.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed:
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.
15.The Court also adopts and incorporates into these oral reasons, the very useful discussion of the relevant authorities that is contained in the summary of argument filed by counsel for the Secretary of the Department.
The Evidence
16.In terms of the evidence before the Court, there was a substantial volume of documents before the Court.
17.The father relied on the following documents:
a)Application in a Case filed 7 March 2014;
b)Financial Statement filed 28 February 2014;
c)Affidavit of Mr Somerville filed 28 February 2014;
d)Affidavit of Mr Somerville filed 5 March 2014;
e)Affidavit of Ms L filed 28 February 2014;
f)Affidavit of Ms J filed 28 February 2014; and
g)Affidavit of Ms B filed 28 February 2014.
18.The mother relied on the following documents:
a)Minute of Interim Orders Sought filed 12 March 2014;
b)Financial Statement filed 12 March 2014;
c)Affidavit of Ms Somerville filed 12 March 2014;
d)Affidavit of Ms Somerville filed 5 December 2012;
e)Affidavit of Dr C filed 27 February 2014;
f)Affidavit of Ms K filed 28 October 2013;
g)Affidavit of Ms Y filed 28 October 2013;
h)Affidavit of Ms B filed 28 October 2013; and
i)Affidavit of M filed 29 July 2013.
19.The Secretary for the Department relied on the following documents:
a)Application in a Case filed 2 October 2013;
b)Affidavit of Ms A filed 2 October 2013;
c)Affidavit of Ms A filed 28 October 2013;
d)Affidavit of Ms A filed 28 February 2014; and
e)Affidavit of Dr C filed 27 February 2014.
20.In addition, there were Dr K’s reports of 9 July 2013, 26 July 2013 and 4 March 2014. Dr K was cross-examined on the relevant issues before the Court on 13 March 2014.
Dr K
21.The Court proposes to deal with the parenting issue first and then deal with the property issue. The Court will start by discussing Dr K’s expert evidence. His first report is dated 9 July 2013 and, in very general terms and probably not doing justice to it, he focused on how the report should be released: who should view it and in what circumstances. His substantive report is dated 26 July 2013 and the Court will incorporate a number of paragraphs from his report into these reasons, with some commentary.
22.For example, he refers to the mother as:
169. In my view, the mother experiences significant personality dysfunction, with prominent borderline, histrionic and narcissistic [DSM-V “Cluster B”] personality traits. I think it likely that the mother’s personality dysfunction has been sufficiently pervasive, persistent and disrupting to warrant a diagnosis of a personality disorder. The differentiation between traits and disorder is one of degree, and is not central to the matters before the court. In order to make the differentiation, a clinician would need to see the mother over a period of time, with information from sources outside herself, and appraise her functioning in broader contexts beyond the focus of this report on functioning in family relationships.
170. The mother’s borderline personality traits are seen in her pattern of instability of interpersonal relationships, self-image and emotions, and her marked impulsivity. These traits have been seen in her relating to the father, including in her behaviour during the relationship, her correspondence attached to his affidavit of 2nd July 2013 (for example the contrast between annexes T and U, sent on the same day, and the content of the long letter at annex A, written early in the parents’ marriage), and her extremes of behaviour post-separation. She makes frantic efforts to avoid real or imagined abandonment, has a pattern of unstable ad intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation, an unstable sense of self alternating between grandiosity and self-deprecation, impulsivity in areas that are self-damaging including self-harm behaviour (including her ingestion of poison, and her impulsive sexual behaviour), emotional instability, intense anger, and stress-related paranoid ideation.
171. The mother’s histrionic personality traits are seen in her pattern of excessive emotionality and attention-seeking behaviour, in her relating to the father, in her relating to professionals since separation, and in the interview with myself. She is uncomfortable in situations in which she is not the centre of attention, her interaction with others can be characterised by sexually seductive or provocative behaviour, she displays rapidly shifting and shallow expressions of emotions, has a style of speech that is impressionistic and lacking in detail, shows self-dramatisation, theatricality and exaggerated expression of emotion, and can consider relationships to be more intimate than they actually are.
172. An example of histrionic traits evident in the mother’s interview was when she said: “I want flexibility, as a single mother, I want my hopes and dreams to come true. I did distance learning [with the boys]… I want to again, after psychologically I can, when there’s no more nightmares, no more fears, one day, [sudden shift into tears] when I’m mentally ‘me’ again, when I’m whole again [shift back out]. The children are bored at school, they play up because they’re bright kids. That’s how my family is, they don’t get the best education… when things are in place with X , whatever’s happened to my daughter, [shift into tears] I can’t cope with the little I know… I put myself in such a bad situation, whatever her father did to her, part of me can’t accept… I wish it isn’t true… she can’t come to me about a thing like that… because I don’t listen… [shift back out] I was molested by my uncle… I have video, of me, giving my last will and testament. He was in (country omitted), I withdrew $40.000, then he rang me. I was in another country… [shift back into tears] and my little X… she gives her brother oral sex…Y… she thinks that’s normal… [shift back out] At the beginning of last year, there was a mother in playgroup, who said, ‘I’ve watched it for 5 years. You need to get out. Maybe if you get out, someone will help you’”.
173. Whilst the above monologue includes information about the children, it is about the mother, and about how she projects herself and is perceived.
174. The mother’s narcissistic personality traits are less prominent. But, she does show some pattern of grandiosity, need for admiration, and lack of empathy. She exaggerates her achievements and talents, can be preoccupied with fantasies of success and ideal love, requires excessive admiration, has a sense of entitlement, can be interpersonally exploitative, and can show arrogant or haughty attitudes.
175. The mother has at times experienced symptoms of anxiety and depression related to her personality dysfunction. She has engaged in self-harm threats and actions.
….
183. The mother’s commitment to the children and to the responsibilities of parenthood has (under the influence of her personality) been intense, but unstable.
184. The mother’s borderline and narcissistic personality style has some benefits in terms of her parenting capacity and the children’s experience, in that her commitment to parenting can be intense and idealised. She has had bursts of energetic engagement with aspects of the children’s upbringing or development, for example with Z’s “cool kids” program” of therapy for anxiety, or with home schooling the boys for a time. When I saw the children with her, she spoke enthusiastically of their various skills and talents, and she and the children spoke of enjoying going out to buy books.
185. But, the mother is not always consistent with carrying through. Z did not complete the “cool kids” program, the home schooling of the boys was short-lived, and the children spoke of buying the books rather than finding the time to read them.
186. I think it likely that the responsibilities of parenthood and the needs of the children can be supplanted in the moment by the mother’s periods of intense preoccupation with relational matters or issues of her significance and direction in the world.
187. The father described that on the day when he assaulted her in the back-yard of the maternal grandmother’s home, the mother in her desperate focus on getting to the house before him (and hence not allowing him to abandon her in that moment) left the children at the traffic lights, crying, such that he had to go back to help them across the road. I think this more likely than the mother’s version (that she did the helping across the road), both because of my assessment of the mental state of the two parents, and because I am aware from the versions of all witnesses that the mother reached the home well before the father., even though the father initiated the “walking off” from the park. The father also described the mother leaving the children on his doorstep unannounced soon after his return from a night-shift, on several occasions during their separation in 2011.
188. The mother has at times “run away” from the responsibilities of parenthood, or spoken of sharing out the children between herself and the father.
189. Overall, the mother appears to have been capable of meeting the children’s basic needs for food, shelter, and protection from physical harm.
190. But, I feel that because of her personality dysfunction the mother is impaired in her capacity to meet the children’s emotional needs.
191. Because of her insecurity in sense of self and her preoccupation with her own needs for affirmation and attention, the mother lacks an empathic awareness of the feelings and needs of others. When I saw the mother with the children, she took on a positive, happy and encouraging tone and posture, which will have been in keeping with her need to maintain a self-image and reputation as a loving parent. But, this tone was projected onto the children rather than the mother pausing to appraise and respond to their actual expressed thoughts and emotions at the time. This led to some incongruous moments of dysjunction, where for example Z was mentioning some of the social troubles he had experienced at school, and the mother was beaming and nodding towards him. The children when this occurred would tend to match the mother’s presentation with an incongruous giggle and smile.
192. The mother in her descriptions to the therapists and school staff, and to me, would attribute to the children her own emotions and thoughts, in particular her negative emotions and thoughts regarding the father.
193. The mother has poor interpersonal boundaries, so will tend to express her feelings and thoughts without consideration of the needs or capacity of the hearer. The children have thus been exposed to her adult relational stresses over time. I note that whilst this boundarilessness has been most extreme in recent months, Ms S noted it in January 2011.
23.He refers to the mother and her relationship with the children at paragraphs 195 to 198, inclusive.
195. The children in their relating to the mother show features of pseudomaturity and parentification. The children are parentified, in that they are focussed on meeting the mother’s needs, rather than able to securely expect her to meet their needs. They must meet the mother’s need for them to mirror her preoccupation and distress, and affirm her central and exclusive significance to them. Particularly damaging has been the children’s role in meeting the mother’s current need for the danger and drama of the separation to match her intense inner turmoil about the experience. The children are mature in their knowledge of adult matters, but the maturity is “pseudo” in that it is not backed up with neurodevelopment or life experience, and thus creates anxiety in them.
196. The children (with the partial exception of Y) have developed an anxious-avoidant attachment style with the mother. They have learnt to suppress or avoid negative emotion, whilst self-reliantly getting about meeting their own needs. This compliant, pleasant, self-reliant relational style avoids the disappointment of unmet need, or the danger of maternal decompensation or aggression in response to the demands of the child’s need.
197. The presence of a dominant anxious-avoidant attachment style in the children is suggested by Ms S’s observation of how “beautiful” and “well-mannered” the children were in the waiting room. These 4 pre-adolescent children were able to contain and manage their own emotions and behaviour in the waiting room for an hour, during a period when their primary attachment figures were in conflict and decompensated into extreme negative emotion.
198. The benefit of the children’s anxious-avoidant relational style is that it is adaptive in their current circumstances. The risk is that observers may underestimate the degree of stress that the children are under in their current environment, because of their ability to smile and to be compliant. I think it is notable that the school have observed the children to be even more withdrawn and compliant than previously, and X for example more emotionally fragile, and Y more reactive to perceived criticism.
24.He considers a number of “Alternate hypotheses”:
204. If my assessment of the nature of the parental relationship over time, and the degree of mutual abuse (outlined below, at 1.2/1/9), is accurate, then the mother’s presentation is one of severe personality dysfunction exacerbated by couple conflict, and her prognosis for improvement is guarded, with a likelihood of significant ongoing personal and relational instability, with associated disrupted parenting capacity.
205. If my assessment is accurate, the mother is likely to seek out new partners, but her degree of relational dysfunction is such that these new partner relationships are likely to be either dysfunctional or short-lived, as persons with strong relational capacities and a good balance of self-respect and respect for others will tend to depart intimate relationship with her. This process of relational instability will expose the children to risks associated with the mother’s fluctuations between preoccupation and despair, and to any risk associated with the profile of each partner. The prognosis for her parenting capacity in the long term will be poor. Relationships with mitigating concerned external supports such as extended family are likely to be lost.
206. If in fact the father has been significantly more physically, emotionally and sexually abusive of the mother than has been my impression, then the mother’s presentation may be of moderate personality dysfunction exacerbated by a trauma response. In that case, if the mother is provided a safe and stable environment and appropriate therapy and assistance to recover, her prognosis is more positive. But, even in that setting, I am concerned about her degree of dysfunction and the risk to the children posed by her current lack of capacity to meet their needs.
207. In this latter context, the mother may find a new partner with strong relational capacities and a good balance of respect for self and others, who may respect her strengths and contain and over time be part of a healing process for her moderate personality dysfunction. Parenting capacity may improve over time, and be augmented by preserved relationships with external supports.
208. An important possibility with regard to the mother’s mental health may be that in addition to her personality dysfunction, she may be experiencing the current new onset of, or an exacerbation of a longstanding mood disorder (such as bipolar disorder), or psychotic disorder (such as schizophrenia or schizoaffective disorder). Her mental state on the day that she was reviewed by me did not strongly support such diagnoses, but raised the possibility of a hypomanic or mixed mood state as part of a bipolar disorder. Aspects of the history that might suggest such a diagnosis are the reports of the mother’s grandiosity and paranoid ideation, and the reports of school staff that the mother has as far back as 2 years ago been disorganised and distractable in her conversational style.
209. My own view is that it is most likely that the above symptoms relate to personality dysfunction rather than mood disorder. But, the mother’s wellbeing would be improved and risk to the children mitigated if she maintains review (and if necessary treatment) by a psychiatrist over the next 2 year period of adaptation to the separation and the court outcome. The differential diagnosis will only be made with careful recurrent observation of the mother over time. In pragmatic terms in the acute setting, the medications used to treat personality-related mood instability and mood disorder are similar, but the differential diagnosis is important because it will effect prognosis and treatment over time.
25.He makes a number of relevant observations in relation to the father, as follows:
210. In my view, the father has no significant ongoing mental disorder.
211. The father has a DSM-V alcohol misuse disorder, I think likely of moderate severity, now in stable partial remission. In the old language, this means that he shows some features of alcohol dependence, those being a pattern of regular consumption that will have led to the development of neuroadaptation, that is some tolerance and subtle withdrawal anxiety or irritability, a prioritising of alcohol over other things significant in his life including his relationships, and a pattern of ongoing use despite harm.
…
217. The father has experienced depressive symptoms over the years, related to some struggles with a difficult boss in the mid-2000’s, and with the distress, dissatisfaction and frustration that he has experienced in the parents’ relationship. The father has never harmed himself. The father was treated with one course of antidepressant tablets in 2006, from his general practitioner.
218. In my view, the father does not show marked personality dysfunction. During the interview with myself, he showed good reflective functioning and an awareness of his own thoughts and emotions, and those of others. He showed a balance of respect for himself and for others when discussing his relationships at work, with friends, with the children and with the mother. He claimed credit for his own endeavours, and took responsibility for his own failings, the latter including his past violence towards the mother and his excessive use of alcohol.
219. In my view, the father tends towards a dismissing attachment style (the adult equivalent of the child’s anxious-avoidant attachment style). That is, he takes a rational and pragmatic stance with regard to relational issues, rather than an emotive and symbolic stance. He tends towards an accommodating nature.
…
299. In my view, the father’s respect for, warmth towards, and connectivity with the children is a reflection of his true personality function and relational capacity, whilst his cool disengagement from the mother represented a trauma response to the toxicity of the parental relationship and the father’s experience of longstanding maternal emotional abuse.
…
234. When I saw the children individually, in contrast with their impressionistic and parentified responses about the mother, they described shared reciprocitous activities with the father, though they than added a negative “spin” that allowed them to maintain alliance with the mother. Z said, “Dad used to play a lot. He used to do trips on our rip-stick. But he didn’t encourage us, he didn’t believe in us. He’d say, ‘I could do it better than you’. We watched a lot of TV shows”. Y spoke of “getting donuts” with dad.
235. When I saw the father individually, he was reflective, insightful and respectful to the mother and to each child, in his description of his and the mother’s coparenting of the children. He said, “We were pretty good parents, with consistency and discipline. Ms Somerville can be pushy and demanding, with her anxiety, like with chores, [in a strident, hurried voice] ‘It’s important for them to do it… this must be done’. So, we tried to put it into a structured form. We used a rewards chart.”
26.Dr K also makes a number of observations in terms of the father relating to the children:
240. I think it likely that whilst the children had a more secure relationship with the father and were more able to show a range of emotions with him and to experience empathic engagement, there were still features of an anxious-avoidant attachment style in their relationship with their father.
241. The father did have a vulnerability to control-override aggression, i.e. a sudden overwhelmed split into uncontrolled aggression from a general stance of conflict-averse emotional control. The children all described to me having heard the father shouting at the mother, and seen him be physically violent to her on at least the one occasion in January 2012. Y had experienced the one occasion where the father pushed him against the wall and hurt his back, and they all were able to describe his angry face.
242. So, the children will have learnt to contain their negative emotions and to be compliant, in order to keep the fun and engaging father, and avoid the risk of a sudden split into his angry face.
243. Also, the father values reason and logic over emotionality, so the children will have found over time that being “good” and predictable and independently pragmatic worked better with dad than being emotion-driven or too needy.
244. But, it is my impression that the children did not experience the father as dangerous.
245. Now, the father’s relationship with the children is disrupted by their current alliance with the mother, and their boundariless incorporation into the mother’s split against and devaluing of the father. The history from Ms T, Ms C, the school staff, and Ms S is consistent in describing this process. Also consistent are the reports of the contact service, for example that W confronted the father about “the affidavit” on 8th December 2012, and that Y called the father “a hypocrite and a rapist” on 24th January 2013. This has been both a deliberate act of the mothers in wanting to ensure that the children have the correct perspective of their father, and an inevitable result of the mother’s intense and boundariless expression of thought and emotion.
246. But, despite the mother’s intense process of influence on the children, my observations were similar to Ms T’s, that the only specific incident of aggression or harm to the children, described by the children was the one that the father also described to me in similar terms, when the father pushed or held Y against the wall and his back was injured by either the bed, or by a “burn” from sliding down the wall. These may have been two separate incidents. The other negative comments about the father were global, impressionistic and context-less, and were expressed in adult-like rather than child-like language and thinking.
247. I note also that the children described the father’s aggression towards the mother, the boys described him angrily taking them to their rooms, and W described him kicking their dog (omitted) on one occasion, such that (omitted) was thrown down the stairs.
…
250. The children did not present as afraid of the father. When seen alone, the childrens negativeity towards the father was stereotyped and automatic, and linked with incongruous false positive affect, rather than distress or fear. An exception was W, who appeared distressed, hurt and wary because of her belief that the father had behaved in a sexually inappropriate way towards her.
251. When I saw the children with the father, W remained withdrawn and with an aggrieved facial expression, and in front of the father, drew the attached picture of the father as a devil with cross through him and the words “No Somerville's”, and her own new name, “W”. This removes her middle name Somerville, which is also her father’s middle name, and her surname. She told me that “W” is a warrior female, and “(omitted)” is “from mum’s side, royalty”.
252. Z said to the father, “Hi, bitch”, with an incongruous nervous smile. He was initially restless, and stood up facing the father, and called the father a “fucktard” . But, he was contained, and appeared more awkward than afraid. He did not actively disrupt the father’s progress into the room. The younger two children sat cautiously on their chairs. Y added some verbal insults.
253. The father ignored these insults, and greeted the children. He took a chair at my invitation. I asked the father what he had enjoyed doing with each child, and what he missed about each child. As he answered, he sat in his chair, leaning a little forward. He looked to me, and with some looking towards the relevant child, but without intrusiveness and with respect for their awkwardness. He did not impose himself upon them.
254. It was my impression that as the father spoke warmly and specifically about his past engagement with each child, the children softened a little in their body posture and facial expression. They stopped their recurrent insults. W did not soften, and continued to draw her picture.
27.He also refers to the special needs pertaining to the children:
261. In my view, the children are currently experiencing neglect of their basic and emotional needs, and emotional abuse, in the care of their mother.
262. Despite this, they are maintaining composure and good function, because:
262.1 Their anxious-avoidant attachment styles assist them to do so
262.2 Prior to this recent decompensation, the parents as a dyad were providing a “good enough” if in some ways precarious parenting experience for the children.
263. In my view, the current crisis in the children’s care needs to be addressed, after which time the children’s vulnerabilities in terms of their emotional needs and exposure to parental vulnerabilities and family violence will need to be addressed.
28.He discusses the allegations of family violence as follows:
264. In my view, the parental relationship was one characterised by family violence.
265. The parental relationship was abusive in a bidirectional way. That is, each parent was both the perpetrator and the victim of abuse.
266. The mother has been emotionally abusive toward the father from early in the relationship. In my view, the mother’s behaviour towards the father over time, arising out of her personality dysfunction, has amounted to a form of family violence.
267. It is important to note that in using the term “family violence” I am not suggesting that the father has been physically violent to the mother. I am using this term as it is commonly used in clinical practice and in the clinical and social sciences literature (interchangeably with the term “domestic violence”) to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful, and harmful to the other.
268. The mother demonstrates attitudes and behaviours typical of family violence perpetrators, these being Superiority, Entitlement, Control, Possessiveness, Selfishness and self-centredness, Externalisation of Responsibility, Denial, minimization and victim-blaming, Manipulativeness, Contradictory statements and behaviours, and Confusion of Love and Abuse. [Reference: List based on a literature review in Bancroft L, Silverman J & Ritchie D (2012) The Batterer as Parent 2nd Edn. SAGE: Los Angeles. I am not aware of her having the attributes on the list: serial battering].
269. The mother’s instability in sense of self, thoughts and emotions has led her to have huge swings in her attitudes towards and intentions regarding the relationship with the father. This is common in persons with a borderline personality structure. But, what has been abusive has been the mother’s lack of any containment of the intense, prolonged and recurrent expression of these intense shifts, with little acknowledgement of the impact of her words and behaviour. The apologies that do occur are care-eliciting and attention-seeking, not reparative.
270. The mother’s language and behaviour towards the father has at times been cruel and entitled. From early in the parental relationship (Annex A to the father’s affidavit of 2nd July 2013) the mother has felt entitled to maintain and make unflattering comparative comments regarding her own fondness for a past partner, whilst at the same time expressing aggrieved outrage about the father’s lack of exclusive loyalty to her. In therapy with Ms S, the mother felt entitled to both acknowledge her own practice of an “open relationship’, and to be tearful and indignant about the father’s “affairs”.
271. The mother has acted in vengeful, disrespectful and aggressive ways towards the father. I think it likely that behaviours described by the father in his affidavit such as texting slanderous comments to the father’s work colleagues and burning or destroying valued possessions, and to me such as waking him up when sleeping after nightshift to berate him about his laziness, did occur.
272. In arguments, the mother has relentlessly pursued, yelled at and “spoken at” the father, even when he has been making clear attempts to get away or take some space. The mother acknowledges this pattern on the 3rd page of Appendix Q to the father’s affidavit of 2nd July 2013. Her rejection sensitivity leads her to aggressively accuse the father, but her fear of abandonment then leads her to feel unable to bear his subsequent retreat from conflict.
273. The mother in her interview with me took credit for all of the couple’s achievements, amplifying her own personal qualities and minimising those of the father, whilst externalising in an absolute way the blame for the couple’s and her own failings onto the father. This has been a common pattern in other settings, for example as described by the paternal aunt Ms B in her affidavit of 28th June 2013, when the mother called the father a “useless” parent and spoke of her disappointment in the father compared with her previous boyfriends.
274. The mother has (often successfully) sought to obtain attention, sympathy and admiration though presenting herself as a victim of paternal mistreatment, often (in my view) in a deliberately misleading way. For example, she insisted despite specific questioning from myself that she had never wanted to or initiated romantic or sexual relationships outside the marriage, but that the father had enforced this process upon her. This does not match with the history given by the father, or information from other sources. She shifted into a display of distress, as she described with detail her distress at having been forced to engage in such behaviours.
275. I think it likely that the mother has added intensity and pseudo-intimacy to her relationship with her general practitioner also by amplifying her stories of paternal abuse over the years, such that Dr P has come to view the father as “a despicable human being”. She has incorporated the children into this process. She described having behaved similarly towards a woman in her mother’s group, and she is behaving similarly towards current therapists.
276. The mother has been jealous and possessive of the father in ways that have controlled and disrupted his broader supportive relationships, as is common in patterns of family violence. The mother was instrumental in the father all but breaking off contact with his family of origin.
277. The father has been physically abusive to the mother, on at least one occasion in January 2012. He also on interview with me described an incident where he was pushing the mother out of the bedroom door in an attempt to close it and escape her verbal aggression, when she fell and hurt herself. He denied other incidents.
278. The father’s description of the above incidents were notable for their lack of victim-blaming and minimising (the father’s description of the assault in January 2012 matched that of the mother, maternal grandmother and children), and his ownership of his own aggression and its inappropriateness. Dr P recalled that the father “admitted to getting drunk, and aggressive, and that ‘I’ve gotta change’”.
279. The children when seen alone were able to describe dad’s angry face, and recalled lots of arguments where both parents were shouting, with a tendency for mum to be doing lots of asking and explaining, and dad “shouting ‘fuck’”. None of the children recalled or recounted any incidents of physical violence from one parent to another except for the incident of January 2012, despite my specific questioning. They had all been quite effected by that incident, and described it in detail.
280. On my review of Dr P’s notes, I can see references to “assaulted by Mr Somerville” on 7th June 2007, and “Fell. Mr Somerville pushed her. Lower back pain” on 2nd December 2009, but not to other incidents of assaults or injuries. There is a reference on 5th June 2004 to “marriage pressure”, and I note that in September 2004 after a brief psychiatric hospital admission when the mother had swallowed some rat poison, the mother told the hospital staff that the father had “slapped her, 4 months ago”.
281. The mother’s desire for “no violence” was mentioned on a number of occasions without contest from the father in the various annexes to the father’s affidavit of 2nd July 2013, and by the mother to Ms S in 2011.
282. So, it would appear that there has been recurrent incidents of physical violence, from father to mother, in the context of an argument where the mother is being at least verbally persistent but I suspect often verbally abusive, the father is trying to get away or to get her to stop, and the father strikes or pushes the mother as a way to forcibly achieve his objective.
283. In my view, the father was distressed and shocked by his behaviour in January 2012, because this was the first time that he had been proactively violent to the mother, as a form of pure expression of anger, noting that on that occasion the mother was trying to get away from him, and he had already achieved his objective of stopping her when he hit her.
284. I do not detect in the father a broader pattern of family violence. He has none of the characteristics typical of perpetrators of family violence listed above, from Bancroft L, Silverman J & Ritchie D (2012). In fact, the father’s relational style is more one of compromise and accommodation, rather than intimidation or control. I would term his aggression, “control-override aggression”. He has become impulsively aggressive when his usual self-control has been overwhelmed in the context of intense maternal intrusion.
285. I note that “she was in my face” is a common justification used by family violence perpetrators, but that the mother’s degree of intense and aggressive intrusion into the father’s space has been extreme, and well beyond the norm in couple conflict.
286. The father spoke of the mother with fond and collaborative language, highlighting her skills and capacities. He often unthinkingly used the collaborative plural “we” when discussing the parent’s shared endeavours. When he described her flaws, such as her being demanding of the children around chores, he did so with acceptance, and it was clear that he had “gone with” these flaws and worked to quietly compensate for them, rather than having highlighted them or utilised them against the mother.
287. The children did not speak of the father in a way that suggested that they feared him, or were vigilant about danger from him. When the father spoke fondly of his connected time with them, they softened in a way that suggested mutual respectful reciprocity. Ms S and the father’s friend without prompting spoke of the father as respectful and gentle with and responsive to the children.
288. The father’s depression and disillusion over recent years, coupled with alcohol intoxication and withdrawal, has likely contributed to some general irritability and emotional reactivity. W described one occasion when he kicked the dog. All the children had seen the father’s angry face. But, his predominant presence has been positive.
289. The father’s friend made some comments about his observations of the parents’ relationship.
290. He had observed the mother to be often confused or obsessive about the father. Whenever she came around and was talking to the father’s friend or his wife, they would always end up talking about the father. She would feel that he was playing guitar, and not getting the work done that she would accept, or she would be not feeling like he was part of the family. She had a lot of uneasiness about whether he was in love with her.
291. The mother depended on the father, to interact and behave OK. He was a stabiliser. She seemed more settled when the couple were together.
292. When the parents had arguments, the mother would then need lots of reassurance from the father. She would go on line, and meet people. But, she had a constant mistrust of the father.
293. The mother would rant, to or about the father, and the father’s friend and his wife would eventually have to close it down so that they could end the evening and all go home. She would rant obsessively about the father, not so much about broader things in life.
294. In the midst of arguments, the father would get drunk. He would acknowledge that he was pissed, and that this was counterproductive.
295. The father’s friend and his wife had not been aware of or observed violence between the parents, or towards the children.
296. In my view, the risk of the mother repeating a pattern of family violence in future intimate relationships is high, both in terms of herself as perpetrator, and in terms of her ending up again the victim of retaliatory physical violence. She may improve and make some change with therapy, but prognosis is guarded.
297. On the other hand, the risk of the father repeating a pattern of family violence in future relationships I feel is low. That risk would be further reduced by therapy, and I believe that such therapy is likely to be effective.
29.Dr K then examines the risk of abuse to the children, firstly by the mother:
298. In my view, the children are currently experiencing emotional abuse and neglect in the mother’s care.
299. There is an ongoing risk of emotional abuse and neglect, that is difficult to quantify. If the mother’s current decompensation persists or progresses, the mother will have long-term marked defits in parenting capacity. If (as I hope will occur) the mother finds a way to adapt to the separation and the orders regarding the children’s care, she may find a new equilibrium that allows the more positive aspects of her intense commitment to herself as parent and to the children to resurface, and she may be able to play a non-abusive role in the raising of the children. In my view, the children are less likely to be at risk if her role is secondary to a foundation of primary care provided by another carer.
And secondly by the father:
300. In my view, the children have not experienced neglect from the father. He has been attentive to and responsive to their needs.
301. I think it likely that the father overall has been respectful in his engagement with the children. Because Z, W and X are mostly compliant, this has involved little physical discipline or containment. Z on occasion and Y more frequently have been taken to their room by the father. My impression is that this has mostly been respectful. All of the children have experienced the father’s control-override aggression in terms of the switch to his angry face, but I received only the one account of the occasion that the father got fed up with Y, and pushed or held him back against the wall.
302. In my view, the above does not constitute abuse.
30.Dr K also discusses the likely effect of changes on the children:
321. In my view, the children are likely to adapt well to any changes “on the surface”, because of their anxious-avoidant attachment style.
322. If the children were separated from the mother, but exposed to her distress or pleading for their return, or if they came to understand that they had it in their power to enact a return to her, they might escalate in their own behaviour and expressed emotion in order to meet the mother’s needs.
323. If the children are separated from the father in the long term, they will adapt, but will feel sadness, and will retreat further into a more rigid anxious-avoidant attachment style, in a way that will disrupt their relational and emotional development.
324. If the children are separated from the mother in the long term, but receive strong, empathic and adequate care in another setting, they will experience sadness but adapt without marked developmental damage.
31.He discusses the views of the children:
325. All four children told me that they would prefer to keep the parents separate, because they used to fight. They wanted to live with mum, and never see “Mr Somerville”, because “he used to beat us up”, “he used to beat mum up”, and the other reasons articulated above.
326. In my view, the children’s views arise from their exposure to maternal views, and do not reflect the nature of what has been their ongoing positive relationship with the father. They have had negative experiences of paternal anger at them, and paternal violence to the mother, and their concern about those experiences needs to be addressed by the father, both in terms of him gaining preventative skills, and expressing to the children directly (ideally in a therapeutic context) his remorse and future intentions to behave differently.
327. In my view, the children are not able to assess developmental risk in their current household.
32.Dr K’s recommendations on an interim basis are:
330. These recommendations are based on the observations and impressions above. If the court findings differ from my observations and impressions, these recommendations may alter.
331. The advice below is based on my view that sexual abuse of by the father is unlikely to have occurred, and that paternal physical violence to the mother has occurred, but that the children have had a positive foundation of relationship with the father and are at low risk of physical violence from the father.
Recommendations or interim orders:
332. If the mother becomes aware of the recommendations of this report whilst the children are in her care or available to her, I am concerned that she is at risk of extreme behaviour that would be harmful to the children, for example evoking or demanding from them more elaborated or extreme disclosures of paternal abuse, or absconding or “going into hiding” with them.
333. I therefore recommend that the report initially be released to the court and the ICL only, then to Community Services, then if relevant to the father’s representative and father, and only to the mother in an environment where she is supported, and where the children are already in the process of transfer to alternative care.
334. Community Services be provided with a copy of this report, and be invited to be party to the proceedings.
335. The children be removed from the mother’s care.
336. It would be ideal to place the children in care together, and kinship care would be preferable to foster care. I feel that the children would be most secure if placed with the father, with the presence of another person trusted by them and the court. The other person would be providing “supervision” of the father’s time with the child, for the purposes of:336.1. Allaying any fears held by one or more of the children, based on the views that they have taken on from the mother about the father’s dangerousness.
336.2. Ensuring that any allegations that the children might make in the period after transition can be properly addressed, and do not raise new doubts.
336.3 Reducing the (low) risk of impulsive control-override aggression from father to children, because he will be supported in managing the children.
336.4. (Not the primary purpose) addressing any doubts that the court or CS may hold about broader risk from the father. If the court or CS have significant doubts, the children should initially transition to kinship or alternative care without the father’s presence.
337. It is my view that the maternal grandmother would not be appropriate for kinship care, because she would not be able and may not be willing to set boundaries on the mother.
338. My reading of their affidavits and the history from the father suggests to me that the paternal grandmother and paternal aunts alone or in combination may be appropriate for kinship care.
339. I would be happy to discuss with any relevant carers a plan for the care and containment of the children.
340. The mother will need to be informed of any action taken in a supported environment, with a family support such as her mother and with a therapist. I am happy to discuss a plan with the therapist. It is possible that the mother will decompensate to the degree that acute mental health input or admission are required. Or, she may “pull together” into angry survival-mode hyperfunction. This is unpredictable.
341. It would be ideal for the children to stay at their current school. But, on the other hand, until it becomes clear how the mother will react to this action, it would be best that she not be aware of the whereabouts of the children.
342. CS engage in whatever assessments need to occur of risk and child protection concerns, including any referrals to JIRT if it is felt that these are warranted.
343. If the father is to be involved in the care of the children:
343.1. The father would need to arrange substantial time off work (4 weeks initially) , when the children were coming into his care.
343.2. The father agree to consume no alcohol at all until court matters are finalised.
343.3. The father agree not to use any physical discipline
343.4. The father engage with a therapist skilled in providing treatment to people who have had problems with anger and aggression, with a focus on his managing his propensity to control-override aggression. Mr C or Ms S may be appropriate.
33.Dr K’s final report is dated 4 March 2014. It is more in the nature of an updating report. At paragraph 15 he makes no change to his previously expressed opinion. He does further discuss the impact on the children of the changes that are contemplated if his recommendations were accepted and this discussion is contained below:
37. Overall, the children spoke with accepting and engaged descriptive narrative about their recent and current phase of life in the care of the aunt Ms B and of the paternal grandmother, incorporating into this narrative their times with the father. They quite naturalistically used the plural to incorporate all the children and the adult in authority to say “we…”. In describing their current routines. My impression from the tone of their narrative was in keeping with the observations of the aunt Ms B and the paternal grandmother, that is that the children overall are secure in the predictable, firm but loving care of these adults, and are having a positive and engaged experience in their care. The children appeared to have a view of the paternal grandmother as a strong woman, who cares about them, wants to know about them, provides for them and organises their life in a predictable way, some aspect of which they enjoy. They described the paternal grandmother as “sometimes mean”, giving examples of the paternal grandmother punishing them for what they consider to be small indiscretions, but also spoke of her with warms and an ordinary reliance.
38. The adequacy of the current care environment was borne out by the settled and contented way in which the children conducted themselves and related to the adults during their long morning in my waiting room.
39. Each of the children seen alone at the beginning of the day engaged quite thoughtfully in considering their options and preferences with regard to the future phase. This was in contrast to the stereotyped partisan absolutes expressed in June 2013.
40. Each child expressed a wish for an arrangement where they would live part of the time with the father, and part with the mother, and would thus be able to continue to enjoy what they value about each parent and each household. My impression was that these wishes arose primarily from the children’s lived experience of both parents and their own desires and values, rather than from partisan or parentified pressures to meet parental needs or demands.
…
56. In my view, the actions of these adults in firstly providing a loving, strong, stable home environment and secondly sensitively responding to the children’s verbal or behavioural signals of need, have assisted the children to begin to integrate their past, current and future experiences of their attachment figures, and to be more settled within themselves and less anxious, reactive or aggressive as a result.
57. In my view, it was because of this integration of past and current life phases, and because of the open integration of a valuing of and missing of the mother into the current paternal family care environment, that the children felt confident to seek shared-care arrangements…they are currently dwelling in an environment where they can love both parents.
58. In contrast to their integration of their pre-separation, current and future phases of their care, I observed that the post-separation mother-alone period prior to the children’s removal into CS care was not well integrated. This period remained idealised in the children’s minds, as did the mother of that period. The children’s headspace from and about that period sat illogical and unexamined and unchanged alongside the developments that the children had made more broadly.
34.He discusses the concept of splitting below:
60. I observed during the individual child interviews and the shared interview with the father, that each child would at times split from an engaged, constructive narrative about their current care relationships, to a more stereotyped, hostile, “huffy”, resentful and blaming narrative about these matters. This split I feel related to the child internally splitting back to a loyalty to and inner experience of the mother-alone phase, and thus shifting to a view of their current care relationships through those eyes.
61. Similar splits occurred when we were discussing pre-separation and future care relationships.
62. Sometimes these splits had obvious cues, such as my asking a question about the mother or challenging the child about an incongruity, but sometimes the cue could not be picked. Sometimes when seen together, the children cued off each other, and I think that this “contagion” had occurred at times in the aunt Ms B’s and in the paternal grandmother’s care.
I would have major concerns about her ability to care for children in particular the load of four children would be enormous. In essence I formed the view that it was very difficult for her to be able to provide for the children and that her parenting capacity was significantly impaired.
39.Dr C makes recommendations about the mother’s contact with the children at lines 605 to 618:
In relation to having some limited contact or substantial contact I believe that she would be quiet capable of having daytime contact with the children and some degree of overnight contact should she be in a stable frame of mind. To her credit she is intelligent, doesn’t abuse drugs or alcohol and she has had some achievements academically even though she hasn’t completed her degrees. She has attempted to work in the past and she has committed to psychological treatments. I therefore believe that some substantial contact could be entered.
40.And his final recommendations are contained at lines 664 to 696:
1.I recommend that in regards to treatment she continue with Dr A psychiatrist and psychologist Ms S and also her Relationships Australia support. She probably would benefit from a rehabilitation approach to her treatment. She needs to develop vocational skills and get experience at being able to maintain stable accommodation and stable employment. She probably would benefit significantly from committing herself to a borderline personality program such as dialectical behaviour therapy. This often will be at least a 2-year program.
2.In relation to contact with the children until she has developed better coping skills and stability then the contact with the children is probably better to be kept to a daytime basis.
3.I support the recommendations of the single expert that should the children place themselves with the mother it would be because of subtle undermining and worrying parentification which would be potentially damaging to them. To remove them again from her would likely be to exaggerate the feelings of misgivings and may be unsuccessful. However, if the mother is incarcerated this would remove the burden on the children about choosing the mother and make the potential outcome more successful.
4.I recommend that neither parent denigrate the other parent in front of the children.
5.I recommend that neither parent use any physical punishment with the children.
6.I recommend that both parents continue with their respective counselling.
7.I recommend that neither parent use any drugs or alcohol.
41.Whereas Dr K was cross-examined, Dr C was not. That is something that the Court takes into account in assessing the weight to be given to the report.
42.As previously indicated, Dr K was extensively cross-examined and, in particular, Ms Gillies, counsel for the mother, mounted a sustained attack on the weight that the Court should give to Dr K’s report as part of her cross-examination. The attack on weight was on a number of fronts. For example, whether the mother demonstrated certain personality traits or, in fact, suffered a personality disorder. In this regard, Dr K firmly believed that it was the latter for reasons that he explained both in his report and in cross-examination.
43.There was an attack on whether the reports demonstrate to the reader that the diagnostic criteria for personality disorder had, in fact, been established. In this regard, Dr K satisfies the Court that this is, in fact, the case, that he has established the criteria and that the report adequately reflects this, albeit in a context of a forensic examination where the mother clearly wants to present well.
44.In this regard, Dr K made, in the Court’s opinion, more than adequate concessions about the difficulty inherent in making a diagnosis of personality disorder, explaining, for example, the particular challenges of establishing when patterns of pervasive behaviour have their onset, why culture was not a relevant factor in this case, and how he had systematically identified areas of pervasive difficulty in the mother’s life. Also about how possible factual findings might change his recommendations and also how diagnosis of personality disorder was not ipso facto disentitling of parenting or care responsibilities.
45.As noted, there was a sustained attack on the weight that should be given to Dr K’s report. But at the end of the day there is simply nothing in the cross-examination that would cause the Court to reduce the weight that would otherwise be given to an independent expert report that has been tested in cross-examination, albeit without the benefit of evidence from the parties. The Court acknowledges that these are interim proceedings. To ignore the expert report cannot possibly be in the best interests of the children.
The Evidence Generally
46.Having discussed the expert evidence, the Court now discusses the evidence generally. In terms of the parenting orders, for all practical purposes the father, Independent Children’s Lawyer and the Secretary of the Department were all aligned. Their cases consistently emphasised the importance of a number of points. Firstly, protecting the children from the risks presented by the mother in terms of her inability to meet their needs, a risk that each party assesses to be greater than the risk that might be presented by the father.
47.Secondly, that the independent expert, albeit partially untested evidence, which was in so many respects consistent with that of Dr C in terms of diagnosis, clearly points to the issues of risk of harm. Also, the fact that the evidence before the Court seems to suggest satisfactory progress of the children since their removal from the mother, as well as acceptable plans for their future.
48.The mother’s case sought to emphasise a number of things. For example, the uncertainties inherent in any proposal that sees the children placed in their father’s care, in the context and history of this case. She says that this raises risk issues. Her case also emphasised that in the absence of the testing of evidence of the mother and father and their respective witnesses there remains an uncertainty in assessing the risk presented, for example, as a result of the family violence that she says was perpetrated, as well as the risk of sexual abuse by the father.
49.Moreover, her case emphasises that the challenges of adequately parenting the children by someone other than the mother have been minimised and understated in the case presented by the father and the other parties, and that in particular there is the risk of, for example, what was described as “fed up” violence. The mother’s case emphasised the risk of accepting Dr K’s evidence in circumstances where he specifically acknowledges that he has accepted and preferred the father’s version of events in relation to key aspects of the case, such as family violence, in a context where the mother and father’s evidence has not been tested. Moreover she emphasises that any concerns in relation to the children being in her care can be dealt with by appropriate orders, undertakings, and safeguards.
Section 60CC Discussion
50.This is a case where risk issues prevail over other section 60CC considerations. It is not that the Court ignores these other considerations, noting for example that the children have expressed views, sometimes in strong terms. The Court notes that the orders that have been made in the past, and that are sought, will create disruptive change in their lives.
51.The Court notes that the orders have a profound impact on the relationship that they have hitherto had with their mother, which was arguably their main and strongest relationship. All of these considerations are important, but not as important as protecting them, that is the children, from the risks of harm that emanate from their mother. These are risks that have been clearly identified in the reports of Dr C and Dr K, which Dr K at least judges to be a risk of harm that is less than the risk of harm presented by the father.
52.Of course, the evidence is less than perfect. That is always the case in interim proceedings. Of course, it is possible that at a final hearing other evidence may lead to different conclusions, but this is an interim hearing where an order needs to be made urgently, due to the imminent and unavoidable changes in the children’s placement. At the end of the day, Dr K’s evidence is independent, is expert, and is persuasive despite robust challenges to it by counsel for the mother. With great respect to the mother, to ignore Dr K’s report would probably be appellable error, but would most certainly be foolhardy and capricious.
53.The above analysis of the case extends to the conclusions of no contact for the mother. Dr K’s reasons for doing so are very clear and persuasive. Dr C reaches a different conclusion in circumstances where he himself admits the limitations of his own report. The risk issues clearly point, unfortunately, to a no contact order on an interim basis in this matter.
54.In terms of the additional orders sought by the father, the Court observes as follows. Firstly, orders 2 to 6 are warranted by the same evidence that leads to the making of the orders proposed, and as it turns out are consistent with the property orders that will be made for reasons shortly to be explained. Orders 7 to 8, however, are redundant in that the effect of these orders is that the mother’s contact is restricted, and in any even Dr K had some reservation about these orders. Hence orders 7 and 8 are not necessary, but orders 2 to 6 are warranted, as well as the interim orders proposed by the Secretary of the Department.
Property and Financial Matters
55.The Court now turns to consider the property aspect of the case. The father pressed orders 12 to 16 of his minute. The Court made an order on an interim basis restraining the mother from further letting, or licensing, any part of the house. The mother opposes the orders sought, and maintains that the existing orders are adequate to cover the situation. The Independent Children’s Lawyer and the Secretary are neutral, except to point out that Dr K’s evidence does, from the children’s perspective, support no contact or communication by the mother, advertent or inadvertent, and no intrusion by her.
56.And in this regard paragraphs 150 and 151 of Dr K’s report of 4 March are quite clear. The Court notes that there was no issue about jurisdiction to make the orders proposed, either under Part VII of the Act or Part VIII of the Act. The focus of the submissions was, quite properly, whether or not a discretion should be exercised. The father’s case was put on two bases. Firstly, that given that the parents currently live in houses a mere 500 metres apart, and the mother lives so close to the school that the children are intended to return to, there is a real risk that what is sought to be achieved by the parenting orders, for reasons previously outlined, and especially Dr K’s report, would be undermined.
57.The second part of the father’s case, though, is that the evidence raises real issues about preservation of the property of the parties in the sense that an orderly and not haphazard approach to renovation and repairs, addressing concerns raised by council, and managing the properties so that debt is serviced to the ultimate benefit of both parents. The father’s case submits that the mother has already raised a possibility of relocating. The mother’s financial circumstances do not appear to be optimal. If the children return to the father’s care, his financial needs will be great.
58.The mother’s case emphasises a number of points. Firstly, the risks of giving to the father complete control of the parties’ assets. Secondly, the mother’s inability to afford alternative accommodation in the (omitted) area. And thirdly, the impracticability of moving to Sydney to live with her mother given the mother’s connections to (omitted). The father, during the course of submissions, offered to assist the mother by way of rental in the sum of $200 per week.
59.The mother’s own evidence is that she could rent locally at $350 per week for a three bedroom unit. One would have thought that that would be more than enough to reaccommodate her alone. The mother’s financial circumstances are parlous. The father’s are not much better. The Court is not prepared to force her to relocate to Sydney. However the case for requiring her to vacate the property that she occupies is strong, even if viewed just as a parenting order. When the financial issues are overlaid, the order that the father seeks becomes compelling.
60.It is not clear how much rental can be earned from the properties. Clearly there is work to be done on them. The mortgage payments appear to be about $975 per week for Property M1, and $395 for Property M2. That is to say a total of $1370 per week. If the mother’s evidence is accepted, the rentals could be over $1000 per week. But it is not asserted that this is what is happening at the moment. There is much imprecision about the amount that could be derived by rentals, from the evidence of both parents.
61.It depends whether the properties are fully let, but the impression is that if the properties were fully let, it would probably pay the mortgage, or come close to that. Balanced against the need to pay the mortgage, of course, is the need for the father and the children to be satisfactorily accommodated, and them to have living expenses met in circumstances where there is no reasonable prospect of the mother contributing to these expenses.
62.This is an almost impossible situation to resolve on the evidence before the Court. Once the children come into the father’s care, on the evidence before the Court, he will barely have enough income to get by. But if he manages to collect the rentals and optimise the rental income and deal with the myriad issues of repairs, renovation, and dealing with council, then there should be enough to pay to the mother at least the $200 that he has offered. The Court cannot make findings on the available evidence that he can pay more.
63.There are too many uncertainties about whether, and if so when, the property rental income may be fully realised. In the circumstances, all the Court can do is to make orders in terms of that proffered, and that means that as soon as the mother vacates the property at Property M1, which is no later than 28 days hence, the father must pay her $200 per week.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.
Associate:
Date: 21 March 2014
Schedule One – Chronology
| Date | Event | Source |
| 10 November 2012 | Father files Initiating Application – Father seeks Final Orders that the mother and father have joint long term responsibility for the children and for the children to spend time with the father for 2 days and 2 nights each week; subject to the father's roster and for half of school holidays as agreed. The father also seeks final property orders. The father seeks interim orders that the children spend time with him 2 days each week subject to the father's roster and in the event that he has time off from work on the weekend, from 9.00am til 7.00pm on Saturday and Sunday and if on a weekday then from after school until 7.00pm upon 2 days per week. | |
| (omitted) 1974 | Mother is born in (country omitted). | F # |
| (omitted) 1978 | Father is born | |
| 24 April 1982 | Mother immigrates to Australia as a refuge from (country omitted) | M # |
| 1999 | Parties commence their relationship | M # |
| May 2000 | Parties commence living together | M # |
| September 2000 | Parties commence living together at (omitted) | F # |
| (omitted) 2001 | Parties marry | |
| (omitted) 2002 | Z is born | |
| (omitted) 2003 | W is born | |
| (omitted) 2005 | Y is born | |
| (omitted) 2006 | X is born | |
| Early 2010 | Father increases the intensity of his consumption of alcohol | F # |
| 14 February 2011 | Parties separate | M # |
| Father is physically violent and also verbally and emotionally abusive towards the mother | M # | |
| November 2011 | Father travels to (country omitted) on holiday for 3 – 4 weeks with friends | M # |
| 12 January 2012 | The parties are at the maternal grandmother's home in Sydney. This is during a period of separation. There is a physical altercation where the father assaults the mother. Y is also involved in the altercation. | M # |
| From April 2012 | The mother observes that the father has an erection whenever X or W sit on his lap. | M # |
| 20 May 2012 | Mother alleges the father assaults her. | M # |
| 17 September 2012 | Mother attends upon her GP because she is not coping with the father's behaviour | M # |
| 24 September 2012 | The mother takes the children to the maternal grandmother's home in Sydney for the school holidays. The parties separate 2 days later. Thereafter the father has difficulty having contact with the children. | F # |
| 24 September 2012 | Parties resume their relationship | M # |
| 26 September 2012 | Mother attends (omitted) Police Station to report the father's behaviour. The mother shows the Police Officer a text message and picture message the father has sent her. The Police take a formal statement and apply for an ADVO for the protection of the mother and children. | M # |
| 26 September 2012 | Parties separate | F # |
| 28 September 2012 | Father is issued with a Summons for an AVO. | F # |
| 3 October 2012 | Father spends time with the children for half an hour in the mother's home. This is arranged by a domestic violence officer at the Downing Centre | F # |
| 3 October 2012 | Interim AVO order is made at the Downing Centre Local Court. No restriction is placed on the father having contact. Father advises that he intends to defend the AVO. Matter is listed to 30 November 2012. | F # |
| October/November 2012 | Mother makes a notification to the Department of Family & Community Services regarding her concerns about the father having erections when the girls sit on his lap. She also raises concerns about the father having a photograph of her niece. | M # |
| November 2012 | The mother alleges that the father strikes her with an elbow while they are in bed. | M # |
| 30 November 2012 | Final ADVO made at (omitted). In addition to the mandatory orders, an order is made preventing the father from destroying or deliberately damaging or interfering with the mother's property. The Order is made for 12 months. | M # |
| 5 December 2012 | Mother files a Notice of Child Abuse, Family Violence or risk of family violence | |
| 5 December 2012 | Mother files Response to Initiating Application. Mother seeks orders for sole parental responsibility and for the children to live with her. She also seeks orders for the children to spend time with the father each alternate Sunday supervised by CatholicCare. The mother seeks the same Interim Orders. | M # |
| 6 December 2012 | Orders made for the appointment of an Independent Children's Lawyer. The parties enter into consent orders for the children to spend time with the father on specific occasions to be supervised by (omitted). The children are to spend time with the father for one hour on the following dates: 8th, 11th, 18th , 26th December. Thereafter they are to spend time with the father one hour each week as agreed. The children are to have telephone contact with the father each Monday, Wednesday and Friday between the hours of 5.30 and 7.30pm with the father to initiate the call. | |
| 24 December 2012 | Father makes a decision to leave the home and he moves to Property M1. This is his current address. | F # |
| 26 December 2012 | Father informs the mother that he has moved out. | F # |
| March 2013 | Father commences relationship with Ms A who is from (country omitted) originally. She is 28 years of age. | F # |
| 12 March 2013 | The parties attend upon the Family consultant Ms M for a Child dispute conference. The family consultant suggests a CIC might assist the Court on an interim basis if the Court was to consider the children's views to spending increased amounts of supervised time with the father. She also recommends a family report but this depends on the documents produced on subpoena. | F # |
| 9 April 2013 | The father's time with the children is suspended after an oral application is made by the Independent Children's Lawyer. The parties enter into Consent Orders for the appointment of Dr K as the single expert. | |
| 17 June 2013 | AVO Order made on 30 November 2012 is varied to include that the father not approach the mother or the children by any means except through a solicitor and that the father not go within 100 meters of the mother's premises. The mandatory orders still apply and the order is made for a further 12 month period. | F # |
| 24 June 2013 | The parties attend upon the single expert Dr K. | |
| 24 June 2013 | Mother files Application in a Case seeking Interim Property Orders | |
| 10 July 2013 | Single Expert, Dr K requests that the Court release an interim report to the Independent Children's Lawyer only. This report is prepared by Dr K after receiving information from the Independent Children's Lawyer on 8 July 2013 that the matter has been listed on 10 July 2013 for consideration of interim property matters. | F # |
| 26 July 2013 | Single expert report of Dr K released to the Independent Children's Lawyer but not the parties. | F # |
| 29 July 2013 | The parties enter into Interim Consent Orders regarding property matters. In addition, the Court makes an order pursuant to Section 91B of the Family Law Act requesting that the Department intervene in these proceedings. Leave granted to the Independent Children's Lawyer to release a copy of the Single Expert Report to the Department of Family & Community Services. | DG # |
| 19 August 2013 | Director General, Department of Family and Community Services files a Notice of Intervention. | DG # |
| 22 August 2013 | Father files a Contravention Application relating to property matters. | |
| 28 August 2013 | The father's Contravention Application is withdrawn and dismissed. Leave is also granted to the solicitor for the Director General to photocopy documents produced on Subpoena. | DG # |
| 2 October 2013 | Director General , Department of Family & Community Services files an Application in a Case seeking sole interim parental responsibility for the children, for the mother to be restrained from spending any time with the children and for the father to be restrained from spending time with the children except as determined by the Director General. | DG # |
| 2 October 2013 | Single Expert Report of Dr K is released to the mother and father. | |
| 2 October 2013 | Children are placed with the paternal aunt Ms B on an interim basis following orders being made for the Department to have interim sole parental responsibility for the children. | |
| 9 October 2013 | Children commence at (omitted) Public School. | DG # |
| 29 October 2013 | Affidavit filed on behalf of the mother by Dr S sworn 29 October 2013 | |
| 4 November 2013 | Interim Order made restraining the mother from spending any time with the children. Order also made restraining the father from spending any time with the children without the written consent of the Director General. Matter is further adjourned for an Interim Hearing on 30 January 2014 | DG # |
| 15 November 2013 | The children are placed with the paternal grandmother Ms L | DG # |
| 18 November 2013 | The children commence at (omitted) Public School | DG # |
| 3 December 2013 | The children commence a therapeutic relationship with Ms N, clinical psychologist of (omitted) Clinical Psychology. | DG # |
| 4 December 2013 | The children spend 2 hours supervised time with the mother. | DG # |
| 16 December 2013 | There is an altercation between the paternal grandmother and Z which results in the paternal grandmother pulling Z's hair and hitting him with a Harry Potter book. Z retaliates and assaults the paternal grandmother | DG # |
| 17 December 2013 | Children spend supervised time with the father for an hour and a half. | DG # |
| 19 December 2013 | Mother is scheduled to have further contact with the children but this contact is cancelled. | DG # |
| 23 December 2013 | Interim Hearing date for 30 January 2014 is vacated. Further Orders made appointing Dr K to prepare an updated report. Leave is also granted to the Mother to file evidence from Dr C. | F # |
| 2 January 2014 | Children spend approximately 4 hours supervised time with the father. | DG # |
| 8 January 2014 | Children spend approximately 4 hours supervised time with the father | DG # |
| 10 January 2014 | Z spends unsupervised time with the father until the afternoon of 12 January 2014 | DG # |
| 15 January 2014 | The children spend 3 hours supervised time with the father. | |
| 15 January 2014 | W and Y spend unsupervised time with the father until 1pm 16 January 2014 | DG# |
| 25 January 2014 | The children spend three hours supervised time with the father. | |
| 25 January 2014 | Z and X spend unsupervised time with the father at his home until the afternoon of 27 January 2014 | DG # |
| 7 February 2014 | Children spend time with the father from 4 pm until 3pm on 9 February 2014 (except for W who has to leave early because of a party) | DG # |
| 14 February 2014 | Parties attend upon Dr K so that an updated report can be prepared. | |
| 18 February 2014 | Dr C prepares a report of the mother. | F # |
| 21 February 2014 | Children spend unsupervised time with the father until the afternoon of 23 February 2014 | DG # |
| 27 February 2014 | Affidavit filed on behalf of the mother from Dr C sworn 27 February 2014. | |
| 28 February 2014 | A re-listed is requested by the mother's solicitor raising the issue that the mother may not have capacity to give instructions and as such whether or not a Litigation Guardian should be appointed for the mother. Hearing dates of 12, 13 & 14 March are vacated. The matter is listed on 10 & 11 March 2014 so that the issue of Litigation Guardian can be determined; as well as the most appropriate interim parenting and property orders. | F # |
| 5 March 2014 | Updated report of Dr K is released to the parties. | F # |
| 5 March 2014 | A re-list is sought by the mother's solicitor to seek to vacate hearing date of the 10 March because of Dr C's unavailability. | |
| 7 March 2013 | Father files Application in a Case seeking both interim parenting and property orders. In relation to Parenting matters, the father seeks orders for the children to live with him and for the mother to be restrained from attending upon the children's schools, the father's residence, from speaking to the children about the (omitted) Religion or from participating in services relating to the (omitted) Religion faith and from residing within a 2 km radius from the father's residence. The father does not propose that the children spend any time with the Mother on an interim basis. | F # |
Schedule Two – Secretary of the Department of Family and Community Services Proposed Minute of Order
1.All previous orders and parenting plans are discharged.
That, pending further order:
2.The Minister for Family and Community Services be granted sole parental responsibility for:
a)X (“X”), born on (omitted) 2006, presently aged 7 years, 8 months;
b)Y (“Y”), born on (omitted) 2005, presently aged 9 years;
c)W (“W”), born on (omitted) 2003, presently aged 10 years 4 months; and
d)Z (“Z”), born on (omitted) 2002, presently aged 11 years 8 months
hereafter collectively referred to as “the children”.
3.The Minister or the Secretary as delegate of the Minister shall determine where and with whom the children live.
4.Pursuant to ss.68B and 67ZC of the Family Law Act1975 (“the Act”) the First Respondent, Ms Somerville (“the mother”), is hereby restrained by injunction from:
a)spending any time with any or all of the children;
b)approaching, communicating or contacting by any means, including through any third person other than the Secretary, any or all of the children;
c)entering or remaining in or being within 200 metres of any place of education or residence of any of the children and contacting by any means, including through any third person other than the Secretary any place of education or residence of any of the children;
d)be restrained from removing or attempting to remove any or all of the children from his or her place of residence or educational facility;
e)harassing, molesting, stalking, threatening or causing bodily harm, to any or all of the children or any person in whose care any of the children are placed in the exercise of the parental responsibility of the Minister pursuant to Orders 2 and 3 herein.
5.A Police Officer may arrest the mother without warrant, pursuant to s.68C of the Act, if such Police Officer believes on reasonable grounds that the mother has since the orders were made, breached the injunction contained in paragraph 4 of these orders and it is taken for the purposes of this order that each of the injunctions in paragraph 4 relate to the personal protection of the children or any of them.
6.The father shall spend time with, or the children shall live with the father at times and places and on conditions, including supervision, as determined by the Secretary.
7.The father shall have telephone contact with the children at times and on conditions determined by the Secretary.
8.The father shall keep the Secretary informed of his home address, email address and contact telephone numbers.
9.The father shall not consume alcohol during any time when the children are in his care and shall not be affected by alcohol at any such time.
10.The father shall obey all reasonable directions given to him by the Secretary including but not limited to completing anger management course(s), working collaboratively with any agency to which he is referred to assist in the father’s care of the children, presenting the children for and facilitating the participation of the children and the father in any counselling to which they may be referred by the Secretary.
11.That the mother is and shall be hereby restrained from:
a)Applying for a passport in the name of any or all of the children;
b)Applying for a passport in the name of herself and any or all of the children;
c)from removing and/or causing or allowing any or all of the children to be removed from the Commonwealth of Australia.
12.That the mother shall forthwith surrender the passport of each of the children to the Registrar of the Court, if she has not already done so.
13.The Marshall of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either parent from removing or attempting to remove the said children from the Commonwealth of Australia.
14.The Commissioner of the Australian Federal police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the children on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children at all flights leaving any international airport in all States and all Territories of the Commonwealth of Australia and maintain each of the children's names on the Airport Watch List until the children attain the age of 18 years.
15.A reference to the Secretary in these orders is to be read as a reference to the Secretary and/or a delegate of the Secretary.
16.Liberty to relist granted to the Secretary or Independent Children’s Lawyer on 48 hour’s notice.
Schedule Three – Father’s Proposed Minute of Order
1.That the children namely Z born (omitted) 2002, W born (omitted) 2003, Y born (omitted) 2005 and X born (omitted) 2006 live with the Husband and the Husband shall be responsible for the day to day care, welfare and development of the children.
2.That the Wife be restrained from residing within a two kilometre radius of the Husband's residence.
3.That the Wife be restrained from attending any of the schools which the children attend.
4.That the Wife be restrained from attending upon or approaching the Husband's residence and further from attending within 200 meters of the Husband's residence.
5.That should any of the children come into the care of the Wife, she is to immediately inform the Husband by telephone of that fact and their whereabouts and make the children available for immediate collection by the Husband.
6.That the Wife be restrained from retaining the children in her care other than as ordered by the Court.
7.That the Wife be restrained from speaking to the children about her (omitted) Religion religion and beliefs.
8.That the Wife be restrained from permitting the children to attend or participate in any services of the (omitted) Religion faith.
9.That the Wife be responsible solely for the payment of outgoings in respect of the parties property at Property M1, including but not limited to the following payments:
a)The mortgage repayments on the mortgage loan secured on the property
b)Payment of council rates and water rates
c)Payment of building insurance
10.That the wife be solely liable for the rectification work and associated costs to comply with relevant planning and development requirements.
11.That the Wife shall ensure that she applies the entire amount of rental income received from the property towards the mortgage loan secured on the property and the Wife shall account to the Husband for the entirety of the rental income received by her.
12.That the wife be restrained from making further alterations to the property.
13.In the alternative, within four weeks of these orders the Wife vacate the property at Property M1 and the Husband have the sole occupation of the property and the Husband shall ensure that he will be responsible solely for the payment of all outgoings in respect of the property including mortgage payments, payment of council and water rates and building insurance and further the Husband shall ensure that he applies the entire amount of rental income received from the property towards completing the construction work to the property commenced by the Wife and the balance in reduction of the mortgage loan secured on the property and the Husband shall account to the Wife for the entirety of the rental income received by him.
14.That simultaneously with vacating the property the wife provide to the husband all keys associated with the property at Property M1, and that the Wife's name be removed from and the husbands name added to the registered key set for Property M1 at (omitted) locksmiths
15.That the wife be restrained from approaching within 200m of Property M1.
16.That the Wife shall be restrained from removing from Property M1, the safe and the three safe keys and the Wife shall further ensure that the safe is left open and unlocked.
17.That the Wife pay the costs of and incidental to these proceedings
Schedule Four – Mother’s Proposed Minute of Order
1.That the mother shall have sole parental responsibility for the children of the marriage namely Z born (omitted) 2012, W born (omitted) 2003, Y born (omitted) 2005 and X born (omitted) 2006.
2.That the children live with the mother.
3.That the children spend time with the father as follows:
a)Each Saturday between the hours of 9am to 2pm that this time is supervised by the maternal grandmother.
4.That forthwith the father shall enrol and complete an anger management course, perpetuator of domestic violence course and parenting course with such service provider as recommended by Dr K.
5.That the father continue to attend upon his psychologist Mr A, and shall:
a)Comply with all reasonable treatment directions including, but not limited to:
i)Attending appointments at a frequency determined by Mr C.
ii)Make arrangements and attend upon any 3rd party service or treatment providers that Mr C might recommend.
6.That the father be and is hereby restrained and injuncted from consuming alcohol at any time.
7.That the father be restrained from coming within 200 metres of any premises in which the mother resides.
8.That the father be restrained from attending any school at which the children attend at any time.
9.That both parties be restrained from criticising or denigrating the other parent, or a member of their household or family in the presence or hearing of any of the children and shall immediately remove the children from the presence or hearing of any third person who might do so.
10.In the event the Court makes orders that the children live with the father or any other person, then the following shall apply:
11.That the children shall spend time with the mother as follows:
a)Each Monday and Thursday from after school until 7:30pm;
b)Each Saturday from 9am until 8:30am Sunday.
c)Such other times that might be mutually agreed in writing.
2