STONE & CLIFFORD (No.2)
[2016] FCCA 3311
•20 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STONE & CLIFFORD (No.2) | [2016] FCCA 3311 |
| Catchwords: EVIDENCE – Mother an unreliable witness – her evidence requiring very careful scrutiny. TRIAL – “Final orders” – whether orders made in running in fact and in law orders that were properly characterised in law as “final orders” – they were interim orders. PRACTICE AND PROCEDURE – Revisiting of orders pronounced in running – extensive review of authorities. RE-OPENING OF CASE – Necessary because of deterioration in welfare of children – children now at risk whereas they were not when so-called “final orders” were pronounced. |
| Legislation: Evidence Act 1999 (Cth), s.140 Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC |
| Cases cited: Bienstein v Bienstein (2003) 195 ALR 225 Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) Butterworths |
| Applicant: | MR STONE |
| Respondent: | MS CLIFFORD |
| File Number: | MLC 10819 of 2013 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 15 – 17 March 2016 & 21 September 2016 |
| Date of Last Submission: | 21 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Dr R. Ingleby |
| Solicitors for the Applicant: | Glezer Lanteri & Associates |
| Counsel for the Respondent: | Ms M. Smallwood |
| Solicitors for the Respondent: | Pearsons Lawyers Pty Ltd |
ORDERS
The parties have equal shared parental responsibility for the children
X born (omitted) 2003 (“X”) and Y born (omitted) 2007 (“Y”) (collectively “the children”).
The father communicate with the children via letter and is permitted to send them or either of them gifts from time to time and the mother ensure that the children receive same.
Both parties are authorised to liaise with and obtain information relating to the children from their school, including school reports, school photographs, school notices and the like.
The mother at all times keep the father informed of the children’s residential address and each party advise the other of any change of telephone number within 24 hours of such change.
The mother immediately inform the father of any emergencies, significant illness or injury associated with X and/or Y requiring the assistance of an ambulance, being taken to hospital or any hospital admission.
All professionals involved in the care and well-being of the children are authorised to liaise with and disclose information and documents to both parents relating to the children.
The father is permitted to attend all of X and/or Y’s school functions and extra-curricular activities, including but not limited to -
(a)parent/teacher interviews and other parent meetings;
(b)House Sports Days and Carnivals and equivalent sporting events;
(c)school concerts and presentations; and
(d)inter-school competitions or sporting club events.
The mother -
(a)ensure that the children participate in extra-curricular activities including but not limited to swimming; and
(b)authorise and direct the school to inform the father of all non-attendances of the children.
Neither X nor Y attend upon a specialist including a psychologist or counsellor without the father consenting to same and being able to liaise with the referring doctor.
Each parent ensure that the children receive psychological treatment and attend for such appointments as may be recommended from time to time for their psychological issues as per recommendations made or to be made by Dr Z, her nominee, or agreed substitute.
Reports prepared by Mr V, Ms B and Dr C in relation to X and Y be provided to X and/or Y’s school and all medical practitioners treating the children.
Each parent:
(a)attend a Parenting Orders Program at Catholicare ((omitted)) (“the Program”) (ph. (omitted)) for assessment and family counselling;
(b)follow the recommendations of the Program administrator; and
(c)complete all aspects of the Program required by the Program administrator.
On the day that the father first attends the Program for assessment, the father provide to the Program administrator a copy of any family report/s relating to the parents and the children, or any of them.
Within 14 days of receipt, each party file and serve an affidavit exhibiting that parent’s Certificate of Engagement with the Program.
The mother ensure that the children attend the Program as directed by the Program administrator (if applicable).
The matter is adjourned to this Court on 4 December 2017 at
10.00 a.m. for mention.
IT IS NOTED that publication of this judgment under the pseudonym Stone & Clifford (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10819 of 2013
| MR STONE |
Applicant
And
| MS CLIFFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
By amended initiating application filed 18 September 2015,
Mr Stone (“the father”) applied for parenting orders in relation X born (omitted) 2003 (“X”) and Y born (omitted) 2007 (“Y”) (collectively “the children”). The mother, Ms Clifford (“the mother”), opposed the father’s application.
Synopsis
For the reasons that follow, my judgment orders should be made in accordance with the proposal suggested by the father.
Factual background
The father was born on (omitted) 1964. At the trial of this proceeding, he was 51 years of age. He is now 52 years of age. By profession he was and remains a (occupation omitted).
The mother was born on (omitted) 1964. At the trial of this proceeding she was 51 years of age. She is now 52 years of age. The mother gave her occupation as home duties. In fact, she is a qualified (occupation omitted).
The father and the mother are not married. They commenced living together in 1993. They finally separated on 22 September 2013. That much (and that much only) was common ground in this litigation.
This litigation was punctuated by a high level of acrimony and personal antipathy between mother and father. Very many matters were put in dispute that need not have been disputed. In some instances, that revealed the extent to which the relationship between the father and the mother had broken down. In other instances, it revealed a belligerence in the attitude exhibited by the father and the mother towards the other. In still other instances, I observed a positively venomous attitude between the two. That has contributed to the difficulty in divining a way forward for the children whose best interests are at the heart of this dispute.
Before turning to the more substantial issues between them, it is necessary to say a little about the parents.
The father
According to the affidavit material filed in this proceeding, the father was at the trial of this proceeding employed on a part-time basis as a (occupation omitted), he having practised (occupation omitted) since 1985. In affidavit material relied on by the mother, she asserted that the father practised on a part-time basis so that he could pursue his personal interests as a (hobby omitted). That was not the subject of cross-examination so the importance, if any, of that comment went unexplored.
It is fair to say that the father focussed in his evidence on the unsuitability of the mother maintaining the parenting arrangements that prevailed when I heard this case. He told me very little about his own rapport with the children, his perception of their attitude towards him, their social and interpersonal interaction with him, how they spent their recreational time and how they were, at least in more favourable times, as a family. The father said very little about developmental, schooling and social issues relevant to the children. Instead the father’s evidence (and for that matter the mother’s also) was devoted in large measure to a personal assassination of the other. In so far as that destructive evidence bore upon the matters the Family Law Act 1975 (Cth) (“the Act”) requires me to take into account in a case such as this, I have done so. Otherwise, that destructive evidence gave me some insight into the real antipathy, borderline hatred, each of the parents holds towards the other. In turn that has informed me about the attitude each is likely to exhibit towards complying with their obligations under the Act and the orders I have made in this case.
The father relied on his affidavit affirmed 17 September 2015. He affirmed other affidavits in this litigation but elected not to rely on them. In his affidavit affirmed 17 September 2015 the father commenced with a narration about what he described as the mother’s concerning and unhealthy relationship with the children. He narrated that upon the children’s birth, the mother’s constant anxiety about the children limited the father’s and the mother’s social interaction and their relationship with others. The father stated that the mother struggled to be apart from X. When each child was born, the father said the mother objected to the father taking the newborn child for a walk in a pram. He stated the mother insisted on having the children constantly with her. The father gave an instance of the mother refusing to accompany him to a work function on account of the fact that the children were not invited.
In view of the fact that the events with which the father was concerned occurred a very long time ago, I have accepted that information as part of an historical narration but not necessarily as a guide to present circumstances.
The father stated in his affidavit that he knew the mother protested about the father spending time with the children by reason of her concerns of the father’s alleged violence towards the children.
The father stated in his affidavit that the mother had only been physically separated from Y for three nights since Y’s birth and for six nights since X’s birth.
The father gave evidence that the mother “has always encouraged the children to sleep with her”.[1] He said he had raised concerns with her about that being an unhealthy practice. The father said that practice continued until two years prior to the parents’ separation. On the basis that the parents separated in 2013, the sleeping arrangements to which the father deposed continued until 2011 when X was eight years of age or thereabouts and Y was four years of age or thereabouts. The father stated in his affidavit that even with the children sleeping in their own room, the mother slept in the children’s room on a mattress between beds, that arrangement only coming to an end in mid-2015 thereabouts.
[1] Affidavit of Mr Stone affirmed 17 September 2015, p.4 at [12].
Since the mother and father separated, the father stated that he had spent very little time with the children by reason of the mother’s conduct, so he said. In the passages below I have addressed that.
Before turning to the father’s evidence of his relationship with his children, the circumstances leading to separation are relevant. Among those events, the following may be catalogued –
a)the father’s objection to the children “playing electronic games incessantly” and the mother’s encouragement of the children to engage in that past time;
b)the father’s complaints that the mother refused to set boundaries for the children leading X to “act rudely, including swearing and hitting”,[2] acts that the mother refused to stop; and
c)the father’s complaint that the mother regularly undermined the father’s relationship with children, often denigrating the father in the presence of the children, and that the mother refused to intervene when X swore at the father or used foul language about the father’s family.
[2] Affidavit of Mr Stone affirmed 17 September 2015, p.6 at [15].
The father said the mother left the former matrimonial home in early July 2015.
For reasons that become apparent below, I did not find the father to be a particularly favourable witness. I have made that finding having carefully read the affidavit material which he affirmed in this litigation, having watched him in the witness box and having listened to not only what he said but how he gave his evidence. I formed the view that he was extremely guarded when giving his evidence, being careful to say as little as he was able yet still answer the question in matters detrimental to his interests. Conversely, he was loquacious on matters favourable to his interests. The father was an intelligent witness, though not a fully frank witness.
The mother
The mother affirmed an affidavit on 7 March 2016, the only affidavit on which she relied in this litigation. She stated she retired from (occupation omitted) in 1991 on account of ill health.
The mother stated that she and the father cohabitated for about 20 years. She stated that both children live with her and have done so since the parents separated in 2013.
The mother stated that the children had not spent time with the father since separation.
The mother sought sole parental responsibility. She also sought orders that the children live with her.
The mother gave next to no evidence in her affidavit about herself, preferring instead to devote scores of paragraphs of her affidavit to assertions of vitriol aimed at the father. As a result, the mother told me very little about her own rapport with children, she gave next to no material by which I could assess her parenting skills and she gave very little information by which I could assess her ability to properly and responsibly raise the children as teenagers. The mother gave detailed statements of her version of physical and emotional violence by the father towards her and towards their son X. I address that in the material below.
The mother asserted that the father was habitually aggressive and violent towards her and the children and that the children were at significant risk of continuing harm if they were to spend any time with the father.
For the reasons that follow, I did not find the mother to have been a favourable witness. As with the father, I have made that finding after carefully reading the affidavit material that she affirmed, having watched her in the witness box and having listened to her evidence and having watched her giving it. I formed the view that the mother was not balanced in her attitude towards her children, that she was obsessively protective towards them and that she jettisoned the best interests of the children in favour of her own desire to cocoon the children from their father who the mother viewed as violent.
A search for objectivity
The parents were polarised in their attitudes towards each other. They were entrenched in their positions concerning the other’s parenting skills. A large volume of evidence was devoted to events many years in the past. While that historical information served to explain the attitudes presently exhibited by the parents, mostly towards each other, it gave little insight into the prospective considerations to which I am required to have regard for the purposes of s.60CC of the Act.
In addition, many assertions of an historical nature made by the mother against the father, especially in relation to specific instances of aggression by the father, were denied by the father. For example, the father denied being the cause of bruising to Y, throwing X down a set of stairs, calling the mother weak and pathetic and striking X with a belt. Equally, a number of inconsistencies in her affidavits were put to the mother and the mother denied engaging in exaggeration, one example of which appeared at page 107 of the transcript in this proceeding.
In the end, I was unable to make any sensible assessment of the allegations and counter allegations on the evidence of the warring parents alone. Aside from the psychological evidence and the evidence from family consultants, in this case evidence was given by the deputy head of the junior school of (omitted) School where the children attend. Mr B was a witness whose evidence helped me significantly in the determination of critical factors that fell for determination in this case. Mr B gave evidence in two tranches. In the first, he gave reason for optimism. Mr B gave evidence that the father attended parent/teacher information sharing sessions and made a constructive contribution to those discussions. Mr B also stated that the children on occasions became aware of the father’s presence at school sports events and that the children exhibited a heightened level of anxiety because of his attendance, after which the father withdrew physically and at a distance away “stood with another parent away from the area so was still in attendance but in a respectful way”.[3] Mr B said he did not request the father to leave.
Mr B gave evidence that both children presented difficulties with management and academic progress at the school. Mr B said that X performed well in year six and that Y was flourishing with his year four teacher. Mr B gave evidence that the children were showing improved performance at school. That was illustrated by regular attendance at school, a sense of confidence, a sense of social engagement, an overall level of happiness and a “preparedness to re-engage with the art of risk-taking as a learner to have a go and to be wrong”.[4] Mr B said that applied to both boys but to X in particular and to Y in terms of developmental appropriateness.
[3] Transcript of Proceedings, 16 March 2016, at p.76.
[4] Transcript of Proceedings, 16 March 2016, at p.81.
Mr B’s evidence was rational, balanced, sensible and well-considered. In so far as it painted a picture of the children’s lives at school over recent times, Mr B’s evidence was most helpful.
Expert evidence
A very considerable body of expert evidence was adduced in this litigation. In the passages that follow I have addressed the expert evidence in chronological sequence in which that evidence was adduced.
Mr V prepared a report dated 12 August 2014.[5] Mr V gave evidence that he had practised as a clinical psychologist since 1983 specialising in child and family psychology. He had undergraduate qualifications in behavioural science and a Master’s degree in psychology obtained in 1983. Mr V gave evidence of his membership with an array of bodies involved in the practice of psychology. In his report, Mr V narrated information distilled from his examination of affidavits and various interviews he conducted with the parents and the children. He reported that it was “abundantly clear”[6] that the mother and father experienced a very significant divide in their parenting and that at no point had they achieved any kind of cooperative co-parenting of their children, that their relationship had been “split, divided and conflicted virtually for the entirety of the children’s lives”[7] with the result that both children, especially X, had experienced significant behavioural problems, very high levels of anxiety and each was at severe risk of long-term ongoing enduring mental health problems.
[5] Affidavit of Mr V filed 14 August 2014 at annexure “A”.
[6] Affidavit of Mr V filed 14 August 2014, annexure “A” at [5].
[7] Ibid.
Mr V narrated information given to him by the father as to the main reason for the existence of the undermining exhibited by the mother towards the father. Mr V said that the father spoke of significant problems with X that had endured for most of X’s life and that the father was less concerned about Y. When narrating the important matters that emerged from his discussions with the mother, Mr V described a long history of the mother complaining about the children’s treatment at the hands of their father. Unsurprisingly, Mr V reported the mother’s description of the father as “aggressive, financially controlling and limiting”,[8] that she did not trust the father, that the father was constantly angry, non-communicative and isolated and that the family lived in a terrible situation. While useful as a narrative, I was not assisted by Mr V’s unfiltered, simple narration of the highly subjective and emotionally charged information given by both father and mother to him. Of greater relevance was the information that Mr V deduced from his communications with the children, to which I now turn.
[8] Affidavit of Mr V filed 14 August 2014, annexure “A” at [26].
Mr V reported that X presented as direct and forthright who blamed his father and who portrayed his mother as not only a victim but the “only person who understands [X] and [X’s] feelings”.[9] X told Mr V that he hated his father, that the father was always a menace and had done a great many bad things including being a bully of not only X but of the mother. Mr V described X’s tendency to minimise his contributions to any of the difficulties between the two, instead placing blame and responsibility unequivocally upon the father. Mr V gave a collection of instances during the discussions with X that indicated how X had aligned himself with the interests of the mother and had rejected the father and the father’s family.
[9] Affidavit of Mr V filed 14 August 2014, annexure “A” at [32].
Mr V reported that X told him that he (X) did not want to see his father and worried that his father would hurt him. Mr V said that X feared –
his mother’s ability to cope, where they will live, whether they will have a home to live in, whether he will have enough food, whether as a consequence of the changed financial situation his mother will have to work and that consequently he will not be able to see her and that he will be exposed and alone.[10]
[10] Affidavit of Mr V filed 14 August 2014, annexure “A” at [40].
Mr V said that X attached a lot of his own emotional state to that of the mother, explaining that when she was happy he was happy and that when she was not he was not either.
Mr V said “the level of severe enmeshment should be obvious”.[11]
[11] Affidavit of Mr V filed 14 August 2014, annexure “A” at [41].
Mr V said that X’s prognosis was poor.
So far as Y was concerned, Mr V identified that Y’s negativity towards the father was based mainly on the father’s maltreatment of X. According to Mr V, Y’s attitude towards his father lacked the vitriol of X’s. According to Y, the father was “all bad” whereas the mother was “all good”, the mother was “perfect” whereas the father was “aggressive, conniving, careless and selfish”.[12] Mr V said that Y stated that the father was frightening and aggressive, dangerous to Y but more dangerous to the mother and X.
[12] Affidavit of Mr V filed 14 August 2014, annexure “A” at [48].
By way of conclusions, Mr V said the following –
From a systemic perspective, this family has very significant problems. There has been no genuine parental affiliation, and from the very outset, rather than having a united parental stance, this has been conflicted, combative and aggressive. There has been no sense of any kind of parental relationship, but rather a highly competitive and combative situation, that has resulted in [the mother] aligning herself exclusively to the children. It is not difficult to understand how from each parent’s respective position that they view the other with such contempt. The lack of clear parental boundary and hierarchy, that is, parents who are in charge in a united sense, conveying unequivocally clear messages of restraint and containment, have been so lacking. In response, [the father] attempted to create a different and corrective emotional experience, that in part entailed negativity and criticism towards [the mother] and her parenting, working against the flow of what he considered to be not only inappropriate but ineffective parenting, that colluded with anxiety and fostered dependence. By his own account, he was at times aggressive, and I suspect his presentation fluctuated between despair and withdrawal, and an over zealous, even aggressive attempt to create a more normal and balanced perspective as he perceived it. This same dynamic from [the mother’s] perspective required her to protect the children, safeguard their welfare, and do what she considered to be best for them, including establishing for them and herself a ritual and routine that was exclusive of their father. By any account, her relationship with the children is highly enmeshed, and the level of anxiety experienced by both children in relation to her and separation from her is at the more severe end of dysfunction. I think the prognosis for both boys, but in particular X, is poor in the extreme. This however in no way mitigates against the contribution of [the father] and his behaviour, that by his own account has been self-defeating.[13]
[13] Affidavit of Mr V filed 14 August 2014, annexure “A” at [64].
Other passages of the report may be condensed thus –
To describe this family’s presentation as maladaptive in the extreme, is an understatement … There is really nothing that is adaptive about the way the situation has been managed, especially by [the mother], and the collusion with X’s anxiety is certain to perpetuate it. The lack of differentiation, the enmeshment, the inability to tolerate his distress or to contain him is a prominent lacking feature and this continues … The fact that his mother still needs to sleep on the floor between him and his brother highlights the extent to which she is not able to tolerate their distress or anxiety, is not able to contain them or their feelings, conveys to them that the world is unsafe, that their fears are unmanageable, and that her ability to protect them requires her physical presence, and even then it does nothing to curtail this anxiety. It is not difficult to then understand when entwined with the behaviour of [the father] and his aggression,
the conflicting attitude towards parenting, his attempts to regain parental ground and the unacceptable use of physical discipline, this has served to perpetuate a profoundly dysfunctional situation.
The reality is that this is a family in which there are at least two children who are experiencing significant psychological problems, and one who is very psychologically unwell.
The prognosis for X is poor. He is likely to suffer serious mental health problems into the future, and especially so of the current family dynamic remains unchanged.[14]
[14] Affidavit of Mr V filed 14 August 2014, annexure “A” at [65]-[66].
Mr V said that the history suggested that the father had behaved inappropriately and had actively contributed to his own problems. However, attributing all of the family’s problems just to the father and his behaviour is to ignore the complexity of the interactions, the vulnerabilities of the children, their experiences as a consequence of their interaction with their mother, the escalating nature of those problems given the poor relationship between the parents and the enmeshed nature of the relationship between the children and the mother. Mr V said this was a “multifaceted, multilayered problem that had spanned many years”[15] and in all likelihood, the mother and the father were likely to escalate their conflict by prolonged and problematic litigation.
[15] Affidavit of Mr V filed 14 August 2014, annexure “A” at [69].
Mr V ultimately suggested that the issue of the children spending time with their father was something that needed to be considered separately and distinctly. He suggested that a kind of supervision or visitation in a public place was a start. Mr V made a recommendation that on an interim basis a highly structured regime of visiting the father should be implemented. I have taken into account that recommendation in making the orders I have made in this case.
Mr V was not cross-examined on the report he prepared.
Mr V provided an updated report dated 7 October 2015.[16] In paragraph 4 of that second report, Mr V recorded that the presentation of the family remained “deeply troublesome”[17] and that with the passage of time nothing in the family’s dynamic had changed. He said that at one level, the boys presented as being profoundly alienated from the father showing some of the classic features of alienation including a –
complete lack of ambivalence, a splitting and rejection of one side of the family, the capacity to speak about their father with every disdain and irreverence, their reference to him using only his first name, their self justified aggression, vulgar and abusive language and their outright abuse of him.[18]
[16] Affidavit of Mr V filed 12 October 2015, at annexure “A”.
[17] Affidavit of Mr V filed 12 October 2015, annexure “A” at [4].
[18] Affidavit of Mr V filed 12 October 2015, annexure “A” at [4].
Mr V said the children showed an alarming level of dispassion and indifference to the father and they exhibited a phobic-like quality in their reaction towards him.
In the second report Mr V described X as “rigid, inflexible and pedantic” and that he struggled to maintain eye contact.[19] He said that the way in which X had constructed his relationship with his father now ensures there can be no movement and no relationship. He said X will not allow any possibility of the father having a relationship with him and that the dislike X exhibited towards his father extended to the father’s parents that is to say, X’s grandparents.
[19] Affidavit of Mr V filed 12 October 2015, annexure “A” at [13].
Mr V described X’s presentation as conspicuous showing an incongruous presentation that was rigid and pedantic, manifested by “a number of facial grimaces, and a preoccupation with the past”.[20]
Mr V described a level of X’s persecution.
[20] Affidavit of Mr V filed 12 October 2015, annexure “A” at [17].
So far as Y was concerned, Mr V described Y’s level of anxiety as “literally overwhelming”, it being difficult, he said, to recall a child who was so consumed by anxiety, so restless and so profoundly affected by the dynamic then underway.[21] Mr V said Y was splitting and projecting and was unable to articulate the depth of his anxiety. Mr V described an earlier form of speech exhibited by Y that may have pointed to a feature of a cluster of syndromes reflective of autism spectrum disorder. He said that Y had “split the world into his father and everyone associated with his father as being all-bad and anyone associated with his mother and him, are all good”.[22] Mr V said that Y had created an “impermeable double bind” - if his father did not want to see him it was because his father did not care but if his father wanted to see him it was because his father did not respect Y’s own wishes.[23]
[21] Affidavit of Mr V filed 12 October 2015, annexure “A” at [19].
[22] Affidavit of Mr V filed 12 October 2015, annexure “A” at [22].
[23] Affidavit of Mr V filed 12 October 2015, annexure “A” at [23].
In his second report, Mr V stated the following conclusion –
When all things are considered, the least bad outcome is that
[the father]not pursue contact with the children at this stage. It is a recommendation that I make with severe reservation.
It intuitively runs contrary to all that is important about child development and the importance of having an integrated family. The reality is that their world is split, fragmented and divided. Both boys’ personality functioning shows marked features of splitting and projection. They cannot integrate a sense of their father or anything good about him, and so he is perceived as a source of all badness and therefore deserving of all rejection.[24]
[24] Affidavit of Mr V filed 12 October 2015, annexure “A” at [41].
A determination in terms of the conclusion expressed by Mr V would only be warranted in the face of compelling, uniform, united expert evidence. The evidence did not travel that far in this case.
Ms B provided a report dated 16 April 2015.[25] She was not cross-examined on that report. In her opinion, both parents should have equal shared parental responsibility for the long-term care, welfare and development of the children. She recommended that the children should continue to live with the mother and communicate with the father by letter, cards and gifts and that the father do so at his discretion. Ms B suggested that the father should be permitted to attend the children’s school functions and that both parties should be directly involved in any decision-making about major medical and psychological needs. Unlike Mr V, Ms B did not recommend that the father should not pursue contact with the children. Ms B’s recommendations, while short and bereft of the detail one would expect to see in order to effectively implement her recommendations, nevertheless contained at their core equal shared parental responsibility, the children living with the mother and communicating with the father in the way suggested. Ms B did not make a recommendation for any prescribed time to be spent between the children and their father, whether supervised or otherwise.
[25] Affidavit of Ms B filed 7 May 2015 at annexure “B”.
Dr T, consultant psychiatrist, provided a report dated 22 May 2014 entitled “psychiatric assessment”.[26] Dr T said he had practised medicine since 1971 and psychiatry since 1979. He reported that the father did not have a psychiatric condition. Conversely, he reported that the mother suffered from adjustment disorder with anxious mood.
[26] Affidavit of Dr T filed 26 June 2014 at annexure “B”.
Dr T was critical of the mother. He said she impressed as “high flown, unreflective, bitter and vengeful”.[27] He said that throughout the assessment she was absolutely focussed on discrediting the father. Dr T said she was a formidable woman. He said she had developed a highly enmeshed relationship in which various of her own emotional needs had been mixed up with the children’s. He said that while at times she saw herself as the protector of her children, the underlying motivation of her case in respect of the father was one of revenge. Dr T said this was a clear case of alienation on behalf of the mother against the father.
[27] Affidavit of Dr T filed 26 June 2014, annexure “B” at p.20.
Dr T was not called to give evidence.
Ms V, senior contact supervisor employed by Family Contact Services provided a report in which she addressed 12 supervised contact visits between the father and the children between 24 August 2014 and 6 October 2014, one visit having been cancelled on 26 September 2014.[28] Her report was thorough, covering all events at each supervised contact on those dates. Importantly, in her conclusion Ms V stated that the “contact between [the father] and his children … has been tumultuous challenging and quite distressing to the supervisor from the very beginning”.[29]
[28] Affidavit of Ms V filed 2 September 2015 at annexure “A”.
[29] Ibid.
Ms V was not called to give evidence.
Consultant psychiatrist Dr J provided a report dated 17 September 2014.[30] The report was short. Two important matters emerged from the report. First, Dr J stated that he had seen the mother for 43 separate psychotherapeutic consultations in the period between 5 June 2014 and the date of the report 17 September 2014. The second issue of importance was Dr J’s opinion that he initially considered that the mother suffered from acute chronic adjustment disorder of adulthood manifesting itself in symptoms of an acute stress disorder but that the adjustment disorder had largely resolved by the date of his report.
[30] Affidavit of Dr J affirmed 28 September 2015 at annexure “A”.
Dr J was not called to give evidence.
Dr C, paediatric clinical neuropsychologist provided two reports dated 12 February 2016 with respect to the children.[31] One report was directed specifically to X. In that report Dr C said the results of the assessment demonstrated that X’s cognitive functioning was “neurodevelopmentally atypical” for his age.[32] Dr C said X showed an uneven pattern of cognitive development characterised by very strong verbal skills when compared with poor non-verbal problem-solving skills and slowed speed of information processing – a pattern rarely seen in children X’s age. Dr C said that X showed reductions to planning and organisational skills, inhibition in his ability to think flexibly which was particularly evident in more complex environments.
Dr C said X exhibited a number of behavioural problems and “reduced social behaviours … including difficulty forming peer relationships, poor emotional control, reduced eye-contact, behavioural tics, and pedantic speech”.[33] Dr C said that X’s weaknesses were likely to make it difficult for him to cope with and adjust to the complexities of divorce. Dr C said that X’s weaknesses were likely to be exacerbated by complex social and emotional situations which may have a “detrimental impact on his broader psychological and academic functioning”.[34]
[31] Affidavit of Dr C filed 7 March 2016 at annexures “A”-“D”.
[32] Affidavit of Dr C filed 7 March 2016 at annexures “A”.
[33] Ibid.
[34] Ibid.
Dr C was not called to give evidence.
Dr Z, clinical psychologist provided a report which she said was prepared on 22 September 2015.[35] Of particular relevance in the report was Dr Z’s recommendation that Y and X continue to receive psychological therapy for their ongoing anxiety related to the ongoing stress experienced in relation to their parents’ separation. She said that symptoms such as “negative rumination and sleep difficulties” interfere with the children’s functioning and may do so to an increased extent with upcoming court hearings.[36]
[35] Affidavit of Dr Z filed 7 March 2016 at annexure “B”.
[36] Ibid.
It will be immediately apparent from the survey of the expert reports referred to above that only Mr V recommended that the father have no ongoing contact with his children. Mr V’s recommendation is alone, and it seems in the wilderness among the professional experts who have offered opinions in this case. I am unwilling to proceed on Mr V’s recommendation in the manner that he has suggested. His opinion is not supported by peer evidence and, it seems, is a view expressed in desperation at the dysfunctional family that he examined rather than with forensic clinical support. That is not to say I have placed no weight on it. I simply do not accept Mr V’s present recommendation for there to be no time by the father with his children. At all events, Mr V made the observations that he did in paragraph 41 of his report dated 7 October 2015 in highly qualified terms. He used expressions such as “the least bad outcome is that [the father] not pursue contact with the children at this stage”, “[i]t is a recommendation that I make with severe reservation” and “[i]t intuitively runs contrary to all that is important about child development and the importance of having an integrated family”.[37] Mr V observed that both boys showed marked features of splitting and projection. From other evidence it is readily apparent that the “projection” to which he referred emanated from the mother. As a result of her projection the children were unable to see anything good about the father and instead, by reason of the mother’s projection, the children attributed to the father “all badness … deserving of all rejection”.[38]
[37] Affidavit of Mr V filed 12 October 2015, annexure “A” at [41].
[38] Affidavit of Mr V filed 12 October 2015, annexure “A” at [41].
Having regard to the vive voce evidence of Ms M, in my view Mr V’s characterisation of “the least bad outcome” was overstated. The opinion offered by Mr V that “[t]his is a matter in which there is simply no middle ground”[39] was not an opinion that attracted me at all. When properly understood, the observations in paragraph 42 of his 7 October 2015 report were contradictory and not well-reasoned. Mr V proposed that either the children live with their mother and the children have no contact with their father or that there be a change in living arrangements such that the children spend time with their father to the exclusion of time with their mother. He then expressed the opinion that the clear indications were such that a course of action of that nature would be “dramatic, high risk, and cause emotional dysregulation”[40] especially having regard to developmental vulnerabilities and features of autism spectrum disorder presently apparent including anxiety and anxious contagion. In suggesting that the father not pursue contact with the children, Mr V was effectively galvanising the polar opposites that he postulated in paragraph 42 of his report with their attendant undesirable outcomes that he also mentioned in that same paragraph of his report. He may be correct as to the likely outcomes if one of the two extreme positions were to be adopted. That much is guesswork on his part and is not supported by other evidence. I am unwilling to guess at the outcome that Mr V anticipated in paragraph 42 of his report having regard to the existence of other more compelling evidence which did not involve guesswork.
[39] Affidavit of Mr V filed 12 October 2015, annexure “A” at [42].
[40] Ibid.
To my mind it is unacceptably glib for the submission to be made by the counsel for the mother that the children’s present attitude towards their father “is what it is”. To my mind, such an approach is to countenance unacceptable poisoning of the children’s mind by the mother and when the children react in the intended manner based upon such poisoning, for the mother to point to the children’s attitude saying that it is the genuine expression of their mental state, unaffected by the influence exerted by the mother.
I did not find the mother’s submissions in support of an application for sole parental responsibility to be at all attractive and I reject them. Sufficient material in the expert evidence underpinned a conclusion that the mother suffered from an array of psychological issues and that her attitude towards the raising of her children to date has been punctuated by obsession, zealous protectiveness, a rejection of the involvement of the father and the destruction of any favourable attitude that could have been fostered in the minds of the children towards the father.
Ms M gave viva voce evidence in this litigation. She also provided a report dated 24 July 2015 which became exhibit 1. Ms M was cross-examined at length. I enjoyed the benefit of hearing her evidence, reading her report and listening to the way she dealt with searching cross-examination by Ms Smallwood. I found Ms M to be a most impressive witness.
In her report Ms M addressed the physical and psychological health of both children. In respect of X, she said that he presented as tired and lethargic, that he reported “poor sleep hygiene, little exercise and a diet … that was high in convenience and processed foods”.[41] In respect of Y, she reported that he presented as more lively and relaxed while thin and pale. She reported that X suffered from substantial attention difficulties. Ms M expressed the view that she disagreed with the mother when the mother said that X’s facial tics and concentration difficulties were related to anxiety. She said that X appeared more angry and irritated than anxious. Ms M said that X showed indications of Asperger’s syndrome and oppositional defiance. She reported in both X and Y an observable distorted perception of reality and that they presented with an unreasonably high negative view of their father. She said it was an “us and them”[42] mentality that pits the children and mother against the father and anyone else. Ms M expressed the view that Y’s emotional health was more robust than was his brother’s.
[41] Exhibit 1, Psychologist’s report prepared by Ms M dated 24 July 2015 at [6].
[42] Exhibit 1, Psychologist’s report prepared by Ms M dated 24 July 2015 at [14].
Ms M offered opinions on the respective parenting strengths and weaknesses of mother and father. Ms M expressed uncomplimentary observations about the mother saying the mother was unwilling to concede that she had contributed to the children’s issues in any way, placing the blame squarely with the father. Ms M said that the mother was sceptical of Ms M’s behavioural observations of the children and that the mother’s main concern was that the children did not see their father. Ms M said the mother was “intractable when it came to implementing anything”, that she showed “oppositional and externalising behaviour in the same manner as her son” and at times, that the mother was argumentative with a tendency to attempt to bully Ms M into saying things that were unintended.[43] Ms M said that at one point she observed the mother to become quite disturbed, becoming “very worked up whereby she lost sense of our conversation” and that the mother “seemed to be reliving a past trauma”.[44]
[43] Exhibit 1, Psychologist’s report prepared by Ms M dated 24 July 2015 at [27].
[44] Exhibit 1, Psychologist’s report prepared by Ms M dated 24 July 2015 at [28].
Ms M said that both of the parties had little real insight into their children as individuals. Most importantly from my perspective was the recommendation offered by Ms M that the father should be allowed to see his children in whatever capacity the Court decided. Ms M said that despite the difficulties faced prior to and during visits, she took the view that the children have the right to know their father separately than through their mother’s eyes.
I agree. The orders I propose to make in this case reflect that.
The legislation that guides courts exercising jurisdiction under the Act requires a judge in my shoes to pay specific attention to specific discrete provisions of the Act.
I have addressed those considerations below. Before turning to them, let me say a little about the way this litigation unfolded.
The re-opening of this case
The trial of this proceeding was heard and before me on 15 - 17 March 2016. I reserved my decision. In the course of writing my reasons for judgment I focussed very carefully on the mother’s application for final parenting orders that provided for her to have sole parental responsibility of the children with such time reserved to the father as the children chose to take up. For reasons more elaborately developed in my interim judgment[45] I made orders reopening this case for the purpose of permitting additional evidence to be lead from Mr B.
[45] Stone & Clifford [2016] FCCA 2045.
Mr B gave evidence on 21 September 2016. He was under subpoena. Apparently, he was forced to cut short an interstate trip so as to give evidence on that day. As with his evidence in March, I found Mr B’s evidence in September to have been balanced, very sensible, rational and compelling. In the passages that follow I have recorded the main matters that emerged from his evidence on 21 September 2016.
Before turning to that, it is necessary to put his evidence in context.
In March 2016 when Mr B gave evidence during the trial, he was reasonably optimistic about the prospects for both X and Y. That stance altered between March and June 2016. Bearing in mind that the mother had day-to-day parenting of both X and Y exclusively during that time, whatever decline in the position of the boys occurred during a period when the mother had sole parenting of them. In the period between March and June 2016, Mr B was the schoolmaster with pastoral responsibilities towards Y but not towards X. At all events, on 8 June 2016 Mr B sent an email to a number of his colleagues at the boys’ school.[46] One of the recipients of that email was the school headmaster. The email itself was not long. It is as well to set it out in terms. The email was the subject of comment in paragraph 28 of my earlier judgment.[47]
[46] Email from Mr B to Mr P and Ors dated 8 June 2016, produced under subpoena directed to (omitted) School filed 13 July 2016.
[47] Stone & Clifford [2016] FCCA 2045.
Before going to the terms of the email, it is important to record that Mr B’s observations of X and Y in March 2016 were very different to his observations of them in June 2016. In March, Mr B observed that X and Y were showing improved performance at school and that they were in regular attendance at school, they showed a sense of confidence, a sense of social engagement and an overall level of happiness.
In the period between March 2016 and June 2016, X and Y lived with the mother. They had no interaction with the father. In that period several important events occurred –
a)first, Y began exhibiting behaviour that indicated he was, or was likely to, repeat the behaviour previously exhibited by his older brother; and
b)second, X’s school performance and social interaction was deteriorating, causing concern to the school that the children attended.
The details of those two matters are developed in the passages below.
On 8 June 2016, Mr B sent an email to the school headmaster and to a number of other recipients. The content of the email was the subject of detailed evidence given by Mr B on 21 September 2016. The email was in the following terms –
Good morning Mr S, Mr M and Mr P,
This email comes after conversations with several staff this week – and I believe we are well positioned to comment on the Stone family – and I feel we are all being led along inappropriately, and as a school I think we’ve just about reached the end of tolerance for behaviours of X and Y choosing when and where to engage, as a result of the parenting they are receiving.
My comments come – not from anger, just such disappointment in that many staff have given considerable time and energy to the family and yet we are not getting the desired and required support.
This week Y – Year 4 Y objected to attending camp with his peers, was not sick, just played his mother, so simply did not go: a direct copy of the behaviours that X exhibited previously in the Junior School (he did not attend ANY camp from the failed Year 4 experience). When I challenged Ms Clifford (mother) to take him to camp herself, she replied that she simply couldn’t as X required her here as he is having ‘trouble’, and that Y was terrified that he would be made to stay at camp against his will.
As part of the ongoing discussions with the family (mother Ms Clifford) we made it clear that there was a requirement that we wanted three things:
1. Ongoing clinical support of regular psychologist support for X and Y. Having asked, I am unaware that this is occurring, and said so in court.
2. Copies of any updated court determinations – of which I again made clear in court that I had requested and have not sighted.
3. That the children engage fully in the educational program at (omitted) – including camps etc.
I have since spent time on the telephone with the father –
Mr Stone – who is powerless and legally unable to do anything. He expressed his disappointment, frustration and exasperation that his children were being allowed to (in his view) ‘manipulate the school so much, and so unfairly’, and that ‘it just isn’t right’.
As someone who lives in a positive domain, I feel that this family takes energy from us where we could be spending it to build positive capacity in the school, teachers or other students.
Can I propose a meeting to discuss, review and to consider a pathway forward.
Mr B[48]
[48] Email from Mr B to Mr P and Ors dated 8 June 2016, produced under subpoena directed to (omitted) School filed 13 July 2016.
Mr B’s email spoke of his belief that the school was being “led along inappropriately”.[49] In his evidence in chief on 21 September 2016, Mr B explained what he meant by that phrase. He said he expected he would have been provided with documentation from various sources and had not been so provided. Mr B said both parents were doing the leading. Mr B said in evidence that the school expected that both parents would act in the spirit of parenting the children in the best context for their children. He expanded on that evidence by saying –
Be that meeting with us as a school, engaging in appropriate parenting behaviours, in supporting the school’s ethos and requirements and engaging their children wholly in their school development.[50]
[49] Ibid.
[50] Transcript of proceeding, 21 September 2016 at p.12.
As the children had been in the care of the mother, Mr B said the mother was expected to deliver the children to school camp, which she did not do.
Mr B’s email contained the phrase that Y “just played his mother”.[51] Mr B explained that expression in the following terms –
That when either of the parents are around, Y will engage in a certain level of behaviours. When his mother then appears, or his father then appears, the behaviours change and become somewhat more immature based and attention seeking in their context.[52]
[51] Email from Mr B to Mr P and Ors dated 8 June 2016, produced under subpoena directed to (omitted) School filed 13 July 2016.
[52] Transcript of proceeding, 21 September 2016 at p.15.
The following exchange took place between Dr Ingleby and Mr B –
DR INGLEBY: Is there anything that has happened since your appearance before this court in March 2016 that, in your opinion, makes the need for a clinical assessment more or less pressing? ‑‑‑ More, clearly because there is a significant level of absenteeism, a level of disengagement on behalf of X that I can’t explain from a simply school point of view. If I am to look at attendance figures, camps, Saturday sport, these are aspects with which we look at a child’s level of engagement, I’ve looked through X’s mid year report and the pages of the mid year report show me significantly a child in a level of crisis. Again, I have no clinical explanation as to why that is the case.[53]
[53] Ibid.
The use of the word “crisis” weighed very heavily with me. Mr B’s use of the language that X’s mid-year report showed “significantly a child in a level of crisis” was careful, well-considered, deliberate and, to my way of thinking, extremely concerning. Mr B went on to say that Y’s replicative behaviour in watching and mimicking his older brother was concerning.
Mr B said that, towards him, both parents were respectful.
Mr B also said that both parents were parenting in what they believed to be well-meaning but that the children were not always getting the best opportunities to flourish and to fulfil themselves in the educational context. Dr Ingleby asked why. Mr B answered that –
a)the father was completely absent from the children’s lives;
b)the children had been exposed to a level of stressors;
c)the children have ongoing tensions reaching a third year by reason of litigation between the parents; and
d)the children were not attending to an educational pathway.
Mr B said that X looked like a child who did not want to be engaged at school and “looked like a child that was highly at risk”.[54] Mr B’s use of that phrase – that X looked like a child highly at risk – concerned me enormously. Accepting that both X and Y suffered from the stressors to which Mr B deposed, there is force in Mr B’s evidence that the father was absent from the children’s lives so the day-to-day stressors suffered by the children were unlikely to be attributable to the father, leaving aside the continuation of the parents litigation in court.
[54] Transcript of proceeding, 21 September 2016 at p.18.
Mr B said that the children should have the opportunity to have both parents engaged in their upbringing. Poignantly, Mr B said the following –
I think what [the father] is after is to be able to have the opportunity to have time with the children to rebuild and start a relationship.[55]
[55] Transcript of proceeding, 21 September 2016 at p.18.
In his answers to questions put in cross-examination, Mr B identified X’s problems in failing to engage with the educational process as emerging from X’s failure to attend school, school camp and his failure to participate in sporting activities. He said he feared that Y would engage in a similar repeat presentation. Mr B said that based on his experience, a child’s resistance to going to a school camp was very unusual. Mr B said X would not go to camp and that Y was endeavouring to follow X’s example. Mr B said the children were manifesting “troubling behaviour”.[56] He then said –
I would say that X’s behaviour is far more troubling than Y’s. However, this email is of great concern and I’m saying that I think this looks like we’re having a repeat of what we’ve already witnessed.[57]
[56] Transcript of proceeding, 21 September 2016 at p.24.
[57] Ibid.
Mr B gave balanced evidence as he was quick to point out that Y was progressing positively in 2016 academically, a matter the school found pleasing.
But even recognising that progress, Mr B gave evidence that in September 2016 the children continued to manifest the behavioural problems that existed prior to March 2016. He agreed with the proposition that Ms Smallwood put to him that the school was more concerned with the continued existence of those behavioural problems rather than with the acceleration of them. When asked to focus specifically on X, Mr B said he took the view that X’s behaviour had amplified and was far more concerning and that he saw a “child at risk”.[58]
[58] Transcript of proceeding, 21 September 2016 at p.25.
That was Mr B’s third reference to X being at risk.
When giving his evidence Mr B spoke with considerable authority as a very senior educator, as a highly experienced schoolmaster involved in student’s pastoral care and as a person with higher qualifications in a field that enabled him to make educated observations about behaviour. However, Mr B did not profess to being a psychologist. Mr B’s repeat reference to X being at risk has caused me to respond in this case in the exercise of the Court’s protective jurisdiction towards the children.
As a final point, extracted by Dr Ingleby in re-examination, Mr B said the mother was doing a very good job in very challenging situations with children who needed some additional support. Dr Ingleby endeavoured to get Mr B to expand on that issue but was met with objections, quite properly taken by Ms Smallwood so the point was not made in Mr B’s own words. However, it seemed to me that Mr B’s earlier references to the father’s substantial absence from the children’s lives was a reference to Mr B’s evidence of the desirability of both parents being involved in the children’s upbringing. His particular words were these –
It’s my belief, and that of the school, that the children should – and I’ve said this to both parents – that the children should have an opportunity to have both the father and the mother engaged in their upbringing. I don’t think that’s rocket science.[59]
[59] Transcript of proceeding, 21 September 2016 at p.18.
I agree. That much is far from being rocket science.
The additional support mentioned by Mr B meant support from both parents, not merely from the mother.
As mentioned earlier, to my mind, Mr B was a most impressive witness. He provided very real assistance in my determination of this case. Expressed as concepts, it seemed to me that the gravamen of Mr B’s evidence may be distilled into the following propositions –
a)X is a child at risk;
b)Y is mimicking his older brother’s behaviour;
c)the children are exhibiting troubling behaviour;
d)the children, very unusually, have not attended school camp;
e)X has failed to attend school, participate in sporting activities and he has failed more generally to engage with the educational process;
f)the school is more concerned with the continued existence of the children’s behavioural problems than it is concerned with any acceleration of them;
g)the children, in the current parenting regime, are not getting the best opportunities to flourish;
h)in the current parenting regime, the children are exposed to significant stressors; and
i)it is desirable for both parents to be involved in the children’s upbringing.
Section 60CC(3)(g) of the Act
By this subsection I am required to take into account the maturity, sex, lifestyle and background of the children and of their parents along with any other characteristic of the children that the Court thinks relevant.
The children are adolescent males. The evidence did not reveal anything of particular concern in respect of their background or in respect of the background of their parents which may be relevant to this case.
Section 60CC(3)(h) of the Act
By this subsection I am required to take into account matters where the child is Aboriginal or Torres Strait Islander. The children are not. This subsection is not relevant.
Section 60CC(3)(i) of the Act
Under this subsection I am required to consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
It seems to me that a fair distillation of the evidence, particularly the psychological evidence, reveals that both parents are genuinely interested in the welfare of their children. They express their interests in the welfare of their children in different ways. They undertake the tasks associated with parenting in a different manner although both appear to have the interests of the children at heart. A repeat theme in the psychological evidence is the way both parents go about their parenting. It is readily apparent that the parents, despite their maturity, need guidance and instruction on how to better undertake the tasks associated with proper parenting. As is referred to above, I will make orders requiring the parents to undertake one or more courses associated with the development of their parenting skills.
Section 60CC(3)(j) of the Act
Pursuant to this subsection, I am required to have regard to any family violence involving the children or a member of the children’s family.
That issue has been addressed at length above.
Section 60CC(3)(k) of the Act
This subsection requires me to take into account an array of matters if a family violence order applied. No family violence order applies. None did.
Section 60CC(3)(l) of the Act
This subsection requires me to give consideration to the formulation of an order that would be least likely to lead to the institution of further proceedings in relation to the children.
To my mind it is unlikely that any order to be made by any judge of this Court will finally quell the squabbling between the father and the mother. I entertain no doubt whatsoever that the mother and father will be back in court arguing over their children at some stage prior to the children attaining their majority. That said, this subsection speaks of the making of an order that would be “least likely” to lead to the institution of further proceedings.
The orders I have made will operate for a fixed duration. By definition, these orders are interim and not final. The parents have demonstrated an inability or unwillingness to engage in the acts that good parenting requires. These orders will permit, almost as a last ditch effort, some exploration to be given to both parents having a meaningful role in the upbringing of their children. I hope it is not too late.
Section 60CC(3)(m) of the Act
The above sets out comprehensively the considerations that operate upon a court when making parenting orders. There are no other facts or circumstances that I consider to be relevant.
Conclusion
For the reasons set out above, I have made the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 20 December 2016