Wenzel and Wenzel

[2019] FCCA 2327

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENZEL & WENZEL [2019] FCCA 2327

Catchwords:
FAMILY LAW – Interim parenting – urgent change of residence – risk to children if they remain in their mother’s care.

Legislation:

Family Law Act 1975 (Cth) ss.11F, 60CC, 67U, 102NA

Cases cited:

Bondelmonte v Bondelmonte [2017] HCA 8

Stott & Holgar and Anor [2017] FamCAFC 152

Applicant: MR WENZEL

Respondent: MS WENZEL

File Number: MLC 5088 of 2018

Judgment of: Judge Harland

Hearing date: 18 July 2019

Date of Last Submission: 18 July 2019

Delivered at: Melbourne

Delivered on: 18 July 2019

REPRESENTATION

Counsel for the Applicant: Ms Jenkins

Solicitors for the Applicant: Kennedy Partners

Counsel for the Respondent: Ms LaGreca

Solicitors for the Respondent: Pentana Stanton Lawyers

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer:: Victoria Legal Aid

ORDERS

1. The orders made 13 June 2019 be discharged.

2. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   (a)find and recover the children [X] born … 2005 and [Y] born … 2008  and to deliver the children to Mr Wenzel at E Street, Suburb F in the State of Victoria, or such other place as the father and the person effecting such recovery deems to be appropriate;

   (b)to stop and search any, vehicle, vessel or aircraft; and

   (c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.

3. The applicant father immediately notify the court upon [X] and [Y] being returned to their care so that the matter may be listed for hearing at short notice.

4. Until further order, the children live with the applicant father.

5. Until further order, the mother be restrained from spending time with the children or communicating with them in any form.

6. The mother be restrained by injunction from:

   (a)Attending at either of the children’s schools; and

   (b)Having any other person do anything which she is restrained from doing pursuant to these orders.

7. The father continue to attend upon Dr A for the purposes of reportable counselling and the father will obtain a report from Dr A for the final hearing.

8. The father will comply with all recommendations of Dr A.

9. The parties’ legal representatives have liberty to apply on short notice.

10. The proceeding is adjourned for Interim Defended Hearing on 11 October 2019 at 9:30am.

11. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at THE COURT NOTES THAT:

    (A)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

    (B)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

    (C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

    (D)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

    IT IS NOTED that publication of this judgment under the pseudonym Wenzel & Wenzel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

    FEDERAL CIRCUIT COURT
    OF AUSTRALIA
    AT MELBOURNE

    MLC 5088 of 2018

    MR WENZEL

    Applicant

    And

    MS WENZEL

    Respondent

    REASONS FOR JUDGMENT

    1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

    2. This matter concerns the welfare of two children: [X], born … 2005, aged 14, and [Y], born … 2008. He is 10, turning 11 in a couple of months time. I am not going to repeat in any detail the helpful and detailed submissions I have received from all three Counsel at the bar table today, nor will I recite all of the evidence that is before me.

    3. The issues before me today are really with respect to risk. The father seeks that there be an urgent change of residence, removing the children from the mother’s care and placing them in his care, with there being a period of three months, where the children do not spend any time with their mother. The issues that the father raises in support of his position is with respect to concerns about whether or not the mother is using drugs, the mother’s concerning presentations and concerns about her mental health, and the children’s resistance and refusal to spending time with him.

    4. The mother opposes the father’s application, and refers to the very strong and consistent views that the children have expressed to every professional that they have come into contact with in over a year. It is her case that she wants the children to have a relationship with their father, but that there are real problems that the children have expressed with respect to the father’s conduct towards them, and that the problems are not of her making. 

    5. She proposes that the children resume spending alternate weekends with their father and proposes that she not be involved in the changeovers. She says that is in order to facilitate the changeovers, given concerns about her not being willing or able to facilitate the children spending time with their father. The Independent Children’s Lawyer supports, broadly, the father’s position, referring to various strategies that have been tried previously in this case. 

    6. What is agreed is that for about nine years after the parents separated, the children lived with the mother and spent regular time with the father. Whilst it is clear that there has been conflict between the parents, and there is a dispute about how successful or otherwise that time was, what is not in dispute is that the parties did not seek any Court intervention prior to 2018. So one of the questions in this case is what has occurred for there to be now a situation where the children are refusing to spend any time with their father at all. What is also clear on the material is that things came to a head on 23 March 2018, when there was an incident at the father’s home. 

    7. The parents have very different versions as to what occurred on that occasion and who was the instigator. What is very clear is that the children were there and were exposed to the conflict between their parents, which undoubtedly would have been very stressful and distressing for them. It is not disputed that the children then had a period of not seeing their father. The father brought an application to this Court on 10 May 2018 seeking urgent parenting orders. In that application, which was granted on short notice, he sought a change of residence.

    8. The matter came before Judge Williams, as she then was, on 25 May 2018. She appointed the Independent Children’s Lawyer. There was an s.11F memorandum produced to the Court, and there were interim consent orders made for the children to live with their mother and spend time with their father on alternate weekends.

    9. The matter next came before Judge Williams on 6 September 2018, and by that time the matter had been overtaken by events and there were Children’s Court proceedings on foot, which had been commenced on 21 August 2018, which consequently meant this Court no longer had jurisdiction to deal with the matter. When the matter came back before me on 12 February 2019, the mother did not appear before this Court. The Children’s Court proceedings were still on foot, and the Court was informed that Dr A was working with the children.

    10. The matter came before me again on 1 March 2019. The mother appeared with the assistance of a duty lawyer. The Children’s Court proceedings had concluded, thereby resulting in this Court having jurisdiction again. I made orders for the mother to file material within 42 days, to undergo supervised drug screens, and also made an order noting that the father and/or the Independent Children’s Lawyer may seek to proceed on an undefended basis on the next occasion if the mother did not file material.

    11. On 29 April 2019, I made a chambers order releasing the Children’s Court file for inspection by the parties. On 13 May 2019, when the matter was next before me for an interim hearing, the mother did not appear and had not complied with the orders for filing material, nor had she complied with the orders for drug screens. The Independent Children’s Lawyer had made two requests that were unanswered. 

    12. On that occasion, I made orders directing the mother to bring the children to Court on the next occasion in order to meet with the Independent Children’s Lawyer, and also made a notation that a warrant may issue for her arrest if she did not comply with the orders. When the matter next came before me on 13 June 2019 for an interim hearing, the mother attended Court in person. The children were at Court and were seen by Counsel for the Independent Children’s Lawyer.

    13. The mother had not filed material and did not have legal representation on that occasion. The application before me today needs to be seen in the context of this history and in the context of what occurred on 13 June 2019. I heard quite lengthy argument on that occasion and Counsel for the father tendered several documents from the Children’s Court proceedings which formed exhibits 1 to 8.

    14. The father’s Counsel pressed for the change of residence to occur on that date. The Independent Children’s Lawyer’s Counsel opposed it occurring on that day. There were some concerns about gaps in evidence as well as lack of a plan as to how, practically, it would occur, and more importantly, there being supports in place. There was certainly considerable material for the Court to get across in a busy duty list.

    15. On that occasion I, in very blunt terms, made it very clear to the mother that this was her last chance to deal with these concerns. Counsel for the father went through the exhibits on that occasion, as well as today, highlighting what the issues of concern were in those documents. The mother indicated on that occasion that she took issue with much of what was being said in those documents, both what was recorded in some of the Department of Health and Human Services (“the Department”) records but also by Dr A. She was very clearly on notice that there needed to be some real change occurring. 

    16. The orders that I made on 13 June 2019 involved the parties’ children going back to Dr A, who has had some significant involvement with this family since the proceedings were in the Children’s Court, to attempt to get the children resuming spending time with their father. That has not happened. I will refer to that and Dr A’s reports in due course. Before I do so, I intend to address risk issues raised in turn.

    17. The risk I will address is the allegations concerning the mother’s drug use. This arises from page four of exhibit 3, which is a Department addendum report dated 16 October 2018. The relevant passage appears on page four, which refers to a reporter making a report to the Department alleging that the mother had told the reporter that she uses ice.

    18. The father’s Counsel points to that entry, not to suggest that that is proof that the mother is using drugs, but that it raises a concern about the risk of her drug use. The father’s Counsel then points to the mother’s failure to comply with the Independent Children’s Lawyer’s requests for drug tests. The father’s Counsel refers to the drug test that the mother did on 14 June 2019 in compliance with the orders I made the day before where – tendered as exhibit 9 –the mother certainly attended for the drug test and the drug test result does not indicate any illicit substances. He also refers to there being a dilution of the sample, which could possibly mean a false negative result. Certainly the snapshot of the test that has been produced does not indicate that the test was supervised. 

    19. What that really means is that the issue of drug use remains unresolved. However, it is not the primary risk concern at this stage, though of course the Court cannot ignore it, and I note that the Department also required the mother to undergo a drug test. Dr B, in his report with respect to the mother, was of the view that there was no evidence to support the mother having a substance abuse disorder. That issue can be laid to rest, as the mother’s advocate suggested, by way of a hair follicle test, if need be. 

    20. The two other risk issues where the concern primarily lies, is the parents’ functioning, and the alignment of the children to the mother. I need to make clear that this is not a case where there are concerns that only go in one direction. It is clear that both parents have exposed the children to conflict, and that both parents have vulnerabilities. 

    21. As I indicated during the course of argument, I say this not to cast the blame on either one parent. No parent is perfect, and it is not about punishing either parent. The focus that the Court always has in these matters is what is in the best interests of the children, and that is not always an issue that is easily answered. What is clear is that there have been issues raised with respect to the father. The children consistently make complaints about the father being grumpy, getting angry and denigrating the mother. 

    22. Dr A had initially raised a concern as to whether or not the father was on the autism spectrum. The father was assessed and found not to have that diagnosis, but to have some traits that were consistent with it, as one of the issues raised is about his ability to read emotional cues. It is certainly one of the issues that is clear from Dr A’s interventions with the children, with the disconnect from what the children were saying and what the father was saying, the father being shocked about the boys complaining about his anger and grumpiness and so on. One of the things that Dr A emphasised was that both the boys presented in a credible manner, as did the father and his partner. One of the strengths that the father had was the support of his partner. 

    23. The concerns with respect to the mother’s functioning is raised in several contexts, with respect to her mental health and her ability to emotionally regulate herself. What is also very clear is that the mother has been the children’s primary carer since these parties separated many years ago, and has indicated up until last year, these parents – whatever problems they were having, and problems between the father and the boys, was not such that they came to the attention of any authority, or needed any formal intervention. 

    24. One of the question marks in this case, I think, with respect to both parents and the children, is are there issues arising because of the age the children are now at? Is it the case that the boys were easier to manage as younger children with less difficulties in both households, and that now there are difficulties that both parents face? What also seems apparent from the material is the very different parenting styles of the parents. That is not a bad thing; parents bring different strengths to their children. What is concerning is the escalating pattern. 

    25. There are also issues with respect to the boys’ consistent attendance at school from the beginning of 2018 until their removal by the Department. Exhibit 2, being the disposition report from the Children’s Court dated 15 August 2018 at page 10, refers to the Department’s inquiries with the schools. What is indicated there is concerns about the children not getting enough sleep and concerns about the reported behavioural problems at home which were not apparent at school. Most importantly was the concern about the sporadic attendance at school, with [Y] being frequently late, his attendance being at 78 per cent in term 1, 61 per cent in term 2, and 61 per cent for term 3, which was not yet completed.

    26. Ms C, who was the wellbeing coordinator at the school, also reported that since the children had been placed with their aunt she had noticed changes in [Y]’s presentation, and he appeared to be a happy and different child, with there being set boundaries in the home.

    27. With respect to [X]’s school, there were also concerning absences. Concerning absences being term 1: nine and a half days missed; term 2: 14 days missed; and term 3: five days. These reports indicate there being some problems going on in that some six month period.

    28. The disruption to the children receiving education regularly can have a long term detrimental impact on them. The question that arises is that was there something going on in the mother’s household such that she was unable to get the children to school? I do not have evidence suggesting that this is a problem that had been ongoing prior to that time; I do not know, but it certainly has not been suggested. I note, as indicated previously, the catalyst that led to the children ceasing to spend time with the father initially occurred in March 2018, with the confrontation at the father’s home. 

    29. I refer to the child-inclusive memorandum report dated 25 May 2018, which also raises concerns. It is very clear from that report is the level of involvement of the children, but particularly [X] who is the older child, have had in the conflict. He had said that he had accidentally seen the court papers. He refers to the incident at his father’s home where the window glass was broken. He talks about both parents arguing and yelling, and him not wanting to be near them when that was going on on that date. [X] was highly distressed when talking to the family consultant on that occasion. The family consultant was concerned that he may feel as though he had to look out for his mother and look after her, and that if he did not spend time with his father, there would not be any more arguments.

    30. [Y] was also interviewed and also was distressed. Both boys make complaints about the father being aggressive and calling their mother bad names. [Y] also refers to feeling left out in the father’s household. The comments that [Y] was making in that respect really raises issues about feeling like he is not getting enough of his father’s attention, noting that the father has re-partnered and his partner has an eight year old child. The boys in the mother’s household have her exclusive attention. In the father’s household, they are competing for attention. 

    31. The detrimental impact of the conflict on the children and feeling caught in the middle, and also feeling that they need to be the decision-makers, cannot be underestimated because whilst [X] is 14, he is still a child. He is a child of both these parents, with the make-up from both of these parents, and it is a psychologically impossible position for children to be in when they are in the middle of that conflict. The flavour of some of the material before the Court is indicating a concern the boys have for their mother and wanting to protect her, and also because their mother has been their primary carer, not having the same concerns about or need to protect their father. In those situations, sometimes the easiest thing to do psychologically is to pick a side.

    32. The family consultant makes the point that both parents thought that the children should be able to make the decisions at that stage. Both parents are putting the children in a really impossible position in terms of the burden of that because it is conflict of loyalty. There is a big difference between the importance of listening to children, taking on board their views, acknowledging their views and their maturity, but not placing them in the position of the adults making the decision. It is not their job. 

1. Now, in that intervention, the family consultant referred to the mother’s presentation being, at times, emotionally overwrought and tending to catastrophize issues. She pointed out that it could be that her presentation was related to that situational crisis that had occurred as a result of the children not spending time with their father, and she recommended that time resume with their father as soon as possible on a graduated basis.

2. The next incident of significance occurred on 18 August 2018 and is referred to at page five of exhibit 3. This is what led to the Department intervening and proceedings being commenced in the Children’s Court. The reference in exhibit 3 is with respect to the boys being exposed to the mother’s concerning presentation where she attended an agency that she was not currently involved with in a heightened and chaotic state, staying there for more than three hours with erratic, heightened and rapid speech. The Department referred to the risk of harm, being the boys being at risk of emotional trauma, and that they were clearly struggling being in the middle of Child Protection and Family Court proceedings.

3. Dr A became involved with the family, and in his preliminary assessment which is exhibit 6, he refers to the mother being a loving parent but being very anxious and the children being aware of that anxiety, as children cannot help but be aware of their parents’ emotions. He spoke to the mother’s psychologist, Ms D, who said that the mother was supportive of the children seeing their father but had significant anxiety, and that that could compromise her capacity in that regard. By that I mean in terms of supporting the boys in seeing their father.

4. Exhibit 4 is a report of an assessment of the mother by Dr B, a forensic psychiatrist who often prepares reports for this Court. He also refers to a report of Ms D at page eight of his report where she said in her report dated 10 August 2018 that she did not think that the mother was a danger to herself, despite the dramatic statements that she was making about killing herself, and was of the opinion that most of the time the mother was a good enough parent or better than that. 

5. Dr B expressed his opinions at page nine and 10 with respect to the mother having an adjustment disorder with anxious mood which she was currently and appropriately being treated for. He also referred to the fact that due to a traumatic accident many years ago, the mother suffered an acquired brain injury. In his opinion she had suffered from personality changes, not a personality disorder. He identified that some of the difficulties in personality or behaviour with respect to acquired brain injuries can include reduced ability to cope with stress, difficulties with regulating their emotions, a degree of histrionic behaviour at times, and some tangentiality in thinking. He was of the view that the mother had decompensated in the context of the difficulties with respect to the children’s contact with their father, and at times had presented poorly.

6. In his opinion the mother’s statements about harming herself and the children were a cry for help and an acknowledgement that she was not coping. He states that whilst it was clear that the mother has exposed the children to parental conflict, he was not of the view that she had deliberately engineered that. He said that it did not make sense that she would, given that for the several years previous to that, the children had been spending regular time with their father. 

7. He was also of the view that the mother was trying to act protectively, and that she did not want the children to be distressed and that that was her overriding concern, not that she wanted them to stop seeing their father. He did not think she was impaired by mental illness at that stage or that she was being deliberately obstructive. He did refer to neuropsychological testing being of assistance with respect to assessing the extent of her brain injury and to assist with any recommendations with respect to improving cognitive functioning. 

8. Certainly, the theme of the mother at times having difficulty coping and presenting as histrionic, and having trouble with her emotional irregulations, and the high level of her anxiety is something that appears in several places in the documents. In Dr A’s report of 14 February 2019 at page eight he refers to the mother presenting as being highly anxious and difficult to contain and having pressured speech. He had to interrupt her to try and get back on track when she was speaking without interruption. She was telling him that apart from this issue she was fine. It is this issue with the children and her feeling her character was being attacked that is what is causing her the distress. It goes on to refer to page nine, in his conversation with the mother’s psychologist who referred to the mother being a very dedicated parent who claimed that the father was abusive and neglectful.

9. He expressed the opinions that the mother had some personality difficulties and referred to her at times being hysterical, but making her an emotional, rather than bad parent, and that she would attend in times of crisis. He also quoted Ms D where she stated:

   She gets very upset and loses her boundaries. Their pain becomes her pain and she becomes very distressed. And she has no insight that she does that even though I keep commenting to her about that.

10. He refers to the mother’s life revolving around the children. Dr A then refers to the mother requesting an urgent appointment with him where she again presented as highly anxious and was challenging to contain. He referred to her rambling and her thoughts being somewhat tangential. But not reporting anything new, as he had referred to on the previous occasion, and he quotes from her, referring to her saying, “I’m here on behalf of the boys. They have enormous feelings.” 

11. What is apparent and what is of some concern is that on the chronology, when the children were in the aunt’s care for a month they spent time with their father, after the Department had conducted some preliminary investigations. There was an interim order made in the Children’s Court whereby the children were to spend every weekend with the father and each week with the mother, and that occurred on about four occasions before stopping. After the month with their aunt, the children were returned to their mother’s care. What also is troubling is what appears to be an escalation of the boys’ negative reports with respect to the father.

12. That is not to suggest that these boys have not been making complaints about their father’s care and raising issues for some time and some time prior to their time ceasing. What is apparent from looking through the various sources, including the child-inclusive memorandum, but also the reports from Dr A – in February and July 2019 – is that it appears that their opinion and views with respect to their father are becoming more negative and more fixed. However, when looking at what they are complaining about and the changes in attitude that Dr A found when drilling down and challenging them about those views, there appears to be a lack of proportion or some sort of disconnect between their complaints and absolute refusal to have anything to do with their father.

13. I also am troubled by the report from the Independent Children’s Lawyer of her meeting with the boys as recently as on 3 July 2019, where now they do not refer to their father as their father but refer to him by name. That is troubling. When looking at Dr A's February report, the boys are saying that they want to see their father but want to choose when they do so. They are certainly making complaints about their father but they are not rejecting him completely.

14. Throughout these and the other reports, the boys speak about their mother in very positive terms but also disclose, at times, the mother being upset and having some bad times, particularly with respect to dealing with their father. What is of concern is that the boys’ refusal has only become hardened and there has been an escalation in their behaviour. 

15. At page 10 of his February 2019 report, Dr A refers to an incident on 22 November 2018, where he convened a session with the parents where the boys refused to attend. He recorded that he had received a voicemail from [X] saying that they had said all they were going to and that the mother also provided a handwritten statement from [X] where he said that they did not want to see their father and did not want to see Dr A again. He refers to the mother stating that:

    The children and I are happy.  I speak for the children.  I am progressing my life and making good choices for the children.  This has taken a toll on me.  It has been proven that I’m not an alienating parent. Where there are issues, I will go to bat for them.  I am not hindering their relationship with their father.  I am just their mother and listen to them.

16. Dr A expressed concerns about the mother either refusing or being unable to manage to get the children to attend the appointment. The concern there is, is that parents have to get their children to do all manner of things they do not want to do, and they have authority and capacity to do that. That includes going to school when they do not want to go to school and various other things. There is some concern here about the mother not being able to get the children to school in 2018. There is also concern here about whether it is unwillingness or inability to get the children to attend Dr A and see their father. 

17. What is really unfortunate is that it appeared that, prior to that, Dr A had reported having a session with the boys and the father and his partner. They were making some progress at getting to some of the issues between them and identifying some real complaints that the children had made but also some strategies as to how to address those issues. After that, the lack of engagement has meant that it has now been several months since there has been any time between the children and their father. 

18. What is also troubling is that, certainly on the occasion when required to bring the children to see Dr A, she did not, and when required to attend without the children, the children came. The report with respect to that from [X] was indicating that they had to come to protect her and did not want her to go on her own. Dr A expressed being troubled about this and he expressed the opinion that he somewhat disagreed with the view of Dr B and thought his views were more consistent with Ms D with respect to personality issues and boundaries and her psychological functioning being impaired. As I indicated during the course of submissions, the issue for the Court is not labelling the mother; it is not about whether or not there is a psychiatric condition or a personality disorder of the like. But it is clear that there are times when the mother presents in a way that is concerning that indicates an inability to cope, and that it appears that the boys are aware and feel a need to protect their mother and protect her emotionally. 

19. In that report in February, he, in the end, was saying that unless there was the conversation between the boys and their father and their stepmother with further progress being made after that, then serious consideration would need to be given to the children being placed in the father’s full-time care for a period of time without seeing the mother. The report of Dr A of 10 July 2019 is of significant concern when set against this background and against the background of this further intervention with Dr A, really being expressed as a last chance to get the boys’ relationships on track without considering the drastic action that I am being asked to consider today. Dr A quotes extensively from the boys, in that meeting at 20 June 2019 where they were resentful of coming, had a barrage of negative allegations against the father – I note they were still referring to him as “Dad” – and this is where they refer to that, with [X]’s words speaking for the boys:

    The last meeting we didn’t let Mum go without us.  I don’t want Mum to go because of the stress on her.  I’ve told many people many times how I feel.

20. That is really indicating the boys being very aware of the mother’s anxiety and difficulties with coping with this situation and feeling that they need to support her emotionally, which raises concerns for their psychological wellbeing. It is also of some significance that at this meeting where Dr A refers to challenging the boys with respect to their views, and particularly with reality testing those views, that there was a change in their attitude which he saw as a positive step. Then on 24 June 2019 some real progress appeared to have been made in that the boys did meet with Dr A and the father and his partner, and whilst they were wary, they were communicative and the boys were able to, in Dr A’s words:

    For the first time, articulated credibly genuine concerns about a range of issues with respect to the father and his partner.

21. He identified there being a number of areas in particular, which included the father being conflict avoidant, that there had been the boys having perceptions that there was favouritism and that the father’s partner’s daughter was treated more favourably than them and got away with discipline and that there were concerns about the kinds of things that they were doing in the father’s household. It appeared to Dr A that that session had been very productive and he had regarded optimism about the future. 

22. 28 June 2019 was the date when the children were supposed to spend time with the father, with that change or transition from the mother’s care to the father’s care being facilitated by Dr A. What he refers to as having occurred at pages seven to nine of his report is very concerning, and that is with respect to the mother attending late. He heard her shouting for [X] to come back and told him that they had just run off. She ran back out into the street, returning about 10 minutes later out of breath, frantic and only “marginally in control”, saying that the children had run down part of the street and that she would go and get them and bring them back. The mother came back at 10 to four and had pressured speech and rapid breathing, stating that the boys had disappeared and she had called the police, as well as others. She then said that she had had a good lunch with the boys. The boys were good and never disobeyed her but then turned and started shouting abuse at the father. He then sets out an email that he received from the mother that night, indicating that the children had gone into the city and planned to stay late so they would not have to go and that [X] had said, “I will show them how serious we are”. She goes on to say that the boys – “they were both extremely apologetic and very concerned they had caused trouble, but they felt really good”. 

23. The mother went on to acknowledge that it was a very serious situation but said “because I cannot interfere with court orders nor the process in anyway and, therefore, I am unable to help my children with this matter”. Dr A extracts his email in reply, where he highlights his concerns to her of the consequences of this episode and the impact for the children on their relationship with both of their parents and says:

    I must say that I’m deeply by troubled by your unmodified descriptions of both boys as happy and that they felt really good after profoundly disobeying you, placing themselves at risk, making you frantic, distressing their father and stepmother and acting in a manner that must be viewed against the backdrop of substantial court orders.

    I have to say I share that concern. Given this, Dr A refers to, in his opinion, that, first off, he was of the view that it was important to establish whether or not the boys actually attended his office on 28 June 2019 or whether the mother had lied about that and they were not there. I do not share that concern. To me, if anything, it is a distraction to go down that path. The concern, to me, is the boys running off and the mother not being able to get the boys to come and the boys running off into the city and then being at risk. That is the concern.

24. What is of concern is the escalation of this, in the face of looking at what appeared to be some progress being made with the boys and their father. As he highlighted, the issue was now the question of the unacceptable risk. I note that the mother is now legally represented and has filed material, though her solicitor has only come into the matter very recently and has not been in a position to prepare a detailed affidavit in response from the mother and did not have Dr A’s most recent report when preparing that affidavit. 

25. Having noted that, what is of concern is what the mother does not say in that affidavit, noting, as I have indicated before, that – and I know, on the last occasion, I was very blunt with her to really instil with her the seriousness of what I was being asked to do and what might happen on this occasion. In paragraph 6, it refers to the incident of the children running away and staying in the city for a number of hours before they contacted her. She then refers to misreading the orders and not understanding that there was a continuing need for them to attend on Dr A. She does not address the concern of the children taking off for some hours in the city and what strategies she has to deal with that. She simply acknowledges that their behaviour was inappropriate, and she refers to that at paragraph 24, that it was inappropriate and they were apologetic. But that is missing what is a real concern, which is her inability to control the children and the risk to them of taking that sort of action. It is looking at it in combination, or the accumulation of the various concerns. 

26. As the Counsel for the Independent Children’s Lawyer has pointed out, the affidavit then goes on to express negative views of the father and, again, it does not address the issue of her attempts to facilitate the children’s relationship with the father as opposed to simply being not opposing or being obstructive of it. These concerns and the escalation that I have referred to also forms the basis of the concerns about the boys’ alignment with their mother and the escalation of their refusal and rejection of their father in circumstances where what they are complaining of seems disproportionate to rejecting him completely.

27. Turning to the law, I am very mindful that this is an interim application and what I am being asked to do is very drastic. I cannot make any determination of the contested issue of fact, which are significant, but also, as is well-known, and, in this regard, I refer to paragraphs 34 to 38 of the Full Court decision of Stott & Holgar and Anor [2017] FamCAFC 152. I am also obliged to assess the allegations of risk that are raised and not ignore them.

28. What I am obliged to do is to first assess whether or not there is a risk and, as is clear from what I have identified, there are risks. I have identified the risk about allegations of drug use, but, as I made clear earlier that is not the risk that is of concern to me, and that is not a basis for making a change of residence. The very real risks are with respect to the mother’s emotional functioning and capacity to provide for the children’s emotional and psychological wellbeing and the issue of the alignment and the children’s rejection of their father and how that also could damage their long-term emotional and psychological wellbeing.

29. As indicated previously, it is not to say that there is no risk on the father’s side and that there is no risk in what I am being asked to do, because there clearly is. What I am having to do is look at risk and, really, the risk primarily on either side is emotional and psychological harm. The emotional and psychological harm to the children if they remain in their mother’s care if the situation remains as it is and emotional and psychological harm to the children if they are placed in the father’s care.

1. Having established that there is risk, I then have to consider whether or not it is an unacceptable risk. In these cases, even where there has been a trial and the evidence is tested, it is asking the Court to crystal ball gaze, to some extent. In this case, I am not at the stage of having tested the evidence, but I am at a stage where whilst it is an interim hearing, I have considerable collateral information before me that raises real concerns.

2. Turning to the s.60CC factors, and I do not propose to address these in detail, but what is apparent in this case is that of the two primary considerations, it is the second that is of paramount importance in this case. That is the risk to the children, particularly, as I have indicated, with respect to emotional and psychological harm as opposed to the children’s right to maintain a meaningful relationship with both their parents.

3. What is also of very real relevance is with respect to the additional considerations, the children’s views. As pointed out by the mother’s Counsel, these children have been expressing consistent views to a range of people, including Department workers, Dr A, the Independent Children’s Lawyer’s Counsel, the Independent Children’s Lawyer, and consistent views over time. These are children who are 14 and 10, soon to be 11, and it is certainly not something that I do not place serious weight and regard to. But I also refer to the comments of the High Court in the case of Bondelmonte v Bondelmonte [2017] HCA 8 with respect to this, and it is not simply an issue of looking at the children’s age or the strength of their views. It is, as Counsel for the Independent Children’s Lawyer indicated, a need to look behind them as well.

4. I have indicated elsewhere my concerns about a disconnect between what they are saying and what has occurred. It always causes the Court concerns. When children are very positive about one parent and very negative about the other, that is not normal. It is normal for children to make complaints about both parents. They may well have preferences. They are closer to one parent than the other. A parent is more intuitive than the other, different parenting styles, all the like, but there will be a complaint about something. What is occurring here is the opposite to that, and the opposite to that with a real question mark about what is the lived experience that is causing that. 

5. Clearly the boys have a very close relationship with their mother, and, as I have indicated before, the mother has been their primary carer and she clearly is devoted to them and concerned about their welfare. I certainly do not have an impression of someone who is being manipulative and strategically undermining the father’s relationship with the children. That is not what I see presented in the material.

6. It is clear, too, certainly until the difficulties last year, that the children had a good enough relationship with their father to be spending regular time with him. Also, as stressed by the mother’s advocate, the other significant additional factor is the impact of any change in the living arrangements on the boys, and that is something that is very difficult to predict. There is no doubt that if I order the boys to live with their father and not see their mother for a period of time that will be traumatic to the boys and distressing.  It is not a, “it may be”. It will be.

7. The issue becomes what is the risk if I do nothing, if I leave it as it is. One of the real concerns is that if something is not done soon to really try and break this, it is going to be too late, particularly for [X]. He is already 14. So one of the things I have given really serious thought to is, is this a matter where I should give it an expedited hearing rather than making this decision today, rather than making the orders today to reverse residence. Having given this real thought, in my view, that delay does not address the risk that I am most concerned with now, and it may well be that this does not work. However, in my view, in order to balance the risks, and I am satisfied that there is an unacceptable risk of ongoing emotional harm if they remain in their mother’s care, that there needs to be a change of residence. There needs to be a period of time where the children do not see their mother because they need the chance to psychologically adjust to being in their father’s care. That by no means suggests that that is a permanent arrangement, but in the short term, is something that needs to happen. This is very much about looking at what is the least worst alternative, not looking at an optimal situation. This is not optimal, but every less radical chance has been given, and it has not happened.

8. For these reasons, I am going to order that the children come into the father’s care today, and in aid of that, I am going to issue a recovery order. It may be that arrangements can be made to try and have this happen without the intervention of the police, but it may be that that is just not going to be possible. Not through an unwillingness to do that, but I suspect these boys are not going to go willingly and I do not think there is a prospect of getting them to either come here, which is not an option in terms of there is not anyone who can do that either today or tomorrow, but I also do not know that it would be an option to try and get them to Dr A, because that has been tried and failed. So I do not think there is any other option but to make these orders.

9. I am not going to order a family report, because, as I have indicated during discussions, I think that the better course is actually Dr A seeing certainly the parties again, if need be, not necessarily the children. I think that is going to entirely depend on what occurs from here. Then the issue then becomes listing the matter for trial and the timing of that trial, and I would still be of the view that it is not something that should simply wait till June next year, but be somewhat earlier than that, and the question then is when.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 22 August 2019