Wilshaw & Wilshaw (No 3)
[2015] FamCA 843
•9 October 2015
FAMILY COURT OF AUSTRALIA
| WILSHAW & WILSHAW (NO 3) | [2015] FamCA 843 |
| FAMILY LAW – CHILDREN – Best interests of the children – Parental responsibility – With whom the children spend time and communicate with – Where the benefit of the children having a meaningful relationship with both parents and parental capacity are significant issues. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAC. |
| G & C [2006] FamCA 994. |
| APPLICANT: | Mr Wilshaw |
| RESPONDENT: | Ms Wilshaw |
| INDEPENDENT CHILDREN’S LAWYER: | Cathy-Anne Grew |
| FILE NUMBER: | PAC | 3218 | of | 2013 |
| DATE DELIVERED: | 9 October 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 27, 28, 29 and 30 April, 1 May and 1 July 2015 |
REPRESENTATION
| APPLICANT – LITIGANT IN PERSON: | Mr Wilshaw |
| COUNSEL FOR THE RESPONDENT: | Mr Friedlander |
| SOLICITOR FOR THE RESPONDENT: | Catalyst Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Greenaway |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cathy-Anne Grew, Matthews Folbigg Pty Ltd |
Orders
All previous Orders in respect of D born … 1999, E born … 2001 and F born … 2007 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The mother shall forward to the father the following:
(a)Copies of school reports and certificate of achievement within seven days of release
(b)Notice of any admission of any of the children to hospital and/or any serious medical event within 48 hours of same.
(c)Notice of any change of residence at least seven days beforehand.
The father is restrained from contacting D other than in accordance with these orders and/or spending time with her unless he is invited to so by D and to facilitate this order:
(a)The mother shall ensure that D has an email address and a telephone number for the father and
(b)The mother shall use her best endeavours to facilitate any time that D arranges to spend with the father.
The father is restrained from contacting E other than in accordance with these orders and/or spending time with him unless he is invited to so by E and to facilitate this order:
(a)The mother shall ensure that E has an email address and a telephone number for the father and
(b)The mother shall use her best endeavours to facilitate any time that E arranges to spend with the father.
The father is restrained from contacting F other than in accordance with these orders except:
(a) To participate in any family therapy
(b) As the parties may agree in writing
(c)Unless it is contraindicated by F’s treating psychologist on four occasions in each calendar year at a time nominated by the Coordinator of the Region G Contact Service and the parties equally shall share any fee payable for that service. The parties are to take all steps required to facilitate their engagement of the contact service for the purposes of the father’s time with F.
The father is at liberty to forward to the children cards, gifts and letters on their birthdays, Christmas and other special occasions and the mother may review any written communication forwarded to F. In the event any such communication contains any denigration of the mother and/or reference to the court proceedings then the mother is at liberty to withhold that communication. The mother shall not otherwise unreasonably withhold the cards and letters from the father to the children.
The father shall continue to attend upon his psychologist Dr J for so long as Dr J regards that attendance as appropriate and shall comply with her treatment recommendations.
The mother shall use her best endeavours to facilitate D continuing any treatment recommended by her psychologist Ms K.
The mother shall ensure that F attends upon her psychologist Ms L and complies with any treatment recommended by F’s psychologist.
Provided the father’s psychologist confirms that family therapy assessment is not contraindicated for him, then as soon as practicable each of the parties shall contact Dr M (I Clinic) and do all acts and things necessary to participate in and complete and assessment for family therapy with Dr M.
Following the mother’s assessment for family therapy and the father’s assessment for family therapy and in the event that Dr M so recommends then:
(a)In the event that participation in an assessment for family therapy is not contraindicated by D’s treating psychologist the mother shall encourage D to attend an assessment for family therapy.
(b)The mother shall encourage E to attend an assessment for family therapy.
(c)In the event that participation in an assessment for family therapy is not contraindicated by F’s treating psychologist then the mother shall facilitate F’s attendance at an assessment for family therapy.
(d) Each of the parties shall participate in the recommended therapy.
(e) The parties shall each pay:
(i)For one half of any session which any of the children attend
(ii)For the whole of any session that party attends independently of the children
The family therapy referred to in Orders 12 and 13 above shall be confidential and no subpoena for the records relating to same will be issued without the leave of this Court.
In the event that Dr M is unwilling or unable to provide the assessment for family therapy then the parties shall jointly approach Court Expert Dr B through the Independent Children’s Lawyer to seek Dr B’s recommendation for another therapist and the parties shall retain that person to conduct the family therapy assessment.
The mother shall ensure that F communicates by telephone with her paternal grandmother and paternal grandfather on the first Sunday of each month (or other agreed day) at approximately 7pm and at any other reasonable time that F expresses a wish to do so.
The mother shall ensure that D and E have telephone contact details for the paternal grandmother and paternal grandfather and the mother shall encourage D and E to communicate with their paternal grandparents.
It is noted that the paternal grandmother has given this Court her undertaking that in the event D and/or E and/or F provide her with their contact details she will not disclose those details to the father or to any other person without the specific written permission of the relevant child.
For the purpose of facilitating Order 15 the appointment of the Independent Children’s Lawyer shall be extended for 12 months.
All outstanding applications are dismissed other than any application as to costs.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilshaw & Wilshaw (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3218 of 2013
| Mr Wilshaw |
Applicant
And
| Ms Wilshaw |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for three of the parties’ four children following the breakdown of their 16 year marriage. Originally the hearing also related to property matters, upon which the parties could not reach agreement, but those issues have been subsequently resolved and the parties seek that I make consent orders in relation to property. The parents have not however been able to reach agreement in relation to the future parenting of their children.
There is no dispute that D, who is 16, E who is 14 and F, who is eight (“the children”) should continue to live with their mother and elder sister Ms C who is now 19. There is also no dispute that the relationship between the children and their father is significantly fractured, as they have not spent any time together for some years.
The father proposes that he and the mother share parental responsibility for the children and seeks orders in respect of his time with E and F, as well as specific orders about the family participating in family therapy, communication and other matters.
The mother’s proposal is that she have sole parental responsibility for the children.
The Independent Children’s Lawyer (“ICL”) supports the mother’s position with respect to parental responsibility and makes specific proposals about the family participating in family therapy which are agreed to by the mother. The question for me to determine is which proposal is in the best interests of the children.
Background
The parents are both 46 years old. They met when they were in their 20s and married in 1994. They did not live together prior to their marriage. Their oldest child Ms C who is now 19, was born in 1996.
Ms Wilshaw (“the mother”) is a trained professional and the father Mr Wilshaw (“the father”) has generally worked in marketing or has run his own business.
In around 1998 the parties moved to the Region G where they purchased a block of land and built a home. It was agreed between them that the mother would resign from her teaching position. The marriage was a traditional one, in that the parents agreed that the father would be employed outside the home, while the mother would be responsible for activities associated with the home and raising of children. The parents are committed Christians and were active members of their local church during their marriage.
The family moved into their new home on the Region G in October 1998.
A second daughter, D, who is now 16, was born in 1999.
The parties’ third child, E who is now 14, was born in 2001.
In about 2002, when Ms C reached school age, by agreement between the parents she was “home-schooled” by her mother who was appropriately registered through the Department of Education, Board of Studies for this form of education. All the other children were also educated by being “home-schooled” by the mother. Although the father agreed to this form of education during the marriage he subsequently changed his attitude to it and sought orders at the commencement of the hearing that the children be enrolled in mainstream public schools. The issue of home-schooling is dealt with later in these reasons.
A fourth child F, who is now eight, was born in 2007. According to the mother from around the time F was born the relationship between the father and herself, and the father and the children began to deteriorate.
At some time during 2009 the mother disclosed to the father that she had experienced sexual abuse as a child. Apparently this issue had some lasting impact on the mother in relation to intimacy. The mother sought therapeutic assistance in relation to this abuse.
On 30 June 2010 the parents separated and the father moved out of the family home. They have not subsequently divorced. The children at all times have remained living with the mother in the family home.
The father has subsequently re-partnered with Ms N. The father lives with Ms N and her teenage children, O and P in the Region H.
Initially the father spent regular time with the children in accordance with an agreement he reached with the mother.
On 26 April 2011 there was an incident in the course of the children’s changeover from the father to the mother. The mother contends that the incident had a significant impact upon D and her views about spending time with her father. The circumstances of this incident are a matter of dispute and are dealt with later in these reasons. As a result of the incident an Apprehended Violence Order (AVO) was made for the protection of the mother and children against the father. Subsequently that order was revoked on appeal, as the mother agreed to accept undertakings from the father.
In mid-2011 Ms C, who was then 15, decided to cease communicating with or spending time with the father.
D ceased spending time with or communicating with the father in around August or September 2012 when she was 14.
At some time in 2013, F who was then five stopped spending time with her father. According to the father F last spent time with him in March 2013.
The father commenced these proceedings on 30 July 2013, seeking orders that he have sole parental responsibility for the children, that the children live with him and spend supervised time with the mother.
It appears that E’s time with his father was still reasonably regular until about September 2013. After this stage it appears to have been arranged between the two of them, and generally occurred in accordance with E’s wishes.
Each of the children is well aware of the proceedings between the parents and each are seeing or have seen psychologists or therapists to deal with their own psychological issues related to the breakdown of their parents’ relationship and these proceedings.
The parties and the children other than D (who was unwell) participated in the Child Responsive Program at this Court and were interviewed separately and together by a family consultant in December 2013 and January 2014. The family consultant recommended that a Chapter 15 Expert child and family psychiatrist be appointed in the matter. The family consultant also suggested that F, at least initially, could spend some time with her father at a contact centre to assist with her resuming to spend time with him on a more regular basis. So far as E was concerned, the family consultant suggested that an order could be made for the father to spend designated time with him, but that E should have the ability to not attend these times if he was not feeling safe to do so.
On 17 March 2014 I made interim parenting orders with a view to assisting F to rekindle her relationship with the father. Under those orders the parents were to complete the intake procedure at a children’s contact centre. In the event agreement was reached or orders made about the father spending time with F at a centre the parties would be in a position to have that proceed immediately. The mother complied with the intake procedures, but the father was not willing to complete the intake procedures for supervised contact at the centre to proceed.
In June 2014 E last spent time with his father.
Dr B, a child, adolescent and family psychiatrist was appointed as the single expert. Dr B had interviews with the parents and each of the children in July 2014. Her report was released in September 2014.
Dr B recommended that the family receive therapeutic intervention and that the father spend time with the children in the course of that family therapy.
On 9 October 2014 after the release of Dr B’s report, the parties participated in the first day of the less adversarial trial. All parties agreed that it was in the best interests of the children for family therapy to begin to address the estrangement between the father, and the children and orders were made with the consent of the parties for this to occur. The ICL was to facilitate these arrangements.
For the reasons given in my judgments dated 27 April[1] and 8 May 2015[2] the family therapy did not occur. Those Reasons for Judgment are to be I with this judgment.
[1]Wilshaw & Wilshaw [2015] FamCA 339.
[2] Wilshaw & Wilshaw(No. 2) [2015] FamCA 343.
It suffices to say that by February 2015, when the matter was again before the Court, the father no longer agreed to the arrangements which had been made with respect to the therapy pursuant to the October 2014 orders. He had concerns about a range of matters, including an alleged association between Dr B and the nominated therapist and the cost of the therapy, and he also proposed an alternate therapist.
In an Application in the Case, which was heard on 30 March 2015, the father sought to adjourn the hearing which was listed to commence on 27 April for six to 12 months to enable family therapy to occur and for his nominated therapist to be appointed to commence the family therapy as soon as possible. For the reasons given in my judgment of 8 May 2015 that application was dismissed and the matter proceeded to hearing.
As at the date of the proceedings, none of the children had seen the father since Dr B’s assessment and only E had spoken to him.
The Areas of Dispute
Home schooling
Although the parents agreed during the marriage that the children would be educated at home by the mother, the father subsequently changed his mind. He proposed throughout the hearing up until final submissions that the children be educated within the mainstream schooling system outside the home and sought orders that the children be enrolled in a public school in specified year classes.
As is discussed later, generally it is the mother’s case that the father’s attitude towards a number of issues relating to parenting, and his behaviour in the course of various incidents since separation, has caused the children to feel concerned about him and to choose to disengage from spending time with and communicating with him. Home-schooling is a significant issue in this regard.
The mother says that the father threatened to terminate the children’s home schooling from around the time of separation, and the impact upon the children of that threat is significant to the breakdown of his relationship with them. It is also the mother’s case that the father has withheld or threatened to withhold his consent that is required for the children to continue to be home-schooled as a form of maintaining his control over her and the children. This issue forms one of the bases for the mother seeking sole parental responsibility.
It is the father’s case that although he agreed to home-school the children during the marriage, he changed his mind in relation to the matter from at least the time of separation. He has a range of objections to home-schooling, including the quality of education, the mother’s qualifications and the influence of other parents involved in the home-schooling community. The father is also of the view that home-schooling does not “work for” the children, as due to the animosity between himself and the mother, the mother does not share information with him in relation to the children’s progress, which he regards as essential.
So far as I understand it, the father denies that the disagreement over home-schooling plays a significant part in the deterioration of his relationship with the children as contended by the mother, and says that he has not withheld his consent to home-schooling as a method of controlling the mother or the children. As I understand it, he contends for a range of reasons it is in the best interests of the children for them to be educated through the mainstream schooling system rather than at home.
The factual issue for me to determine is whether the father has threatened or actually withheld his consent to the mother continuing to home-school the children, and whether his conduct has affected the relationship between him and the children as alleged.
Shortly after the parents’ separation at the end of June 2010 the mother contends that the father began utilising the issue of home-schooling in the parents’ post-separation dispute. The mother relates a number of specific incidents where the father made threats to her or directly to the children that they would be required to attend mainstream school. The first such instance the mother says occurred on 3 December 2010, when the father said to her that if Ms C wouldn’t spend time with him over Christmas “this means she has an unhealthy relationship with me and will have to go to school”.
The mother says that in February 2011 the father left a voicemail message on her phone to the following effect “if you change your email address I will see that as a hostile act and I will put the kids into school immediately.” A couple of weeks later the mother says she informed the children that the family’s internet account had been reconnected in her sole name. She says that both D and E became particularly agitated when told this and each of them said to her “Dad’s going to send us to school if you do that”. The mother said that she was shocked by these responses as she had not spoken to them about the father’s threats to send the children to school previously. It appears that she inferred that the father had made direct threats to the children that he would send them to school.
In late March 2011 the mother says after an occasion on which the father spent a short time with the children, each of the children said “Dad says you are forcing him to go to court and the court will definitely make us go to school”. In another instance on 3 April 2011, after spending the day with the father, each of the children returned distressed. The mother says that Ms C told that her that “Dad spend all day swearing at us and telling us we were going to school” and E said “Dad didn’t even look at our reports he just spent the whole day telling us that we were going to school.” On 11 April 2011 following time with the father, the mother says “E was distressed saying “Dad kept singing God loves kids who go to school. We kept singing God loves home-schooled kids.”
The father, as I understand it, denies making such threats to the children. He indicates in his affidavit that there were occasions [apparently during the course of the marriage] where he did “suggest putting the children in school” but he says that as the mother’s reaction was angry and defensive he did not push the issue. He also appears to suggest that in around February 2011, (around the time the mother alleges that he was threatening to send the children to mainstream school) the mother may have been reconsidering the issue herself, as at that time a meeting was booked with the principal of a Steiner School which did not ultimately go ahead.
The parts of the father’s affidavit that deal with home schooling generally relate to his objections to it as a form of education, rather than specifically address his discussions with the mother and the children around the topic. However, the affidavit is discursive and the evidence of his discussions and actions is intermingled with his views relating to home-schooling generally. By necessity, an analysis of his evidence includes a consideration of his general position in relation to the issue.
One of the father’s primary objections to home-schooling, which is relevant to the issue of parental responsibility, is that home-schooling is an unworkable form of education for the children when the parents’ views on it are so disparate and the communication between them is so poor. In his affidavit the father says that the mother does not want him to enter the school where the children are schooled (that is the former family home) and complains she has gone to extraordinary lengths to prevent him from doing so.
So far as the issue of home-schooling and communication is concerned, the father sets out, in detail, numerous events associated with the children’s home-schooling from which he has been excluded, which he appears to suggest demonstrates the unworkability of this form of education. The first of such events occurred in December 2011 when the children participated in an annual home-school presentation where children from the local area “showcase their work over the year and receive certificates”. The father says that he made enquiries with another parent associated with the home-school community about the location and details of this annual presentation but the parent in question told him that he needed to discuss his attendance at the event with the children’s mother. It appears that the father understood it was alleged that the children may find his presence uncomfortable. The father describes this reaction from the other parent as being “biased against him”, and the suggestion that he discuss the matter with the mother due to some discomfort the children had experienced is indicative of the mother’s “influence”.
The father makes other complaints of not being informed about the dates and times of various performances associated with home-schooled children on the Region G, and says in respect of some of the performances since August 2011 that when he has attended he has felt “emotionally unsafe and quite unwelcome”.
In his affidavit the father says that he attended one such event in May 2012 at which D was singing, and outlines concerns that he says he had about D’s singing technique. For the purpose, as I understand it, of demonstrating the poor communication between himself and the mother he gives extensive details of text and email communication between the two of them regarding his views about D’s voice and the voice instruction she was receiving. This email interchange began at 7:21 on the morning following the performance when the father sent a message to the mother which included the following words: “when is the choir rehearsal? I would like to talk to the person who organises this. I am concerned that D is developing some unhelpful vocal habits.” The mother provided the details for the choir practice in a message a short time later and the father then asked for the contact number for the relevant person. The parents then engaged in sending many messages to one another concerning D’s voice lessons. In some of the messages sent by the father to the mother the following words were included:
Why won’t you give me [the teacher’s] number? As [D’s] father I have a right to be able to communicate directly with her teacher/s
Why wouldn’t u simply forward her reply? So I can’t contact her no doubt… you want to restrict & control my contact & communication with the children’s teachers. I will pass this, along with my many other concerns about you teaching the children to the Dept of Ed.
Your lack of cooperation & controlling nature r making things much more difficult than they need to be.
In his affidavit the father describes this episode as “yet another example of [the mother] wanting to restrict & control the information flow regarding the children & their education” which he says means that it is not possible for home-schooling to continue.
In relation to home-schooling generally the father has a wide range of complaints. First, it seems that he is concerned about the content of the curriculum. In his affidavit he says:
I would like to see the children get taught the three R’s & other subjects by qualified male & female teachers who are different from social, political & religious backgrounds to the mother & myself. They will encounter people like this in adult life & I don’t want them to be intimidated, ignorant or intolerant to other nationalities nor their worldviews.
The father also says that he would like the children to be externally assessed through NAPLAN testing and the like. He is also concerned that the children should receive a broader Arts education and that E should participate in representative and competitive sport which he says is not available through home-schooling.
The father also expresses concern in his affidavit about the children spending a significant amount of time with families in the home-schooling network and describes this relationship as “dependent”, “unhealthy” and “strongly biased towards the mother & her views”. The father further expresses concerns about the adequacy of the Department of Education’s assessment of his children’s progress and the children’s lack of access to resources available through the mainstream school system such as “science lab, hobby farm, computer IT department, textile and design, home science, woodwork, metalwork, sports ground and equipment etc.”
From around 2013 the father began making complaints about the mother’s teaching capacity to the Board of Studies at the Department of Education. In February 2013 he sent two emails to the Board of Studies detailing complaints he has about the children’s home-schooling and D and Ms C’s “acceleration”. In particular, the father wrote the he was concerned that D had “skipped Year 9” and was completing year 10 instead and that Ms C was completing a University Entrance Course designed for 17-20 year olds when she was 16. The Board of Studies responded in April 2013 that they were only able to pursue a line of inquiry if written permission was given by the person raising the concern to reveal his identity to the home-schooling parent, which the father declined to give.
Under cross-examination by the mother’s counsel, the father agreed that the children would be upset if they were told that they could no longer be home-schooled as their father did not agree to it. He further agreed that this could negatively affect the children’s view of him but refused to reconsider his opposition. He maintained that it was a “child safety issue”. Under cross-examination by counsel for the ICL, the father rejected the proposition that the issue of home-schooling had contributed to the breakdown of his relationship with the children.
The father said under cross-examination that he was still opposed to the children being home-schooled and if he were required to sign a document in order for home-schooling to continue, he would not so.
The children’s views in relation to home-schooling were confirmed in their interview with the expert psychiatrist, Dr B. F told Dr B that she would not like to go to school because she would get bullied there. E told Dr B that his father expects the children to go to school even though they do not want to and that his father thought that home-schooling was “stupid” and that they didn’t learn through it.
The father told Dr B that home-schooling was “a matter of strong debate” during and after the marriage. Dr B also wrote:
He asserted [the mother] has been motivated to “cocoon and control” the children at home, resulting in them thinking “she’s wonderful, I’m this villain”. He added they vilify him to keep the status quo, she has used them to get the outcome she wants and has denounced traditional school, “they’re terrified of it”.
Dr B’s opinion in relation to the alleged threat by the father is as follows:
All the children and their mother would be significantly threatened by [Mr Wilshaw’s] wish for the children to live with him [which was also then part of his proposal] and to attend regular schools.
Dr B expanded upon this issue in her cross-examination by the father when considering the children’s personal experiences with him. She said:
The other thing I refer to above is – so I’m talking about the children’s personal experience with you. And I find – found that the children’s personal experiences with you haven’t always been as they should be. The other [factor] I looked and refer to is…– is the threat raised by your wish for the children to live with you and to attend regular schools. So that is a threat to them because it means they have to be separated from their mother who is their primary attachment figure. Removed from a community that they’re familiar with. Move to regular schools, which they’ve never had an experience, so you’re sort of offering them a huge new – new world that’s totally foreign to them. So that’s also going to make them think, “I’m – I’m not going near him.”
In her recommendations the expert also had a strong opinion about the nexus between the father’s lack of support for the mother in the home-schooling of the children and parental responsibility. She recommended that the mother have sole parental responsibility for the children if the father cannot support her ongoing home-schooling of the children.
Discussion and findings concerning home-schooling
It is difficult to assess the father’s evidence in relation to home-schooling as his affidavit is discursive and more akin to submission. However, I am satisfied that from a point in time shortly after the parents’ separation in June 2010 the father did have communications with the children and the mother, with other parents in the home-schooling community and ultimately with the Board of Studies in which he made it very clear that he did not support the children continuing in home-schooling.
I am also satisfied that, regardless of whether it was misconceived, the father formed the view that the mother’s persistence with wishing to educate the children at home was an example of her coercive and controlling behaviour and that the children’s desire to continue with home schooling was not an example of their own satisfaction with it, but of the influence of the mother.
Of relevance to the issue of the breakdown of the children’s relationship with their father, I am further satisfied that the father did indicate to the older children directly that he would attempt to discontinue their home-schooling and place them in mainstream education. I am also satisfied that the children were significantly distressed by his statements to this effect, and that the statements and his actions in attempting to change the children’s schooling arrangement has had a negative impact on the children’s relationship with him.
I am satisfied of these matters for a number of reasons. First, I attach significant weight to the father’s own version of events and transcript of emails and messages between him and the children and him and other family members. Further, the father did not challenge the mother’s evidence about Ms C, D and E reporting discussions with him about “sending [them] to school” or telling them that “the court will definitely make [them] go to school” from as early as March 2011. These conversations are also consistent with the plethora of uncontradicted evidence that the father discussed his views on various matters of dispute between the parents with the children from a very early stage following the separation. The conversations are also consistent with the father’s view that home-schooling was unworkable and his attempts to have the mother’s position changed on this matter. They are also consistent with the father’s evidence that at this stage he had changed his own mind about the merits of home-schooling and his later attempts by various means including complaints to the Department of Education to question the mother’s capacity as a home-school educator.
The deterioration of the father’s relationship with the children
Although both parents make complaints about the mental state and behaviour of the other parent during the marriage, each concedes that for a few months following separation the parental relationship was reasonably amicable and the children spent regular time with their father which appears to have generally been satisfactory.
For the reasons given I am satisfied that the parents’ dispute about home-schooling, the threats made by the father to require the children to attend school and his communication of these threats was the first specific issue that lead to the breakdown of the children’s relationship with him.
It is the mother’s case that the father’s behaviour in the course of various incidents since separation and the father’s style of communication with the children also caused them to feel concerned about him and to choose to disengage from spending time with and communicating with him. It is the mother’s position that each of the children’s fragile emotional state is a result of the father’s behaviour while the father contends that the children’s psychological state has been caused by the mother’s behaviour and the damage she has done to the relationship between him and the children.
It is the father’s case that the children’s relationship with him has deteriorated due to “family violence” perpetrated by the mother. As previously discussed, he regards the mother’s stance about home-schooling as an example of her coercion and control and maintains that her stance since (at least) separation on other issues is coercive and controlling. He alleges that the mother has influenced the children and interfered in their relationship with him.
The father, unlike the mother, does not focus on specific incidents which lead to the breakdown of the children’s relationship with him. Rather, he maintains that he had a close and meaningful relationship with each of the children following separation and asks the Court to infer that those relationships have been damaged over time by the actions of the mother.
D
The father contends that he had a close and meaningful relationship with D for at least 12 months following separation (that is at least until mid-2011). As evidence of this relationship the father annexes a number of Facebook communications and text messages between he and D. So far as the Facebook entries are concerned, it is not clear when they were made though there is handwriting on the printout (presumably made by the father) indicating that those communications were made particular dates. The father was not cross-examined about the dates he ascribes to them so I assume the mother does not take issue with them.
It is to be remembered that from around February 2011 the father was making statements concerning an end to home-schooling. The mother contends that an incident on 26 April 2011 had a significant impact upon D and her views about spending time with her father. In her affidavit she says that on that date in the course of the children’s changeover from the father to the mother [at Bunnings hardware store] the father swung his fist at her and threw a number of punches towards her although he did not make contact. As a result of the incident an application for an Apprehended Domestic Violence Order (ADVO) was made by police for the protection of the mother and children against the father.
On 1 August 2011 a final ADVO was made in a Local Court for 12 months for the protection of the mother against the father. The father then appealed against that decision and the appeal was heard in December 2011. The mother says that the time leading up to the ADVO hearing was distressing for the children. She says that she did not initiate conversations with them about the ADVO application or the court proceedings but that the father did so. For example, she annexes an (undated) private message conversation from Facebook between the father and D in which the father wrote:
[D], it saddens that me that you chose to not come out to see me today as you were watching a DVD and didn’t want to speak to me. Very disrespectful. I travel over 2 hours each way to see you guys & this is how you treat me?? I buy you lovely clothes etc. & take you places & this is how you respond? I understand that you didn’t want to speak to me about the court case. I wasn’t going to say anything about the case to you guys but [E] told me that Mum told you all she “won”. So is it okay to have a conversation with Mum about it but not me?
The truth is, there were no winners in court [D]. It cost me (& you [Ms C] [E] and [F]) over $7000 (yes that right) to go to court to defend myself against the AVO. It cost Mum nothing!...
Re the hardware store thing I apologised to Mum in writing & to you guys on the day remember?
And today you couldn’t be bothered to say hello to me.
What do you (sic) Jesus would have you do?
The mother dates the further deterioration in the relationship between the father and D from the beginning of 2012.
The father maintains that he continued to have a close and meaningful relationship with D and attaches further Facebook and text message communication as evidence of this relationship. These include a series of Facebook messages and text messages between himself and D which he says were sent in February 2012. In one such message D apologises for “the things that I said yesterday” and tells the father that she loves him and in another D says “Mum has already left. She didn’t want me to come but I wanted to but that’s not my fault… because I wanted to see you”. In another dated 2 March 2012 D says “I’m so excited that I get so see you this weekend”. The father does not annex any positive communication between himself and D after March 2012.
On Sunday 18 March 2012 D was baptized. The mother says that by this stage the father had had a falling out with the church leadership and had been asked not to attend usual services but was given an exemption to attend the baptism. However, the mother says that D was adamant that she did not want the father there and his attendance caused particular strain on the relationship with him. Although the father does not given an account of this event in his affidavit, the mother annexes a document to her affidavit which had been attached to an affidavit previously filed by the father. That document is a series of diary entries made by the father which include the following:
11/3/12 1:54pm
I sent [D] an IMSG asking if I would see her next Sunday. She said she had plans but would see me the following weekend. I asked her what she was up to next weekend.
12/3/12 6:45pm
[D] replied that she was getting baptised. She didn’t want [the mother] and I both there as she said that would be “too stressful”. I asked if [the mother] was going. She said yes. I said that we would both be there for her. She then said that it would cause trouble as the church wouldn’t want me there. I said I don’t think that’s the case. I was very hurt by this.
I only found out about [D’s] baptism by accident. If I hadn’t asked her about what she was doing next weekend I would not have found out at all.
In the annexure the father then outlines a number of steps he took and conversations he had (apparently with people associated with the church) in relation to his attendance at the baptism. The father’s diary entry in relation to the date of the baptism is as follows:
18/3/12 10:30am
I drove to the coast to see [E] & [F]. I wasn’t sure if [D] was going to come with me. At 12:27pm I received a txt from [Ms Wilshaw’s] phone. The MSG read:
“I’m staying with Mum today. From [D]”
[D’s] baptism was at 3:00pm
[E], [F] and I were all keen to go despite me not being invited. Mum, Dad and [Ms Q] [the father’s family members] were also not invited. It was so hurtful. I sat on the front boulders at [the church] and filmed the baptism ceremony. [E] & [F] were with me though [F] went backwards and forwards between [Ms Wilshaw] and I. I said hi to [D] as she walked past.
After the ceremony I walked up to [D], gave her a hug and congratulated her. I then saw [Ms C] about to cross the road to the park. I went up to say hi. I gave her hug. She said I heard you lost [F]. I said no, [E] went to get her while I was filming. [Ms C] has such a negative view towards me it’s so sad. She looked like she was keen to go be with her friends so I said it was good to see her. She said bye and went to join her friends. I noticed that [Ms Wilshaw’s] father was approx. 4-5m listening to our conversation.
The father says that the last occasion on which he spent “meaningful time” with D (and it appears that it was the last occasion he spent any time with her) was on a picnic on 12 August 2012 with E and F.
The father also annexes some of his diary entries to his affidavit. His diary entry of 12 August 2012 includes:
I drove up to see the kids today. I was surprised to see [D] to see outside Coles [R Town] with [E] & [F]! She didn’t want to stay all afternoon but at least she came for around 1.5 hours. We went & had a picnic/playground at [S Town]…[D] wanted to go home as she had “things to do” so I dropped her at [T Town] station so she could catch the train home.
The father does not give an account of any time with D in 2012 in his affidavit other than the picnic on 12 August. He does however annex to his affidavit a text message interchange between himself and D on 25 August 2013 as follows:
Father: Not an hour goes by that I don’t think about & wonder what you are doing…I love you with all my heart Dad xxxooo
D: Please stop messaging me you can do whatever you want to do with your life. I am no longer going to be part of it anymore.
On 26 August 2012 the father spent time with F only. His diary entry for that day includes the following:
As we were walking into [R Town] Fair [a shopping centre] I saw [Ms Wilshaw] again this time with [D]. [F] saw them too. As soon as they saw us they ran back into the Fair and hid from [F] & I. I saw [D] run into a clothing store and hide into a change room. I wanted to say to say hi to her but she wouldn’t come out. It was very strange and upsetting. I sent her a sms.
[D] texted back that she didn’t want to see me & she wasn’t coming with me today.
The day was disintegrating into a nightmare for me…
The last telephone conversation between the father and D referred to in the mother’s affidavit occurred on 8 September 2012. Following it the mother said D flopped on the lounge looking distressed [and said] “he’s so emotionally exhausting.”
The mother described a conversation she had with D on 16 October 2012 as of most concern. She said that on that occasion D said “About 12 months ago, after dad left, I tried to commit suicide by cutting my wrist with a rusty razor. I also tried to get drunk but it just tasted awful. He’s replaced me; I’m not his little girl anymore. [O] (his new partner’s daughter) is, I just wanted to die.”
In July 2014 when D saw the court-appointed expert she was adamant she did not want anything to do with her father.
In August 2014 D began receiving treatment from a psychologist for moderate stress and reactive anxiety at the prospect of participating in family therapy with the father.
E
The mother seems to date difficulties in E’s relationship with his father from about August 2011. She says that there was an incident on 27 August 2011when both she and the father attended E’s soccer game. She says that after the game the father asked E to come with him to get something to eat, to which E replied “No, I’m going with mum”. She says the father followed her and E to her car, “crying and pleading to [E]”. The father then walked to the front of the car and began shaking the bull bar, then walked around the passenger door to lean into the car, crying hysterically and pleading with E. After the father stepped away, the door was closed and the mother drove away with E. When cross-examined about the incident the mother maintained that E had made the decision to leave with her independent of influence from her.
Although the father did not give an account of this incident in his affidavit he was cross-examined about it. He rejected the proposition that E had said that he didn’t want to spend time with him, that he had been angry or agitated, had spoken in a loud voice or that he had shaken the bull bar. The father did however state that he had stood in front of the vehicle for the purpose of preventing it being driven.
It is not in dispute however that E persisted in seeing his father even after his two older sisters had disengaged from him. In E’s own words to the Chapter 15 Expert he “tried [his] best to have a good relationship” with his father.
On 5 December 2012, when E was 11 there was an incident in the course of a “Facetime” conversation with the father relating to arrangements for the upcoming Christmas period in which E told his father he did not want to be used as a “go-between”. In that conversation the mother says the father told E “[a]s head of this family under God I tell you to take a stand against your mother, unless you guys stand against her you may not see me this Christmas. The father is the head of the family…subordinate…”.
Further communication at around this time included the following text messages sent between the father and E:
10 December 2012
Father: Okay I understand that you are not speaking to me…and my crime? Wanting you to ask your mother when I could see you during the holidays because she wouldn’t tell me. I get punished for wanting to see you all. Just dreadful
14 December 2012
E: If I come with you this Saturday I do not want you to talk about the following
·The past messages you have sent during the week
·School
·Mum
·Court
·[Ms C] and [D]
·Money
·I want to come to spend time with you and not talk about these things.
Father: I will not be blackmailed by my own son. You should be ashamed of yourself. With the exception of [F] my children, my children treat me worse than a dog. You would never say these things to your mother.
[E]: It’s not blackmailing it’s boundaries. I would appreciate it if you would respect them.
Father: I know that’s not you [E] you don’t speak that way
[E]: It is me
Father: I have boundaries too & it’s simply disrespectful behaviour whoever you are. I will address this with Mum.
The mother described the text message interchange between E and his father as “a defining moment” and said that since this time E did not regularly spend time with his father but seemed to spend such time with him that E was able to cope with.
Throughout 2013 and 2014 it appears that the mother left it to E to negotiate with the father about the time they would spend together. She describes numerous incidents where E became greatly distressed at the prospect of seeing his father. The signs of his distress include E curling up in the foetal position, threatening self-harm or threatening to harm the father.
E last spent time with his father in June 2014. He told the Chapter 15 expert in July 2014 that his father was abusive and he currently did not want to spend time with him.
F
F was not quite three when the parents separated. She spent time with her father along with her other siblings from the time of separation. The father continued to spend time with F after Ms C ceased spending time with him in mid-2011and D did the same from September 2012. The father says that F last spent time with him in March 2013 and the mother does not appear to challenge this assertion.
On 17 May 2013 there was an event that occurred in relation to Ms C that is indicative of the father’s manner of relating to his children and is of relevance to the other three children. Although the father does not refer to this incident in his affidavit he was cross-examined upon it and his diary entries in relation to it which were contained in an earlier affidavit.
On that date Ms C was in hospital recovering from an appendectomy. The father’s diary entry described that when he arrived at the hospital Ms C was in bed watching television with her boyfriend sitting next to her and D was also present. The father described some initial conversation and some of his initial feelings and then wrote:
[Ms C] turned away from me towards her boyfriend & was holding his hand. I had never actually met him before, [Ms C] hadn’t introduced us. I felt a bit uncomfortable (like the fifth wheel) and had to keep telling myself to “suck it up” as this is about [Ms C] not me…
It didn’t seem very long before [Ms Wilshaw] [the mother] walked into the room. I guess [D] told her I was there. [Ms Wilshaw] sat at the chair at the end of the bed. I noticed that [Ms C] was looking at her and they were exchanging facial expressions. It was like a secret communication game they were playing that they thought I wouldn’t notice or understand. I pretended I didn’t see what they were doing.
The father went on to say that shortly thereafter there was a nursing shift change and the afternoon nurse came into the room and told Ms C that she needed to get out of bed and move around a bit as it would help with her recovery. He then wrote:
[Ms C] had a look of displeasure on her face; she expressed something about how much it hurts just changing position in bed. [Nurse U] said that’s normal but getting moving will her (sic) drain the fluids in her abdomen and speed up the healing process. He then left
A few minutes later [Ms C’s] boyfriend said to her that he had to go to work but would be back tomorrow. They hugged & kissed. I said I would walk him out & left with him. I wanted to meet and chat with the guy who’s dating my daughter.
I said “we haven’t met I’m [Mr Wilshaw], [Ms C’s] dad”. He say (sic) a nervous ‘Hi’ but didn’t say who he was! I had heard [E] mention him but for the life of me I couldn’t remember his name. I asked him. He said his name was [Mr V].
I said, “[Mr V], [Ms C] is going to go thru (sic) a tough time emotionally very soon. Her mother & I are going to court. She is going to need a lot of support to help her through it. I’m hoping you can help with that.” He said words to the effect: ‘I don’t really know what to say’.
I said “there are going to be some changes for them, I don’t know whether you have noticed but they are not ok….” I continued… “I know you would have heard a lot of bad stuff about me, but I’m not the person that I have been made out to be.” [Mr V] didn’t counter this point to say it wasn’t true.
He looked uncomfortable, he said “look I’m just here for [Ms C] ok, I need to go to work.”
I said, “yeah no worries, I would really like to catch up with you though ok, its important.” He said “yeah…ok, I’m pretty busy though, I don’t know when.”
By this stage we had walked the length of the ward to the exit door. [Ms C’s] room (#7) was at the furthest point from this exit. I could see out of the corner of my eye that two people were walking towards us. I looked around & saw [Ms C] leaning on [Ms Wilshaw] & walking in our direction with a grimaced look on her face.
When [Ms C] & [Ms Wilshaw] arrived [Ms C] said quite aggressively, “Get out…I want you to leave right now & stop speaking to [Mr V].”
In recent years I had gotten used to being treated with disrespect by my children but this did actually did take me by surprise. I can’t remember my exact response but it was something like: “[Mr V] & I were just chatting, we hadn’t met before”. [Ms Wilshaw] didn’t say a word.
At this point [Ms C’s] legs collapsed under her as [Ms Wilshaw] attempted to hold her up. I went to assist but [Ms Wilshaw] pulled her up into her chest & away from me. [Ms Wilshaw] said something like, “there there, sweetheart Mums got you”.
I couldn’t help thinking of [Ms Wilshaw] : you make her walk the entire length of Children’s Ward to stop [Mr V] & I talking & now you pretend like you are looking after her? Something is wrong with this picture!!
Despite [Ms Wilshaw’s] effort to avoid me helping [Ms C], I held onto her other arm & walked her back towards her room. She seemed in a lot of pain. [Nurse U] brought a wheelchair to us about half way back & we eased her into the chair. He said words to the effect “[Ms C] you’ve overdone it, lets get you back to bed”.
[Ms C] was in tears. I was very annoyed with [Ms Wilshaw] at putting [Ms C] thru this but didn’t say anything to her. We got [Ms C] back to her room. I noticed as I entered the room that the flowers I bought [Ms C] were on the bedside table of the girl in the bed next to [Ms C]. I wondered if they had given the flowers to her. It was painful to be dismissed & humiliated by my own children. I noticed that [D] had reentered the room after I left.
I said to the girls that I loved them & left the room. On my way out I asked [Nurse U] if I could speak to him privately. He said ok & we walked down to the Nurses station together. I attempted to explain what had just happened. I said there is more going on here than a routine appendectomy. I said the children are being abused by the mother. She is subjecting them to what’s known legally as ‘Family Violence.’
[Nurse U] said “look I can’t comment on that, I’m just here to look after [Ms C]. What you are saying is hearsay [”]. It’s so frustrating when people don’t believe you. I wondered if I were female whether my allegations would be taken more seriously & referred to FACS.
[Nurse U] seemed to think I had done something to upset [Ms C]. He said a few times, “as far as I know there are no court orders so I can’t ask you to leave the hospital.” By this stage we were at the nurses station.
There were at least two other nurses present who heard the conversation. I said calmly “I actually take offence to what you are saying. You have made an assumption that I have done something wrong. What you should have said is “as there are no court orders, I can’t ask either you or your ex-wife to leave the hospital. That’s fair.” I didn’t raise my voice to say this.
One of the other nurses said “[Mr Wilshaw] you need to calm down or I’m going to have to ask you to leave.” I replied “I am calm, I haven’t raised my voice, I have raised an issue of equity. Am I not right? Surely singling out me as the cause of the incident isn’t fair. [Nurse U] replied “I didn’t see what happened.”
I said “yes but you saw the aftermath, you brought [Ms C] a wheelchair & said “[Ms C] you have overdone it.” It wasn’t me that walked her the entire length of the ward to the exit, it was the mother. Why? To tell me to get out & not speak to the boyfriend. What or who would have motivated [Ms C] to do this?”
I would like to ask you ([Nurse U]) to document this incident in your report as this is significant for the Family Court”. He replied “No I’m not going to do that”. He replied “you are asking me to make a judgment on what happened & I’m not going to do that.”
I said “no that’s not true, I’m not asking you to make a judgment I’m asking you to report that my daughter walked, leaning on her mother, the entire length of kids ward to the exit and collapsed when she was returning to her bed. That’s not making a judgment, that’s stating what happened. I can tell you that when she reached the exit door where [Mr V] & I were standing [Ms C] told me “Get out…I want you to leave right now & stop speaking to [Mr V].”
I said “you know my whole family is medical: “I used to be a nurse, my mum was a Director of Nursing. My dad was an ambo, my sister’s an RN, my partners an RN. I know what is supposed to happen here, I have done your job…I can’t believe you are dismissing my concerns. This needs to be written up in an incident report.”
Again [Nurse U] said he wasn’t going to put this in the report. One of the nurses suggested I speak to Dads in Distress. I said “I don’t need counseling, I need help to stop the mother committing Family Violence against the children & myself.”
The female nurse replied: “I have a friend going thru what you’re going thru and you know what you need to do…? Walk away. You won’t win in court.”
I said, “I can’t and won’t walk away, these are my children, they are in trouble & they have a right to be protected from Violence”.
[Nurse U] said words to the effect: “I could feel the tension in the room, it was palpable.” I replied, “yes, it was, but I didn’t cause it. I just wanted to see my daughter & bring her some flowers, why is that so wrong?”
I continued “do you know that [F] my 5 year old daughter has not been allowed to see me since early March? She has been begging her Mum to see me. In the end the children just give up as Mum makes it too hard.
Children have a right to a relationship with both Mum & Dad. It’s a primary consideration in the Family Law Act.
One of the example of Family Violence is ‘preventing a family member from making or keeping connection with his/her family, friends or culture.’ That’s what’s happening to my children.”
Seeing that I was tearing up, one of the nurses said, “would you like to speak to the Social Worker?” I said “yes please”. She rang her but it went to voicemail. I thanked her & left. The whole thing was a quite traumatic experience for me. I felt drained but at least [Ms C] had come thru the operation well and that she was on the mend.
When asked under cross-examination whether he agreed in general terms that the day turned into a most unfortunate incident, the father said that it was “amplified into one” “by the mother”. When asked whether there was anything that occurred on that day that he regretted the father said that he regretted speaking to Ms C’s boyfriend. The father said that when Ms C asked him to leave he did not do so and concluded that at this stage Ms C was suspicious of him but was not highly distressed. The father said his complaint about the mother moving to pick Ms C up when she had collapsed was that the mother had “excluded [him] from assisting [Ms C]”. He said that he felt dismissed and humiliated by his own children. The father said that he thought that his actions in telling the nurse that the mother abused the children was appropriate and he did not agree he was confrontational. He said he was concerned about violence against his daughter and said that in his own feeble way he was behaving as he did in order to protect Ms C from family violence. The father was crying throughout this cross-examination and when asked why he felt so upset he said that it was because Ms C hurt and rejected him.
In a text message exchange a few days later, on 22 May 2013 the mother informed the father that “the children are not willing to come with you”. In another message on 7 June 2013 the mother wrote “after seeking professional advice from both my solicitor and [Ms C] and [D’s] psychologist ([Ms W]) I do not consider that it is appropriate for [F] to come with you, considering that none of the older three children are willing to come with you”.
The father annexes transcripts of some telephone conversations he had with F in the months after he last spent time with her as evidence, as I understand it, of F’s desire to see him and his partner and her children and the mother’s interference in that relationship.
The father was cross-examined about one of the telephone conversations that he had with F on 25 June 2013 when she was five years old. The “transcript” included the following:
13.Dad: “How come you weren’t at soccer?”
14.[F]: “Oh because, Mum said that I could go over my friends house”
15.Dad: “Oh ok, which friend was that?”
16.[F]: “um somebody”
17.Dad: “ok, who?”
18.[F]: “um one of my friends”
19.Dad: “yeah but who, whose, which friend?”
20.[F]: “um, their last name is [X].”
21.Dad: “oh, ok, are they in, is that the people next door?”
22.[F]: “no”
23.Dad: “where a bouts are they?”
24.[F]: “well, they are a little bit far”
25.Dad: “sorry?”
26.[F]: “well, it only takes one minute”
27.Dad: it only takes one minute to get there from the house?”
28.[F]: “from my house”
29.Dad: “ok, righto, fair enough, no I was just trying to work it out because um you know I was trying to get together to see you Darl”
30.[F]: “ok”
31.Dad: “so, will you come to soccer next week, next week, this coming weekend?”
32.[F]: “um, ok”
33.Dad: “yeah?”
34.[F]: “I will try to”
35.Dad: “yeah, if you can, cause then we can catch up & I can catch up with you and [E].”
36.Dad: “that would, that would be good”
37.Dad: “yeah, would you like to do that?”
The father did not agree that in hindsight his manner during this conversation was placing pressure on F, making her anxious, was in any way confrontational, may have made F feel threatened or was challenging her. A short time later the following is recorded:
68.[F]: “ok, bye”
69.Dad: “oh hang on don’t hang up yet”
70.[F]: “ok”
71.Dad: “I just started to speak to you & I’ve, you know I, I’m missing you so much & wanting to see you & so I want to talk to you”
72.Dad: “oh yeah what happened with the Can…cause last time when we were speaking you said that you were going to be going to Canberra that weekend and, and…what happened?”
73.[F]: “um, oh yeah its next week, I forgot.”
74.Dad: “next?”
75.[F]: “wait, let me see, (talking in background)…Mum?
76.[Ms Wilshaw] : “just talk to Daddy”
77.[F]: “Mum?”
78.[Ms Wilshaw] : “just talk to Daddy”
79.[F]: “Mum, I don’t know…”
80.F: “Mum, Mum its Dad, he wants to know if we are going to Canberra next week”
81.[Ms Wilshaw] : “One, two…”
82.[F]: (replied to me) “um I don’t know, maybe”
83.Dad: “well I sort of need to know if we are coming up this weekend, I need to know whether I’m seeing you & [E]”
84.[F]: “[E] doesn’t want to come”
85.Dad: “well I saw [E] last weekend…so he probably…”
86.[F]: “He doesn’t want to come”
87.Dad: “sorry?”
88.[F]: “I will just see if he wants to come or not, nope”
89.Dad: “Yeah cause he came last weekend, I saw him last weekend”
90.[F]: “Do you want to see him?”
When cross-examined about this portion of the conversation the father was prepared to make more concessions. He agreed that at line 68 F was indicating that she wanted to end the conversation and agreed that it may have been better to have let her go. He also agreed that between lines 82 and 86 he was drawing F who was five into the problems between himself and E. The father was then asked about the following portion of the transcribed conversation:
114.Dad: “I’m not sure whether I’m going to that yet, I just um, its just a bit of a money thing at the moment but um driving for hours to see guys for a few minutes is probably um…”
115.[F]: “at our house, in our house”
116.Dad: “sorry?”
117.[F]: “at our house, your (sic) coming to our choir you know”
118.Dad: “well I’m not sure yet Darling it comes down to money at the moment”
119.[F]: “oh”
120.Dad: “I just don’t have a lot of money at the moment that’s the problem but I will try to come up, I’m definitely going try & come up in the Weekend.”
121.[F]: (inaudible)
122.Dad: “what’s that?”
123.[F]: (inaudible)
124.Dad: “I’m not understanding what your saying but if you could come on next Saturday, that would be good.”
125.[F]: (inaudible) “Well see”
126.Dad: “sorry?”
127.[F]: “Well see” (sic)
128.Dad: “Well see?” (sic)
129.[F]: yeah, we’ll see if I can come.”
130.Dad: “ok can’t we find out now?”
131.[F]: “um, no.”
132.Dad: “Can’t you ask Mum now?”
133.[F]: “well she always says while your talking to Dad, just talk to Dad.”
134.Dad: “yeah but I would like to know whether I’m seeing you on, on Saturday or not, when I come up to see [E].”
135.[F]: “[E]?”
136.Dad: “yeah for [E’s] soccer.”
137.[F]: “um, well, I’ll try”
138.Dad: “so…”
139.[F]: “what day was it again?”
140.Dad: “this Saturday”
141.[F]: “ok”
142.Dad: “so am I seeing you then, are we seeing each other?”
143.Dad: “do you want to just ask Mum now or put Mum on & I’ll ask her cause I could just, so we can work it out now?”
144.[F]: “ok I will put you onto her”
145.[F]: (heard in background) “why?”
146.[F]: “actually no”
147.Dad: “sorry?”
148.[F]: “um” (heard in background) “Mummy?”
149.[F]: “hello?”
150.Dad: “yeah?”
151.Dad: “hello?”
152.[F]: “yes”
153.Dad: “yeah, so what’s happening are you putting Mum on or is she going to allow us to see each other on Saturday?”
154.[F]: “um…I don’t know”
155.Dad: “well I need to know Darling”
156.[F]: “ok”
157.Dad: Id like to know ok, so can you just um ask Mum or put Mum on the phone please so I can find out?”
158.[F]: “well…I kind of can’t find her”
159.Dad: “you kind of can’t find her”
160.[F]: “ok”
161.Dad: “thank you”
162.[F]: (heard in background) “Yes, what”
163.[F]: “no, I can’t find her”
164.Dad: “well she must be there somewhere because um otherwise you would be by yourself wouldn’t you?
165.[F]: “no, [E’s] here”
166.Dad: “ok well you need an adult to be looking after you so um…so”
167.[F]: (inaudible)
168.Dad: “I’m sure”… “sorry?”
169.[F]: “and [D]”
170.[F]: “and [Ms C]”
171.Dad: “yeah”
172.[F]: “its [D], [E] and [Ms C]”
173.Dad: “ok, so you were speaking to mum a minute ago …& now your saying mums not there, is that right?”
174.[F]: “um kind of”
175.Dad: “kind of, ok, well lets be truthful with Daddy ok, its important to be truthful um, so, I need to find out sweetie cause I’m bringing up some food & some bits and pieces & I will need to know how many people I’m bringing the food for this Saturday ok.”
176.[F]: “ok”
177.Dad: so I’d like to find out, yeah?”
The father fluctuated under cross-examination between recognising that he had put pressure upon F and was focussed on his own problems and denying that his conduct was problematic. The father was then taken to the mother’s account of F’s behaviour in the course of and following this conversation. The mother said:
Throughout that phone call I could see [F] becoming distressed and on her own volition she put the phone on speaker and I heard her say on a number of occasions throughout the call “bye” as a way of terminating the call. At one point, through the call [F] became particularly distressed and I suggested “say goodbye if you want to”. When the phone call finally terminated [F] was sitting on the floor near the laundry curled up in the foetal position with her knees tucked up against the wall.
The father was unable to accept the mother’s account of F as truthful and said he thought that the mother has a tendency to exaggerate. He did agree however agree that that description of F troubled him and said that if (emphasis added) F was upset by anything he’d said he regretted that. Ultimately the father agreed that it was an unacceptable pressure for a father to place on a five year old.
In September 2013 F began attending sessions with a psychologist. This treatment was continuing as at the time of the proceedings.
According to the mother in October 2013, around the time of her sixth birthday, F told her mother that she did not want to “go with [her father] ever again.”
F told the expert in July 2014 that she would not like to spend time with her father.
Expert’s evidence
Dr B is the chapter 15 expert appointed in the proceedings. Dr B is a child and family psychiatrist with extensive experience. Her assessment and professional opinion is based on interviews with the parents and the father’s partner and children individually. She also observed each parent with the children. Dr B also had access to the affidavits filed in the proceedings, various text messages, Facebook entries and emails and had telephone contact with the father’s and mother’s treating psychologists.
In her report dated 5 September 2014 Dr B describes the presentation of each family member and expresses an opinion in relation to each of them. She describes D as “an articulate, somewhat dramatic 15-year-old with a labile affect.” She said D “appeared thoughtful but held her opinions with certainty”.
D complained to Dr B that her father had been verbally abusive to each of the children and said she did not feel loved by her father. Dr B said that “[D’s] message to the judge was “due to what my Dad has put me through as a child, I don’t think he deserves a relationship with any of his children”. Dr B said that D would not countenance a compromise and although she asserted she was not scared of her father anymore she reiterated that she did not want anything to do with him and ended by saying that she wanted him to apologise to her for what he has done.
Dr B said that E presented as an articulate, pleasant 13-year-old with a reactive affect, crying when talking about his father. E had many complaints about his father including that he was “not mature” “uses blackmail a lot” and described being “uncomfortable” but not frightened, though said his father “can be verbally threatening”. E referred to some of his father’s positive attributes such as “[that he] buys us stuff” and is “fairly generous in some ways, when it’s good for him.” E’s message to the judge was that he did not want “to be forced to go with him or to see him in anyway.” He said that he wanted it to be his choice to see his father and he did not want to see his father at fixed times.
Dr B said that F presented as a “pretty, energetic six your old with a positive mood” who happily left her mother and siblings to be seen alone. F told the expert on numerous occasions that her father was “mean” and that she was “scared” seeing him “because he is not a good person”, but was not able to elaborate any further. When she was asked if she would like to spend some time with her father and replied firmly, “no, he’s mean” but was unable to explain why.
The summary and discussion in Dr B’s report includes the following opinion:
The [Wilshaw] siblings have a strong alliance, with the older two girls, especially maintaining solidarity in their views about their father. However, [E] also tended to refer to “us”, which is suggestive of the presence of enmeshment, although he could also assertively refer to his own experiences with him.
[Ms C] was particularly protective of her mother and younger siblings and tended to be their spokesperson. She has been influential with her siblings, processing and explaining events to them, providing her particular interpretation of their father as “abusive”.
Because this resonates with [D’s] and [E’s] personal experiences of [Mr Wilshaw] being unpredictable, threatening, verbally caustic and attacking, unreasonably immature and conditional in his affections, they are accepting of her and their mother’s perceptions of him.
Concerningly, [F], with minimal personal experiences with her father, is being secondarily traumatised by the older family members’ expectations and feelings about him, causing a destructive apprehension in her. She showed regressed behaviours during the interview and her enmeshment or failure to have psychology (sic) boundaries with her mother is questioned. Should this be the case, her development is being compromised.
All the children and their mother would be significantly threatened by [Mr Wilshaw’s] wish for the children to live with him and to attend regular schools. They have been a closely connected system, perhaps with poor self-differentiation, although the adolescents are individuating in areas of their lives, not involving their father. His leaving placed him in the “out “” group (“not us”) and a source of anxiety.
However, this does not explain all the complex dynamics in this family. The parents’ personal attributes and the couple relationship are also very powerful influencing factors on the children’s current position of rejecting their father.
The children bring their own issues, with the older three young people holding developmentally expected attitudes that they will not be forced and the wishes and reasons should be listened to and respected. They have made their own assessments and judgement about which parent was “responsible” for the conflict, who is most hurt and vulnerable and who needs or deserves their allegiance and support. (emphasis in original)
Dr B felt that the mother did not present as meeting the criteria for any clinical psychiatric disorder, nor was there any evidence to suggest that she has a personality disorder. Dr B also did not believe that the mother had induced alienation in the children. The mother impressed the psychiatrist as valuing the children becoming independent emotionally as well as “having their own mind”. Dr B did however express some concern about the mother ambivalently giving the children permission to make their own decisions about time with the father, though she describes this position is “understandable” given the history of the matter. She also expresses some concerns that the children and mother are possibly enmeshed, especially the mother and F.
The father presented to Dr B as being only partially insightful into the effects his apparently at times authoritarian, angry and insensitive parenting have had on his children. She also said:
There is also some evidence he has had rewarding connections with the children. To assist their development, this aspect of his parenting needs to be freely available to their memories and, preferably, to be again experienced by them.
While his alleged behaviours may have been exaggerated, the children’s descriptions of what he has done and how they experienced him suggest their refusal to put themselves in situations where more of the same could happen is a healthy response.
Their fears would also be reinforced by any exposure to the parental conflict and observations of emotional abuse by him towards their mother.
[Mr Wilshaw] impressed as having narcissistic and histrionic personality traits which are likely to have impaired his sensitivity to them (and their mother), while he was very aware of his own hurt and pain. At this assessment he did not warrant a formal psychiatric disorder, although clearly he was highly distressed and met criteria for an Adjustment Disorder when he was assessed by [Dr J] [his psychologist] in 2012.
Dr B had spoken to Dr J who reported that the father had “done a lot of work on his interpersonal perspective taking”. Dr B was also of the opinion that the father’s partnership with Ms N appeared functional. She also commented that he was appropriately apologetic to the children during the assessment, although she said he was “still finding it difficult to listen to their distress without referring to his own pain and wanting their understanding”.
So far as the father’s belief that the children’s position towards him has been caused by the mother, the expert was of the opinion that this was incorrect. She said “this is not an accurate perception of the situation which has multiple layers, with his own behaviour a highly significant contributing factor.”
Under cross-examination Dr B maintained the opinions that she had expressed in her Report in relation to the father’s and mother’s mental state. She was careful to say that she did not diagnose the father with a personality disorder as such but identified in him personality traits of a narcissistic and histrionic sort.
When informed about aspects of the father’s oral evidence Dr B agreed that this continued to indicate the father’s narcissistic traits.
In my view the father’s narcissistic traits in focussing on his own subjective experience and failing to empathise with the children’s experience was apparent in his affidavit evidence and in answers given under cross-examination. He was generally unable to recognise when he was behaving in coercive and threatening manner such in the course of the telephone conversation with F set out in paragraphs 101, 102 and 103. The focus on his own experience was evident in that phone conversation, his diary entries of 12/3/12 and 18/3/12 set out in paragraphs 76 and 77, the Facebook message referred to in paragraph 73, his message interchange with E at paragraph 90 and his descriptions of his feelings especially in the incident at the hospital described in paragraphs 96 and 97. The father’s lack of insight is also in my view clear in selecting examples of evidence to demonstrate failings in the mother which on their face demonstrate his own shortcomings.
The father maintained the position at the hearing that the mother suffered from some form of mental disorder and had induced alienation in the children. He said under cross-examination that despite being aware that Dr B is a qualified psychiatrist he did not accept her opinion that the mother did not have a mental health issue.
Dr B was also unshaken in her opinion that the mother had not induced alienation in the children and that their strong views were to a large extent a result of their own experience of the father’s behaviour towards them. She also maintained some concern however about the influence that the older children may have had over F’s views concerning her father.
Family therapy
Dr B’s recommendation in her report released in September 2014 was for all of the family members to engage in family therapy with an experienced clinician. She felt at that stage that the young people’s attendance should not be optional. She also noted that multiple clinicians might need to be involved. She also recommended that the father “spend time with” all the children in family therapy.
As discussed earlier in these reasons, all parties agreed with this recommendation and the ICL was to nominate an appropriate therapist with the input of Dr B and facilitate that therapy commencing by liaison with the parties. However, the father subsequently had concerns about the cost of the therapy and the appropriateness of the nominated therapist based upon his concerns about an alleged association between Dr B and that therapist.
Ultimately in around February 2015 the mother proposed a solution in relation to the payment of the therapist’s fees. However, the father’s concern about the nominated therapist and a desire for the therapy to occur with an alternate therapist whose qualifications and expertise in family therapy were unable to be assessed, meant that an impasse was reached and the family therapy did not go ahead prior to the commencement of the trial.
It became clear in the course of the hearing that the father continued to see the benefit in all family members engaging in family therapy. Under cross-examination the father confirmed that he wanted the family therapist to be a person who could revisit the psychiatric report of Dr B, in particular in relation to the issue of alienation.
Dr B agreed that if the Court were to find that the father would be likely to use the family therapy to try and prove his beliefs are correct that would be counter-productive. Dr B said that if the father were to do this “he would be shooting himself in the foot”. She said that “the children would be highly, highly vigilant to those sorts of messages and the moment they even thought they smelt that they would be really reactive and rejecting of him”.
Dr B was cross-examined about her recommendations that the attendance of the children at family therapy should not be optional. She said however that each family member should be in a reasonable state of mental health when engaging in family therapy. In that regard Dr B was asked about a report in April 2015 provided by F’s treating psychologist in which the following opinion was given:
[F’s] behaviour in a clinical setting when we discuss topics related to [the father] would indicate that she is uncomfortable, as [F] has been observed to: get out of her chair and lay on the floor; hide under the coffee table or behind the chair; or simply refuse to talk. This behaviour is inconsistent with [F’s] usual interactions in the clinical setting.
Dr B was unable to express a definite view about the reasons for F’s presentation but indicated that it may not relate to the father’s conduct alone. The doctor maintained that there were other systems involved including the mother who is it at the apex of F’s relationships and older siblings from whom Dr B expressed the view F is being “secondarily traumatised”.
Dr B was also cross-examined about a letter provided by D’s treating psychologist in April 2015. The psychologist said that she began treating D in August 2014 when D presented with symptoms of “moderate stress and reactive anxiety”. The trigger to D’s distress and anxiety “was the idea of potentially having to see her father more regularly and further, potentially having to engage in family therapy with him”. The psychologist drew a close connection between D’s symptoms of distress and the thought of having any contact with her father. The psychologist said that in her professional opinion:
If [D] believes that she has to have contact with her father, she will be put at risk of relapse, given the distress that this idea used to cause her on a daily basis…I believe that there is a direct correlation between the reduction in [D’s] anxiety and her current understanding that she is no longer obligated to engage in family therapy with her father.
Dr B said that having I that letter she was now revising her earlier opinion that it should not be optional for the children to attend. She said that legitimate exclusion criteria for the children’s attendance should be having an acute mental state or if a particular stressor would provoke an acute mental illness.
Dr B said that in order for the family therapy to succeed, it would have to be supported by the mother in the sense of her encouraging the therapy as safe for the children. She confirmed that subject to concerns about mental health, the children’s attendance at family therapy should not be optional and agreed that there should be a requirement that the mother do all reasonable things for the children to attend.
The doctor was careful to stress that the family therapy should happen after the court process has ceased. She said that if it were to occur by way of an interim order that this would be counterproductive. She said “they [the parents] are going to be getting ammunition to bring to the next court thing”.
Dr B expressed the view that the father’s rejection of her expert opinion in relation to his personality traits, that there was no evidence that the mother had a mental illness and her opinion that the mother had not alienated the children “speaks to his need to be in control, to assert himself that he is right, and that speaks to his narcissistic traits”. She also said:
…it’s one the reasons why I say that family therapy needs to happen outside of the court, that the court really needs to be finalised, so that this does not become an exercise of point scoring … – if there’s any chance … of success, it needs to be done with the adults at least having a sense of this is a worthwhile endeavour, to see whether we can create a better future for the children than they’ve had in the – in their past.
In summary Dr B said that the only change she had from her previous recommendations for family therapy was that doubt had arisen about the children’s acute mental health. She also expressed some concern that the father had retreated from the position of acknowledging his own role in the deterioration of his family relationships and that the mother had also expressed some changes in her position. She said that it was important that the mother could reach a sense of emotional neutrality when she was talking about the therapy with the children.
Having regard to Dr B’s expertise, the material to which she had access for the purposes of her assessment and the appropriate concessions she made under cross-examination, while maintaining her opinions of significance, I accept her opinion and place significant weight upon it.
The orders sought
Both parties and the ICL propose that the children live with the mother. The ICL proposes that the mother have sole parental responsibility for the children and that the father be restrained from contacting D and E unless invited to do so by each child respectively. In the event that either child or both children wish to spend time with the father, the ICL proposes an order requiring the mother to use her best endeavours to facilitate that time. The ICL seeks a similar restraint on the father contacting F except as agreed by the parties or in the course of family therapy and on four occasions each year at a contact service.
The ICL seeks orders for the parties to undergo an assessment for family therapy. If the therapist recommends that family therapy and it is not contra-indicated by D’s treating psychologist or F’s treating psychologist then the mother shall encourage D and F respectively to attend an assessment for family therapy. The mother is also to encourage E to attend an assessment for family therapy under these proposed orders. The parties are then to participate in the recommended family therapy which is proposed to be confidential.
The ICL also proposes orders concerning the mother providing the father with information with respect to the children’s schooling, serious medical condition and change of residence, for the father to continue to attend upon his psychologist, for written communication by the father to the children and for contact with the paternal grandparents.
At the completion of the hearing the mother adopted the position of the ICL in relation to parental responsibility, living arrangements and the orders with respect to the father’s time but sought specific additional orders in relation to F’s diet and other matters.
The father’s proposal is for the parents to equally share parental responsibility for the children. He also consents to many of the ICL’s proposed orders except those restraining him from contacting the children otherwise than in accordance with the orders. The father originally sought orders for him to spend time with E and F each alternate Saturday on the Region G (where the children live) and every fourth weekend in the Region H (where he and his new family live). The father subsequently changed his position and said that if either or both of E and F did not want to spend time with him that he would not enforce those orders. In the course of his submissions he subsequently proposed that the orders he seeks with respect to his time with F and E, the parents’ entitlement to attend events involving the children and communication with the children be subject to the opinion of the family therapist that such orders were not contraindicated.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Greater weight is to be given to the need to protect the children from harm.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
Although each of the children has a severely fractured relationship with their father, I am of the view that having a meaningful relationship with him will be of benefit to each of them. He played a significant part in their upbringing and has had, in the opinion of Dr B, a rewarding connection with them. It is also Dr B’s opinion that if the children can once again make that rewarding connection it will assist their development.
The Act does not however place an obligation on the Court to ensure that the proposed orders will provide for the children to have a meaningful relationship with each parent. Rather, the court should attempt to “craft orders to foster a relationship”[6] with each of the parents where this is in their best interests. Because of the current state of the children’s relationship with their father the only way in which such a relationship can be fostered is through family therapy.
[6] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 at [122].
As indicated earlier in these reasons the expert supports the father’s desire for therapeutic intervention and recommends that family therapy occur with an experienced clinician. She also recommends that the father spend time with the children in the course of the therapy. She explains that “an initial period of therapeutic supervision has been described as being helpful to insure (sic) the rejected parent does not provide continuing reinforcement of the child’s negative images of that parent.” She said at the same time “careful family work provides opportunities to discuss and work through specific experiences that may have become benchmarked justifications for the child’s decision to refuse time with the parent.”
So far as the need to protect the children from harm is concerned, as I understand it, the father contends that the children have been subjected to family violence at the hands of the mother. For the reasons discussed at paragraphs 189 -193. I am not of the view that the mother has perpetrated family violence against the children.
Although it is the mother’s case that the children need psychological assistance as a result of their circumstances following the separation of the parents, it is not contended by her that they have suffered psychological harm from being subjected to abuse by the father. However, the children’s own experience of their father is that he is abusive and while Dr B says that they may have exaggerated their father’s behaviours she concluded that the children’s “refusal to put themselves in situations where more of the same could happen is a healthy response”.
Although Dr B did not support orders that the children live with their father she did support him engaging in therapy with them, notwithstanding these allegations of abuse. Dr B’s only concerns in this regard were that the children should not participate in therapy if acutely unwell. The ICL’s proposal is that the children be encouraged to be assessed for therapy if their clinicians say it is not contraindicated. D and E also have control over when they spend time with the father at all. These proposals in my view provide an appropriate safeguard against potential psychological harm.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
Each of the children has over time made a decision to cease spending time with their father. At the assessment with Dr B, E reported that he was trying his best to have a good relationship with his father but at that time he did not want to spend time with him and wanted to be able to make that decision. D said she did “not want anything to do with” her father and would not countenance a compromise. So far as the weight that should be attached to these views is concerned, Dr B said
Although they did not yet have the cognitive and emotional maturity to evaluate the long-term consequences of their decisions, [D’s] and [E’s] wishes should carry weight when decisions are made about their future.
The orders proposed by the ICL that restrain the father from making contact with D and E except at their invitation or in writing, as provided for in the orders, appropriately respond to the significant weight that should be given to D and E’s views.
Dr B had a different view with respect to F. Although F said she would not like to spend time with her father and expressed that he was “mean”, she was unable to explain what she meant by this. F was only six years old when interviewed by Dr B and five when she last saw her father, other than in the course of the assessment. Dr B was of the opinion that “concerningly [F], with minimal experiences with her father is being secondarily traumatised by the older family members’ expectations and feelings about him, causing a destructive apprehension in her.” In my view little weight should be attached to F’s views due to her age, the nature of the sibling relationship and the influence the older siblings appear to exert upon her.
The nature of the children’s relationships
The nature of the children’s relationships with each of their parents is a significant consideration in this matter.
Although D in particular raised some matters with Dr B about events which contributed to the breakdown of the relationship with her father prior to separation, it appears that while the family were intact the children shared warm and loving relationships with each of their parents.
From around the time of the separation the children began to align themselves with each other in their views about their father. Although she is not the subject of these proceedings Ms C was considered by Dr B to be particularly protective of the mother and younger siblings and particularly influential with the siblings “processing and explaining events to them, providing her particular interpretation of their father as “abusive””.
D and E accepted Ms C and their mother’s perception of their father due to their own personal experience of him. Dr B describes this experience of the father as him being “unpredictable, threatening, verbally caustic and attacking, unreasonably immature and conditional in his affections”. In my view this is an accurate description of the father’s conduct during various incidents, conversations, and text and email communication with which he does not take issue.
Dr B expressed this opinion of D’s relationship with her father:
[D] in particular feels traumatised by [Mr Wilshaw]. Given her age and presentation at this assessment she required further therapeutic assistance with her emotional regulation to ensure she has a healthily integrated sense of self by adulthood. Her insight about not being able to “live as double (different) person”, depending on which parent she was with is noteworthy. Also significant is her comment to her mother she felt her father had replaced her “I’m not his little girl anymore”.
Each of the children’s current relationship with their father is severely fractured. Although there is no guarantee that family therapy will be successful, I accept Dr B’s opinion that the only prospect of repairing the father’s relationship with his children is in a therapeutic environment.
Dr B described the mother as the children’s “primary attachment figure, very engaged and possibly enmeshed with them during an unhappy marriage in which she felt controlled and unsupported by [Mr Wilshaw].” At the time of the assessment the mother impressed Dr B as supporting the children’s emotional independence and supporting them having therapy which should assist them to individuate.
Dr B said that while the mother was open to the children having a safe non-abusive relationship with their father, she “ambivalently gives the young people permission to make their own decisions about time with Mr Wilshaw.” Dr B opined that although the mother’s position is understandable the children would also have become distressed about “the loss of their playful funny father; the ongoing parental conflict and their mother’s distress”. There were a number of examples in evidence in the proceedings of the mother allowing and expecting the children from a very young age to negotiate with the father about their time with him. I gained the impression from some of the uncontested evidence about the mother’s behaviour, while her young children were attempting to negotiate with their father, of a parent standing by and observing the destruction of the children’s relationship with their father and being unable or so caught up with her own conflict with the father or her own distress, to intervene.
The children have also had the benefit of important extended family relationships. Their relationships with the extended maternal family have not been disrupted through the separation of the parents. However, the significant grandparent relationships on the paternal side have also been sadly fractured due to the parental dispute. The father was supported throughout the proceedings by his elderly parents who have also obviously been saddened by the loss of their grandparent relationship. They also however may have adopted the father’s stance that the mother is almost entirely to blame for the loss of the relationship. In these circumstances the proposed orders of the ICL, to which each of the parents agree, which give the children a capacity to make contact with the paternal grandparents directly and rekindle that relationship, are in the my view in the best interests of the children.
The children also appear to have a good relationship with the father’s partner, Ms N, and her teenage children. At times they have clearly spent enjoyable time with the father’s “new family” as he describes them, although D did express some distress at feeling that she had been replaced by Ms N’s daughter O as the father’s “little girl”. Should the children wish to spend time with the father and his partner and her family they will maintain these relationships.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Since separation the children have lived with the mother and she has made a number of decisions about major long-term issues in relation to them such as their education and engagement with health professionals.
The father has clearly wanted to participate in decision-making with the mother and contends that the mother has been interfering and controlling. He contends that she has adopted a similar stance with respect to him spending time with and communicating with the children. I am of the view that the father’s contention is not borne out by the evidence. Rather, since separation the parents have had very different ideas about significant issues and have been unable to make decisions cooperatively or reach agreement about them. The disparate stance that they have each taken about issues such as education or D participating in overseas travel have negatively impacted upon the children and have unnecessarily involved the children in their parental dispute. The inability to make decisions co-operatively and involvement of the children in the parental dispute does not auger well for the exercise of joint parental responsibility as proposed by the father.
After separation the father was initially very diligent about taking the opportunity to spend time with the children, often travelling a long distance from the Region H to the Region G to do so. Over time however, the children were expected to negotiate with him concerning his time as the mother seemed unable to cope with his confrontational approach. D and E made their own decisions about spending time with their father. In my view, the father was unreasonably uncompromising and confrontational in his communications with the children and expected the time that he spent with them to be on his terms. When this was unable to be arranged the father seemed unduly focussed on his own hurt and desire to blame the mother rather than finding a way in which he could spend time with the children and communicate in a non-threatening and child-focussed way with them.
Obligations to maintain the children
Since separation the children have lived with the mother and she has maintained them with little support from the father. At the time of the hearing the father paid less than $20 per fortnight in child support and was $4000 in arrears in child support.
Likely effect of change in the children’s circumstances
None of the proposals involve the children being significantly separated from their mother as under each proposal the children they will continue to live with her.
At its highest, the father’s proposal involves the children spending seven hours each alternate weekend with him in their local area and a weekend once a month and other special days with him and his partner and her children. The father says that he would not enforce such time if the children expressed a desire not to attend.
The ICL’s proposal involves very little separation of the children from their mother. The change involved in the ICL’s proposal with respect to E and D’s time, that effectively means they have control over it, is likely to be beneficial to them.
Capacity of each parent to provide for the children’s needs including emotional and intellectual needs
This consideration is of great significance in this matter.
So far as the mother is concerned, there is no evidence to support the father’s contention that she suffers from a mental illness or mental condition that compromises her parental capacity. Indeed, the father’s proposal that the children live primarily with their mother confirms that he does not genuinely hold the belief that she is an incapable parent.
As I understand the father’s case, he does not contend that the mother was an incapable parent when the family was intact. Although the mother describes some difficulties in their interpersonal relationship from around the time of F’s birth, it appears that a significant event in the parental breakdown and the father’s contention about the mother’s incapacity resulted from the mother’s difficulties in 2009 of “flashbacks” to her childhood sexual abuse which she had not previously remembered. The mother told Dr B that the father’s inability to handle her reaction to her childhood sexual abuse caused him to end their marriage relationship. The father described to Dr B that the family been “normal” during the marriage. The father also told Dr B that the mother’s disclosure about her childhood sexual abuse was shocking and that it “explained a lot in the marriage” which deteriorated after her disclosure. The father described the mother’s parental capacity [presumably thereafter] to Dr B as “chronically impaired”.
Dr B opined that the mother was clearly unwell following the return of buried memories about her child sexual assault. She said
The adverse impact of CSA on a person’s integration and sense of self is well documented in developmental literature. Some of [Mr Wilshaw’s] allegations about [Ms Wilshaw] are suggestive of a person carrying the trauma of CSA which could well have over-sensitised her to threat. The onset of her acute traumatic symptoms… would have been frightening to the children, particularly as the complete breakdown of the marriage followed. (emphasis in original)
The only criticisms Dr B has of the mother’s parenting are that she and the father engaged in physical discipline of the children during the relationship and in her “difficulties setting boundaries around the father’s behaviour towards the children”.
However, Dr B was of the view that the mother at the time of her assessment was heavily invested in her parenting and educating of the children and appeared mindful about them. Her only current concern was in relation to F in whom Dr B observed regressed behaviours during the interview. The doctor questioned F’s enmeshment or failure to have psychological boundaries with her mother which would compromise her development if this were the case. Dr B recommended that F have her own open-ended therapy to work through and find her own feelings and thoughts about her father to deal with this area of concern. That therapy is provided for in the orders proposed by the ICL and agreed to by both of the parents.
The greater concerns about parental capacity arise from the father’s narcissistic and histrionic personality traits which Dr B says “are likely to have impaired his sensitivity to the children and their mother while he was very aware of his own hurt and pain”. The traits express themselves in the father’s loss of an ability to reflect on his own inappropriate behaviour and to understand what’s happening with his children, put them first and do whatever it takes to help them. Dr B describes a failure in a parent to see that he is making his child distressed as “a very significant parenting failure”.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The children in this family were raised in accordance with the parents’ then similar beliefs and traditions. Both parents describe meeting one another when they were teenagers and sharing a common interest in music, singing and their faith-based activities. They married and built a home together and jointly made the decision that the father would work outside the home and the mother would concentrate on home-based activities and the raising of the children. The decision to educate the children through home-schooling was jointly made in this context.
Each parent described a reasonably pleasant family life while the marriage was intact though in retrospect each had concerns about aspects of the other parent. The mother described the father as “good at doing fun activities” with the children and during the marriage did not perceive him as being abusive towards the children. There is no dispute that the family enjoyed positive times together.
Following separation, the mother has continued to stay connected to her church community and the home-schooling community. The father has been asked to leave the church with which the family were affiliated. He has re-established himself in a new community with a new partner and her adolescent children who he described in the proceedings as his “family”.
The children have a positive regard for and are still closely attached to their church community. They appear to have done well through home-schooling, with Ms C having gained entry into university. The older two girls seem to be creative and musical while E excels at sport, especially soccer.
The children’s perception of their father is that he is abusive and that there is good reason for the breakdown in their relationship with him. The children have a strong alliance with each other and maintain solidarity in their views about the father.
Each of the children has shown some psychological and emotional fragility surrounding the breakdown of the parental relationship. Although the father believes that the mother has been coercive and damaged the children’s relationship with him and this is the cause of their distress, I am of the view that the mother acted to the contrary and did not sufficiently protect the children from the father’s coercive and controlling behaviour towards them. I accept also that part of the children’s current distress may relate to the loss of their relationship with their father. In my view however this loss is to a very large extent due to the father’s own conduct and not as a result of alienation on the mother’s part.
Family violence relating to the children or a member of the children’s family
It is a common theme throughout the father’s evidence that he and/or the children have been the victim of family violence perpetrated by the mother.
The definition of family violence” in the Act is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[7] As I understand it, the father relies upon the example of family violence in s 4AB(2)(i) and contends that the mother has “prevented the family member[s] [the children] from making or keeping connections with [their] family [the father and paternal family]”.
[7]Family Law Act 1975 (Cth), s 4AB.
The father’s position in relation to this issue does not depend so much upon findings of fact in accordance with his version of events, rather it depends upon in inference to be drawn from those events. The father in relation to most incidents does not dispute allegations concerning his own behaviour or the content of communication with the children (and many events depend upon his own records of these matters) but asks the Court to conclude that the mother has perpetrated family violence on the children by preventing them from keeping connections with him and his extended family.
Dr B says this of the father’s position:
[Mr Wilshaw] incorrectly attributes the young people’s position to have been caused by their mother. As discussed, this is not an accurate perception of the situation which has multiple layers, with his own behaviour a highly significant contributing factor.
I have closely considered both parents’ behaviour in those events which the father contends demonstrate the mother’s coercion. I attach particular weight to the father’s own account of his and the mother’s respective behaviour during the incident at the hospital when Ms C was recovering from an appendectomy, his attendance at D’s baptism and the manner of his communications with the children. I have regard to the mother’s position in allowing the children to make their own decisions about contact with their father and to negotiate it. I am not satisfied that the mother has perpetrated family violence in the manner alleged or that any of her conduct amounts to family violence.
The mother also alleges coercive and controlling behaviour by the father towards herself and the children. I am unable to make any determination in relation to the events in April 2011 that gave rise to an AVO being made against the father for her protection (which was subsequently revoked on appeal when the mother agreed to accept undertakings from the father) as neither parent sets out a sufficiently detailed version of this event in their respective affidavits.
I am however of the view that the father’s behaviour towards the mother and children in relation to the issue of home-schooling was coercive and that his communication with the children on other occasions was coercive and controlling and was a significant factor in the breakdown of the children’s relationship with him.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[8] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[8] (2006) FLC 93-286.
In this matter, the father seeks an order allocating equal shared parental responsibility to himself and the mother. Further, where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The mother and the ICL contend that this presumption is rebutted by evidence that such an order would not be in the children’s best interest.
There is no evidence before the Court that the parents have any capacity for joint decision making and there is a plethora of evidence that they cannot do so. When the father was about how he and the mother would bring about joint decisions in accordance with his proposal that there be an order for equal shared parental responsibility, he said he would communicate by text or email and would attempt to discuss the matter and try to get some compromise. The father agreed however that they had been unable to reach agreement on schooling, vaccination and church attendance. Of particular significance is that the parents could not even negotiate with one another over arrangements for the children to spend time with the father and E was undertaking this role himself from at least the age of 11 and F was doing so to some extent from as young as five.
One of the reasons the mother is seeking sole parental responsibility is that she says the father has not consented to home-schooling to continue and as I understand her case, she may not be able to continue to be re-registered to if his consent is not forthcoming. However, the parents have been separated since mid-2010 and the mother has continued to home-school the children. There is no evidence that consent by both parents is required by the Board of Studies. The father’s evidence is that in his experience home-schooling is not dependent on the consent of both parents. Indeed, he has continued to disagree with home-schooling continuing and yet it has continued. However, it remains a matter upon which the parents cannot agree and under cross-examination the father said that if he were required to sign a document giving consent to the children being home-schooled for that to occur he would not sign such a document.
The parents had also been unable to reach agreement about the children’s overseas travel and the mother seeks an order specifically in relation to the issue of passports for the children. There was evidence in the proceedings that D had been offered a fully-paid overseas trip as a nanny for the children of a relative but there had been some difficulties obtaining the father’s consent to this trip. Under cross-examination the father initially said that he was not aware of this opportunity for D. He appeared to question how this trip might benefit D and raised a number of concerns he had about the proposal. The father ultimately agreed that he would sign the necessary forms for D to be issued with a passport for the purposes of this travel. He also agreed that if he refused to sign the passport applications it would affect his relationship with D very negatively. However, in my view, when the matter is no longer under the eye of the Court the mother may experience real difficulties in reaching agreement with the father over the issue of overseas travel and the issue of passports which would not be in the best interests of the children.
I am of that the view the parents have no capacity to reach joint decisions and this incapacity has already had a detrimental impact upon the children. It is also likely that this lack of capacity will continue in the future. It is in these circumstances in the children’s best interests for the mother to have sole parental responsibility for all major decisions, but she should be required to inform the father of certain matters of significance as proposed by the ICL. In these circumstances the specific orders sought by the matter with respect to education and passports need not be made as those matters fall within the ambit of her sole parental responsibility.
Conclusion
As indicated, the parties have in the course of the proceedings reached agreement that it is in the best interests of the children for them to live with the mother and for many other orders relating to their future parenting proposed by the ICL to be made.
The only significant matters in dispute relate to the time the father is to spend with the children, his communication with them and the conditions of the proposed family therapy. All of these matters are, on the father’s proposal to be determined by a family therapist who is not yet appointed and who may or may not be providing therapy the children. In any event, it is the role of the Court in parenting proceedings to make such orders as are in the best interests of the children on the evidence, not effectively to delegate that decision to another person.
In my view, having regard to each of the best interest considerations as discussed in this judgment, and placing particular weight on the benefit of the children having a meaningful relationship with both parents and parental capacity, I am of the view that the orders proposed by the ICL are those which best meet the best interests of these children.
Accordingly, the orders that I make are set out at the forefront of these Reasons for Judgment.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 October 2015.
Legal Associate:
Date: 9 October 2015
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