Wood and Wood
[2009] FMCAfam 788
•30 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOOD & WOOD | [2009] FMCAfam 788 |
| FAMILY LAW – Children – parental capacity – impact of father’s aggressive and threatening behaviour – mother diagnosed with Post Traumatic Stress disorder – father diagnosed with Borderline Personality Disorder – sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Goode & Goode (2006) FamCA 1346 Mazorski & Albright (2007) 37 Fam LR 518 G & C [2006] FamCA 994 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MS WOOD |
| Respondent: | MR WOOD |
| File Number: | ADC 2196 of 2007 |
| Judgment of: | Kelly FM |
| Hearing dates: | 20-24 April 2009 |
| Date of Last Submission: | 24 April 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 30 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Dickson |
| Solicitors for the Applicant: | Norman Waterhouse |
| Counsel for the Respondent: | Ms V-A West |
| Solicitors for the Respondent: | Polly Dixon & Associates |
ORDERS
The mother have sole parental responsibility for the children [X] born [in] and [Y] born [in] 2005.
The children [X] and [Y] live with the mother.
The mother undertake Cognitive Behavioural Therapy with a counsellor (as may be nominated by Ms Cole or Ms R) to assist the mother’s recovery from her post traumatic stress disorder and anxiety.
The mother do all things necessary to facilitate the children undertaking counselling (with a counsellor to be nominated by Ms Cole) to address the children’s anxiety, develop each child’s emotional resilience and work towards re-establishing their relationship with their father.
The father undertake therapy with a psychologist or counsellor (as may be nominated by Ms Cole) to:
(a)develop greater insight into his own behaviour and emotional reactivity;
(b)develop his capacity to self monitor his own behaviour and manage his own emotional responses;
(c)develop his capacity to identify and support the children’s emotional needs in any future re-introduction process.
The parties share equally in the costs associated with the children’s counselling.
The parties share equally in the costs associated with the mother’s counselling for a period of twelve months and thereafter the mother shall meet these costs.
The father meet the costs associated with his own counselling.
Each party provide copies of this judgment and the reports from Dr W, Dr B and Ms Cole to the counsellor with whom they or the children are consulting.
The parties exchange information regarding their nominated counsellor within 21 days (including a counsellor for the children).
Pursuant to s.65L of the Family Law Act 1975 a family consultant is appointed to assist the parties in complying with these orders.
In the event Ms Cole is available then the parties are at liberty to instruct Ms Cole to take on the role otherwise assigned to the family consultant in these orders, provided that the parties share equally in any costs incurred with Ms Cole.
Each party authorise their counsellor to liaise with the family consultant and to provide updates regarding that party’s therapeutic progress.
The family consultant shall liaise with the children’s counsellor regarding the children’s therapeutic progress.
At the expiration of three months from the commencement of the children’s counselling the family consultant shall liaise with the mother’s counsellor and the children’s counsellor regarding the appropriate timeframe to commence an exchange of photographs and letters between the children and the father.
Within a further three months thereafter the family consultant shall confer with the parties and the respective counsellors regarding the possible re-introduction of the children to the father under the supervision of the children’s counsellor, if he or she is willing to assist in this regard, or otherwise under the supervision of the family consultant.
Thereafter (and dependent upon the progress of the above re‑introductory process) the children spend further supervised time with the father as may be agreed between the parties in accordance with recommendations from the children’s counsellor, the mother’s counsellor and the family consultant.
Liberty to either party to apply for further directions.
Liberty to either party to apply generally.
IT IS NOTED that publication of this judgment under the pseudonym Wood & Wood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2196 of 2007
| MS WOOD |
Applicant
And
| MR WOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms and Mr Wood married in January 2003 and separated in November 2006. These proceedings relate to parenting issues regarding their two children [X] born [in] 2003 (now aged 5) and [Y] born 27 January 2005 (now aged 4). [X] and [Y] have lived with their mother since separation and have not spent time with their father since February 2007.
This matter is unusual. The parties have already been through a fully contested trial regarding property settlement. At the commencement of this second trial, Mr Wood was seeking to spend regular time with the children, so as to resume a meaningful parenting role in their lives.
Ms Wood believes the father is aggressive and psychologically unstable and she is presently unable to contemplate the possibility of the children spending any time with their father.
Late in the trial the father acknowledged that a number of the wife’s allegations regarding his abusive and threatening behaviour were correct, whereas he had previously denied such behaviour. His admission was a turning point in the proceedings. Both parties accept that the mother suffers from Post Traumatic Stress Disorder which manifests itself in severe anxiety about the children’s safety and welfare. Until this point the hearing had focussed, to a large extent, upon the mother’s personal history and upon the credibility of her allegations about the father. From this point on, the parties were able to fully focus on the future needs and best interests of the children.
Background
The parties were both born in Adelaide and are 40 years old. They have each consulted with mental health professionals at various times prior to their marriage, a topic which I will discuss further in these reasons.
The parties commenced living together in 2002 and married in January 2003. At the time of their marriage both parties were working, but the wife ceased employment when [X] was born in October 2003. [Y] was subsequently born in January 2005. While both parents took on an active parenting role, I am satisfied that the mother was the primary caregiver during the marriage. At times she sought assistance from her mother as she managed the demands of caring for two young children less than 18 months of age.
The parties’ relationship was fraught with conflict, particularly regarding financial matters. The mother experienced the father’s behaviour as aggressive and threatening while the father experienced the mother as manipulative and controlling. The role of their extended families also became a source of conflict. Mr Wood felt that the maternal grandmother adopted an intrusive role within their family whereas Ms Wood sought out her mother’s support to assist with the day to day care of the children and to help her deal with the increasing conflict in her relationship with the father.
Both parties brought their own psychological vulnerabilities to their relationship and within that context, their capacity to resolve their interpersonal conflict was limited. The parties sought counselling and psychiatric support during their marriage. There are a range of psychiatric reports and notes before me which identify concerns about the level of conflict and about each party’s capacity to engage and communicate more effectively.
The marriage ended in November 2006 when Ms Wood left the family home with [X] and [Y]. Some contact between the children and the father occurred in late 2006/early 2007, but the mother became increasingly concerned about the father’s behaviour and eventually stopped this contact.
The mother commenced proceedings in April 2007, raising serious concerns regarding the father’s mental health and aggression. The father did not appear on the first hearing date, but was represented on the next occasion. In light of the allegations, a psychiatric report regarding the father’s mental health was considered necessary. The parties agreed to proceed to trial on financial issues as hearing dates were readily available. The trial was initially listed in August 2007 but eventually proceeded in November 2007.
In 2007 [Y] was diagnosed with neuroblastic blastoma and required surgery and ongoing management. The mother has been diligent in managing [Y]’s recovery. Fortunately [Y] appears to have responded well to treatment. [X] has also experienced significant health problems and was eventually diagnosed with a urachal cyst which required surgery. As a result of these two serious health incidents, the mother has become extraordinarily vigilant regarding any signs of ill health in either child.
The father eventually participated in a psychiatric assessment which became available in February 2008. Dr B diagnosed the father as suffering from Borderline Personality Disorder but did not consider the father presented a risk to the children on a short term basis.
Based on this report, Mr Wood applied to commence spending time with the children. The mother was vehemently opposed to the possibility of the children spending any time with their father, even on a supervised basis.
On 18 February 2008 the Court ordered the children spend supervised time with the father through a Children’s Contact Service, as a precursor to the preparation of a family assessment. Staff at the Contact Centre became concerned about the impact and extent of Ms Wood’s anxiety and the children’s reaction to their introductory visit. The mother subsequently filed a further report from [Y]’s treating paediatrician, Dr T.[1] The supervised visits did not occur.
[1] Affidavit Ms P 7 February 2008, Annexure GRP2
In September 2008 the paternal grandfather also filed an application to spend time with the children. The court ordered that the family assessment be extended to include the paternal grandparents.
The family assessment was undertaken by Ms Alexandra Cole in November 2008. Ultimately, Ms Cole also decided not to proceed with any observed interaction during the family assessment. Her report became available in December 2008. On 18 December 2008 all orders for supervised time were suspended and the matter was listed for a five day trial in April 2009.
By correspondence dated 18 February 2009, Mr Wood Snr sought to withdraw from the file and the trial then proceeded between the parents.
The mother’s position
The mother’s position has remained consistent throughout the proceedings. She says the father is mentally and emotionally unstable and she does not believe the children will be safe in his care. She relies upon the father’s past psychiatric history as confirmation of her concerns.
Ms Wood has been diagnosed as suffering from Post Traumatic Stress Disorder (PTSD). This condition manifests itself as extreme anxiety about the father’s behaviour and hyper vigilance regarding the children’s health and well being. As discussed further in this judgment, I am satisfied this condition has arisen largely in response to the father’s behaviour during the marriage and immediately after separation. At the same time, the mother’s own psychological profile, together with the ill health suffered by [Y] and [X], has contributed to the extent of her present anxiety.
The mother says that her PTSD is compounded by the father’s past refusal to acknowledge his behaviour. She says her condition and her anxiety are so severe that her capacity to provide day to day care for the children would be compromised if the children were spending time with their father.
Ms Wood is engaged in ongoing counselling. Now that the father has acknowledged his past behaviour, she hopes that her counselling may assist her to process the past trauma and better manage her anxiety. She further argues that the children also need support and counselling before any attempt at re-establishing their relationship with the father should be considered.
The father’s position
The father’s position changed substantially across the course of the proceedings. At the commencement of the trial in accordance with his Case Outline, Mr Wood sought to re-commence his relationship with the children on a graduated basis, progressing to overnight time.
During the course of the hearing the father sought leave to proceed with an application for the children to live in his primary care. This application arose (at least in part) out of the mother’s evidence regarding her extreme anxiety about the children’s health. Counsel for the mother argued that it was unfair to her client to have the whole tenor of the dispute change halfway through the mother’s case.
I declined to grant leave to the father as sought, but reminded counsel that the court is not limited by the proposals put forward by the parties. If at the end of the hearing, a change in primary care was seen as a possible outcome, the court would then invite each party to be heard on that issue and proceed to make orders that ultimately reflected the children’s best interests.
Ultimately, in light of the father’s eventual acknowledgement of past abusive behaviour, he sought very different orders, based upon the need for ongoing counselling for both parents, and for the children, prior to re-commencing his relationship with the children on a supervised basis.
Legal principles
When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In the case of Goode & Goode[2] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the approach the Court should follow in any parenting case and their comments apply equally to final hearings.
[2] Goode & Goode (2006) FamCA 1346
Section 60CC is divided into primary considerations and additional considerations. The primary considerations focus on children having a meaningful relationship with both parents and on the need to protect children from the physical or psychological harm that may flow from being subjected to, or exposed to, abuse, neglect or family violence. At times these considerations are in direct conflict.
There are thirteen additional considerations in s.60CC(3) which must be taken into account and I will address those further in these reasons. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4),(4A)). In addition, I must address s.60CG and endeavour to make orders that ensure no-one is exposed to an unacceptable risk of family violence.
Section 61DA presumes that it is in the children’s best interests for their parents to retain equal shared parental responsibility, unless the presumption has been rebutted. For the reasons outlined in this judgment, I am satisfied that the presumption does not apply in this matter.
The hearing
The hearing commencing 20 April 2009. Throughout the trial the Court received extensive and detailed evidence regarding the parties’ personal and marital relationship, as well as the insights gleaned from the parties’ presentation and demeanour in the witness box.
The wife relied upon the following affidavits and witnesses:
a)Wife’s initiating application filed 26 April 2007;
b)Wife’s trial affidavit filed 27 March 2009;
c)Trial affidavit of maternal grandmother Ms D filed 27 March 2009;
d)
Trial affidavit of Ms R, Social Worker and Counsellor filed
27 March 2009;
e)Trial affidavit of Mr C filed 30 March 2009;
f)
Affidavit of Ms P filed 27 March 2009 (annexing report of
Dr W dated 26 February 2009);
g)
Affidavit of Ms P filed 20 April 2009 (annexing report of
Dr P dated 16 April 2009);
h)Affidavit of Ms P filed 20 April 2009 (annexing reports from [S] School dated 1 April 2009);
i)Affidavit of Ms P filed 20 April 2009 (annexing bundles of subpoenaed documents from various sources);
j)Affidavit of Ms P filed 22 April 2009 (annexing medical reports from Dr T ([Y]’s Paediatrician) dated 6 December 2007, 8 September 2008, 16 December 2008 and 30 March 2009).
The husband relied upon the following affidavits and witnesses:
a)Husband’s further amended response filed 13 February 2009;
b)Husband’s trial affidavit filed 20 March 2009;
c)Affidavit of Ms H filed 20 March 2009; and
d)Affidavit of Ms O filed 20 March 2009 (annexing two reports from Dr B dated 31 January 2008 and 29 January 2009.
The parties and their witnesses were available for cross examination. Ms Cole attended as the Court’s witness and was cross examined by both parties. Both parties presented their cases fully and were ably assisted by counsel, Ms West appearing for the father and Ms Dickson appearing for the mother.
In every family dynamic, the parties bring to their relationship the whole of their life experience that has gone before. That past experience defines how the parties will behave and react within the relationship and, significantly, after separation. The Court heard extensive evidence about each party’s personal and psychological history. I do not intend addressing every aspect of the evidence in this regard but will set out my findings on those matters relevant to my determinations.
I will first outline my findings regarding each party’s evidence. I will then address the relevant s.60CC considerations.
My findings about the mother’s personal history and evidence
Ms Wood had a troubled childhood and adolescence. At the age of 11 she developed an eating disorder following on from abdominal surgery. She undertook counselling with Dr J. Her parents also separated, which is a traumatic event for any child. At the age of 17, Ms Wood was the victim of an attempted sexual assault. She managed to elude her attacker and escaped to safety.
As a young adult the mother undertook further therapy to address these issues. Ms Wood also gave evidence about a prior relationship where she identified her partner’s behaviour as emotionally abusive. All of these events contribute to the mother’s psychological and emotional make up.
The father argues that this past history played a significant role in the mother’s diagnosis of PTSD. I disagree. Dr W has undertaken a psychiatric assessment of the mother. The evidence from Dr W was clear. She considered the mother had properly processed these past events and while they are significant in the mother’s life, they do not account for the trauma that has caused the mother’s ongoing stress disorder.
This accords with the Court’s own observations of the mother in the witness box. When discussing these earlier events, Ms Wood’s demeanour was calm and measured. By contrast, she was deeply distressed and almost incoherent at times when giving evidence about her marriage and Mr Wood’s behaviour during the marriage.
The extent of the mother’s anxiety and distress was clear in the witness box. It was equally apparent during her interviews with Ms Cole and Dr W, as described in their reports.[3] The father argued that the wife’s emotional distress, combined with her strong need to “prove” her concerns about the father, has led her to overstate or exaggerate past events, particularly the children’s alleged distress in relation to their attendance at the Children’s Contact Centre and with Ms Cole.
[3] Affidavit Ms P filed 27 March 2009, Annexure GRP2, report Dr W 26 February 2009, p.7; report A Cole dated 17 December 2008, pp.8, 10
Ms West referred to Dr T’s report dated 8 September 2008, where his observations of [Y] in August 2008 did not match the symptomology described by the mother at the same time. Counsel argued that this is a clear example of Ms Wood creating concerns that arise purely from her own anxiety.
I accept the mother is an anxious and hyper vigilant parent. Her anxiety is symptomatic of her PTSD and has been heightened by the fear and trauma associated with the serious health problems recently suffered by both [Y] and [X]. These crises have created an environment where the mother is highly sensitised to any potential symptomology exhibited by either child.
The medical evidence is clear that some of the children’s medical presentations have been stress related insofar as the symptoms represent an emotional reaction or “somatisation” by the children, rather than reflecting an organic or physical problem.[4] However, I reject any suggestion that the mother has deliberately created or exaggerated such incidents to undermine the father’s claim to spend time with the children.
[4] Affidavit Ms P filed 20 April 2009, Annexure GRP2, report Dr P, p.1
Generally, I assess the mother as a witness of truth. Both Dr W and
Ms Cole noted that the mother’s accounts of past events were remarkably consistent, despite the extraordinary degree of detail she provided in interview. The same can be said for the mother’s presentation in the witness box.
Ms West noted, and objected to, the mother’s tendency to provide more detailed evidence during cross examination. At times the mother referred to incidents or details that had not been mentioned by her previously in her affidavit evidence. Ms West’s objection was properly made insofar as the father had no opportunity to respond to the more detailed evidence presented by Ms Wood. However, I do not consider this detracted from the overall reliability of the mother’s evidence. It is not unusual for witnesses to provide a greater degree of detail in oral testimony that may be considered excessive and edited out when preparing affidavit material. At times the mother also appeared to be “re-living” some of the incidents she was describing in the witness box.
I find that the mother’s evidence about these past events is reliable. Even if I excluded the extra detail provided by the mother in the witness box from my considerations on the basis that the father had no prior notice of this information, none of this evidence actually conflicts with the substantive evidence contained within her affidavits. I am satisfied there is sufficient evidence to base my findings about the father’s past behaviour.
My findings about the father’s personal history and evidence
The father has had extensive contact with psychiatrists across his adult life. He first consulted with Dr E in 1989, apparently at the instigation of his parents. According to his notes, Dr E did not form any diagnosis at this time.
Mr Wood then consulted with Dr G in 1991 who noted that the father demonstrated some mood swings, but did not consider there was a basis for any psychiatric diagnosis. In 1997 the father consulted with Dr D who identified the father as experiencing depression and psychosis. The behaviours apparently reported by Mr Wood to Dr D are remarkably similar to the behaviours described by the mother during the parties’ relationship. Dr D prescribed antipsychotic and antidepressant medication for the father.
During the parties’ marriage the father consulted with Dr O (briefly) and with Dr S. He continued to consult with his general practitioner, Dr K. Mr Wood has dismissed the information contained in the notes and reports from the various psychiatrists. He has endeavoured to explain away any past diagnoses as having arisen from “misunderstandings” in his sessions with the doctor involved.
I reject this contention. I am satisfied that the father has a lengthy history of demonstrating psychotic, paranoid and grandiose behaviour, dating back to 1997. I am satisfied that the wife observed similar behaviour during the marriage and her concerns regarding the father’s psychological stability were well founded.
Dr B diagnosed the father as suffering from Borderline Personality Disorder, based upon Mr Wood’s personal history and an examination of the past medical information. Dr B noted Borderline Personality Disorder does not necessarily undermine a person’s day to day functioning, but that “during times of stress or within a close relationship with another person there will become manifest the underlying instability and psychotic elements of the deeper level of the personality”.[5]
[5] Affidavit Ms O 20 March 2009, Annexure B, report Dr B 31 January 2008, p.9
I accept Dr B’s diagnosis. I also consider it likely that the stress and conflict that arose within the parties’ marriage led to a situation where the father was exhibiting more extreme symptoms and behaviours during the marriage than at the time Dr B assessed Mr Wood in January 2008.
The father’s demeanour was noticeably more measured and controlled in the witness box when compared to the mother. I consider Mr Wood generally endeavoured to give his evidence honestly and that his evidence reflects his genuine recollection of past events. However his memory of these events is not necessarily reliable. Dr B noted in cross examination that the father may not give a reliable account of past events, as the narcissistic aspects of his personality make it difficult to identify his own failings, preferring to see the other person as the problem. I agree with this assessment.
As mentioned, late in cross examination Mr Wood ultimately acknowledged that the mother’s allegations of his abusive and threatening behaviour around the time of separation were correct. This is in marked contrast with his earlier evidence before the Court. Given the significance of these events it is impossible to accept that the father’s earlier evidence was simply “mistaken”.
The father does not concede the mother’s allegations regarding his behaviour prior to separation. Mr Wood does not consider his behaviour during the marriage was threatening or abusive, but I disagree.
Taking into account all of the evidence before me, I prefer the mother’s evidence over that of the father on these matters. I consider it likely that Mr Wood was in fact suffering a florid presentation of his Borderline Personality Disorder at times during the marriage. This not only impacted upon his behaviour, but upon his capacity to recognise his behaviour as abusive or bizarre. This, in turn, affected his subsequent recollection about such incidents.
The parties’ evidence about their relationship
Both parties brought their own psychological frailties to their relationship. It is clear that their marriage became fraught with conflict, over issues such as finances, family involvement and/or interference and ultimately, over the father’s behaviour and his engagement with psychiatric treatment.
The parties consulted with various psychiatrists and counsellors during the marriage, including Dr S and Dr O. The notes from Dr S and Dr O suggest that both parties contributed to the conflict within their relationship. Dr O described both parties as “infinitely angry”[6]. He further noted that the mother experienced “very bad rages” during her pregnancy with [Y][7].
[6] Affidavit of Ms P 20 April 2009, report 25 February 2005, p.80
[7] ibid, report 17 December 2004, p.59
Dr O also diagnosed the father as suffering from “a pretty fragile borderline personality”[8]. Dr O noted “a virtually psychotic rage in him” during a subsequent consultation[9], following which Mr Wood took exception to Dr O’s treatment options. The father still maintains that Dr O acted unprofessionally in the treatment prescribed, despite
Dr O’s assurance that any side effects from combining Haloperidol with his existing medication only arose at much higher dosages.
[8] ibid, report 23 February 2005, p.65
[9] ibid, report 1 March 2005, p.65
The father concedes that both parties contributed to the conflict but suggests that the mother was the primary provocateur in their arguments. I reject this suggestion. While both parties clearly contributed to the conflict, I am satisfied that the father responded in ways that the mother experienced as threatening and abusive.
The mother alleges that the father demonstrated a range of bizarre and disturbing behaviour during the marriage. Dr S described the father as having “an idiosyncratic way of thinking”.[10] Dr O described the father as “paranoid and delusional”.[11] Mr Wood conceded aspects of this behaviour, but in a context where he sought to explain the alleged behaviour as exaggerated, overstated or misunderstood by the mother (and indeed by the various medical practitioners).
[10] ibid, report 1 December 2005, p.43
[11] ibid, report 17 December 2004, p.59
Having considered all of the evidence, I conclude that Mr Wood exhibited paranoid and delusional behaviour during the marriage and that this behaviour was symptomatic of his Borderline Personality Disorder. The mother found his behaviour threatening and distressing. I am satisfied that the father was physically aggressive towards the mother on occasions.
I accept Ms Wood’s evidence regarding the threats subsequently made by the father after their separation. Her reaction to this behaviour must be assessed in the context of her overall experience of the father’s other bizarre and aggressive behaviour, and the concerns subsequently communicated to her by Dr O.[12]
[12] Affidavit of Ms P 20 April 2009, report 25 February 2005, p.72
I conclude that the mother’s Post Traumatic Stress Disorder has arisen as a result of events that occurred within the marital relationship, both pre and post separation. Ms Wood was initially willing to promote a relationship between the children and the father. However she was confronted with the need to choose between her marriage and the children’s safety as a result of the father’s ongoing behaviour.
The father may have felt Ms Wood was trying to control his life in ways that he found unacceptable. It must also be acknowledged that there are aspects of Ms Wood’s behaviour – such as threatening to harm herself with a knife – which are very concerning. Her evidence that she was advised to do so in an attempt to “break the father’s psychosis” was less plausible than the account given in her trial affidavit, that she “did this to divert the father’s attention away from [X] and my mother”.[13]
[13] Affidavit of Ms Wood 27 March 2009, para.53
I accept that, due to her own psychological profile, Ms Wood may have experienced a much greater level of trauma arising from the father’s behaviour than many other people in the same situation. However I am satisfied the degree of stress and trauma she has described is genuine.
The mother’s other witnesses
The maternal grandmother
The maternal grandmother gave evidence and was cross examined. There is obviously a poor relationship between Mr Wood and Ms D. Mr Wood clearly felt she was intruding in his family life and resented her frequent presence in the home.
Notwithstanding Ms D’s clear hostility towards the father and his family, I accept her evidence regarding her observations of the father’s behaviour. I find that Ms D was present during an incident in October 2004 when the father behaved in an abusive manner towards Ms Wood. When Mrs D remonstrated with him, the father raised his arm aggressively and threatened her while Ms D was holding [X] in her arms.
I am also satisfied that Ms D was present on other occasions when the father was behaving aggressively. The father may feel his behaviour was a justifiable reaction to the maternal grandmother’s intrusive behaviour, however I conclude that Mr Wood has no real insight into the impact his aggressive behaviour may have on those around him, including the mother and maternal grandmother.
I do not accept that there is any basis for Ms D (or indeed the mother) to hold concerns that the father has sexually interfered with [X] or behaved in a sexually inappropriate manner towards his daughter.
Ms D may well have observed that [X] was suffering from a reddened vagina. She may equally have observed Mr Wood behaving in an overtly sexualised manner that she found personally distasteful. However she has conflated these observations within a prism of extreme hostility to reach a conclusion of sexual abuse that is simply not justified on the evidence.
Mr C
Mr C, the mother’s brother, was a reliable witness. He gave his evidence soundly and succinctly. I accept his account of the father’s behaviour towards him in February 2005. I accept that he has observed the father behaving in an agitated and aggressive manner on other occasions.
Ms R
The mother has participated in counselling with Ms R since November 2006. Ms R has prepared three reports in this matter dated 9 February 2008, 8 May 2008 and 7 March 2009. Ms R gave evidence about the mother’s fears and perceptions arising from the father’s behaviour towards her during the marriage and after separation.
Ms R expressed the view that Ms Wood’s fears for her children’s safety have not abated at all over the intervening years. She went on to suggest that the mother is really experiencing a form of “Continuing” Traumatic Stress Disorder through the Court process. Each assessment or court event resulted in the mother repeating, and in effect, “re‑living”, the past abuse. She says this has been further exacerbated by the way in which Ms Wood has been portrayed as an overanxious and hostile mother within the Court system.
Ms R described her role as providing support for the mother. She described how she initially encouraged Ms Wood to focus on the children’s safety over and above her desire to preserve the marriage. Subsequently she has supported Ms Wood through what has been a protracted Court process – first with the property proceedings and now parenting issues.
Ms R acknowledged that the mother was resistant to the children spending even supervised time with their father. She described
Ms Wood’s fear that the father is easily capable of “pulling the wool over” the eyes of any psychiatrist, such as Dr B and likewise with any professional supervisor. Ms Wood is concerned that if supervised visits proceeded well, then the children may be required to spend unsupervised time with their father, which Ms Wood believes is an unsafe and unacceptable outcome.
Having identified the mother’s fears in this regard, Ms R expressed the view that Ms Wood would nonetheless be able to accept the Court’s decision on this issue. She considered her client would seek appropriate counselling to deal with this outcome, even though it would be a frightening prospect for her. Ms R agreed that she would be able to assist in this regard and could provide ongoing counselling support to the mother, no matter what orders were made.
Dr W
Dr W undertook a psychiatric assessment of the mother as had been recommended by Ms Cole. Dr W has diagnosed Ms Wood as suffering from Post Traumatic Stress Disorder arising from the father’s behaviour during the marriage. Dr W acknowledged that Ms Wood has experienced other stressful events in her life but in her opinion, the mother has dealt with those issues.
During cross examination Dr W acknowledged that the mother presented with symptoms that could meet the diagnostic criteria for Borderline Personality Disorder. She acknowledged that she had considered other diagnoses beyond PTSD, but she maintained her opinion that PTSD was the preferred diagnosis for Ms Wood. Dr W accepted that she may not have been aware of every detail of the mother’s past history when preparing her report, but she did not consider that the matters put to her by Ms West would alter her diagnosis. She agreed that the mother’s level of distress was extreme, but did not identify any signs of paranoia or psychosis.
Dr W agreed that the mother had no doubt experienced “rage” during the marriage and that she may still be experiencing unresolved anger and grief over the failure of the marriage, but did not see either of these factors as contradicting her diagnosis.
She agreed with Ms Dickson that the mother would be highly distressed if the Court ordered the children to spend time with their father. She agreed this could compromise the mother’s capacity to provide “a calm secure safety base” for the children. At the same time, Dr W acknowledged that it may ultimately assist the mother to resolve her anxiety if she experienced the reality of [X] and [Y] spending time with their father and returning safely to her care.
Dr W considered ongoing therapy may assist the mother. She conceded it was a circular problem insofar as the mother may need counselling to enable her to deal with the prospect of the children seeing their father, but until she was able to experience the reality of the children returning safely after visits with their father, it would be difficult to address the underlying stressors. Dr W noted that cognitive behavioural therapy could be usefully employed in such circumstances.
Dr P
Dr P is the family GP. He provided a report dated April 2009 and attended for cross examination. His report described his role in providing medical and counselling support for the mother and went on to summarise his involvement in providing medical care for [Y] and [X]. Dr P noted that the mother is suffering from anxiety and depression, which is managed principally by counselling. He considered that most of the mother’s physical ailments were stress related.
When asked about the mother’s general presentation, Dr P acknowledged the mother was distressed at times during their appointments. He considered the mother generally tried to protect the children from her distress, but agreed that the children would have observed the mother’s anxiety at times.
Dr P noted that he has seen [X] and [Y] between 30 and 40 times each across 2008/09. Ms West asked Dr P whether he considered this number of appointments to be excessive. Dr P noted that on occasions he has managed the children’s presenting symptomology by monitoring the child over 2 or 3 consultations before proceeding to more intrusive investigative procedures. However he also noted that [X]’s urachal cyst was only diagnosed after the child had first presented with a urinary tract infection and after Ms Wood requested further investigations be undertaken. That history, combined with the ongoing monitoring required regarding [Y]’s cancer, led him to conclude that the children’s medical attendances were not excessive in the circumstances.
Dr P conceded that some of the children’s physical ailments such as constipation and abdominal pain appeared to have no obvious physical cause. He agreed that [Y] has displayed stress related behaviours, such as persistent hand washing.
Other medical information regarding the children
The mother also relied upon reports from [Y]’s paediatrician, Dr T.
Dr T has prepared 4 reports dated 6 December 2007, 8 September 2008, 16 December 2008 and 30 March 2009. Dr T was not required for cross examination. Dr T has treated [Y] since infancy regarding various ailments including a diagnosed neuroblastoma for which [Y] required surgery in 2007.
Dr T noted that [Y] has continued to experience other problems such as asthma, abdominal pain, flashes of light, frequent handwashing and eczema. Dr T noted that some of these symptoms appear to be stress related. It is clear from his reports that Dr T had the impression that [Y] was spending time with his father, which is clearly not correct.
The mother says Dr T made a mistake and that she had told Dr T that [Y]’s symptoms started in late July 2008 after the child became aware that he may see his father at the Contact Centre. I accept that the mother did not deliberately mislead Dr T, but I consider it likely that in her anxiety and distress, she may have created the impression [Y]’s symptoms were in response to seeing his father, not simply to the prospect of seeing his father.
In December 2008 Dr T said:
“The family separation appears still to be placing significant stress on Ms Wood and on [Y]. I still have not recently seen [Y]’s father Mr Wood, so it remains difficult to gain full perspective of the family issues and to know exactly how much stress [Y] is suffering as a result of contact with Mr Wood. Nevertheless it still remains relevant that the significant illnesses [Y] has suffered should continue to suggest that there be careful structuring of any contact that [Y] may have with his father such that additional stress is not placed on him and his mother emotionally. Whether or not [Y] himself suffers stress from the contact is possibly less relevant than the fact that his mother very clearly does. At this age children suffer very substantially from the effects of stress in their parents. [Y] does appear to remain more susceptible than many infants to the separation because of the significant illness he has suffered”.[14]
[14] Affidavit of Ms P filed 20 April 2009, Annexure GRP6
Insofar as Dr T’s reports comment upon [Y]’s reaction to time with his father, his opinion is of little assistance to the court. Clearly [Y] had not been seeing his father. However Dr T appears to be equally concerned about the impact of Ms Wood’s stress levels upon [Y], as he is about potential stressors impacting directly upon [Y]. His opinion in this regard is highly relevant, given the seriousness of [Y]’s illness.
Subpoenaed psychiatric notes and records regarding each party
The wife filed an affidavit annexing medical notes and reports obtained under subpoenae issued to various doctors and psychiatrists consulted by her and by the father. None of these doctors were required for cross examination and the court must be cautious in attaching undue weight to these records. However, both parties sought to rely upon these notes in the conduct of their case.
Both parties were cross examined about these notes, where relevant. Counsel agreed that the notes were properly before the court, to the extent that either party had been cross examined on them. The relevant entries were marked by both counsel and I have included this material in my considerations.
The father’s other witnesses
Ms H
Ms H is [employed in the Healthcare Industry]. She and the father have been living together for approximately 12 months. She tells the Court that the father enjoys a positive relationship with her four children. She agreed that she supported the father in his decision to stop taking Prozac in January 2009. Based on her observations she considered he did not require such medication, and told the court that Mr Wood has been stable in his mood and affect since ceasing the medication. Ms H acknowledged that the father did not consult with his treating general practitioner when deciding to stop taking Prozac.
The father proposes that Ms H take on the role of supervisor if supervised time with the children is ordered. Ms H considers she is aware of the responsibilities of the role and is confident she could meet those responsibilities diligently.
In the course of cross examination Ms H acknowledged that she had read some of the Court documents, including the wife’s trial Affidavit. While she and the father had discussed aspects of the wife’s evidence, she had not asked him about specific allegations. Ms H said that her view of Mr Wood was based upon her own interactions with him. Based on the quality of their interpersonal relationship, she trusted the father and she did not feel any need to discuss the mother’s previous allegations with him.
Ms Dickson informed Ms H that the father has now conceded that he behaved abusively towards the wife and had threatened to kill himself or the family in early 2007. Ms H agreed that the making of these threatening comments was a serious matter.
Ms H was asked by the Court to comment further on this information. She felt reluctant to do so, saying she preferred to have some time to absorb the information, as it clearly conflicted with her prior understanding of the marital dynamic between Mr and Mrs Wood. In the circumstances, the Court did not press Ms H for a response.
Dr B
Dr B has prepared two psychiatric reports in relation to Mr Wood. The first report was prepared in January 2008 and an update report was prepared in January 2009. In his first report Dr B concluded that the father does not suffer from a mental illness but meets the criteria for a diagnosis of Borderline Personality Disorder. The observable symptoms associated with a diagnosis of Borderline Personality Disorder can be affected by “environmental” factors in a person’s life. Dr B noted that Mr Wood was at the lower end of the spectrum of symptoms that are associated with this diagnosis, at the time of his assessment in January 2008.
In his second report, Dr B noted that the father appears to be in a settled relationship. He has maintained stable employment. These factors act to minimise the impact of the disorder and support the father’s capacity to manage his life on a day to day basis, free from the more florid symptoms he has demonstrated in the past.
In the course of cross examination Dr B noted that people with Borderline Personality Disorder often have a tendency to distort the history they present to their psychiatrist. In that regard, Dr B based his diagnosis on past medical information from the subpoenaed material, in addition to the father’s own history and presentation during the assessment interview.
In a general sense Dr B expressed the opinion that therapy rather than medication is the most appropriate treatment response to a diagnosis of Borderline Personality Disorder. Dr B concluded that Mr Wood’s condition was presently stable and he did not consider that therapy was necessary at this time. However he also noted that a person with Borderline Personality Disorder is greatly affected by life circumstances at any given time. He agreed that the father’s presentation appears to have been far less stable in the past and could deteriorate in the future if stressors re-emerged within his relationship, his employment, or indeed, in any future relationship with [Y] and [X].
In his second report Dr B noted that the father appeared to have been stable over the intervening year “primarily due to the stabilising influence of a new relationship with Ms H and his stable employment”. He concluded “I saw no reason why the children [X] and [Y] would be at risk of physical or emotional harm as a result of spending time with Mr Wood”.[15]
[15] Affidavit Ms O filed 20 March 2009, Annexure C, p.3
The Court’s expert witness – Ms Alexander Cole
Ms Cole prepared a family assessment in this matter in January 2009. She attended to give evidence and was cross examined by both parties during the trial. Ms Cole concluded that both [Y] and [X] are highly vulnerable children. Ms Cole was unable to comment on the veracity of the parties’ allegations, however she concluded that if the Court found the mother’s allegations were proven, she could not support the children spending time with their father unless Mr Wood acknowledged his behaviour and took steps to address it.
Ms Cole noted the children presented with considerable anxiety during the assessment process. She was unable to conclude whether their anxiety reflected the children’s own memories of time with their father, or whether it reflected their mother’s anxiety about them spending time with their father. She noted that the mother had actively facilitated the children spending time with their father early in the separation, but was concerned that the mother’s subsequent attempts to “explain” to the children that their father was unwell had exacerbated the situation for the children.
The father had concluded his cross examination prior to Ms Cole taking the stand. She was therefore in a position to comment upon the father’s acknowledgment of past abusive behaviour. In this context it is important to remember that the father did not concede each and every allegation made by the mother, but clearly conceded that he had made threats of self harm and threats to the mother and children in the months following on from the separation.
Ms Cole agreed that the father’s failure to acknowledge any of these matters earlier had led to the mother experiencing ongoing trauma as she endeavoured to “prove” his past abusive behaviour. Each Court attendance or intervention has been, in effect, re-traumatising for the mother.
In such circumstances it is hardly surprising that Ms Wood is experiencing ongoing anxiety that has affected her day to day functioning. Ms Cole considered the father’s acknowledgement of past behaviour could have a significant positive impact on Ms Wood’s psychological welfare. She hoped that the mother’s ability to process the past traumatic history within their relationship would be significantly enhanced now that she no longer needs to “prove” her concerns are valid.
Ms Cole commented on the level of anxiety demonstrated by Ms Wood and the impact this has had upon the children. There is no doubt that both children have suffered significant ill health. The mother’s extreme anxiety would necessarily impact upon the children, who already present as physically and emotionally vulnerable. This may account for some of the “somatic” symptoms reported upon by Dr P. Ms Cole noted that the school reports for both children were positive but nonetheless concluded that the better equipped Ms Wood is to manage her own stress, the better equipped the children will be to develop their own age appropriate coping strategies.
At the end of the day, Ms Cole concluded that it was essential to allow the mother time to participate in further therapy, preferably some form of Cognitive Behavioural Therapy, which would enable her to develop and reclaim her own emotional resilience. Ms Cole considered the children would also benefit from some therapeutic intervention prior to attempting any resumption of time with their father. She considered that [X] and [Y] may need time and support to defuse any present anxiety in this regard.
She considered that “a re-introduction/de-sensitisation process” may be appropriate, starting with an exchange of letters and photographs between the father and the children. Ms Cole acknowledged this would be a frustrating process for the father. She acknowledged that Mr Wood’s current status, as reported by Dr B, would suggest that he would not present any risk for the children.
However, she maintained her conclusion that the children’s long term best interests are intricately entwined with their mother’s emotional welfare. If the mother, their primary caregiver, is able to achieve a level of emotional resolution and resilience [my words] where she can contemplate the possibility of the children resuming a relationship with their father, this will facilitate the children’s capacity and willingness to do so.
Ms Cole acknowledged that Dr B’s most recent report did not recommend ongoing counselling for the father, based on the father’s current presentation. Ms Cole took a different view. She was concerned that Mr Wood had a limited ability to appreciate the impact his own behaviour may have on others around him. She considered this was a crucial issue for the father to address before resuming a relationship with the children.
Further counselling could assist the father to develop the necessary “self-monitoring” skills to ensure his behaviour and demeanour did not impact adversely upon the children. Ms Cole agreed that a staged approach towards the possibility of re-introducing the children to their father was appropriate. This could be managed with her ongoing assistance, or through a psychologist engaged to work with the children, in the first instance.
Primary considerations
Section 60CC(2)(a) benefit to the children of having a meaningful relationship with both parents
The Family Law Act does not define what is meant by “a meaningful relationship”. However the concept has been examined in a number of decisions in recent years. In Mazorski & Albright[16] Brown J said that “a meaningful relationship or meaningful involvement is one which is important, significant and valuable to a child.” Her Honour went on to note that it is a qualitative adjective, not strictly a quantitative one. In G & C[17], Bennett J suggested that the enquiry was prospective in nature, insofar as the court must assess whether a child will derive some benefit from maintaining a meaningful relationship with both parents.
[16] Mazorski & Albright (2007) 37 Fam LR 518
[17] G & C [2006] FamCA 994
The concept of “meaningful relationship” was further discussed in the recent decision of McCall & Clark[18]. The Full Court considered that there were three potential interpretations of s.60CC(2)(a) - the “present relationship approach”, based upon evidence about the relationship that has existed or does exist between the parent and the child, the “presumption approach”, which assumes that there is a benefit to the child, and the “prospective approach” which requires the Court to consider the evidence about the nature of the relationship and if it is in the child’s best interests, to frame orders that will ensure a meaningful relationship into the future.[19]
[18] McCall & Clark [2009] FamCAFC 92
[19] McCall & Clark [2009] FamCAFC 92, at para.118
The Full Court concluded that:
“… the preferred interpretation of benefit to a child of a meaningful relationship in s60CC(2)(a) is “the prospective approach” although, depending upon the factual circumstances, the present relationship approach may also be relevant”.[20]
[20] ibid, at para.119
The Court continued:
“In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a meaningful relationship with both parents, but there will also be some cases where there will be no positive benefit derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be not in the child’s best interests.”[21]
[21] ibid, at para.122
At present the children do not have an established or meaningful relationship with their father. Dr B expressed concern at the father’s capacity to react appropriately “to the immature emotions inevitably expressed by all normal, healthy children”.[22] In cross examination he confirmed his view that the father would “cope okay” with short periods of time but may struggle for longer periods of multiple days. Dr B considered such a situation may be stressful for Mr Wood and his capacity to react appropriately would likely depend upon the maintenance of other stabilising factors, as previously discussed.
[22] Report of Dr B, 31 January 2008, p.10
However, Dr B’s evidence overall suggests that the father is presently capable of re-establishing a relationship with the children, based on his assessment of Mr Wood in January 2009. He concluded there was no reason why he should not commence time with the children. Ms H’s evidence regarding the father’s relationship with her children would seem to support this. Of course, Dr B did not have the advantage of hearing the father’s evidence.
Ms Cole expressed concerns regarding the father’s capacity to sensitively and consistently meet the children’s emotional needs, if they were to resume spending time with him. At the time of being interviewed by Ms Cole, Mr Wood was dismissive of Dr B’s first report. The father presents with a history of limited engagement in past therapeutic interventions. He will need to demonstrate a genuine commitment in this regard before the Court could be satisfied that he is able to offer a meaningful parenting relationship to the children.
Given all of the evidence, particularly from Dr B and Ms Cole, I conclude that the father has the capacity to establish a meaningful role in the children’s lives, but ongoing therapeutic support for the father will be essential if any rebuilding of the relationship is attempted.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to or being exposed to abuse, neglect or family violence
Based on my findings regarding the father’s prior behaviour, and his diagnosis of Borderline Personality Disorder, I am satisfied the mother’s concerns about the physical and emotional safety of herself and her children are justified, based on her experience of the father’s behaviour. The father’s symptoms associated with his illness were substantially more florid at the time of the parties’ relationship and marital breakdown.
Provided the father is able to maintain his present level of functioning and the mother is able to receive reassurance in that regard (perhaps via feedback from the father’s counsellor), I consider the risk to the children can be managed by ensuring that any time spent with their father occurs on a supervised basis and for short periods of time. The Court orders will ensure that the children’s physical and emotional safety is preserved. Counselling for both parties and for the children will be an essential precursor to ensure [X] and [Y] are fully supported through this process.
Additional considerations
Section 60CC(3)(a) any views expressed by the children and any factors that are relevant to the weight the court should attach to those views
[X] and [Y] were interviewed by Ms Cole and were clear that they did not want to see their father. [X] told Ms Cole that her father “tried to hurt us”. [Y] made similar comments. Both children indicated that they know these things because their mother told them. Both children demonstrated a significant level of anxiety during the interview process.
In assessing the weight to be attached to the children’s views, I accept the evidence from Ms Cole. She concluded it was unlikely that [Y] in particular would hold any independent memories of his father that would account for his attitude.
I am satisfied the father behaved aggressively during the marriage and that both children may have witnessed this behaviour. However, it is unlikely that their memories of this behaviour would account for the hostility they expressed. I agree with Ms Cole that the mother has, perhaps inadvertently, allowed her own fears to impact upon the children, causing anxiety in both children. Her attempts to explain the father’s absence to the children has unintentionally added to their level of anxiety. I conclude that I should place little weight upon the children’s views as expressed to Ms Cole, save as an indication of their anxiety, and the need to progress this matter cautiously.
Section 60CC(3)(b) the children’s relationship with each parent and significant others
Ms Cole describes the mother as caring and committed to the children. Both [X] and [Y] enjoy a loving and secure relationship with her. I am satisfied that they have an ongoing and settled relationship within their extended maternal family as well.
Presently the children have no such relationship with the father or any members of their paternal family.
Section 60CC(3)(c) willingness and ability of each of the child’s parents to promote and encourage a relationship between the child and the other parent
Ms Wood’s anxiety is such that she is presently unable to support the children’s relationship with the father. I have already indicated my findings regarding the father’s past behaviour and have accepted the mother’s evidence in this regard.
I have heard the evidence from Ms Cole and Dr W about the emotional benefit to the children in developing a healthier perception of their father, one that is not based on fear and anxiety. It will be in the children’s long term emotional best interests to re‑establish a current relationship with their father, rather than live with a recollection of their relationship, based upon past events. Hopefully Ms Wood can acknowledge the benefit that will flow to [X] and [Y] if they are able to grow up without such a level of anxiety in their lives.
The Court can and will ensure that the children are not placed at risk of physical or emotional harm from their father. Ms Wood is devoted to her children’s welfare and I am confident she will support the children resuming a relationship with their father provided she is assured of their safety.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances
If the children’s situation remains as it is presently, they will have no sense of their father or of their paternal family. This will be a significant absence in the children’s emotional landscape, notwithstanding my concerns regarding the father’s past behaviour. However, Mr Wood will need to demonstrate his willingness to engage in ongoing counselling before the Court could be satisfied the children will benefit from resuming this relationship.
A resumption of time between the children and the father will be stressful for the mother. The medical evidence has clearly demonstrated the extent to which Ms Wood’s anxiety impacts upon [X] and [Y]. Hopefully the mother’s anxiety can be managed by court mandated safeguards and by her own participation in ongoing counselling.
Section 60CC(3)(e) practical difficulty and expense
Not relevant.
Section 60CC(3)(f) the parenting capacity of each parent
The father concedes that Ms Wood is a devoted and capable parent. The various medical reports all speak very positively about the mother’s parenting and the children’s day to day presentation. The reports from the children’s schools are similarly positive.
Mr Wood was understandably concerned at the excessive number of medical attendances for [X] and [Y]. His counsel queried whether the mother may be suffering from a psychiatric disorder such as Munchausen’s by Proxy syndrome. Based on the evidence of Dr P, I reject this suggestion. However I am concerned that Ms Wood’s anxiety is having a detrimental impact upon the children’s physical and emotional welfare.
Mr Wood’s current parenting capacity is untested. The mother raised concerns about the father’s past lack of commitment to, and engagement with, the children. The father denies this. Even if the mother’s concerns are valid, I view this as an aspect of Mr Wood’s response to the ongoing conflict within the household, at a time when his emotional functioning was significantly compromised.
When the father is well, and emotionally stable, I am satisfied he has the intellectual and emotional capacity to provide for the children’s needs. However, I remain conscious of Dr B’s comments regarding the difficulties a person with Borderline Personality Disorder may face in managing close interpersonal relationships. I remain conscious of
Ms Cole’s concerns regarding the father’s limited insight into his past behaviour.
If it is in the children’s best interests to resume their relationship with their father, any resumption will commence with short visits proceeding on a supervised and closely monitored basis. There will be opportunity for the father to develop and enhance his parenting capacity through this process.
(g) maturity, sex, lifestyle and background of children
[X] and [Y] are still young children. Obviously they are emotionally dependent upon their relationship with their mother, but this dependence is even more significant given the children’s health issues. However, without minimising the serious health issues that [Y] and [X] have experienced, the medical evidence raises a concern that the children are learning to express their anxiety through somatic symptoms and ailments, rather than developing more appropriate emotional responses. This cannot be in the children’s best interests.
In addition, Ms Wood seems to have lost confidence in her own capacity to assess the children’s state of wellbeing. This is also concerning, but I am confident that with the resolution of these proceedings and with ongoing counselling, the mother’s own emotional resilience and her self confidence will increase. As Ms Wood’s anxiety decreases with time, the children’s own emotional resilience will be enhanced and their physical health will become more robust and secure.
Section 60CC(3) (i) each parent’s attitude to the children and to the responsibilities of parenthood; and s.60CC(4) the extent to which each parent has fulfilled, or failed to fulfil their parental responsibilities
I am satisfied the mother has demonstrated an appropriate attitude to the children and has generally fulfilled her parental responsibilities properly. The father is critical of her failure to support any relationship between him and the children. I am satisfied that the mother’s attitude in this regard reflects her genuine fears about the father, based on her past experience of him.
The challenge now for Ms Wood is to accept the possibility that the father’s behaviour has changed to the extent that he does not present a risk to the children, provided appropriate safeguards are in place.
The mother is critical of the father’s attitude towards his parental responsibilities since separation. In particular she noted that Mr Wood has failed to seek information from [Y]’s treating doctors. While the father concedes this is the case, I accept that the mother’s implacable hostility to his involvement in the children’s lives would have made such an option difficult to pursue. Indeed, any attempt by the father to do so is likely to have caused more stress to the mother as she managed the children’s illnesses.
Section 60CC(3) (j) and s.60CG risk of exposure to family violence
The father’s past aggressive behaviour has been discussed elsewhere in this judgment. I am satisfied that the father has behaved in an aggressive and at times, violent manner towards the mother. I am concerned that Mr Wood still lacks any real insight into his behaviour and the impact his aggressive behaviour had upon the mother.
The impact of family violence upon children extends beyond an actual physical assault by one spouse upon the other. Children are also affected by a domestic environment where one parent lives in a state of apprehension about the other parent’s moods or aggression. While
Mr Wood’s behaviour and his lack of insight may be manifestations of his Borderline Personality Disorder, the Court must ensure that the children and the mother are protected from the risk of such behaviour in the future.
Section 60CC(3) (k) any family violence order
The mother has obtained a Domestic Violence Restraining Order. The father consented to the final order, on the basis that he was not admitting the allegations. Mr Wood now admits that he did behave in a threatening and abusive manner. In addition I have found that the mother’s allegations about other aggressive and violent behaviour are well founded.
Section 60CC(3) (l) whether it is preferable to make orders least likely to lead to further proceedings
The potential resumption of a relationship between the children and
Mr Wood is still at a very early stage. Hopefully, with the assistance of their counsellors, the parties may be able to manage the children’s future parenting arrangements away from the court process, but that will depend upon each party’s capacity to make a genuine commitment to ongoing counselling.
Conclusion
The Family Law Act defines the objects that underpin Part VII of the Act regarding parenting decisions. Section 60B(1)(a) requires the Court to ensure children have the benefit of both of their parents having a meaningful involvement on their lives to the maximum extent consistent with the best interests of the children [my emphasis]. Section 60B(1)(c) requires the Court to ensure that children receive adequate and proper parenting to help them achieve their full potential [again, my emphasis].
At the present time, I cannot be satisfied that it is in the best interests of [X] and [Y] to resume their relationship with their father. While I am satisfied that Mr Wood is currently stable and unlikely to present any risk to the children, it is clear that the mother’s anxiety is so severe that any immediate attempt to reintroduce the children to the father is likely to compromise Ms Wood’s capacity to provide adequate parenting to the children, at least in an emotional sense.
However, I conclude that it will be in the children’s long term best interests if both parents work towards a resumption of [X] and [Y]’s relationship with their father. Both parties acknowledge that counselling is a necessary first step in any attempt to re-establish the children’s relationship with their father.
I am guided by the evidence of Ms Cole in this regard and accept her recommendations that both the parties and the children will benefit from counselling. Hopefully the father’s concessions regarding his past behaviour, albeit belated, will assist the mother in recovering from the severity of her stress disorder. I accept that Ms Wood wants to be the best parent she can possibly be for [X] and [Y]. If she is able to resolve her stress disorder then she will be an even more effective and capable parent in the future.
The mother should take comfort from my findings in this judgment. She has established that her concerns regarding Mr Wood were based upon her experience of his behaviour. Any orders the Court makes regarding the children spending time with their father will take these matters into account.
At the same time Ms Wood should also take comfort from my findings regarding the father’s present level of functioning. I am confident she can see the obvious emotional benefits to [X] and [Y] if they have two loving and emotionally stable parents in their lives as they grow up.
Ms Wood acknowledged that her former husband had been “a good father” in the past. She endeavoured to maintain the children’s relationship with him after separation, until Mr Wood’s behaviour at the time deteriorated to the point where she felt it was unsafe to do so. If the father had acknowledged the extent of his behaviour and sought counselling at the time these proceedings commenced, this dispute may have moved in a very different direction. The reality is that he did not do so.
Mr Wood has demonstrated limited insight into his past behaviour. However I am reassured by his willingness to participate in ongoing counselling. His commitment to this process and his capacity to reflect upon any feedback will be a significant factor in considering when, and in what circumstances, the children should resume their relationship with him.
The mother is concerned that the father is able to delude or mislead any counsellor that he may consult. An analysis of the past medical notes from Dr D, Dr S and Dr K, and the reports of Dr B and Ms Cole should reassure her in this regard. None of these professionals were “duped” by the father. I will order that all of the counsellors consulted by each party receive copies of this judgment and the reports from Ms Cole,
Dr B and Dr W.
The focus of Ms Wood’s counselling should be to address her stress disorder and hopefully, reduce her overall anxiety levels. Ms Wood clearly needs time to complete this process and to develop her own emotional capacity to the point where she can calmly contemplate the possibility of the children resuming a relationship with their father.
Dr W recommended a process of Cognitive Behavioural Therapy and the mother has taken this suggestion on board.
The focus of the children’s counselling should be to develop their overall emotional resilience. Ms Cole recommended that the children may benefit from some gradual “long distance” re-introduction to their father, by way of letters and photographs. Neither [X] nor [Y] have spent time with Mr Wood for over two years. Given their reaction to the possibility of supervised time with their father during the family assessment process with Ms Cole, the children also need time to make the emotional adjustments necessary to ensure any re-introduction with their father is a positive and meaningful experience for them. Ms Wood will play a critical role in this process. I am confident the mother will do everything possible to address her own concerns and to support the children in the future.
The focus of the father’s counselling should be to develop greater insight into his own behaviour, into the life stressors that may undermine his emotional stability, and to understand the impact his behaviour can have upon others, especially upon [X] and [Y]. He will no doubt seek guidance about how to best manage any re‑introduction with the children. The mother believes that the father should be taking medication, but Dr B did not consider medication was necessarily appropriate, or even useful in a diagnosis of Borderline Personality Disorder.
Dr B did not consider the father required counselling at the present time. On this topic I find Ms Cole’s recommendations are more child focussed. As discussed, the father needs to develop greater insight into his behaviour, insight that was clearly lacking during his interviews with Dr B and Ms Cole. Mr Wood’s participation in counselling will demonstrate his commitment to a child focussed outcome. It will also provide independent “monitoring” of the father’s emotional wellbeing, which should also provide some reassurance to the mother.
Parental Responsibility
I am satisfied that the presumption in favour of equal shared parental responsibility does not apply in this matter. The father’s behaviour during the marriage and following separation falls within the definition of “family violence” in that he has behaved aggressively towards the mother, threatened her, and has caused Ms Wood to fear for her safety or wellbeing.
The father’s behaviour has had a profound effect upon the mother’s psychological and emotional stability. For the reasons discussed in this judgment, it is impossible to contemplate the parties sharing in parental responsibility at this time and accordingly I will order that sole parental responsibility vest in the mother.
Future timeframes
The preliminary counselling process needs time to get under way and for the mother, [X] and [Y] to address (and hopefully to reduce) their anxiety levels. This process cannot be rushed. Ms Dickson submitted that it is inappropriate to set a “looming” timeframe for any commencement of supervised time, arguing that this will place further stress on her client.
Ms West acknowledged that preliminary counselling was appropriate but argued that the order should include progress to supervised time between the children and the father. She suggested that initial interaction could take place with Ms Cole, or with the children’s counsellor, in the first instance.
The mother proposes that she should successfully conclude her own counselling before the children commence any counselling. I disagree. Both processes can be travelling along “in tandem” as it were. I conclude there could be real benefits to Ms Wood’s therapeutic progress if she is able to observe progress in the children’s emotional welfare as well.
The orders I make will include the possibility of a resumption of communication between the children and their father. The timeframes for this process are designed to consider the possible exchange of letters and photographs commencing towards the end of this year.
The orders will also address the possibility of a process of re-introductory visits between the children and their father. While a loose timeframe is included within the orders, the parties should be guided by the counsellors, in this regard. I decline to set a precise timeframe for the re-introduction of contact or for any time spent between the children and their father. It will depend upon the progress of the mother’s therapy and the children’s counselling. The family consultant will liaise with the counsellors in this regard.
I will also make a general order for further supervised time, as agreed between the parties. If the counselling process and re-introductory process proceeds smoothly then the parties may well be able to negotiate further arrangements, with the assistance of their counsellors (and their legal advisors). This order allows for that outcome without the need for further court applications.
The father may be concerned that Ms Wood will deliberately undermine this process, but I am confident that the mother is genuine in her commitment to the children’s best interests. I am confident that she will engage with this process fully in order to support [X] and [Y] in the future.
I have considered whether to appoint an independent children’s lawyer to facilitate the exchange of information and the overall process, but this will involve the parties in further expense. Given that they will be incurring ongoing counselling fees, this may not be the best option.
Ms Cole would be an obvious person to assist the parties in a co-ordination role, but the Court has been advised that she will be commencing maternity leave shortly and will be unavailable for some months. In the circumstances I will make an order pursuant to s.65L for a family consultant to assist the parties in complying with these orders. The family consultant will liaise with the counsellors regarding the progress of the mother’s therapy and the children’s counselling and about the possible commencement of supervised time between the children and the father. If Ms Cole is available at any stage the parties may choose to request her assistance, given her familiarity with the family dynamics.
The mother argues that the father should meet one half of the fees associated with her counselling, in addition to the children’s counselling. Generally it would be considered appropriate that the parties meet their own expenses in this regard however this is an unusual situation.
The mother has been attending with a counsellor since separation in order to manage her anxiety. In the future she will be responsible for transporting the children to and from their appointments, as well as her own. While the Court cannot know how each party’s counselling will proceed, it seems reasonable to assume that the process may be more intensive for Ms Wood than for Mr Wood (and therefore more expensive). In the circumstances I conclude that the father should make some contribution to the overall costs that the mother will incur.
I now make orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Kelly FM
Associate: K. Fedele
Date: 30 July 2009
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