WORSTELL & WORSTELL

[2015] FamCA 999

FAMILY COURT OF AUSTRALIA

WORSTELL & WORSTELL [2015] FamCA 999

FAMILY LAW – CHILDREN – EDUCATION – INTERIM ORDERS – Interim application by the father seeking orders that the 12 year child old child of the parties attend boarding school commencing in Year 7, being the following school year –Where the child is estranged from the father and has not spent time with him in accordance with the current Orders – Where the father believes that this is caused by the mother’s attitude and that the removal of the child from the mother’s household and her enrolment in boarding school would enable the rebuilding of the father-child relationship – Where the child has expressed firm and consistent wishes that she does not want to attend the boarding school – Where the single expert did not know whether a relationship between the father and child was achievable, even if the child went to boarding school – Where there is no evidence that the boarding school, once fully informed of the child’s circumstances, would accept the child’s placement – Father’s application dismissed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Worstell

RESPONDENT:	Ms Worstell
INDEPENDENT CHILDREN’S LAWYER:	Independent Children’s Lawyer

FILE NUMBER: SYC 434 of 2015

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 & 5 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Sexton Family Law

COUNSEL FOR THE RESPONDENT: Ms Carr

SOLICITOR FOR THE RESPONDENT: East Coast Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Falloon
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Coast Law

Orders

IT IS ORDERED

1. That the Application in a Case filed by the father on 3 September 2015 be dismissed.

2. That Ms S be provided with a copy of these Reasons for Judgment.

IT IS ORDERED BY CONSENT

1. That each of the father and the mother do all acts and things to ensure that the child M born … 2003 forthwith resumes counselling with Ms S and remains in counselling with Ms S until Ms S indicates to the parents that counselling is no longer appropriate

IT IS NOTED that publication of this judgment by this Court under the pseudonym Worstell & Worstell 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 SYDNEY

FILE NUMBER: SYC 434  of 2015

Mr Worstell

Applicant

And

Ms Worstell

Respondent

REASONS FOR JUDGMENT

1. The child M (“the child”), aged 12, is the youngest of the four daughters of the father, Mr Worstell and the mother, Ms Worstell who are bitterly estranged. The child lives with her mother on the Central Coast of New South Wales.

2. There are proceedings on foot between the parents relating to parenting which will not be heard for some time. They have not yet been allocated to a docket. Realistically, it may be a year before the substantive hearing.

3. However, the parents are unable to agree where the child should attend secondary school in 2016 and that discrete issue is to be determined. The child currently attends X School and the mother proposes that she should remain at that school for at least the next year or two of her secondary schooling. The father proposes that the child should attend Z School at Sydney Suburb H as a boarder from 2016. The mother does not rule out the possibility of the child boarding at Z School at some future time but it is her case that the child should not attend in 2016.

4. Thus the discreet issue for determination here is whether the child should attend Z School from the commencement of the first term of 2016.

5. The child’s three elder sisters all attended Z School for some or all of their secondary schooling. L started after Year 8, N after Year 7 and E in Year 7. For part of that time, all three girls were boarding together.

6. The child M was enrolled at Z School as a boarder to commence in 2016, by both of her parents when they were still living together.

THE HEARING

1. The Court was assisted by a report from a single expert, Dr B, and by an Independent Children’s Lawyer (“ICL”) for the child.

2. The parents each relied on a number of affidavits by themselves and the mother, in addition, relied on affidavits by two psychologists , Ms S who had been the child’s treating psychologist, and Ms Y who was asserted by the mother to be a treating psychologist.

3. The parents, Dr B, Ms S and Ms Y were cross-examined.

THE FATHER’S CASE

1. The child is estranged from her father. She has not spent time with him in accordance with Orders made by the Family Court of Australia on 17 March 2015 which provided for her to spend time with her father two evenings a week, on one day each weekend and during school holidays.

2. She has refused to go with her father on occasions and he has, since May 2015, not insisted that she go. The reasons for the child’s attitude will be explored in more detail later in these reasons. The father believes that the child’s rejection of him is entirely a reflection of the mother’s attitude towards him and what he describes as the “poisonous” environment of the mother’s household. Consequently, the father believes that, if the child were removed from the constant influence of the mother and placed in boarding school, the child’s rejection of him would abate and they could rebuild their relationship.

THE MOTHER’S CASE

1. It is the mother’s case that the child does not want to spend time with her father and adamantly does not want to go to Z School. The mother says that the child is not sufficiently mature to board away from her mother.

THE POSITION OF THE ICL

1. It is the position of the ICL that the evidence before the Court does not support the making of the orders sought by the father. It was submitted that the issue of schooling is but one issue in the bundle of parenting issues that should be determined when the matter proceeds to final hearing.

THE POSITION OF Z SCHOOL

1. No evidence was called from the school. The father attached to his affidavit emails from Z School confirming that a place was available for the child from the commencement of the 2016 school year as a boarder.

2. On 27 October 2015, the mother telephoned the head of the boarding school, Ms W. The mother told Ms W that the child was exhibiting suicidal ideation and asked what capacity the school had to care for the child in those circumstances. The mother deposed that Ms W told her that the school would not accept the child in those circumstances.

3. Tendered in the father’s case was a series of emails between the Registrar of Z School and the solicitor for the father. The last email dated 5 November 2015 stated:

   We do have a place for [the child] for either Year 7 next year or for Year 8 or Year 9 if [the child] is not quite ready to come into Year 7 2016.

   If a psychologist’s report indicated that [the child] had any suicidal ideations, we would not be able to vouch for her safety and well-being as a boarder, and so could not take her at this time. We would, however, welcome her with a positive report from her psychologist, advising that boarding is a suitable option for [the child].

THE APPLICATION FOR ADJOURNMENT

1. At 2.15 pm on the second day of the hearing, after receiving the email referred to in paragraph 16, counsel for the father sought an adjournment until 5.00 pm on Friday 6 November so that selected paragraphs of the report of Dr B could be sent to Z School.

2. That application was refused. In addition to Dr B’s report, there were in evidence reports of two psychologists who each stated that boarding was not her preferred option for the child. In addition, Dr B, in cross-examination, drew back significantly from her recommendation that the child attend Z School.

3. To send to Z School only a portion of Dr B’s report, without a transcript of her cross-examination, would be materially misleading. Additionally, counsel for the father proposed that when the matter resumed the next day, a letter or email from Z School setting out the position of the school would be tendered and the matter could then be concluded. That proposal was not acceptable.

4. For any weight to be placed on any stated position of Z School it would be necessary to ensure that the school was aware of all of the evidence about the child’s psychological state, including not only Dr B’s report but her oral evidence, the evidence of the two psychologists and their oral evidence. Both counsel for the ICL and counsel for the mother agreed with the proposition that they would then wish to cross-examine the author of the email from the school. In the case of the ICL, the major concern was whether proper arrangements could be put in place for the child to be supported at Z School in circumstances where she adamantly did not want to go there and also whether appropriate arrangements could be put in place for the child to have regular sessions with a therapist.

5. Whatever may have been the position of Z School on Friday afternoon, the matter would have to be adjourned for further cross-examination and the matter could not have been concluded before the start of term in 2016.

6. For these reasons I dismissed the father’s application for an adjournment. There will be no weight placed upon the position of Z School as expressed in the email of 5 November 2015 in my determination of these proceedings.

THE EVIDENCE OF THE PSYCHOLOGISTS

1. The mother relied on affidavits of two psychologists, Ms S and Ms Y.

2. Ms S was the psychologist to whom the child was referred by agreement between the parents. She had eight sessions with the child and, at the child’s suggestion, three sessions with the father. She prepared a report dated 11 October 2015. Ms S reported that the child is affected by the current parental conflict which affects her ability to maintain a relationship with both parents. The child has firmly and consistently stated that she did not want to board at Z School, partly because she feels that she has no connection with the school or the school community.

3. Ms S reported that the child is very connected to her current school and extra-curricular activities such as music, church and local events.

4. Ms S had read and considered the report of Dr B and acknowledged Dr B’s recommendation that boarding at Z School would have the benefit of removing the child from a high conflict situation. However, she did not agree with the recommendation and expressed her concerns about the psychological impact on the child of attending boarding school.

5. Ms S described a relationship between the child and the father which had been positive in the recent past and recommended therapy with a psychologist (not herself) between father and child. Ms S gave evidence that she would make a recommendation of an appropriate therapist.

6. Ms S expressed the view that, given the child’s immaturity and lack of psychological resilience, this therapeutic intervention was best undertaken when the child was in her secure home base.

7. Dr B was present in Court during the cross-examination of Ms S and agreed with Ms S’s recommendation that the child urgently needed to be taught strategies for problem solving and coping with decisions about her welfare that she does not like.

8. The mother terminated the child’s sessions with Ms S. The mother gave evidence that the therapeutic relationship between the child and Ms S had broken down. Ms S was not aware of that and said that their last session had been productive.

9. The mother, in circumstances which will be discussed further, engaged Ms Y. Although the mother was adamant that Ms Y was engaged as a therapist for the child, it is clear that she was engaged to prepare a report for the purpose of these proceedings. Ms Y herself gave evidence that she had not commenced therapy.

10. She saw the child three times commencing on 9 September 2015. The father’s application in relation to Z School was filed on 3 September 2015. Ms Y had not read Dr B’s report. She had no contact with the father. She had a history from the mother about the father which was extremely prejudicial.

11. Ms Y diagnosed the child as suffering from “symptoms in line with complex post traumatic stress (“PTSD”) or complex trauma”.

12. In her oral evidence, Ms Y said she would defer to Dr B’s superior qualifications and experience.

13. Dr B was present in Court during the cross-examination of Ms Y.

14. Dr B was critical of Ms Y’s diagnosis and her procedures. Dr B gave evidence that there was no DSMV diagnosis of “Complex PTSD” and that the diagnosis of PTSD was not available absent evidence of exposure to trauma in the form of actual or threatened death, serious injury or sexual violence.

15. Dr B said that the appropriate path was to conduct a clinical interview to ascertain whether traumatic events had occurred in the child’s life rather than to look at the child’s symptoms and, because those symptoms occur in a child with PTSD, to conclude that this child has PTSD.

16. Dr B did not agree that Ms Y’s assessment was objective and was concerned that she was very confident in her description of the child’s best interests without having the benefit of reading Dr B’s report, talking to the father or reading any of the affidavit material.

17. Dr B was critical of the mother for not adequately briefing Ms Y. For example, Ms Y had no information about the child’s sessions with Ms S.

18. For the reasons articulated by Dr B, Ms Y’s report will be given no weight.

19. The report is, however, relevant in Dr B’s opinion because it demonstrates the mother “shopping” for favourable evidence and the danger of the child’s being exposed to multiple therapists.

IS IT IN THE CHILD’S BEST INTERESTS TO ATTEND Z SCHOOL IN 2016?

1. Although the compass of this determination is very limited, it is nevertheless a best interests determination and governed by the provisions of s60CC.

2. There is not, on the surface of each parent’s case, any dispute that the child would benefit from having a meaningful relationship with both of her parents. However, as will be explored further in these reasons, the mother’s commitment to, and willingness to, facilitate the child’s having a relationship with her father is questionable.

3. The need to protect the child from psychological harm looms large in these proceedings. The psychological harm identified by Dr B arises, not from the difficulties that the child experiences with her father, but primarily from her enmeshed relationship with her mother.

4. Dr B also opined that, as a result of the behaviours of both parents, the child is currently at risk of psychological harm because of her exposure to the ongoing and chronic pattern of inter parental hostility, including relentless episodes of verbal conflict between the parents.

5. In relation to the child’s current psychological state, the child presented to Dr B as a child who experiences difficulties with social relationships, separation anxiety, other anxieties (such as food phobias) and has poor problem solving skills in some domains. Dr B outlined that these are current psychological concerns and need to be considered in determining what school is appropriate for her. Dr B gave evidence that as the child understands herself as someone who has not been successful socially, there may be an advantage to her staying in her current school as her familiarity with the students there may give her more comfort. However, it may also be helpful to the child, bearing in mind her social difficulties, for her to attend Z School from Year 7 (as opposed to a later time) as she will be attending school with a new cohort of students that have not yet formed cliques. While Dr B gave oral evidence that if “really pushed” to take a position, she would favour the child’s attendance at Z School in 2016 due to the potential long term mental health risks to the child if she remained in the mother’s household, she was also clear in her position that she genuinely did not know overall whether or not the child’s attendance at Z School would pose the best outcome for her mental health.

6. The Court must also consider, pursuant to s 60CC(2)(b), the need to protect the child from physical harm. It was the evidence of Dr B that one of the biggest risks of orders which require the child to attend Z School as a boarder, against her vehemently expressed wishes, is the risk of her non-compliance and the risk of her running away. Dr B considered that there is a real risk of the child behaving impulsively if she was forced to attend Z School in 2016. The strategies suggested by Dr B to address these risks are explored later in these reasons.

7. Not all of the factors referred to in s 60CC(3) are relevant to this discreet issue but those that are relevant will be considered.

THE CHILD’S VIEWS

1. The child is twelve years old. She is in Year 6 at school. She is adamant that she does not want to board at Z School in 2016. She has written a letter to the ICL which states her position in the clearest possible terms. The letter reads:

   Hello my name is [M Worstell] and I am 12 years old (almost a teenager) and you are supposed to be my lawyer. What confuses me though is I though (sic) lawyers where (sic) meant to listen to their clients point of view and act upon it – not to have never spoken to their client and assumed that I wanted to be with my “father” (well, I don’t) and take me away from my friends, family, animals, HOME and put me in a boarding school which I don’t want to go to. With NO friends, NO family, NO pets and NO home to come home too (sic), to comfort me when I’m feeling down. Would you really take my FREEDOM and LIFE away from me? You do not know how much I fear being forced to go to that school, or being with my “father”. Have you ever thought of what it would be like in boarding school? (I have) Not being able to escape school and being with girls who bullied you and were horrible?!? Never seeing your family for more than a day each week! Losing your friends from school because you have no time to see them and not knowing anyone at all! I also do not think that I am in the mental state to even think about going to live at a boarding school I am stressed and worried enough as it is. I think I would be mentally scarred for LIFE going to [Z School]!

   I emplore (sic) you to listen to me and my view and what I want. And not assume things without having met me yet.

   I would like you to remember that you have a 12 year old girls (sic) life in your hands to do with it what you please, and I hope you will act to what I want rather than what others want.

   Please and thank you,

   [M]

2. It was the mother who looked up the address for the letter and the mother who posted the letter.

3. The weight to be given to the child’s views is problematical. On the one hand, the reasons she gives in her letter – friends, pets, family, home and comfort are, objectively, good reasons. Dr B in her oral evidence referred to the child’s social anxieties and difficulties and the fact that the child was removed from her first school because of bullying. Dr B said that these are factors that must be considered in assessing what schooling is appropriate for the child.

4. On the other hand, the extent to which the child is capable of expressing any view other than that which aligns with her mother’s expressed views is highly doubtful. The mother in her oral evidence referred to the extent of their enmeshment saying words to the effect that “[The child] was copying me and trying to become me so the boundaries were being blurred so she could not be abandoned by me”. Dr B gave evidence that the child’s fear of being abandoned by her mother is real and based, at least in part, in her experience of L being rejected by the mother. In conversation with Dr B, in the presence of the child, the mother said that she preferred that L stay away. The mother told Dr B that L had the wrong genetic material (meaning that of the father) and demonstrated traits of the father. Dr B gave evidence that the child would be well aware of the consequences of behaving in any way that the mother perceives to be influenced by her father.

1. The most likely scenario is that the child is well aware of, and strongly influenced by, her mother’s opposition to Z School but that she has also formulated her own, objectively valid, objections.

2. There is no doubt that the child’s views are strongly held. The consequence of ignoring them was spelt out by Dr B. Dr B said that the child has been given the opportunity to rehearse her distress in the context of the sessions with Ms Y and has been “primed for that to be a very big, tumultuous, emotional issue”. Dr B warned of the real risk that the child could pose to herself by impulsive, non-compliant behaviour. Dr B also said that the child may increase her opposition to Z School in her need to prove that this is not what she wants. Dr B was of the view that it is unlikely that the child’s resistance to Z School will ever abate and that she may for ever blame her father for her being there, no matter that it is explained to her that the Court made the decision, not her father. The child is well aware that it is her father’s application that she goes to Z School and it is both likely and understandable that she will hold him responsible if she is forced to go there against her expressed wishes.

THE NATURE OF THE CHILD’S RELATIONSHIP WITH THE PARENTS

1. Dr B assessed the relationship between the child and the mother as highly enmeshed, age inappropriate and highly dependent.

2. Dr B assessed the child’s relationship with her father as estranged but opined that her current attitude towards him is unreasonable and disproportionate to her complaints about him.

3. However, when seen with the child by Dr B, the father unreservedly criticised the mother in front of the child to the extent that the child complained to Dr B.

4. The child’s rejection of her father is extended to the whole extended paternal family. Dr B commented that her reasoning for her rejection of her relatives was wholly inadequate.

5. In relation to her siblings, the child, like her mother, is estranged from L. The affidavit of the mother suggests that N is, at least to some extent, caught in the enmeshment between the mother and the child. There is little mention of E who appears to be less involved in the day to day interactions of the mother and the child, particularly in relation to the father.   

THE CAPACITY OF EACH OF THE PARENTS TO PROVIDE FOR THE NEEDS OF THE CHILD

1. I accept the assessment of Dr B that both parents have an exceptionally poor capacity to facilitate the child’s relationship with the other parent.

2. The father cannot refrain from criticising the mother. Dr B expressed surprise that he did not have the insight to protect the child from his criticism of the mother.

3. The mother expressed incredulity that she should be required to facilitate the child’s relationship with her father. She saw that relationship as completely the responsibility of the father and the child. Dr B saw this as an “enormous blind spot in the mother’s thinking and her understanding of her role as a parent”. In her report she stated, “I think it also reflects the mother’s underestimating the degree to which this “splitting” of [the child] will impact on her psychological development moving forward”.

4. Dr B in her report said:

   Unfortunately both these parents have an appallingly poor capacity to understand the need for [the child] to have a close and continuing relationship with each of them. Their animosity, and hatred of one another has eclipsed their capacity to understand this important parental responsibility. They have either failed to see or have minimised the impact of these behaviours on all their children and most specifically on [M].

5. The father in his affidavit material gave a number of instances of the mother telling the child that it was up to her to decide whether she wanted to spend time with her father. This was at a time when there were Orders in place that she spends time with him during the school term, on weekends and during the school holidays.

6. The mother variously admitted and denied those assertions but she admitted that, in the presence of the child, she said to the father that her barrister advised her that the Orders are not binding. She agreed that when the child said to her father that she did not want to go with him, the mother said “[The child] is nearly 12. She has the right to make up her own mind. I am not going to force her to come with you”.

7. The child on a number of occasions has said to the father that her obligation is to be available for collection but that she is not obliged to go with him.

8. In a text message on 25 April 2015 the mother stated:

   My barrister stated very clearly to me what the court orders meant….[the child] refused to go with you, which is her right. I only have to make her available which is what I did. I have repeatedly required that you fully explore what court orders mean…

9. The child has been empowered and given permission by her mother to refuse to see her father and to be defiant of him.

10. Dr B doubted the mother’s capacity to recognise the child’s emotional needs, particularly her need to individuate, to form an identity separate from her mother and to form an identity that is primarily about peers, music and academic pursuits and school. Dr B saw the child “drawn into a loyalty bind” that is causing her psychological distress. She said that the child will be drawn into an increased co-dependency with the mother to the exclusion of friends and possibly siblings “and definitely including anyone who would be offside with the mother”.

11. Sadly, Dr B, asked about the course of future therapy for the child, said “I think even the most skilled practitioner in the world could not undo what has been done to this child”.

ATTITUDE TO THE RESPONSIBILITIES OF PARENTHOOD

1. In cross-examination, the mother was asked whether she had complied with Court orders and was adamant that she had done so. This was in circumstances where the child has not spent Court ordered time with her father since about April 2015.

2. The mother’s attention was drawn to the Orders made on 17 March 2015, specifically Order 10 which provided that the child continue to meet with Ms S; Order 12 which provided that each parent notify the other of the child’s medical, dental or other health related treatments together with full details of treating professionals; and Order 13 which required that each parent direct all health professionals to provide the other with details of the child’s complaint, diagnosis and treatment. The mother agreed that those Orders had been sought by her.

3. The mother also consented to an Order on 19 October 2015 that both parents be restrained from causing the child to attend any mental health practitioner other than Ms S. By 19 October, the mother had already engaged Ms Y and the child had attended three appointments with her.

4. In the face of those Orders, the mother did not provide to the father a number of Mental Health Plans prepared by Dr C in relation to the child. She did not tell the father that the child had stopped seeing Ms S. She did not tell the father that the child was seeing Ms Y and she did not tell the father that she was attempting to arrange for the child to see a child psychiatrist.

5. Her excuse for those failures was that she was busy coping with a “barrage of emails” from the father. The emails were tendered. They relate to issues such as health insurance and the mother’s accusation that the father stole her pearls. I do not accept that the volume of emails was such as to prevent the mother from advising the father about these very serious issues relating to their daughter’s mental health.

6. I can have no confidence that the mother will comply with any order of the Court that does not meet her wishes. Specifically, no order requiring the mother to facilitate the child’s relationship with her father or to support and encourage the child at Z School would have any consequence for the mother.

CONCLUSION

1. Dr B was asked in cross-examination what strategies could be put in place to assist the child to cope at Z School. She listed:

   ·    Problem solving therapy of the sort proposed by Ms S

   ·    The reassurance and assistance of her siblings

   ·    The message that the decision was not made by the father but by the Court

   ·    Pastoral care at school

2. In relation to the issue of therapy, there is no evidence before me of any mechanism for such therapy to be provided if the child is at Z School. Ms S carries on practice at Town A and is not available at weekends. No alternative proposal was put.

3. There is no evidence that the child’s sisters will be reassuring or supportive. Having regards to the mother’s evidence of conversations with N, it is likely that N will view Z School in whatever way the mother does. L and the child M are estranged. There is no evidence about E’s likely attitude.

4. For the reasons I have already expressed, it is unlikely that the child will accept that the decision to board at Z School is not her father’s doing.

5. There is no evidence before me of the pastoral care which might be provided by the school.

6. Ultimately, when Dr B was asked whether she maintained her recommendation that the child attend Z School, she said that she genuinely did not know and that there were risks to the child no matter what school she attended. Dr B also said that she did not know if a relationship between father and child was achievable, even if the child went to Z School.

7. The final complication is that there is no evidence that Z School, fully informed, will be prepared to accept the child.

8. Having regard to all of those matters, the father’s application will be dismissed.

9. At the conclusion of the hearing, by consent, orders were made that the child resume counselling with Ms S. Dr B, in cross-examination, said that the child has poor problem solving skills to cope with relationships, poor relationship skills and poor communication skills. Those are matters which had been identified by Ms S. The Orders provide for the child to continue in counselling with Ms S until Ms S terminates counselling.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 November 2015.

Associate: 

Date:  13/11/2015