Allegations unfounded – children “safer” with other parent

Allegations unfounded – children “safer” with other parent

Calder & Andrews (No 2) [2016] FamCA 56 (28 January 2016)

THE SEPTEMBER 2015 PROCEEDINGS

45. In September 2015, the wife brought an application before the court for interim orders pending the determination of this final hearing. She sought orders, in essence, that the father not commit family violence towards her and the children, that all restrictions to her contact with the children be discharged, that the children be called upon to express a view as to the impact of the restrictions in their time with their mother on their lives, that the anticipated conjoint parent sessions with Dr F commence and that a new family report be undertaken but not by the person who wrote the report in 2014.
46. The wife’s evidence to support that application was that the court had reserved the right to allow the children to come into court and voice their concerns directly to the judge but this had never occurred. That was not accurate. It was asserted that the family report writer, Ms B, had distressed the children and they had advised the mother that Ms B was mean, would not listen to what they had to say and called them “liars”. Nothing I heard or read supported that allegation. Ms B’s report was said not to be accurate as a result of not having listened to the children. The report writer was accused of being biased and, therefore, it would be unfair to have another report prepared by Ms B for the 2016 hearing. In relation to the orders in September 2014, the wife said the children were “forcibly transitioned” into their father’s care, which resulted in them having an extremely “traumatic and distressing” separation from their mother. The wife claimed that the children had continually displayed high levels of distress when transitioning back to their father’s care, although she acknowledged the 2015 transitions had become more manageable as the result of the intervention of Dr F. But she then asserted there was a breakdown of communications as to appointments and the work to be done by Dr F.
47. The wife then made reference to an incident in which C ran away from the school grounds and went to her home in February 2015. It is not necessary that I deal with that incident. The wife went on to say in her affidavit that the children’s distress had escalated to the point that they said they would rather die than continue to stay at their father’s home and, if they had to harm themselves and their father, they would. All of this was dismissed by Dr F who obviously had a relationship with the children.
48. The wife said that she provided the children with a safe, caring and nurturing environment. She said as a teacher she had the ability to have the children before and after school as well as holidays. She said that, whilst in the father’s care, the children were attending after-school care each day, which made completing their homework more difficult and they were struggling to keep up with their educational obligations; and, finally, she pointed to a number of friends who noted the children were currently “not themselves” and were unhappy, withdrawn and unable to make eye contact.
49. It must be stressed that this evidence was not relied upon by the wife in her evidence-in-chief which she gave yesterday, but it was extensively referred to in the reasons I gave in 2015for not altering the parenting orders pending this final hearing.

CONCLUSION AS TO THE WIFE’S ASSERTIONS

50. On the basis of the evidence I have heard now from the husband, Dr F and the family consultant, along with reading those affidavits of the wife to which I have referred, I am satisfied there is now no foundation for the wife’s assertions. Indeed, her assertions are concerning because they manifest the reservations of both Dr F and the family consultant.

CONCLUSION ABOUT THE CURRENT PARENTING ARRANGEMENT

58. As for the current arrangement, the wife has been seeing the children on an alternate Sunday between the hours of 10 am and 5 pm and that has been occurring with some extra time at Christmas. The expert evidence suggests that that sort of order is not appropriate for these children. Ironically, in the hearing that I conducted in September 2015, that was the arrangement in place and there was then concern expressed by Dr F as to whether or not it should continue and whether the children should be supervised in the wife’s care. That issue has now been taken up by the family consultant, whose evidence I shall turn to in a moment, but Dr F no longer believes that the children should be the subject of any supervision order. That is not because of the wife’s ability but because it would be counter-productive
59. Finally, in relation to the 2013-2014 allegations by the wife, the husband responded that they were not true. Again, there is no reason for me to doubt the husband’s evidence in respect of that. There is no objective corroboration of the allegations by the wife but, most importantly, at the family report visit, the wife was given every opportunity to raise those sorts of allegations again and she did not do so.
60. At the hearing yesterday I explained in some detail how the hearing would proceed and particularly about the concept of cross-examination and the importance of putting allegations if they were to be relied upon. That was significant in this case because, as I have pointed out, the wife’s allegations in September 2014 were extremely serious. The wife chose not to cross-examine the husband at all. On that basis, and without any objective indication that those allegations have any foundation from any source, I am entitled to reject them. That leads to the conclusion that there is nothing about the husband’s relationship with the children that would enable me to find that these children are at risk in his care.

THE EVIDENCE OF DR F

61. Dr F gave evidence in September 2015, as she did this day. I think it is important to note, as I did in the 2015 reasons for judgment, that, to put the evidence today into some context, the details of what happened since can be seen as a result of that contextual examination. In 2015, Dr F described the children’s behaviour at the time they went into their father’s care as “histrionic” and “exaggerated”. She helped the children through the transition and was working towards unsupervised time with their mother. Dr F found it very disconcerting in September 2015 to find out that, notwithstanding her involvement in the case, in the previous 12 months there had been five notifications to the Department of Health and Human Services in Victoria that the children were in some danger. Dr F said today that she had spoken to the wife, who had conceded that she was responsible for two of those five notifications.
62. As late as 25 May 2015, the mother was alleging that the father of the children was in bed with D. On 1 June 2015, the Department of Health and Human Services were informed – and I am unsure whether this was part of a notification made by the wife – that the children feared their father, were talking about harming their father and, on one occasion, one of them had been put outside the house. The notification stressed that C was regressing in his behaviour and D had marks on her back from being in bed with her father. In every one of those notifications, the department took no steps either to express concerns about what was happening in the husband’s household and they certainly had every opportunity, but did not intervene, in these proceedings.
63. On 26 June 2015, the wife had a discussion with Dr F and, when challenged about the notification that she made to the department, she said she was forced to make it because, when she tried to contact Dr F, she was unable to obtain any appointment and she felt that that was critical because at that time, in her view, C was suicidal. Dr F said she spoke to the child and indicated that there was no foundation for the concern that C was suicidal. Dr F said that she made the wife hear what the children were saying about the time with their father and, in fact, that they were enjoying their relationship. Dr F, however, accepted in 2015 that the wife did not accept the relationship was like that at all.
64. Dr F agreed that she had told the wife that it was time to move on so that she could increase her role in the lives of the children, but that was dependent upon behavioural change in the wife.
65. Now, some four months later and with a visit between the wife and Dr F in December 2015, Dr F is of the view that nothing has changed. Dr F opined in September that the wife had no insight into the needs of the children or how any sharing arrangement would work. It is, therefore, unsurprising that, on the basis of Dr F’s evidence in September, the wife’s application of the nature I have earlier described could not succeed.
66. Dr F’s oral evidence to the court today has expanded on the problem, even though her contact was limited. Dr F said that the wife has not shifted her position in any perceptible way as regards her thinking. She described her as a reluctant participant who had to exhibit some form of change or willingness to change. Dr F, sadly, said that she did not trust the wife in terms of what she was being told. She took the view that there is little chance that the wife would change her beliefs. Those beliefs of the wife are the ones that were articulated in the affidavit in September 2014 but they are also things that the wife still asserts are being said by the children. Whilst the wife clearly denies having manipulated the children in any way, there is a correlation between what the children say and what the wife believes. I am not entirely sure whether Dr F, as a psychologist, is capable professionally of making a diagnosis, but her view was that the wife suffers from borderline personality disorder.
67. In relation to the husband, the view of Dr F was that, when he first took on the role of caring for the children, it was difficult for him to adjust. In part, that was because the children missed the mother dreadfully, particularly her care, which, leaving aside the psychological damage of their removal, had apparently been exemplary. The children generally love their mother and there are positive aspects of her parenting, according to Dr F. Dr F’s concern was that those positives have to be balanced with the negativity of the wife’s behaviour.
68. The fallout of the behaviour can be seen in the fact that D is emotionally conflicted. Dr F thought that D would say whatever her mother wants her to say. C and E, on the other hand, are dealing with the problem but D is much more difficult.

SUPERVISION OF THE WIFE’S TIME?

69. The question that is foremost in this case is what time should be spent by the wife with the children and, if indeed it is to be limited in some way, should it be supervised? The whole purpose of the recommendation of supervision was to enable the children to be protected from the psychological abuse of their mother by the imparting of the beliefs that I have already mentioned. The concern of Dr F about supervision was that the children have already seen too many practitioners. There was no basis, therefore, to bring in another practitioner, particularly someone who may not necessarily understand the subtleties of the problem that the wife is creating. In addition, absent change in the wife’s behaviour, supervision would have to be contemplated as a long-term prospect. A long-term supervision order is not only unwieldy but it is also impracticable. It means that children are living in an unreal world where there is an expensive supervisor who has to travel everywhere with them and there are restrictions on the development of the relationship. On that basis, supervision was not something that Dr F was at all enamoured about.

SEXUAL ABUSE ALLEGATIONS

70. Dr F was asked about her understanding of the wife’s position in relation to the sexual abuse allegations made in 2014. Dr F said that they were really a problem arising from the way that the wife thought about things. She described it as a feature of the wife’s personality disorder. In terms of the wife’s relationship with the children, which Dr F had observed clinically, she described it as an “odd” interaction. She said the children were like puppets who finished their mother’s phrases and they looked up at her before doing so. She said they were overly connected and intertwined.

THE HUSBAND’S RELATIONSHIP AS ASSESSED BY DR F

71. Contrasted with that, however, the husband had a normal and free-thinking arrangement and the children were free. In essence, therefore, Dr F was of the view that the children were caught up in saying what their mother wanted them to say and that was extremely psychologically unhealthy, particularly in circumstances where they had to go back to an entirely different household.

A FUTURE ROLE FOR A THERAPIST?

72. It is important that I acknowledge that Dr F has significant experience and her expertise was not challenged by any of the parties. I raised with Dr F whether her continued involvement might be compromised having regard to the fact that the wife expressed uncertainty about Dr F’s involvement, but she said that was part of the wife’s approach to the whole issue. I agree with that and, on the basis that Dr F will continue to be involved, or someone that she nominates if she is unavailable, the children will have an avenue for counselling if they need it.

FAMILY CONSULTANT MS B

74. The final witness in this proceeding and who was not required for cross-examination was family consultant Ms B. Ms B completed a comprehensive family report as a result of an order made under section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). That same provision also provides that it is a matter for the court to determine whether the evidence of the family report should be admitted. In this case, there is every reason for me to read into the evidence that report.
75. Albeit that the wife accused Ms B of bias and inaccuracy, nothing I have heard or read suggests that to be the case. Her observations of the parents and the children were very much like those of Dr F. Of the wife, the family consultant described her presentation as consistent with previous reports. Those are the reports that the wife described as being unbalanced and biased.
76. The family consultant said that, in the closing stages of the interview, and only under pressure, the wife explained that she was having minimal time with her own children because of her own behaviour. Having acknowledged that, according to the family consultant, the wife could not identify a single element of her behaviour that might accord with any basis for restrictions on her spending time with the children. That enabled the family consultant to conclude that there was a profound incapacity on the part of the wife for insight or reflection. The family consultant then went on to say that she could not see the wife addressing any of the concerns about her own behaviour or how she would conduct herself in relation to the husband, and she was significantly unable to operationalise any management issue associated with the children. The conclusion I have drawn from that statement is that the family consultant is of the view that the wife has adopted a position under which no one will tell her how to raise her children or be listened to if they disagree with her view.
77. The family consultant said that the wife still described the move of the children to their father’s care as “forcibly transitioned” and she went on to say that the 2014 consent orders had only been agreed to by the wife on the basis that the independent children’s lawyer gave her no choice and her own barrister threatened her and told her that she would not see her children until they were 18 years of age. When a court hears those sorts of statements subsequent to consent orders, particularly in children’s cases, it is very disconcerting. The difficulty in this case is that, when I return to the transcript of the proceedings in 2014, it is clear that I gave counsel for the wife at least two occasions to confirm that the wife was consenting to the orders. One of those occasions, as can be seen from the transcript, was such that the wife was given an opportunity to go outside of the courtroom whilst I adjourned temporarily so that counsel could have a private conversation. Counsel then came back to indicate that her client still conceded that the orders should be made. Accordingly, I can find no basis to say that the children were “forcibly” given to the husband in 2014.
78. In relation to the question that Dr F raised about the behaviour of the wife with the children, particularly in relation to denigrating the husband, according to the family consultant, the wife admitted conversations had taken place with the children because they asked questions and she took the view that the questions needed to be answered.
79. The family consultant, unlike Dr F, specifically pressed the wife about her claims of sexual abuse as raised by the 2014 affidavits. Her response was enlightening. She said that she had not coached the children to make the complaints; that they were the things that the children had said. When she was pressed as to the veracity of those claims, she responded by saying that she did not know because she was not there at the time, but she was simply responding to the distress of the children as a protective parent. At no stage has the wife indicated that she has any doubts about the veracity of those claims. That conclusion can be drawn from the fact that she was given an opportunity in the witness box yesterday to say whether or not she still stood by those accusations. It is clear that her case in 2014 was not just about what the children said. She strongly believed what they were saying and had no doubt that the husband was the perpetrator of those evils.
80. The family consultant turned her attention to the wife’s view about the husband’s current care of the children. The wife had said the children reported consistent complaints about the level of care but she said that they seemed to be psychologically coping, but then added “as well as they could”. All of that is completely contrary to the evidence of the husband and, whilst one person’s word against another might create some dilemma for the purposes of deciding which is true, I have the objective evidence of Dr F, who has spoken to the children and who indicated that the children were coping extremely well and when she observed the children with their father she saw no problems. There are problems but they are not of the nature that the wife is concerned about.
81. Having extensively canvassed the important issues in this case, the family consultant then opined that her view was that the wife had no capacity to comprehend the difficulties that she was presenting for the children or any sense of whether there had been any adjustment in her parental understanding of her behaviour. That indicates, like Dr F, that there is little prospect for change. The family consultant then said the following:

The children suffer at the hands of their mother. They are crippled and diminished, either with health issues or learning challenges that remained unaddressed but which allowed the wife to assume an unwarranted significance and receive attention. Since separation and residing with their father, the children are, according to the wife, further handicapped as they live with a parent who can’t do anything properly and, despite the wife’s claim to the contrary, her management of [E] sees him returning to his father in an emotionally dysregulated fashion as an indicator of his incapacity to deal with the emotional landscape she provides and/or lack of restriction as to his behaviour experienced with his mother.

82. The family consultant said that her view was that E can reflect; that he behaves differently with one parent than with the other. The family consultant said that E is aligned and obligated to his mother. Having regard to E’s age, that is very sad but it also gives rise to some serious concerns as to whether or not the mother’s time needs to be carefully considered.

THE OPINION OF THE FAMILY CONSULTANT

83. The family consultant ultimately went on to say that the court needed to be very careful about the extent and impact of the load that these children were carrying because C in particular is showing the first traces of a child who has become disaffected by a parent’s conduct. This is a child who is just entering his teenage years. The family consultant opined that, unless there is a swift and dramatic change, C will reject his mother and refuse to spend time with her, leaving the wife, over-invested in the other two children, escalating her inappropriate enmeshment with them.
84. The family consultant then said that the prognosis for the future was poor. She acknowledged that the wife’s focus was to fight and save face and that spending time with the children was not so much a priority. She thought that the wife was determinedly focused on undermining the husband, whatever the cost and whatever it would cause to whom. She said that the wife lacked insight and did not accept responsibility for her behaviour, simply claiming that it was everybody else’s responsibility to fix the problem.

FINDING AS TO RISK

85. All of that leads me to make findings that there is no risk of physical harm or psychological harm for the children in the care of the husband. Conversely, I have significant concerns about the psychological harm to the children in the care of the wife. In my view, in the wife’s care, the risk is unacceptably high. The solution must lie in the husband controlling the time so that the behaviour of the wife is minimised. Whilst it is always difficult to give one particular party the “whip hand” in a parenting case such as this, it must be remembered that I have heard the evidence of the husband and he has given every indication throughout these proceedings of a willingness to have the children have a relationship with their mother. There is no basis for me to suggest that he would take a bloodyminded approach to things.