High conflict parents criticized for conduct

High conflict parents criticized for conduct

Belgrove & Belgrove

Introduction

1. This case is about two children, X, who is five, and his brother Y, who is four. Mind you, when I say that this case is about two children, the way in which their parents have conducted this litigation would easily create the impression that it is not about the children at all, but rather about them. What is clear beyond doubt is that the parents do not trust each other, attribute the worst motives to each other and cannot communicate with each other. Their singular focus appears, at least to the Court, to be on winning this case and not on their children.
2. This power struggle between the parents continues and the children are innocent victims. This litigation has been going on for over a year. The first order was made on 9 November 2015. It provided that the children spend time with their father each Thursday from 5 pm until Sunday at 5 pm. The next order was made on 17 December 2015 and it dealt with Christmas Day and the school holidays. The next orders were made in March 2016. The March 2016 Orders provide for the children to live with their mother but to spend time with their father from 5 pm on Tuesday until 5 pm on Friday each alternate week and from 10 am on Thursday until 5 pm on Sunday in the other week.
3. This is the Order that is in place at the moment. It is a shared care arrangement in which the children spend six nights and seven days with their father. With the benefit of hindsight, one wonders how this arrangement could ever have been considered to be appropriate for X and Y. X commences school next year. His parents cannot decide where he should go to school. His mother, who lives in (omitted), wants him to go to school there. His father, who lives in (omitted), wants him to go to school there. Given the geographical distance that separate the homes of the parents, the existing shared care arrangement is no longer practical.
4. The Court observes, however, that the greatest barrier for these children is not a geographical one. It is not the distance between their parents’ homes. The greatest barrier for these children is, in fact, the vast psychological distance that exists between these homes. It is clear that both parents have a different approach to parenting and different values. The greatest threat to these children is in their respective parent’s homes. It is not a physical threat. It is a psychological threat. This matter is listed for hearing in May 2017. An expert has been appointed to prepare a report and that will be ready before the final hearing.
5. This is a case which, in this Court’s opinion, needs to have the evidence thoroughly tested before a final decision can be made. It is most regrettable that the Court is forced into a position where it must make a significant decision about the children’s lives without the benefit of the evidence being tested properly. This is a finely balanced case.

Risk of Harm?

18. The Act requires the Court to consider risk of harm considerations. These considerations figured quite largely in the Father’s case, supported by the Independent Children’s Lawyer. That case is, in effect, that there is a risk of harm to the children and that warrants making the change proposed by them, which would see the children live primarily with their father in the (omitted) area. As it is, and having considered the material before the Court carefully, the Court does not accept that there are any risk of harm concerns so far as these children are concerned.
19. Indeed, the Court’s far greater concern is about the continued exposure of these children to the intense conflict and acrimony that is displayed by their parents and the deeply held attitudes that seem to pervade this conflict.
20. There are a number of reasons why the Court has concluded that there are no risk of harm considerations as contended against the Mother. The first point that the Father’s stated concerns are plainly inconsistent, not only with the current proposal that he advances to the Court, but, indeed, with each of the proposals that he has advanced in this litigation so far and, indeed, in the consent orders that he has agreed to.
21. Nowhere in the orders proposed by the Father in his case outline filed 12 December 2016 does he propose that the Mother’s time be supervised or that she obtain treatment for her supposed mental health issues or that she comply with advice given to her by her doctors, or that she be medication compliant. In fact, what he does is propose that the children spend time with her without restriction each alternate weekend from after school on Friday to before school on the following Monday. He also proposes half the school holidays.
22. Given the extent of the mental health concerns that the Father has about the Mother, his proposal is plainly inconsistent with this. The Father expresses concern about the behaviour of the Paternal Grandparents and other members of the paternal family, but nowhere in his proposal is there any attempt to restrict their time with the children. The only restriction is that the Mother does not use physical force on the children when disciplining them, and that she ensure that no other person does so, a relatively benign restriction given the seriousness of the allegations that the Father makes.
23. There is a further inconsistency between the evidence of the Father and what his action is. For example, in his affidavit of 30 November 2016, he refers to concerning disclosures made by X in mid to late August and by Y in September. We know that the disclosures were made by the boys to both the Father and his sister on 1 September 2016. The Father took a photograph of a bruise to X on 20 May 2016. None of these serious allegations are raised with the Mother in a timely fashion. The implied assertion, of course, is that either the Mother caused these injuries to the children, or that some other member of the Mother’s family caused these injuries to the children, or that they are somehow evidence of neglect.
24. These are very serious allegations that are articulated for the first time in the Father’s affidavit of 30 November 2016, notwithstanding the multiple prior affidavits and the interim events before this Court. This is, plainly, inconsistent with the Father’s stated concerns. There is a sense in which these disclosures are presented to the Court opportunistically.
25. The Father raises concerns about the Mother’s mental health. What is clear is that the Mother had a psychotic episode in 2007. There is evidence from the hospital to which she was admitted about this. The event took place nine years ago, before the relationship between the parents. Clearly the Mother had a mental health crisis, but the documents confirm that it was a situational crisis consequent on the breakdown of a relationship. The manner in which the Father deposes to his concerns about the Mother’s mental health in his affidavits and then, creatively – or perhaps miraculously – links it to her psychotic episode nine years ago, is almost bizarre. He deals with this from paragraph 19 of his affidavit of 30 November 2016. He deposes to his longstanding concern about the Mother’s behaviour towards him and the children, her controlling behaviour, and her disposition.
26. He refers back to his very first affidavit, filed in these proceedings on 23 October 2015. His evidence in that affidavit is equally bizarre. At paragraph 33, for example, he refers to his observation of her interactions with her family and the manner in which she quickly switches her behaviour from being calm to quite irrational and abusive. He concludes that she suffers from some form of mental illness that has been diagnosed and treated in the past. At paragraph 35 he deposes that he now realises that the Mother’s behaviour over the years has been a result of her mental illness.
27. He refers to the Mother’s admission to him, in an argument, that she had been hospitalised from mental illness. He concludes that the Mother suffers from schizophrenia. His concern about her current mental state is that it is driving her irrational behaviour towards him. The records about the Mother’s mental health admission clearly did not become available until July or August this year. With the benefit of access to those notes, the Father was able to confidently assert in his affidavit of 30 November 2016 that the hospital notes confirm the concerns that he always had about the Mother’s mental health. On any objective view of the evidence, the notes do nothing of the kind.
28. Any link that the Father draws between his perception and experience of the Mother’s behaviour and her previous psychotic episode well before their relationship existed is tenuous at best and most likely illusory. The allegations of the Mother’s mental health concerns are built on foundations of sand. Again, there is an element of opportunism here. There is absolutely no basis to draw an inference of risk of harm from a situational psychotic episode that occurred nearly two lifetimes ago from X’s perspective. In any event, given the seriousness with which the Father now views these matters, one wonders why he has made the proposal that he has and why he accepted prior arrangements.
29. The Father raises concerns about violence in the Mother’s household. He refers to a violent incident between the Maternal Grandfather and his son, the Mother’s brother. On any objective assessment of that evidence, there is no reasonable basis for inferring that there is a risk to the children. Again, the absence of any specific limitation or restriction in this regard in the Father’s proposal is quite notable.
30. The Father raises concerns about bruises that he has observed on the children’s bodies. He immediately attributes the worst possible explanation for this. According to him, it was the Mother’s doing or someone in her household, or neglect. There is no context to the evidence about the bruises. The Mother offers an alternative hypothesis that is perfectly plausible. Even if it were the case that these children are being disciplined by their grandmother, that could easily be dealt with by a Court Order. The Father obviously asks the Court to accept his evidence based on the children’s disclosures as to the cause for their bruises.
31. What is abundantly clear from his evidence is that these children have been exposed to the most inappropriate discussions and behaviour by their parents. One wonders what these children must have been thinking about during the conflictual exchanges between the parents when the conflict was played out before their very eyes and ears. One must wonder what these boys were thinking when each of these parents, in all likelihood, have said inappropriate things in their own homes. One must wonder what was going through the boys’ minds when the Father was photographing them naked.
32. What message does this send about the Father’s attitude about the Mother and the maternal household? Given these facts, is it any wonder that the children may have said something that, in all likelihood, they believe their father clearly wanted them to say. Of course, the leading nature of the questions is also noticeable.
33. The risk of harm allegations in this case, whilst warranting closer scrutiny by an expert, do no merit making radical changes to these children’s lives. The allegations are inconsistent with the Father’s actions. What they do is merely reflect his attitude and his wiliness to go to extreme lengths in order to win what he experiences as the battle with the Mother.
34. The Court is very conscious of the fact that it has undertaken the above risk assessment in a manner that is inconsistent with that undertaken by the Independent Children’s Lawyer. There are many concerns, however, about the allegations made, how and when they have been made and the inconsistencies referred to above that the Court cannot reach the same tentative view as the Independent Children’s Lawyer.
35. For example, most of the Department of Family and Community Services file is based on the Father’s reports or that of the doctors, but neither factor increases the strength of the allegation. Children have bruises. It is an often normal part of childhood. Children say odd things, especially when they are exposed to parental conflict like these two children are. Some of the disclosures are inherently unlikely, and it is surprising that no one has paused to think about this. For example, that his grandmother would hit Y with a knife. Has anyone really tested the plausibility of that? Some of the disclosures were clearly led by the Father. Much of the Father’s evidence about his concerns for the Mother’s mental health is so exaggerated as to be unbelievable. For example, paragraph 41 of his affidavit of 30 November 2016, is wonderful hyperbole that adds to the strong impression that most of that affidavit was drafted by the Father rather than by his solicitor. In short, the allegations made do not survive critical scrutiny at this level of the proceedings.

Parental Attitudes

48. In a finely balanced case such as the present one it is not surprising that matters of parental attitudes can sometimes assume a disproportionate significance. Whilst both parents claim to be child focused, objectively there is every reason to doubt that assertion. Allowing the children to be exposed to entrenched conflict is hardly child focused. They make decisions independently of the other. To the Court, both parents sometimes give the impression of thriving on the conflict between them. There are aspects of the Father’s conduct, however, which cause the Court concern. The Court must be satisfied that whichever parent has primary responsibility for the care of these children must be able to support the other parent’s relationship with the children. The Court has concerns about the Father in this regards.
49. The fact that he obtained (country omitted) passports for the children without the Mother’s consent, quite independently of her, but knowing of her trenchant concern about this is a matter of concern to the Court. He acted in an arbitrary manner. He knew that he did not have to get the Mother’s consent for a (country omitted) passport. He knew that she opposed it and he did it anyway. The manner in which the Father has made serious concerns about the Mother’s mental health and the bruising found on the children raised concerns in the Courts mind about his willingness to make extreme allegations that have potentially profound impacts on the children in order to get his way. It makes the Court sceptical about how he would support the children’s relationship with their mother, should they be placed in his care. The Father’s attitude, evident by his actions in photographing the children in the nude with no regard to how they might experience this, and whilst having conversations with them suggests a willingness to do whatever it takes to exclude the Mother from the children’s lives.
50. To the extent that the Mother alleges that the Father was manipulative and controlling – some of his own evidence is consistent with this. Even if the Court has overreached in its impressions about these matters and that a more reasonable, benign conclusion is only that he lacks insight, it really does not change anything. These factors contraindicate giving to the Father primary care of these children, as the risk is that he will simply take the opportunity to seek to undermine their relationship with the Mother. The Court does not perceive from the evidence the same level of concern about the Mother.

Conclusion

52. As foreshadowed, this is finely balanced case but one which requires a decision so that some certainty can be introduced into the lives of these children. A hearing is in the not too distant future. The fact that tips the balance in favour of the Mother’s proposal is that the Court cannot be satisfied that the Father would adopt a positive attitude of encouraging the children’s relationship with their mother if they were to live with him. Whilst there are some concerns in this regard about the Mother, they are not as great, the Court believes, as for the Father.
53. Accordingly, the order will provide that as from the commencement of term 1 next year the children will live with their mother and attend at the school nominated by her. The order will provide that Y attend preschool. The children will spend time with their father for two out of three weekends, from after school on Friday to before school on Monday. There is no reason why the school holidays should not be shared. An appropriate order will be made for special occasions. The Father will be restrained from recording the children or photographing them in any way for a purpose related to these proceedings. The Mother will be restrained from physical chastisement of the children, or allowing anyone else to do so, as will the father. The existing orders adequately regulate the period between now and the commencement of term 1, 2017. In this regard, it is not intended by the orders that I make now to change the spends-time with and communication arrangements before that time.