Credibility of Father in issue

Credibility of Father in issue

Nye & Novak

Parenting – 10 year old child – significant anxiety in child – equal time arrangement since separation 4 years ago – poor parental alliance – parental capacity issues – whether equal time should continue.

Expert opinion and recommendations

16. Dr B, clinical psychologist, prepared a family report for the Court dated February 2016.^[3] In his opinion, it is not in X’s best interests for the equal time arrangement to continue if the parties are unable/unwilling to markedly improve their communication and their level of cooperation. In Dr B’s opinion, X is living under a damaging level of pressure. He highlighted X’s drawing of her family to support his assessment. His report reads:^[4]
    The ‘separateness of the two parties was starkly represented by X’s drawing, which showed these differences through distance of a long road drawn between the two family sub-systems and by a car blocking the road entry to each sub-family. The nature of the [equal time] arrangement has meant that the onus is placed completely on X to adjust to these vastly different households…. [this] is likely contributing to her impaired confidence in being able to interact effectively with the wider community.
17. Dr B considered the three options before the Court. First, week and week about continuing; second, majority care with the Mother; and third, majority care with the Father.
18. Week and week about: Dr B noted the parties expressed a wish to work better together but noted the same was said in the earlier family report with “little change evinced.”^[5] In his opinion, the events of September/October 2015 suggest a deterioration in the communication and cooperation between the two households, not an improvement. He strongly opposes parallel parenting. The more separately the parties function, the more pressure they impose on X. His report reads:^[6]
    …Should the current arrangement remain in place as it stands, the majority burden rests upon the child to tolerate and effectively traverse the parental conflict as best she can. Based on current signs of X’s development to date, this does not augur well for the future, unless the parents are able to overcome their current level of acrimony and absent cooperation….

…Should such changes be made by both parents in a united effort, it has the potential to be the most successful avenue for the unification of these two disparate worlds and ultimately lead to significant improvements in X’s wellbeing.

19. Dr B was severely critical of the parties’ inaction regarding X’s ‘selective mutism’ despite clear feedback from the (omitted) School and (omitted) School. He noted that parental interactions remained hostile and distant with minimal communication. In his opinion, the Court would have to be satisfied that the parties had developed a new found genuine desire regarding the importance of effective co-parenting, for the Court to order equal time. In addition, both parties need to be far more proactive in identifying and addressing X’s developmental and health needs. The Father must subjugate his own needs to those of X. The Mother must become more assertive and involve herself in all aspects of X’s life including her school life and psychological treatment. This may reduce the likelihood of further litigation but is “not without significant reservations”. He directed both parties to enrol in and complete various courses in clear terms.
20. Majority care with the Mother: X would have greater consistency of parenting and more stability in her life. The Mother has shown herself to be a capable mother and placed X at the forefront of her considerations throughout the interview. The Mother (compared with the Father) has demonstrated the more appropriate parenting practices, particularly having regard to the Father’s inaction during 2015 “despite a growing awareness [of] his daughter’s reportedly increasing resistance and distress.”^[7] The negatives may be the Mother’s financial capacity, her limited interaction with the school and treating psychologist. However, the Mother indicated increased motivation to be more communicative with the professionals engaged in X’s development. If living predominantly with the Mother, Dr B recommends 5 nights a fortnight with the Father, being a block of 4 nights each alternate weekend and one night in the other week during her primary years, moving to a block of 5 nights on alternate weekends when she starts secondary school.
21. Majority care with the Father: If the Father were the majority carer, X would experience greater consistency of parenting and more stability in her daily routine. But the Father’s inaction regarding X’s emotional wellbeing during 2015, his defiance of Court orders, the negative impact of his behaviour on X and his disregard for the court ordered assessment, all point to his “willingness to serve no other purpose but his own.” His style of parenting, encouraging dependence and ensuring “a degree of perpetual control” by him, is likely to cause X to experience significant anxiety. Dr B highlighted his concern that X was still sleeping in her Father’s bed with him, which “constrains her developing individuation… restricting her maturation and thereby exacerbating her difficulty in ‘out-growing’ her seriously impaired self-confidence.” He was concerned by his observation of X’s reunion with the Father at interview, when she assumed a foetal position in her Father’s lap, which demonstrates dependency issues.
22. During cross examination, Dr B said “we wouldn’t be here today if the week about process was actually working properly”.^[8] He expressed particular concern for X’s elevated anxiety. Although, having read the parties’ affidavit evidence he commended the Father’s efforts to engage in a parenting after separation programme and a Triple P parenting course since his report was released, he was not confident the Father’s apparent change in attitude represented a genuine intention to change his approach long term. Dr B observed that the parents have seriously incompatible personalities and do not seem to be “on the same page about anything”.^[9] In summary, he said^[10]:
    …the prospect of equal parenting remains quite viable. The question and the challenge for the parents is to gain a far greater insight and understanding about the enormous impact their behaviour towards each other is having on…their child.
23. He identified the questions for the future as whether there has been sufficient insight gained by the parties to understand the importance of them working together for X, and, in light of the Father’s decision to withhold X from her Mother, whether he will respect the authority of the Court. Dr B says there are difficulties for X if the current week about arrangement is changed, as well as potential advantages. If living predominantly with one parent, she may have the opportunity to form a more secure attachment with one of her parents, “rather than currently being enmeshed in this competitive cycle where both attachments are being threatened effectively by the constancy of change.”^[11] If a change occurs, Dr B would lean towards X living predominantly with her Mother. While this option, with a 9/5 night split each fortnight, may cause X initial distress, this would likely resolve within 12 months
24. In cross examination at hearing, Dr B said that X’s interests are best served by a continuation of the equal time arrangement^[12] if, and only if, the parents “do better”.^[13] In his view, there is great potential for X to take ownership of the outcome should the court make a substantive change to the care arrangements and, “she may blame herself.”^[14] Dr B believes the Court’s options are limited given the potential impact of change in arrangements on X. What the Court may be able to achieve is assisting the parties to gain insight into what their actions are doing to X.^[15] Her shyness, timidity and absence of confidence are behaviours described as “internalising behaviours…she is…sucking all the stress in and not wanting to express any of it.”^[16]
25. In answer to a question from the Mother’s counsel about the equal time option, Dr B said^[17]:
    ..thinking that an additional fraction of the week one way or other is going to alter the world of this child substantively, it’s not going to happen…the parents need to understand that they are the architects of this child’s world and they are the ones that are – unless they change – irrevocably sabotaging her future.
26. Dr B recommended that each party complete a 6-8 session Parenting after Separation programme, the Triple P parenting programme, and stressed the critical need for both parties to be directed to attempt mediation via an experienced accredited Family Dispute Resolution Practitioner to facilitate the parties reaching agreement on financial arrangements, future school, X’s health and medical needs, passport and travel arrangements. I note here that these recommendations were included as consent orders made at the end of the hearing.

The Father’s credit

33. I am not satisfied the Father was always a witness of truth.
34. As addressed below, I do not accept the Father’s narrative as to what occurred leading up to and including the events of September/October 2015. Nor do I accept his explanation (over that of Dr B) as to the problems he caused Dr B in undertaking the Court ordered assessment. I note that he gave a different explanation to Dr B than he provided in his affidavit as to why he had to leave early on the first day. While the Father says he did not appreciate the importance of the meeting with Dr B, I find that the Father’s approach to the expert assessment an example of his attitude generally to the Court’s orders. He left early on the first day; he arrived late on the second day; he failed to contact Dr B’s office as requested. I do not accept there was a breakdown in communication. The Father was shown the letter in which it was clearly stated that he would be required for the majority of the first day.^[18] I accept Dr B’s evidence that he was absolutely clear about what was required of the Father.
35. I do not accept the Father’s denial that he told Dr B (as reported) that X co-sleeps with him at least every second night.
36. I do not accept the Father’s evidence that the Mother failed to facilitate X speaking to him by phone on Christmas Day 2015. I prefer Mr G’s evidence that X did speak to the Father on Christmas Day.
37. I find that the Father attempted to mislead Family Consultant Ms D when he told her the Mother has a narcissistic personality disorder, a diagnosis confirmed by a psychologist and told Dr B that the Mother has a narcissistic and borderline personality disorder. When questioned about the source of this belief by Dr B, it was revealed that this was only the Father’s opinion. Dr B suggested to the Father that his conduct throughout the process, out of the two parents, demonstrated more traits along that pathway of personality type than the Mother. Dr B assessed the Father to have narcissistic personality traits.^[19]

The Father’s conduct in September/October 2015

38. On 21 September 2015, the Father did not return X to the Mother in accordance with the final orders made in March 2015. The Mother was due to collect X at 10 a.m. on 21 September from the Father’s home for the first week of the school holidays and had booked and paid for a holiday house at (omitted). The Mother described X’s excitement on the phone on Sunday 20 September about the holiday the next day. However, at 9.57a.m on Monday 21 September, three minutes before the changeover time, the Mother received an email from X in which she said she wanted to live with her Father. The original letter^[20] was dated 20 September 2015 and the subsequent email read^[21]:
    …dear mummy I would like to live with daddy. I would like to live with daddy because at your house I get scared when you get very very very mad. At your house you never help me with my homework and I never get to do my extra homework. At daddy’s daddy helps me with my homework and my extra homework. These are some of the reasons I want to live with daddy.
39. At 10.01a.m on 21 September 2015, the Father sent the Mother his own email in which he said that X was refusing to go back to her and wanted to live with him on a full time basis. His email read^[22]:
    X is refusing to go back to you, and has said she wants to live with me full time. She has also given me many reasons for this decision, and it appears for these reasons to be in her best interest. You can talk to her today at 10a.m. if you want, but please don’t make a scene. X has only agreed to the meeting if I promise to remove her immediately if there is a scene.
40. The Mother deposes to total surprise at the content of both emails. The Mother took a copy of the Court orders to the police who advised she needed to return to this Court. While the Mother spoke to X by phone that evening, the Father refused the Mother’s request for time with X, alleging X did not want to see her.
41. On 22 September 2015, the Mother filed an Application for recovery of X. On 28 September 2015, the Court made an order for the Father to deliver X to the Court by midday on that day. The Father failed to comply with the order. He says that X refused to go to the Court with him and threatened to run away. When the Father returned to the Court without X, a further order was made for the Father to deliver X to the Mother’s residence by 4 p.m. The matter was adjourned until 13 October 2015. However, the Father did not return X on 28 September 2015, as ordered. The Mother annexes email correspondence between herself and the Father which reveals the Father’s clear intention to ignore the Court’s orders and to keep X in his primary care.
42. On 6 October 2015, the Mother attended X’s school to collect her after school. The school notified the Father in advance, and he attended the school. The Principal said to the Mother “it is best for X to continue to live with her Father for the present time.”^[23] X, highly distressed, was taken from her classroom, and brought to the Principal’s office. The Father was also present, crying. The Mother deposes to X appearing “withdrawn, anxious and distressed.”^[24] She decided not to exacerbate X’s distress by forcing the issue and left the school without her. In an email to the Mother^[25] dated 9 October 2015, the Father asks the Mother to agree to his proposal for him to “temporarily” primarily care for X without recourse to the Court, but with counselling at Relationships Australia. He writes that X is adamant she does not wish to live with the Mother and asserts that his proposal is the only way forward. He tells the Mother that he is arranging counselling for X to “give her a chance to tell her story. If there are valid concerns in your house I imagine they will come out in these sessions.” The Father offers the Mother 3 hours with X on the following Sunday evening. However, he later cancelled the Sunday evening arrangement. On the Father’s case, he did not read the Mother’s email accepting the offer, however I find it more likely that the Father’s cancellation of the contact was related to the Mother not accepting his interim proposal for X’s living arrangements. On 12 October 2012, the Father sent the Mother an email^[26] outlining his concerns about the Mother’s mental state and suggesting she undertake an anger management course. On 13 October 2015, the Court made an order for a child inclusive conference on 15 October 2015. On 14 October 2015, the Father took X to her first appointment with Ms B at CAFÉ (children’s counselling service). The Father told Ms B that X was refusing to go with the Mother.
43. In her memorandum of 15 October 2015, Family Consultant Ms D raises serious concerns about X’s emotional state. Ms D did not accept at face value X’s statement that she wished to live with the Father. She was critical of the Father’s “constant questioning” of X and found nothing at observation to suggest that X was fearful of her Mother. Ms D recommended an expert report be prepared given X’s presentation to her and her “extreme social phobia”reported by her parents.
44. On 20 October 2015, the Father tells the Mother “X has said to me she only wants supervised visits with you…” and offers a supervised visit. From 21 September until 21 October 2015, the Father permitted X to see her Mother twice only for approximately 30 minutes on one occasion and one hour on another, under the Father’s supervision. The Mother says that X, though pleased to see her Mother, presented as quiet and withdrawn on those occasions.
45. On 21 October 2015, the Court made further orders for X to be returned to the Mother from after school that day and the Father and his family were restrained from attending school or communicating with X that day. X was returned to her Mother in accordance with those orders. The Mother deposes to X being quiet as she left the school but to settling in to the Mother’s new apartment at (omitted) (which X had not seen) very quickly. The Court had ordered the week about arrangement be reinstated from 2 November 2015. However, on 25 October 2015, the Father emailed the Mother^[27] questioning whether the Court was in error on 21 October 2015 in relation to X’s return date to him, asking the Mother to return X the following day (in accordance with his interpretation of the March 2015 orders) or in the alternative suggesting that X remain in his care for two consecutive weeks when she was returned on 2 November (as ordered).
46. Though not spending time with him, X was communicating with the Father by telephone between 21 October and 2 November. The Mother heard the Father asking “who is in the room with you?” and when X said “it’s mummy” the Father yelled “you told me you were alone”.^[28] On 26 October 2015, the Mother sent an email to the Father^[29] asking him to “choose wisely the way you speak to X on her nightly calls.” The Mother suggests that he think about allowing X to speak freely in front of either parent so she does not feel she has to hide anything from either of them. She asks that he keep the conversations positive so “our daughter [can] go to sleep reassured that she is loved by both her parents and be relaxed rather than stressed and upset.” The Father’s reaction to this letter was immediate stating^[30], “You are a liar Ms Nye. Plain and simple… You are the manipulator and you are the liar. Stop harassing me.”
47. On 28 October 2015, X was taken from school to the police station by a mother of one of her friends, without notice to the school or to the Mother. It is contended that X told her friend that she knew how to get to the Father’s home and the friend’s mother contacted him. The Father says he was worried that X may run away and says he asked the mother to pass on his concerns to X. The Father does not explain why the friend’s mother took the action she did. The police returned X to the school. X recommenced the week about arrangement on 2 November 2015.
48. The Father explains his conduct on 21 September 2015 and following at interview with Dr B, in his affidavit and in cross examination. He contends that X had been increasingly resistant to returning to her Mother for many months, particularly between August and September 2015. He had not discussed the problem with the Mother because she had blocked his number on her phone. On Monday 21 September 2015, X had refused to go down to the foyer to meet the Mother. She was in a “heightened state of defiance, more than I have seen on any previous occasion. This involved verbally [sic] defiance and also physically hiding in her bedroom and bathroom.”^[31] The Father said he did not know how to handle the situation. He believed X was justifiably fearful of her Mother. He suggested to X that she write the email to her Mother (as above) and inserted the Mother’s address on the email. X wrote the email without his assistance and sent it. He told X she should call her Mother, which X refused to do. The Father then sent his own email to the Mother to help her “to understand how X was feeling”.^[32] He invited the Mother to come to his apartment to talk to X several times over the next 2 hours but she declined the opportunity.^[33] Whilst she spoke to her Mother that evening, he says that X remained adamant the following day that she did not want time alone with her Mother. The Father wanted to attend mediation but the Mother ignored his requests. He was served with the Mother’s Application in a Case on 28 September 2015 and appeared on his own behalf before Judge Henderson on that day. When the order was made for him to bring X to Court by midday the same day, he went home and told X she had to come to the Court. She refused and said, “I quit court.”^[34] He deposes to her^[35] “kicking and screaming and then [she] locked herself in the bathroom and refused to come out.” The Father returned to Court without X and left his sister Ms R to supervise. He was then ordered to deliver X to court at 4 p.m. He says, “I felt like I wasn’t being heard” [by Judge Henderson]. The Father could not persuade X to come to court, so took her to the GP who referred her to a child psychologist. X called her Mother twice and said, “I want to live with Daddy.”^[36] He prevented the Mother from collecting X from school on 6 October 2015 because “X was upset by this.” He notified the school and involved the Principal, who pulled X out of class. X was “crying, screaming, hiding and clinging onto things in the classroom to avoid going with Ms Nye”. The Principal then determined that X should not go with her Mother.
49. The Father emailed the Mother over the next few days suggesting mediation and counselling. The Mother would not talk to him without her lawyer, said that she was getting an “AVO against him”, and alleged that he had threatened her.
50. After the conference with Family Consultant Ms D on 15 October 2015, X again told the Father she did not want to go to her Mother. On 17 October 2015, because X asked him to be there, the Father ‘supervised’ X spending time with the Mother, telling her to talk to the Mother about why she did not want to spend time with her.
51. The Father thought the Judge had made a mistake on 21 October 2015, in relation to the date X was to be returned to him but the Mother would not agree to vary the Court’s order. On 28 October 2015, the Father contends that a mother of one of X’s friend’s told him, “X said to (omitted) that she knows how to get to your house via (omitted).” The Father said that (omitted) should tell X not to do that as it would be dangerous. (omitted’s) mother then took X to the police station and left her there. She was taken back to school and remained in her Mother’s care until the week about arrangement recommenced on 2 November 2015.
52. I find the narrative the Mother gave Dr B of the events of 21 September 2015 until X’s return to the Mother on 21 October, consistent with her affidavit evidence and the observations of the Court experts. I agree with Dr B that the Father failed to narrate the story accurately:
    1. I am satisfied that X was chatting excitedly to her Mother on the afternoon of 20th September 2015, the day before they were due to go away on holidays together and do not accept that she woke the next day demanding to live with her Father and refusing to go on a beach holiday with her Mother on the basis she was scared of her Mother and wanted to live with her Father because of his commitment and her lack of commitment to her homework. There is no evidence to support any such finding about homework in each household. X’s school reports say homework was consistently done in each household. There is no evidence to support a finding that the Mother caused X to be fearful. Notably, after X resumed spending time with her Mother, the Father told Dr B that the Mother had completely changed her parenting approach. X was no longer neglected, was now “standing up to her Mother”, had “control and power” and “Ms Nye is an excellent mother now.” There is no explanation offered as to why the Mother would have suddenly changed her parenting approach in this way as the Father had claimed. There is no evidence to suggest that X was resistant to time with her Mother in the months before September. Notably, the school had not observed any resistance to going to her Mother prior to the Father keeping her in September 2015. The Principal found no differences in her behaviour on changeover days from either parent’s residence to the other at any time, nor when she was in the care of one parent or the other.^[37]
    2. I am satisfied there was no change in the Mother’s parenting approach and no need for a change. I find the Father’s actions unjustified and the timing noteworthy. The orders of March 2015 permitted the Mother to travel overseas with X from her 10th birthday in (omitted) 2015, the Mother was shortly to move in with her partner Mr G and the Mother had planned a holiday with X. The Mother told Dr B “usually whenever I plan something, Mr Novak will try to ruin it.”^[38]
    100. I do not accept that X wrote the letter to her Mother without at least significant input from the Father, and find it probable that the letter was drafted on 20^th September, (as it was dated) not the 21^st.
    4. I do not accept that if X had been resistant to going to her Mother for many months, as the Father contends, that he would not have mentioned it to his sister Ms R, whom he sees almost daily, yet that was Ms R’s evidence.
    5. I accept Ms R’s evidence that the Father was very distressed when he returned from Court on 28 September 2015, with an order that he take X to the Court and find it likely that X was highly distressed and disturbed by witnessing and being directly involved in her Father’s overt distress. Ms R says that the Father was upset and X defiantly refused to go.
    6. I am satisfied the Father intended to take control of the situation by emailing the Mother directly (without lawyer or Court interference) in an attempt to intimidate and control her, with complete disregard for the Court’s orders of March 2015 and 28 September 2015. I find the Father’s emails to the Mother during this period directive, controlling and likely to have been intimidating to the Mother.
    7. I am not satisfied that the Father made adequate efforts to facilitate X spending time with the Mother during the 4 week period of his retention of X. I found the Father’s answers to questions on this issue unreliable and unsatisfactory. He presented as uncomfortable and evasive.
    8. I find that even when the Court made further orders on 21 October 2015, the Father again attempted to control the Mother and avoid the authority of the Court by his email to her of 25 October questioning the Court’s orders^[39]. I find his response to her email about the content of his phone calls dated 26 October 2015, aggressive and revealing.
    9. I find the Father directly and inappropriately involved X in his ongoing battle with the Mother from 21 September until 21 October 2015 and directly and inappropriately involved X in the Court process on 28 September 2015. I find his actions are likely to have caused X significant distress and confusion.
    10. I find the Father’s inclusion of only part of the Mother’s text to him^[40] on 30 September 2015 to support his case, intentionally misleading, including only the part in which she says he is a “great father…” and “I don’t want any money or anything and I will tell the Court that all I want is to see my daughter. This has been the hardest week of my life.” He omitted the Mother’s plea to him in the same email, “please find it in your heart to let me hug my daughter and see her beautiful smile. She is my world and all I have here…Please, it would mean so much to me.”^[41]
    11. I find it noteworthy that the Father was a ‘close friend’ (according to the Principal’s report to Dr B) of (omitted’s) mother and that it is likely that the Father was directly involved in (omitted’s) mother’s decision to take X from school to the police station.
53. Dr B was highly critical of the Father’s decision to retain X in breach of Court orders. He said that:
    …limiting contact in the form of breaching orders and encouraging disregard of the other parent impacts negatively on the child’s relationship with the parent but even more importantly, negatively impacts upon the child’s view of themself. Any disparaging comment made about either parent in ear-shot of the child causes harm to the child, particularly the child’s self-esteem which has been identified as an area of pre-existing sensitivity.^[42]
54. Dr B observed the Father to become highly defensive when asked to reflect on or to take personal responsibility for many of the issues under review. He presented a “posture of elevated self-confidence”. He considers the Mother a subordinate “with whom he is reportedly quite autocratic, condemnatory and often appearing self-righteous. Many of the above features are consistent with elevated narcissistic personality traits.”^[43]
55. I agree with Dr B when he says, “throughout this narrative [the Father] evidenced little insight into his contribution to these events.”^[44] When asked about how the shared care arrangements resumed, the Father told Dr B a “forced changeover” at school was necessary as it was “the only way to make X go with her Mother.” When challenged as to details, the Father became “visibly uncomfortable”, said he was “getting anxious” and asked for a break because he did not appreciate how Dr B was speaking to him. In relation to his non-compliance with Court orders, the Father told Dr B that whilst the Court was “upset…the court also recognised there was an underlying issue with [the Mother’s] parenting.”^[45] Dr B says the Father appeared unable to consider that the Court may have been “upset” because of his non-compliance with orders. When the Mother attended the school to collect X on 6 October, Dr B says the Father failed to disclose his part in causing yet “another emotional tug-of-war between the parents, but this time in front of the Principal.”^[46] He repeatedly criticised the Mother during his narrative of X’s return to the Mother, without disclosing the Court’s or the Mother’s repeated efforts to get her back.
56. Dr B believes that taking into account her age and X’s persistent desire for fairness, the prospect that in September 2015 X saw her mother as re-partnered and her Father as ‘lonely’ (and the Father likely to be expressing this to X), probably set the scene for X’s ‘reported’ resistance to going to her Mother’s, though he finds the evidence regarding the reality or strength of this remains equivocal. The fact that the Father allegedly was aware of X’s increasing resistance to returning to her Mother each week for 6 months or more, yet electing not to tell the Mother, or seek any professional assistance, raises concerns. His actions in simply sending an email to communicate he would not be complying with Court orders which necessitated the Court making repeated orders to achieve compliance, put X in “highly distressing situations”.^[47]
57. I agree with Dr B’s opinion. I find the Father’s conduct during September/October 2015 demonstrates a serious lack of insight into X’s needs. I find his repeated failure to comply with the Court’s orders a disturbing demonstration of the Father’s narcissistic personality traits, identified by Dr B.
58. I give significant weight to my findings here.

Discussion and Determination

127. X’s presentation has caused significant concern to three professionals who have long experience and expertise in assessing children in family law matters. Each found engaging with X unusually challenging. There was no improvement in her presentation over the 14 month period from the first assessment. Dr B believes X suffers from a long standing anxiety disorder, at least partly as a result of being required to negotiate a pathway between highly conflictual, uncooperative and starkly different households. X’s lack of resilience and inability to articulate shows clearly the negative impact of the parties’ ongoing conflict on her. I share Dr B’s opinion that X is not coping and has a very weak foundation on which to build resilience.
128. I agree with Dr B that the current week about arrangement is not working for X. I agree with him that unless the parties’ communication and level of cooperation markedly improves, X continues to be a child at risk and a change in X’s parenting arrangements is necessary.
129. Until Dr B’s report was released in February 2016, each party sought a continuation of the equal time arrangement on a week about basis. After its release, the Mother sought majority care of X. In response, despite the content of Dr B’s report, the Father sought majority care of X if the equal time arrangement was to be changed. I find the Father’s proposal for majority time a reaction to the Mother’s proposal, rather than the result of a careful assessment of X’s needs. I have found that the Father lacks empathy for X, and has shown poor insight into her needs. I am not satisfied the Father understands or is prepared to accept how his actions have contributed, not assisted, X’s anxiety state. What the Father has considered best for X, has actually been damaging.
130. Dr B assessed the Mother as the more child focussed parent. She has the ability to separate her emotional needs from those of X and a capacity to empathise with X. She can better promote X’s individuation. The Father, on the other hand, sees himself as an extension of X and has been unable to promote her independence. He needs personal therapy to learn emotional parenting, to separate his own needs from X’s and to learn to reflect on situations from X’s point of view. It is critical to X’s future wellbeing that the Father fully engages in this learning process.
131. Given my findings about the Mother’s parenting skills, I agree with Dr B that any change to the current arrangement should result in X’s increased time with the Mother.
132. While there was evidence of some improvement in the parties’ communication before the hearing, they have a long way to go. The parties will need ongoing professional support to learn to consult each other in a respectful and constructive manner for X’s benefit. An order has already been made for this intervention to commence.
133. I accept Dr B’s opinion that there are risks for X if the Court changes the arrangement from week and week about. These risks include (a) the Father reacting badly to ‘losing’ and the Mother ‘winning’ and emotionally involving X in his ‘loss’ which may result in her blaming herself for the change; or (b) the Father not supporting X to adjust to the change particularly as she is likely to be resistant to change, making X’s situation even more difficult or (c) the uncertainty inherent in any change. I have regard to the Independent Children’s Lawyer’s support for the equal time arrangement to continue.
134. However, the events resulting in these parenting proceedings being re-litigated clearly demonstrate the deficiencies in the Father’s parenting capacity and the emotional impact on X’s wellbeing. The seriousness of my findings on those events cannot be overstated. Dr B’s assessment of X’s level of anxiety under the present arrangements cannot be minimised. Further, how much improvement will be achieved in the parties’ ability to cooperatively parent is still difficult to predict.
135. The Mother is the more child focussed parent; she is more attuned to X’s needs. She puts X’s needs ahead of her own. More time with the Mother is likely to provide X with a greater sense of stability and a greater consistency of parenting style. I agree with Dr B that more time with X in her care is likely to further strengthen the Mother’s parenting role, which has been seriously undermined by the Father in the past.
136. If living predominantly with the Mother, Dr B recommends 5 nights a fortnight with the Father, being a block of 4 nights each alternate weekend and one night in the other week during her primary years, moving to a block of 5 nights on alternate weekends when she starts secondary school. However, in cross examination, Dr B said whether the split was 9/5 or 10/4 or 8/6 would not make much difference. Given my findings about the Father’s conduct, his parenting capacity and his attitude to the Mother, I have given careful consideration to the Mother’s proposal to reduce X’s time with the Father to 3-4 nights a fortnight. However, I have decided such a significant change carries too great a risk for X’s emotional health, given the extent of her anxiety, her resistance to change and the likelihood of her taking the ‘blame’.
137. I have decided X will spend 6 nights a fortnight with her Father and 8 nights a fortnight with her Mother. I am satisfied X will manage such a minor change in time, without distress or guilt. I am satisfied the Father will also adjust to the change and am hopeful he will be motivated to improve his parenting skills and support X to make the adjustment. I am satisfied X spending more time with the Mother will give the Mother a better chance to her increase her involvement in X’s school life and to develop her ability to initiate and assert herself more which will help X.
138. In terms of how to arrange the 6/8 arrangement, I have regard to the Mother’s evidence that X takes a day or two to adjust to the Mother’s household on her return from the Father. I have therefore decided that it is better for X to continue to spend time with each parent in one block, an arrangement she is used to. Given X is accustomed to enjoying a special family dinner with the Father’s family on alternate Monday nights, I have decided to include a Monday night in the Father’s time. This means there will be a changeover on a Sunday afternoon each alternate week, when it is hoped that X will have the opportunity to experience her parents’ cooperating in the changeover.
139. The Father has said he is willing to undertake individual therapy to learn ‘emotional parenting’ as recommended by Dr B. I will make that order. The Independent Children’s Lawyer will provide a copy of Dr B’ report and a copy of these Orders and Reasons to the Father’s therapist. The Mother already consults a psychologist. She agrees to continue this arrangement with Ms J. The Independent Children’s Lawyer will provide the same material to Ms J.
140. Dr B recommended that X’s therapist be updated on X’s progress, in terms of her ability to interact openly in the classroom and in ‘real life’ situations. I have therefore made an order for each party to consult Ms B, or an alternative child psychologist approved by the Independent Children’s Lawyer, to enable them both to provide feedback on X’s progress. If X’s therapist recommends that X have further therapy, each party will facilitate the arrangements.
141. To ensure compliance with the orders I have made, I have made an order for the Independent Children’s Lawyer’s appointment to be extended for a further 6 months.