Davidson & Davidson 2010 FamCA 5

The couple had twins aged 6 years at the time of the hearings.  The couple separated when the twins were 7 months old, and the twins lived with the mother and spent time with the father.  Both parents sought sole parental responsibility.

The case went to court on 3 occasions (high conflict couple):

• mother made allegations about the father’s mental health and parenting capacity, citing misbehaviour by the twins
• mother reported sexualised behaviour attributed to a paternal uncle
• mother alleged sexual abuse by the father and uncle

On the first occasion the father had pleaded guilty to assaulting the mother.  A professional assessment indicated that the father was shy and had an obsessive personality structure (personality rigid).  The mother reported that the twins then aged 2 years were often unsettled for 6 days after spending a weekend with their father, citing clinginess, disturbed sleep, whining and fussing.  An expert commented that it is normal behaviour for children aged 3-5 years whose parents are in conflict to show regressed behaviour, especially when children return to their primary carer.  The expert recommended that regressed behaviour can be managed by emphasising the child’s involvement in predictable basic positive routines.

On the second occasion the mother proposed that contact between one twin and his father cease because of her observations of increasing levels of anxiety, distress and behavioural problems after visits; and she asked that the boy be professionally assessed.

Leading up to the third occasion the mother sought advice on how to teach the twins aged  3 years 9 months protective behaviours to safeguard themselves from sexual advances (teach safety skills).  A large number of documents were submitted showing that, rather than the mother involving a single expert witness, the mother had involved up to 15 police, welfare and health professionals who had interviewed the twins (assessments repeated).

The mother informed a therapist that one son used tweezers to pluck his eyebrows and reported that the therapist recommended offering the boy a waxing of his eyebrows if he desisted from this behaviour for 5 days (a report the therapist denied).  The mother took this son to a beautician who declined to wax the eyebrows of a 5 year old boy, leading to the mother complaining to a supplier for the beautician.

The boy reported that his mother provided him with girl’s clothes to wear, and the kindergarten reported that he arrived in girl’s clothes about 30-40 percent of the time (cross dress).

A social worker employed in a child protection department expressed a view that if the Family Court were to allow the father to have unsupervised access with the twins then the department would re-investigate and may bring a protection application to the Children’s Court.

The mother gave a history to a psychologist while the twin children aged 5 years were in the room (adult topics).  The judge commented that it is hard to think of a less professional start by a psychologist.  The psychologist was cross-examined at length about her interview approach and role.

The judge found that the assessing psychologist was apparently incapable of characterising or describing in any coherent way her therapeutic approach or aims.  The judge considered from reviewing the psychologist’s notes that the psychologist’s role had been to elicit disclosures of sexual abuse from the boys in the hope of furthering a criminal prosecution, interviewing the child for forensic reasons.

A second assessor adopted an approach that the judge commented was more professional as the assessor asked questions of the children that were not directed at obtaining disclosures or pressing the children to repeat bad things about one side of the family, but her questions were open and non-directive.  When the mother joined one session the mother asked the assessor to remove both scissors and toothpicks from a craft box saying that her son was likely to use these to cut and scratch his arms.

The judge found that the father reconstructed the past through a lens of frustration and distress.

The judge expressed no confidence in the mother’s capacity for objective recollection (credibility, low credit).

The judge found that some of the personnel who assessed the child about sexual abuse were at best inept and at worst dangerously partisan.

The judge noted that protocols had been in place since 1995 to ensure that children were not subjected to repeated assessment interviews about abuse, and to ensure that the Children’s Court would not be used to appeal decisions made by the Family Court.

The judge noted that one officer who interviewed a 5 year old boy about alleged sexual abuse had ignored the boy’s denial and implausible statement (expert evidence unsatisfactory).  The boy stated that ‘wee came from daddy’s brain.’ The interviewer asked the boy to point to where the wee came from and the boy pointed to his torso.  The interviewer repeated the question twice and the boy pointed to his thigh and then his groin before the interviewer gave an affirmative answer and ceased asking this question.   The judge noted that the boy used the word wee 7 times and the interviewer used the word 28 times.  The judge described this procedure as leading questioning.

The judge noted that one most striking characteristic of high conflict families is that parents can have difficulty distinguishing their children’s emotional needs as separate from their own needs, focus on their own needs, and fail to protect their children from their own emotional distress and anger or from their ongoing disputes with each other (differentiate own/others emotions).   This was mostly evident in relation to the mother, who presented as being hypersensitive to criticism and as inordinately concerned about her own needs and having her own perspectives accepted.  The mother sought to rid herself of any blame by actively seeking to prove that the father was totally inadequate, irresponsible and dangerous for the children, rather than to take personal responsibility (attributions externalising, parenting style externalising). This may result in her making exaggerated claims about her own capabilities whilst thoroughly denigrating the father.  The mother’s efforts to seek validation were evident by the way she enlisted a great deal of support from friends, her immediate community, and numerous counsellors (recruit).

The judge noted that all material suggesting the children were sexually abused by the father came from those professionals or organisations that based their assessment on information provided solely by the mother, with little if any contact or independent assessment or consideration for the father’s information.

The judge found that the mother did not genuinely support the children having a meaningful relationship with their father.  The judge found that the children were not at risk of physical, sexual or emotional abuse at the hands of their father.

The judge found that the child’s wishes for six year old children can never be determinative of the issue of where they live.  Weight needs to be placed on the observations of experts about the children’s attachments and the healthiness of their parental relationships.

The judge found that while the children were the mother’s life she had not been able to provide for their emotional needs, probably because she cannot distinguish her own needs from theirs (enmeshment).  The mother’s own evidence showed her inability to impose constraints and to set firm boundaries on the behaviour of one son (parenting style permissive).   The mother found it difficult to acknowledge or to give credit that the children had ever experienced positive times with their father.

The judge found that the last thing the children needed was to be the subject of acrimonious disagreement about matters such as the school they are to attend or their primary medical practitioners or psychologists (major long term issues).

The judge ordered that:

• the children live with their father and spend time with the mother
• the parents have equal shared parental responsibility except that decisions be delegated to the father on matters of education and health (decisions delegated).