Deacon & Castle 2013 FCCA 691.

A couple cohabited for about ten years before separating, had two daughters aged 11 and 9 years at the time of the hearing, and had engaged in legal proceedings for 5 years after separation.  The father took on sole parental responsibility for several years after the mother left the relationship.  The mother then applied for shared parental responsibility while the father applied for continued sole parental responsibility.

The father noted that he had been the primary carer for about 3 years while the mother was living elsewhere and she had only limited contact with the children (contact limited involvement).  The father noted that he received the single parent’s pension.   Both parties raised concerns about the mental health of the other, but little evidence was presented on this topic.  The father submitted that it was an unacceptable risk for the children to be in the care of the mother as she lived with a son aged 16 years who engaged in overly physical play with the girls by holding them up by the ankles.  The father alleged that the mother’s older son had a history of violence, but did not provide independent evidence of this. The father stated that he did not report the boy’s actions to authorities as he did not want to get the boy into trouble.

The father alleged that the daughters did not want to stay with the mother as the mother in the past had screamed, and had banged her own head against a table and walls (self harm).  The mother denied these allegations. The mother acknowledged that she did not want to live in the house under the father’s rules, and that she wanted to remove the children from these rules.

The mother alleged that the father was psychologically and emotionally abusive to one daughter due to an enmeshed relationship. The mother stated that one daughter had taken on the mother’s own previous role of being submissive to the father, and that the father was influencing the daughter’s thoughts and feelings so much that the daughter did not have her own thoughts and feelings, and had become enmeshed (personality submissive).

The trial judge had ordered that two girls live with their mother after living substantially with the father.  However the older girl declined to spend time with her mother (reluctant to contact).  The younger sister had for three years spent 5 days per fortnight with the mother, and did want to spend time with the mother. The trial judge had ruled that the two girls should not be separated (sibling separation).  The father appealed.

The older child stated that she had always wanted to be with her dad rather than with her mother.  Evidence was presented that the younger sister would be distressed if separated from the older sister.  A family consultant considered that family therapy would not assist if the children remained with the father as the father was unlikely to change his practices (therapy parent-child, capacity to change).

Observers at a contact centre reported that the father repeatedly told the girls that he would miss them while they were away seeing their mother, until one girl cried (parenting style dependent).

It was reported that difficulties occurred at handover when one child transferred to the mother’s care, especially at school.  The younger girl had tantrums when her mother came to collect her, complaining that the mother was trying to take her away from her father.

Expert evidence was provided by two simultaneous experts.

A family consultant expressed the view that the older child felt an excessive level of responsibility for caring for the emotions of her father (parentification).  Evidence was given that, “her thoughts are her father’s, her emotions are her father’s not her own.”

The court accepted definitions that enmeshment occurs when there is fusion so that a child shares the same emotion as a parent, whereas alienation occurs when a child rejects the other parent (alienate).

An expert reported that one daughter showed polarised attitudes, having nothing good to say about her mother, and nothing bad to say about her father.  The daughter closely monitored her father’s moods during an observation session, was unable to relax in the presence of the father, and appeared parentified as she tried to act in ways that pleased her father and was afraid of making her father angry.  The daughter was unable to distinguish between her father’s feelings and her own feelings, and the child’s moods fluctuated as the mood of the father fluctuated (differentiate own/others emotions).  The expert considered the relationship between the daughter and father to be enmeshed as the father encouraged the girl to be controlled, obsequious, and to show complete compliance and acquiescence to his views.  The expert considered that the enmeshed state had been introduced by the father repeatedly making statements to the child about the mother.  The expert considered it was a mistake for an 8 year old to be in an enmeshed relationship and recommended that the child would benefit by having regular separations from the father.

A second expert witness reported that the father had attempted to influence the children by making them feel guilty about enjoying time with their mother who had left him.

The judge found that the father made allegations that were not substantiated, including about self harm by the mother, and violence by her son (unsubstantiated allegation).

The judge found that the father had contacted child protection authorities when the mother commenced contact, primarily to create a record that was adverse to the mother and to recruit the authorities as an ally in his conflict with the mother.

The judge noted that the father gave no evidence of steps he had taken to prepare the daughter for handover visits with the mother to facilitate a meaningful relationship with the mother.  The judge noted that the father attended school on days when the mother was due to collect the daughter for contact, so that he could take the daughter home if she objected to going with the mother.  The judge noted that the father did not suggest any positive actions to address problems he raised.

The judge found that communication between the parents was so poor as to be futile in the future (communication poor).

The judge expressed concern about the overly critical attitude of the father and the father’s inability to differentiate between objective reality and his desire to criticise the mother.

The judge found that the father had been the most powerful, domineering, controlling and directive person in the family, to the extent that other family members were unable to have their own emotions, and this demonstrated enmeshment (parenting style authoritarian, personality domineering).

The judge found that the relationship between the older girl and her father was meaningful and close and perhaps so close as to be enmeshed and therefore detrimental and injurious to the child. The judge interpreted comments by one expert as showing that the child’s emotional responses and personality were all-consumed by her relationship with her father, and this was detrimental, unhealthy and injurious to her.  The judge found that the older child’s independent thoughts and, ultimately, her independence, were being stifled by the enmeshed relationship.

The judge ruled that any family therapy aiming for reunification would potentially be abusive for the children in the circumstances (therapy parent-child).

The judge found that it was an unacceptable risk for the children to remain living with the father due to the enmeshed relationship.

The judge ordered:

• the mother have sole parental responsibility for the children
• the father be restrained from contacting the mother and daughters except as arranged in designated contacts or as arranged by a counsellor with the consent of the mother (restrained from contact)
• each parent be restrained from discussing with the children allegations that had been made in court

The appeal court ruled that the trial judge had adequately considered the evidence presented, and did not change the order that the girls remain together in the care of their mother.

Children’s Wishes

The Full Court in Harrison & Wollard 1995 FamCA 30 ruled that a court will attach weight to a child’s wishes depending on factors including the strength and duration of the wish, the basis for the wish, the maturity of the child, and the child’s appreciation of the factors involved and their long term implications. The judge added the consideration that a child is free from undue influence by others, and is not mirroring the views and perceptions of one parent.

When aged 7.5 years a child told an interviewer that her reasons for not wanting to spend time with her mother were that it did not feel like home, she would miss her father and her pets, she was afraid of a staircase in her mother’s house, and her mother had dragged her from school to go on an access visit.

The judge did not attach weight to the wishes of a child that were repeated three years later because the views expressed were not free of the influence of a parent with whom the child had an enmeshed relationship, and the child did not show a suitable level of maturity. The judge considered that the child had taken on the views, feelings and emotions of her father, and equated this state to the legal concept of sane-automaton.