KEY POINTS:
This is what happens when a psychologist in a Family Court case gets it wrong - or if not wrong, when he or she isn't seeing the whole picture. It's also what a child does when he finds, despite telling all the adults around him about his problems - including his father and grandparents, his Family Court lawyer and the court-appointed psychologist - that no one seems to be listening to him.
The 11-year-old goes with his 9-year-old brother to the only other adult he thinks he can trust - his school principal - and asks for help.
He tells the principal what he is feeling, which is of concern enough for the principal to contact the lawyer for the child. In rapid time, a new psychologist's report is obtained, and the child's long-held wish of living with his father is now seriously being considered.
When the Weekend Herald covered this case in the North Shore Family Court just over a year ago, everything seemed so open and shut. After a two-day hearing the father's application for day-to-day care of his two sons and daughter (7) was denied.
Weighing the evidence presented, Judge Ian McHardy outlined what he felt should happen next: the father should have no contact with the children for four weeks following the hearing; the father would attend counselling to learn about the need to support the mother's parenting; arrangements would then be made for the Christmas period, with the father to have several weeks with the children during the holidays; and then, if things went well, there would be a shared parenting arrangement.
The mother would have day-to-day care and the father would have the children every fortnight from 5pm Thursday until 6pm Sunday.
Reluctantly, the father agreed and gave his consent. But the father's words "then we'll know one way or the other" - in response to whether a temporary cessation of his contact with the children would help, now have an awful resonance.
Things haven't gone well and the three children who have been living with their mother are still expressing the same desire they had a year ago to live with their father.
It was a potential problem the children's lawyer Greg Milicich highlighted in November 2005. He asked what could be done to help the children should the court decide to go against their wishes and keep them in the day-to-day care of their mother. "They [the two brothers] cried as recently as last week that they do not want to live with their mother and that they will run away," Milicich said at the time.
It was Milicich's job to explain to the children the decision of the court - a task that was made easier because he was able to tell them this was what the parents had agreed.
But Milicich was concerned that the eldest child might ask him to appeal the decision - a right that children now have under the Care of Children Act.
The appeal didn't happen, but in March the father asked that a "counsel to assist the court" be appointed. Such an appointment is made in some complicated cases. It brings a fourth lawyer into the court alongside the lawyers for the father, mother and child. Such a lawyer independently advises the judge on interpretive and procedural matters in relation to the Care of Children Act.
Here, the father wanted the appointment because he felt the lawyer for the child had been compromised between the children's wishes and "what he believed to be in the best interests of the child".
The father also wanted a critique of the psychologist's report which claimed the father was largely responsible for alienating the children from their mother - something he denied. Both requests were turned down.
In late 2005, against the children's wishes, the court was swayed by evidence that showed it would be better for the children to be in the day-to-day care of their mother. That was mainly due to the court-appointed psychologist's report and her strong views expressed in the court.
In her assessment, the eldest boy had picked up on comments and negativity about his mother and was blaming her for the separation - and trying to punish her. It was a clear case of parental alienation - one parent denigrating the other to the child and getting them to choose sides.
"What is going on is falling into emotional abuse of the child by the father," the psychologist told the court.
The assessment was challenged by the father's lawyer at the time, Natalie Dufty, who outlined how the mother suffered post-natal depression, was on Prozac for several years and had described feeling cloudy, useless and unable to cope during her depression.
"Is it possible that [child's name] was emotionally deprived of his mother's attention during this time?" Dufty asked the psychologist in cross examination.
The psychologist didn't agree. "It's possible to be attached to the mother but still hold a sense of rejection at the same time," she told the court, pointing out her concern was that the eldest son was in the habit of speaking in hateful and disrespectful ways about his mother and that before anything else, that relationship needed to be fixed. "It's against nature to hate one parent. It's not going to help in his mental health."
But neither has the child's mental health been helped by staying with his mother. Following the brothers' call for help to their school principal, Milicich reported to the court in September. "It has become manifestly apparent the children's situation should be immediately reviewed."
He suggests another psychologist report be obtained - noting the previous psychologist, believing the family dynamics were the same as before and that she would be unable to recommend a proposed solution, did not wish to be involved.
Milicich points out that all the children, especially the two boys "still wish to come into the primary care of their father" and are expressing negative emotions about their mother.
He calls for an "immediate holistic intervention", proposing the children receive counselling and that consideration be given to whether the eldest child should have time out from his mother "to address his strong feelings and acute level of anxiety".
The court agrees. A new psychologist is appointed and a new report written. The children and the mother are given counselling time, which is extended in November at the counsellor's request.
Not surprisingly, when the Weekend Herald begins its follow-up to the case, no one wants to talk. The North Shore court provides some information, but withholds the new psychologist's report, citing sensitivity and the need to protect the children.
The documents we see show the father applying for day-to-day care of his children and expressing frustration at the mother's refusal to communicate with him and the difficulties this causes when he has the children to stay every fortnight.
"I would like to be able to communicate with [mother's name]," says the father in an affidavit. "I do not speak negatively about [mother's name] with the children and I stop the children speaking negatively about her when they are with me."
The mother's affidavit expresses surprise at what her eldest son has told the school principal. "This came as a complete broadside to me as there has been nothing at home to indicate this level of distress."
Milicich feels it is inappropriate to discuss the case as he's in the middle of discussions with the mother and father and their respective lawyers about what to do next.
"Matters are on a knife edge. The children are particularly vulnerable at this time and are going through some pretty intensive therapeutic counselling. The matter is coming up for court again for a judicial conference in early February, probably to set things down for a full defended hearing. Things are very fraught at the moment."
Whatever the outcome, one hopes the parents can start communicating and that the new psychologist and the court, when it considers this case again, are able to see the wider picture.
