Adley and Adley

FAMILY COURT OF AUSTRALIA

ADLEY & ADLEY

[2016] FamCA 995

FAMILY LAW – CHILDREN – PARENTING – Where the child lives with the mother and has not seen the father since he was four months old – Where the child has moderate to severe autism and ADHD – Where the mother suffers from various medical conditions, including PTSD and anxiety – Where the child and mother have come to the attention of FACS – Where the father made an Application that the child live with him or spend time with him – Where the child spending time with the father would negatively affect the mother’s parenting capacity – Where such an Order would effectively lead to the child having no parents capable of caring for him – Where the father’s Application is dismissed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr Adley

RESPONDENT:

Ms Adley

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

NCC

2922

2014

DATE DELIVERED:

23 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11, 14 and 15 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moutasallem

SOLICITOR FOR THE APPLICANT:

HM Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Daniel

SOLICITOR FOR THE RESPONDENT:

Louise Coady Family Lawyers Pty Limited

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Clayhills Escobar Solicitors

Orders

IT IS ORDERED

That the Amended Initiating Application of the father filed 27 July 2016 be dismissed.
That the mother have sole parental responsibility for the child B (“the child”) born … 2009.
That the child live with the mother.
That the mother be restrained from removing the child from his present school for a period of one year from the date of these Orders.
That the father be restrained from contacting, visiting or approaching the child’s present school.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adley & Adley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2922 of 2014

Mr Adley

Applicant

And

Ms Adley

Respondent

REASONS FOR JUDGMENT

Mr Adley (“the father”) and Ms Adley (“the mother”) are the parents of B (the child), born in 2009.
The parents commenced their relationship in 1992 and married in 2005.
They separated on 20 February 2010 when the mother left their home with the child and moved to a location that she did not disclose to the father. Since separation, the father has had no contact with the child at all and he is unknown to the child.

THE CHILD B

It is necessary, in order to determine what arrangements should be made for the child’s future, to understand his special needs.
The mother observed that the child had behavioural problems when he was about two years old. He has now been diagnosed as autistic and as suffering from Attention Deficit Hyperactivity Disorder (“ADHD”).
The mother, in her oral evidence, described the child’s behaviours on a “bad” day. She described him exploding into violence. She said she could not anticipate what the trigger might be. Although the episode of violence would be short, the child would take about two hours to calm down, during which time she needs to leave him to self-regulate. She said that she goes into the garden or into another room and leaves the child to regulate his emotions.
There are vivid descriptions of the child’s behaviour in the notes produced by Suburb D Health Centre where the child’s psychiatrist, Dr C, practices and where the child and the mother have had access to psychologists.
In Term 3 of 2016, the child was suspended from school for five days after an incident in the playground where he lashed out at another child. He bit, kicked and punched the teacher who intervened and four other teachers were needed to restrain him. After that incident, in a consultation with the child’s psychiatrist Dr C, a senior clinical psychologist, and the mother’s social worker, the child punched his mother in the face and bit the psychologist. A duress alarm was activated and the police attended.
On 24 August 2016, the child punched a child at school. He was suspended for a second time.
The child is currently prescribed a regime of medications managed by Dr C. In the past, medications have been trialled and found not to be appropriate. Towards the end of 2014, he was trialled on Dexamphetamine which caused a particularly adverse reaction. His aggressive and violent behaviour escalated.
The child’s behaviour, and the challenges of parenting him, are graphically illustrated in the material produced on subpoena. I have not attempted to record every instance of complaint about the child’s behaviour but to give a picture of his day-to-day life and the challenges which face his carers.
In a text message in March 2015 the mother referred to living with a child “who is rude, nasty and even violent towards me”.
On 10 April 2015 the mother’s general practitioner, Dr E, recorded the mother’s concern that the child had hidden scissors and that the sharp knives had been put up out of his reach.
A report prepared by the Department of Community Services (“DOCS”) as they were then called, in April 2015 referred to the child biting and hitting at school. On another occasion in April 2015, the child threatened to kill school staff and to kill himself.
On 5 May 2015, Dr E recorded that the child had twice assaulted the mother that day.
On 8 May 2015, Dr E noted that respite services had been withdrawn as the situation was unsafe for workers.
On 11 May 2015, the mother told the child’s psychologist, Ms F that the child had “trashed” their home.
On 22 May 2015, Dr E recorded that the child had kicked in the bedroom door and ripped a friend’s clothing at school.
On 4 February 2016, Dr E recorded that the mother had been kicked and punched several times that week and felt she could not keep going.
On 9 February 2016, Ms F recorded that the mother had told her in a phone call that the child was belting on the door and that morning had kicked, punched and bitten her and hurt the dog. Later that day the mother told Ms F that the child was “out of control” and “just like a cyclone” and that she did not know what to do. A short time later, the mother told Ms F that the child had hurt her, twisting her breast and pulling it then hitting her. The mother is recorded as saying she did not know if she could make it through the night.
The mother is recorded on numerous occasions telling professionals and case workers that she does not know how much longer she can continue to care for the child.
The mother described the child’s current regime of treatment. He sees Dr C every three weeks, has weekly sessions with his psychologist who is conducting cognitive behaviour therapy and anger management therapy, he sees an occupational therapist weekly, is enrolled in before and after school care and vacation programs, is overseen at school by the school counsellor, has lots of physical exercise especially swimming, and has a regime of medication supervised by Dr C.
On 16 March 2016, Dr C wrote a letter in which he stated that the child has “the established diagnosis of autistic disorder (moderately severe) and attention deficit hyperactivity disorder.”

THE MOTHER

The mother seeks sole parental responsibility for the child and opposes any contact between the child and the father.
The mother herself suffers from a number of health problems.
She has spinal stenosis which is a painful condition that affects her mobility. She also has osteoarthritis. She walks with a stick and is reliant on a number of paid medications to manager her day-to-day pain.
The mother was diagnosed as suffering from Post-Traumatic Stress Disorder (“PTSD”) in her late teens, before she met the father. She also suffers from depression and anxiety.
The mother is a qualified professional but she is unable to work in her profession.
The mother is receiving counselling and treatment for PTSD and is currently in receipt of a disability support pension.
The mother found participation in the Court proceedings to be extremely difficult and she required frequent breaks during the hearing.
In relation to the mother’s evidence, in her affidavit sworn 21 October 2015, she deposed:
I suffer from Post Traumatic Stress Disorder (PTSD). My PTSD affects my ability to remember and think about things from the past. I have done my best to recall information about the past for this affidavit but it has been difficult for me.
In her affidavit sworn 20 September 2016, the mother deposed:
My PTSD affects my memory and my ability to recall specific details and events from my past. I have large gaps in my memory around stressful times and events. I know of times when my PTSD has been triggered and I will lose the memory or part of the memory of the event that has triggered my PTSD.
On numerous occasions in cross-examination, where documents recording statements said to have been made by the mother to various agencies were put to her, the mother denied that she had made those statements. Whilst I accept that agency workers may have made errors in their notes, having regard to the mother’s own evidence about her ability to recall past events, I accept that the notes taken by professionals engaged with the mother are more likely to reflect what was said than the mother’s recollection of those conversations in cross-examination.

THE FATHER

The father lives on the Central Coast. He has the care of his four year old daughter G from a subsequent relationship. Final Orders have been made by consent in the Federal Circuit Court which provide for G to spend time with her mother.
The paternal grandfather lives close by and is available to assist the father in caring for G if the father needs to be at work.
The father’s first Initiating Application, seeking that the child remain with the mother but spend time with the father, was filed on 7 November 2014. That application was subsequently amended on 27 July 2016 when the father sought orders that the child live with him, and spend time with the mother on alternate Saturdays and special occasions. Although the father formally sought equal shared parental responsibility with the mother, he quickly conceded in cross-examination that this would not be possible.
After the mother and the child left the home, the father did not know where they were. The police took out an interim Apprehended Domestic Violence Order (ADVO) to which the father consented, without admissions, for six months. At the end of six months, the application was dismissed.
The father deposed that in October or November 2010, a supervised visit was arranged through his solicitor but the visit was cancelled by the mother.
The Family Consultant was puzzled, as am I, about the father’s failure to pursue a relationship with the child for the past six years.
In about August 2011 the father located an address for the mother. He went to the mother’s home on 13 August 2011 with his then partner, G’s mother. The mother did not answer the intercom. The mother called the police. The father and his partner telephoned the mother. The mother deposed that the father’s partner said to her “Please come outside so I can serve you with some papers”. There were no papers. The father deposed that the phone call was a ruse to get the mother to speak to him.
The father gave evidence that the reason he did not pursue any application to spend time with the child was a combination of poor legal advice and lack of funds.
Whatever may have been the reason, he has not seen the child since 20 February 2010 and he is a stranger to the child. Not only is he a stranger, but, having regard to what the mother and the child’s school principal told the Family Consultant, the child believes he is a frightening stranger.
It is within the framework of these difficulties that the best interests of this child fall to be determined.

FAMILY VIOLENCE

The mother alleged that the father had been violent towards her and that his violence had been the cause of her leaving the relationship. The father denied those allegations.
In her affidavit sworn 21 October 2015 the mother alleged that the father:
·    Consistently bullied and threatened her;
·    Controlled the finances and rarely gave her money;
·    Ripped her shirt off causing her to run outside and call the police who attended. She alleged that the next day the father said to her words to the effect “Don’t ever call the police again…you’ll find out the hard way”. And then physically assaulted her;
·    In February 2009, chased her in his four-wheel drive motor vehicle and tried to run her over. She alleged that, from the car, he grabbed her shirt and dragged her down the road and that she slipped out of her shirt and ran across two lanes of traffic to escape;
·    Assaulted her causing a head injury for which she required stitches;
·    Punched her in the eye and forced her to have sex with him;
·    On about 4 August 2009, slammed her across the floor;
·    On about 18 August 2009, when drunk, punched her in the eye;
·    On 1 September 2009, verbally abused her;
·    After the child was born, did not allow her out of the house without him other than to attend a mother’s group once each week;
·    Refused to allow her to attend social events.
The father denied that these events had occurred as the mother described or, in other cases, denied that they had occurred at all.
Fact finding in relation to the issue of family violence is made more difficult by the mother suffering from PTSD which, she deposed, affects her ability to remember stressful times and events. She deposed that she loses her memory of events that have triggered her PTSD.
The difficulties were compounded by the fact that there was no evidence in the mother’s case which corroborated her allegations.
The mother bears the onus of proof in relation to the allegations of family violence.
Absence of corroboration does not lead to a finding that the events did not occur but makes a positive finding more unlikely, in circumstances where the only other person present was the father who denied her allegations.
In relation to the incident on 2 February 2009 where the mother alleges that the father dragged her from his car, she said in cross-examination that while this was happening, she was talking on her mobile phone to a friend in Sydney, the same person to whom she fled. Notes produced by the NSW Police indicate that the father contacted police after that incident and reported the mother as missing. They contacted the mother’s friend who assured them that she was safe. The friend did not tell the police about the incident. The mother, as requested by the police, attended at Suburb H Police Station on 4 February 2009. She told police that she had been having “domestic issues” with the father and would not be returning home. She did not tell police about the alleged incident two days before.
Records produced by the police state that on 24 February 2010, after the parties separated, the mother was interviewed in relation to family violence. The mother was staying in a refuge and police had been contacted by the refuge. The record stated:
There is no reported domestic violence history to police, however [the mother] states that her life has been “hell” … for the past two years in which she has been continually threatened and bullied. [The mother] has been denied access to any money and has felt imprisoned within her home since the birth of their child…
In cross-examination, the mother said that she distrusted the police and would not have made a complaint to them.
The Family Consultant asked the father for his version of the event in February 2009 when the mother alleges that he followed her and dragged her from the car. The father told the Family Consultant that the mother ran away and he “… jumped in the car and followed her and I stopped and asked her to get in the car but she ran across the road away from me in to four lanes of traffic and disappeared.” The Family Consultant noted that the father “agreed that this was a pretty extreme thing for someone to do and could have indicated a high degree of fear in the person who was fleeing.”
Although the mother, in cross-examination, said that the counsellor she was seeing during her pregnancy could confirm that she had observable injuries at the time, that counsellor was not called to give evidence and neither were her notes tendered.
There was no evidence of any contemporaneous complaint by the mother, to any person, of family violence.
In those circumstances, I am unable to find that the onus of proof has been discharged.
However, I accept that the mother’s expressed fear of the father, whether based in her real or her perceived experiences of him, is genuinely held. It was not suggested otherwise in cross-examination or in submissions.
The mother gave evidence from a remote location. Her reaction when she realised that the location of the child’s school was revealed in the Family Report was extreme.

THE EVIDENCE OF THE FAMILY CONSULTANT

The Family Consultant, Ms I, conducted interviews with the family in December 2015 and prepared a report dated 9 February 2016. At the time of the interviews and preparation of the report, the father’s application was to spend time with the child. His application for an order that the child live with him post-dated the report.
The Family Consultant reported that:
The mother is implacably opposed to the child spending any time at all with his father. She said that he copes badly with change and does not react well to stress and he struggles to understand, at times, what is happening around him. The mother believes that the child’s behaviour would deteriorate as a result of this stress and confusion and this would be disastrous. The mother believes that the father would behave towards the child in a similarly controlling and coercive and physically abusive way as he did with her … The mother said that any contact the child has with his father would trigger her PTSD and impair her functioning to a significant level.
The Family Consultant has accurately summarised the mother’s case.
The Family Consultant did not see the father with G or with the child. In relation to the father’s understanding of the child’s needs the Family Consultant reported:
[The father] said that he understands he is a complete stranger to the child. [The father] said that they would probably need their initial visits to be supervised ‘so we could see what his attitude towards me is like.’ [The father] said that he would not ‘come on strong or put too much pressure on him; we would have to build trust slowly and wait and see. Because of his ADHD.’ [The father] said that he would like to eventually introduce G to the child ‘so that we could be a family together’.
The Family Consultant also commented that the father was not sure if the mother would comply with any Orders that might be made for the child to spend time with him.
In relation to the mother, the Family Consultant saw her on two separate occasions. On the first occasion the Family Consultant reported that the mother presented as extremely hostile from the time she arrived. She reported “Her tone was clipped and terse; she avoided eye contact; and her body language was closed and tight. At the same time, her affect was strangely flat, almost dissociated.”
The mother refused to allow the child to remain in the Sydney Registry childcare room with the childcare worker. The Family Consultant stated that the mother alleged that the child had previously been assaulted by a childcare worker and that she had no trust or faith in people that neither she nor the child knew personally. The mother denied that she had expressed a concern that the child might be assaulted by the childcare worker. The Family Consultant in cross-examination was adamant that this had occurred. I have already discussed, in these reasons, the limitations to the mother’s evidence. I accept that the event occurred as the Family Consultant has described.

The Family Consultant suggested that the mother’s support person remain with the child in the childcare room, given that she was a known and trusted person. The mother refused that suggestion saying that she would not be interviewed without the support person being present. The mother insisted that the child remain with her throughout the whole of the interview process. When the Family Consultant emerged saying that it would not be appropriate for the child to overhear what was going to be discussed, the mother said “[B] has heard and knows everything. I don’t keep anything from him”.
The mother would not allow the child to be interviewed by the Family Consultant on his own, expressing concerns for the child’s physical safety and emotional wellbeing should he be alone with the Family Consultant. Accordingly, the Family Consultant had a brief discussion with the child while the mother was present and the mother agreed to return, without the child, in a fortnight’s time to speak further with the Family Consultant.
On the second occasion that the mother met with the Family Consultant she concluded the interview by asking how she could complain about the Family Consultant, alleging that the Family Consultant’s behaviour was “intimidating, abusive and controlling” on the previous occasion. The mother also expressed the view that she believed that it was “appalling” that the Family Consultant had no particular training or qualifications in working with special needs children. I interpose that the Family Consultant gave evidence that she had worked with special needs children for over 20 years in the Department of Community Services (as it then was), that she was regularly engaged as an expert witness in the Family Court of Australia in relation to the preparation of bonding and attachment assessments, and that she had been in charge of setting up the Intensive Support Service for the Department of Community Services dealing with the most severely disturbed children and co-ordinating the management of their behaviours.
The Family Consultant asked the mother to describe the child’s behaviours. She reported:
[The mother] said that the child’s problematic behaviours emerge when he does not get his own way. She gave the example of that morning, when the child had been slow eating his breakfast and getting ready for school and she said she would have to pack up some of his breakfast (as a sandwich) for him to take to school with him. She said that he ‘threw things and then punched me and then he went to the fridge and he got out the soft drink (which he knows is a treat only) and he stood there and looked at me as he drank it in front of me.’ [The mother] viewed this as the child deliberately taunting her by choosing to do something he knows is forbidden. [The mother] said that if the child’s medication is not working, he can be impulsive, aggressive and oppositional and this behaviour occurs not only with her at home, but also at school (where he receives behaviour support). [The mother] reported that she was having an urgent telephone consultation with the child’s treating psychiatrist that afternoon to assess whether, after the mornings incident, the child’s medication needed to be changed.
The mother told the Family Consultant that when the child was first diagnosed with ADHD, in the beginning of 2015, he had a bad reaction to his medication. The mother said “He was manic and aggressive all at once and my GP told me I was at risk from him.” The mother said that after this, the child was referred to a psychiatrist, and he is now on different medication and is more stable. The mother told the Family Consultant that the child does not cope well within unstructured settings, which is why he has difficulty in the school playground.
The Family Consultant asked the mother her experiences with the “L” program. The mother told the Family Consultant that she found the engagement traumatic. The mother said that while the child was “spiralling out of control because of his medication and [having] the most severe case of ADHD”, the L case workers were telling her that she could control his illness if she chose to do so. The mother perceived that there was a lot of parent blaming and the workers bullied and harassed her.
In relation to the father’s application to spend time with the child, the mother told the Family Consultant that the only thing the child knows about his father is that “he didn’t treat me well and that violence is against the law and his father hurt me”. The mother said that the child seemed to have accepted that it is just the two of them and he rarely questions this.
In relation to the time immediately after separation, the mother told the Family Consultant that when they first separated she initiated mediation in order to develop a parenting plan which would include supervised time but the father would not sign it. The contact centre staff told the mother that they could not stop the father from leaving with the child and the mother refused to proceed with the supervised visit.
The mother told the Family Consultant that the child’s special needs, mental health issues and unique vulnerabilities mean that if he were to commence spending time with his father his behaviour would be likely to deteriorate because of his inability to conceptualise what was going on. She said “The slightest change really rattles him so I don’t think he would cope at all.”
In relation to the possibility that the father and the child might spend time together in a supervised centre, the mother said that she could not imagine it ever being safe enough for the child to spend supervised time with his father.
She said that because of how manipulative [the father] is, he might be able to fool the contact supervisors and be on his ‘best’ behaviour, ‘but when it is not supervised, it would be dangerous’. She said that [the father] would not be able to help himself and he would say bad things about her to the child, which would make him very upset. [The mother] said that the child is also likely to try and ‘bait’ his father emotionally (as he does with her sometimes) and she has no confidence that [the father] has the parenting skills to be able to deal appropriately with this, which would put the child at risk.
The mother said that, overall, she would find it incredibly stressful to have to take the child to spend time with his father and it would trigger her PTSD. She said “my stress and exhaustion impacts on the child and I don’t want to expose the child to this.”
The Family Consultant reported that the child appeared happy to speak with her. His mother and his mother’s support person were in the same room and were able to hear everything that the child said. The Family Consultant commented that while the child appeared to be relaxed in his presentation, on several occasions he chose not to answer a question until he had looked at his mother first, which the Family Consultant interpreted to be seeking her approval. The Family Consultant commented that the child would also look at the mother after he had answered a question. Again she interpreted that as seeking approval.
The Family Consultant commented that there was no physical contact between the mother and the child and the child did not seek the mother’s proximity.
The Family Consultant reviewed the material produced on subpoena by DOCS (as it then was) and the SDM “L” program.
From the material produced on subpoena, the Family Consultant concluded:
While it is of course incumbent on professionals to work in a strengths-based framework with parents who require assistance with caring for their children, this should not be at the expense of a clear eyed analysis of the needs of the child and whether that parent has the actual capacity to meet those needs or whether the parent’s behaviour and deficits may, in fact, be harming the child or putting the child at future risk. It is regrettable that Community Services did not request [the mother] to undertake a psychiatric assessment, nor did they make a referral for what should have been a critical piece of information – a bonding and attachment assessment. The information contained in the SDM case closure report cites [the mother] making continually negative attributions of [the child’s] behaviour (including comparing her situation with [the child] to that of living in a violent, intimate relationship); viewing him as having a level of agency and autonomy that a five year old simply does not have; focusing exclusively on the need for external assistance with controlling and managing [the child’s] behaviour; saying that she did not feel close to [the child] (and observed to be keeping herself physically apart from him); and viewing herself as a highly capable parent (indeed as more capable, educated and skilled than any of the professionals she dealt with) when in a given week, she was unable to cope with spending more than one full day per week with [the child] on her own. Taken as a whole these are markers of a highly dysfunctional parent/child relationship.
The Family Consultant formed the view that the child has an insecure attachment relationship with his mother, as seen in the mother’s dismissive approach to the child and the child’s “avoidant-resistant behaviour”. The Family Consultant expressed a concern that while it has been assumed that the child’s challenging behaviours are intrinsic, research suggests that parental psychopathology and family dysfunction are highly correlated with the likelihood and severity of ADHD. It was the Family Consultant’s view that medicating the child was only a partial and temporary solution and that the real solution to the child’s problems lay in working on the mother’s parenting.
The Family Consultant concluded, from the subpoenaed material, that:
Whenever a professional has probed more deeply, or attempted to posit an alternative explanation for [the child’s] behaviour (other than that he is ‘bad’ and [the mother] is helpless in the face of such extreme behaviour) she has disengaged in a hostile and aggressive manner, accusing these professionals of ‘bullying’, ‘harassing’ and ‘threatening’ her.
The Family Consultant stated:
[The mother] has made it clear that she will not abide by any Court directions that she feels are not in either hers or [the child’s] best interests. If she does decide to abide by orders allowing [the child] to spend time with his father, it is highly likely that she will catastrophize the impact of these visits of [the child] (and herself) to prove that the wrong decision has been made, and this will be to such an extent that visits will not be able to continue without actual, emotional harm occurring to [the child].
The Family Consultant stated that, if the court forms the view that the child should commence having a relationship with his father, this would need to be supervised. She said, however, that for supervised time to commence there would need to be a reasonable prospect that unsupervised time could occur at some time in the future.
The Family Consultant summarised the dilemma which is presented for the parties in the following way (emphasis in original):
The dilemma this presents for the Court is that [the child] would fundamentally benefit from having an alternative parent in his life, particularly one who is emotionally stable and whose functioning is at normal levels and who has demonstrated good enough parenting capacity over time. While this person does not necessarily need to be the ‘preferred’ or ‘primary’ parent, they would nevertheless be in a position to offer [the child] a qualitatively different experience of being parented. [The father] may be this type of parent; it would be regrettable if [the child] were to lose the opportunity of this relationship because of his mother’s inability to cope with the idea of [the child] spending time with his father. If [the child] were to spend regular and consistent time with his father, this would also provide [the mother] with a form of ‘normal’ respite that could be sustained well into the future.
The Family Consultant recommended that supervised time with the father should commence after the child has been referred to an organisation known as “the K”. She strongly recommended that the child should spend at least two sessions at the K before supervised time commenced, and that there should be close liaison between the child’s treating psychologists and the professionals at the K. The Family Consultant also recommended that it was necessary that there be counselling for the child, in the absence of the mother, and that this should be a non-negotiable aspect of any spending time regime.
In cross-examination by counsel for the Independent Children's Lawyer, the Family Consultant said that there were specific identifiable benefits to children in having a relationship with both of their parents if there is otherwise no risk (my emphasis).
The Family Consultant agreed that she had concerns about the mother’s capacity to support the child’s introduction to his father. When counsel for the Independent Children's Lawyer suggested that if the mother does not support the proposed introduction then it will fail, the Family Consultant replied that this was a risk, “An absolute risk. An in-your-face risk”. However she maintained that the possible benefits to the child outweighed those risks so long as there was a plan in place to ameliorate the risks.
The risk would be that the child may not have the emotional and cognitive ability to withstand what he may be exposed to from his mother following any contact with his father. In order to ameliorate that risk, the Family Consultant proposed that the parents both attend a new program which is run by Unifam called the “Parenting Orders Program” which works with parents individually to help them comply with Orders. Whether the program would have any success when dealing with a parent who was implacably opposed to the regime provided by the Orders was not explored.
When asked by counsel for the Independent Children's Lawyer about the risks of removing the child from the school where he is settled, the Family Consultant said that there would have to be incredibly compelling reasons to change schools.
When it was put to the Family Consultant that there seemed, from the records produced by the school, to have been an improvement in the child’s behaviour, she agreed that this was a positive effect of the mother’s parenting.
The Family Consultant was of the view that she could not recommend a progression from supervised to unsupervised time, stating that there were too many unknowns in the way that any changes might affect the child. She did not support the making of prescriptive orders containing incremental changes. The Family Consultant expressed the view that nothing about the introduction of the child to his father could harm the already insecure attachment between the child and his mother; neither could it remedy this insecure attachment.
However, that is not the only risk which is inherent in the proposed introduction of the child to his father.
The Family Consultant agreed that orders providing for the child to spend time with his father posed a real risk that the mother might find it incapable to continue to parent the child. She accepted that this might have the effect of leaving the child with no parent capable of looking after him.
The Family Consultant said:
I absolutely agree. I raised it in my report as being of great concern. My view remains though, on balance, that I think that would give the mother a level of power and control in this matter that I think she’s seeking, and she’s seeking for her own reasons, not about what is in [the child’s] best interests. I understand what you’re saying but at the end of the day my view is that that risk, as great as it is, is outweighed by what I consider the benefits to be of [the child] spending time with his father.
The following exchange then occurred between myself and the Family Consultant:
Rees J: That leaves me, however, in a position that I have to face the possibility of [the child] ending up with no parents capable of caring for him. Do you accept that?
[Ms I]: I accept that may well be where you end up. In those circumstances, the child protection system needs to be the system making the decisions about what’s in [the child’s] best interests.
Rees J: Well unfortunately that’s not open to me … I have to make this decision.
[Ms I]:I know that – I’m struggling but I am not resiling from that position. I think that’s come out clear today that those involved in this matter have not possibly seen the … forest for the trees, and I think that [the child] – there is a chance if we introduce someone who is functioning cognitively and emotionally into his life that that may provide some sort of alternative to what he has now.
In relation to her proposition that foster care would be the preferred alternative for the child, the Family Consultant said:
[Ms I]: I’d very much hope you weren’t looking at institutional care …
Rees J: But it has got to be one or the other, hasn’t it?
[Ms I]: And I’m – based on some of the material I’ve read today, and I accept that maybe since February things have calmed down a bit for the mother. But what I read today of what was happening in February would lead me to believe that [the child] would be better off in foster care.
Rees J:Well there’s nobody here, unfortunately, with their hand up.
[Ms I]: I understand that. It’s a massive dilemma. I just feel that [the child], again from the material I’ve read and my discussions with the mother, I don’t think that [the child] has a voice. I think there’s a lot of noise made about [the child] – that [the child] needs to be fixed and that [the child] is a cause of all these problems, and I’m not sure that there’s a focus on what [the child] needs.
At no time did the Family Consultant suggest that placing the child in the care of the father was a viable alternative.

EVIDENCE FROM THE SCHOOL

In February 2016, the Family Consultant spoke with Ms J, the Principal of the child’s school. Ms J told the Family Consultant that in the last six months, the child’s behaviour in the classroom has been progressively more manageable. She said that the child strives on structure, and that in less structured environments (such as the playground and in after school care) his behaviour is more likely to be challenging and he will push boundaries.
The Family Consultant reported:
[Ms J] said that she understands that [the mother] is ‘absolutely paranoid about [the child’s] father and I understand this is with good reason’. [Ms J] said that she thinks [the child] believes his father to be a very bad man, and he will therefore be exceptionally anxious about the possibility of meeting him, as would [the mother]. [Ms J] said that while she has no view either way about [the child] spending time with his father ‘The court would need to make sure that [the child] was very, very well supported and kept safe’ as part of this process. [Ms J] said that the same would apply to [the mother].
The notes of the school counsellor were produced on subpoena.
On 13 September 2016, the notes record that the child was briefly observed in class and was performing well socially. The counsellor noted “No ASD signs observed!” the child was noted not to be doing much work unless directed but was not disruptive.
When he was reviewed after the first seven weeks of school, the child was noted to be working at his desk happily. His problems appeared to occur in the playground and he was noted on occasions to get very angry. The mother reported to the counsellor that the child’s behaviours were increasing and he was due to change his medication to cope with increasing behaviours. On 16 March 2015, the school counsellor noted that there had been no violence in the playground for several weeks.
At a review meeting on 22 June 2015, the school counsellor noted that the child’s anger management was working better and playground problems were not an issue.

In an undated note, presumably after 25 November 2015, the school counsellor noted that playground violence had improved since week five (presumably of Term 4 of 2015).
On 26 November 2015, the school counsellor noted that the child’s behaviour had improved, that he was playing well with other children and had friends.
In a subsequent, undated note, the school counsellor noted that the child was more settled, less argumentative and calmer. The school counsellor noted that the child was playing better and choosing less aggressive children to play with and that he was working better academically.
The next note in date order states that the child’s playground behaviour had improved and he was playing well with other children. The counsellor noted that after school care was working well for the child and he was fitting in socially (presumably at about the end of 2015).
On 16 March 2016, the school counsellor noted that the first seven weeks at school had been generally good although there had been an incident of violence the previous Monday involving the child.

CONSIDERATION

The primary considerations set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“The Act”) lie at the heart of this determination.
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
As noted above, the Family Consultant in her oral evidence said, and I accept, that there are specific, identifiable benefits to children in having a relationship with both of their parents, if there is otherwise no risk (my emphasis). Her statement encapsulates the law.
What risks, then, might arise from either introducing the child to his father by way of supervised contact or making an order that the child live with his father and spend time with his mother on alternate Saturdays and special occasions?
My consideration of the factors enumerated in s 60CC(3) of the Act is set out below.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is no evidence before the Court of the child’s views. They were not canvassed.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
The Family Consultant gave evidence, which I accept, that the child’s relationship with his mother is problematic. She described an insecure attachment which is unlikely to improve unless the mother accepts that there are aspects of her parenting which need to change. There is no evidence to suggest that the mother will ever be amenable to such change.
The child has no relationship with his father who is a complete stranger to him and a frightening stranger, “a very bad man”.
There is no evidence that the child has any relationships with other adults such as grandparents or extended family members. He has friends at school and he has a dog.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The extent to which the father has failed to take the opportunity to participate in the child’s life is a matter of some concern. Regardless of the father’s reasons, the effect of his decisions is that the child does not know him and has had no opportunity to form an assessment of his father, independently of his mother’s views.
There was an attempt at mediation between the parents in 2010 and an agreement was reached for the father to spend time with the child in a supervised contact centre. A parenting plan was prepared. The father did not sign it. The proposed supervisors told the mother that they could not prevent the father leaving the centre with the child. The mother declined to provide the child for the visit.
No explanation was forthcoming from the father, either to the Family Consultant, in his affidavits, or in his oral evidence, for his failure to sign the parenting plan.
The father’s next attempt to arrange time with the child occurred in 2011 when, accompanied by his then partner, he went to the mother’s home unannounced and tried to see her or speak to her. Why he did not write a letter to her to arrange a meeting, rather than turning up unexpectedly, was never explained. If the father knew where the mother lived, he must have been aware that he could approach a mediation service, as had been done in 2010, and ask them to contact the mother in a non-threatening way. That was not the course of action he chose. He chose to take his partner with him, a move which he must have known would upset the mother. He also chose to have his partner telephone the mother while they stood outside her home, telling her that there were papers to serve on her. That was a lie – there were no papers. The police were called.
Since that event, the father has made no attempt to have contact of any sort with the child until he filed an application on 7 November 2014 seeking time with the child.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
All of the evidence before me, from the Family Consultant, from the child’s school and from the parents, acknowledges that B is a child for whom stability and routine are particularly important.
Although I can predict that moving the child to live with his father, away from his mother, his home, his school, his friends, his therapists, his dog, his swimming lessons and his familiar environment would be devastating for him, there is no evidence from any qualified person about how he would be affected by such momentous changes and how, or whether, he would cope.
Removing the child from his mother’s care would be a leap into the unknown.
The lesser step, of making orders for the child to be introduced to his father, is also fraught with risk.
The mother gave evidence that there is no safeguard that could be put in place that could reassure her that the child would be safe with his father. It was her evidence that the stress and anxiety caused to her if the child were to spend time with his father would be crippling to her ability to care for him and would have flow-on effects on the child’s ability to regulate his emotions.
Having observed the mother over three days, albeit from a remote location by video, and listened to her being cross-examined, I accept that the mother is unlikely to be able to cope with the child seeing his father. The Family Consultant agreed that this was a great risk. It is likely, indeed highly likely, that if such a regime were put in place, the mother would simply be unable to continue to care for the child.
If that were to happen, the child would be faced, at best, with foster care and, at worst, with institutional care.
The evidence does not suggest, and the Family Consultant did not suggest, that the father would be an appropriate carer in those circumstances.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
If the child remains in the care of his mother, there are real practical difficulties in his spending time with his father.
There is no evidence about the availability of The K program to assist the child. There is no evidence that any contact centre will accept him as a suitable client or, if he reacts badly to a visit, that they will agree to continue to supervise. There is no evidence that any contact centre can provide the appropriate level of supervision to deal with a child with B particular needs or that any contact centre can provide a supervisor who is qualified to provide feedback on the effect of the visits on the child.
It is likely that the mother will not support the child seeing his father, even in a supervised setting, and that, as suggested by the Family Consultant, she will undermine the child’s stability. The mother’s attitude and opposition to the regime may lead to a contact service refusing to accept her as a client.
If the child were to live with his father, there is real doubt about whether the mother would avail herself of any proposed contact with him. He would then have no parent with whom he has any relationship at all.
(f) the capacity of
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs;
The Family Consultant has assessed the mother’s parenting capacity to be poor. She is unable or unwilling to consider advice of professionals engaged with the child which entails her accepting advice or criticism of her parenting, and her methods are unlikely to change. I accept the evidence of the Family Consultant that the present insecure attachment that the child has with his mother is not likely to be repaired.
The mother’s general practitioner, Dr E, has stated on a number of occasions in letters written on behalf of the mother that the child is at risk of emotional harm or neglect in his mother’s care because of her severely compromised emotional state.
However, she is the only parent the child knows.
There was no other relative or friend who gave evidence about a relationship with the child or the provision of support or assistance to the mother.
The father’s parenting capacity is relatively unknown.
Counsel for the father submitted that the Court could place some reliance on the fact that the father has been caring for G since the beginning of 2016 and that orders have been made in the Federal Circuit Court placing her in his care. However, those orders were made by consent. There was no Independent Children's Lawyer for G. There was no independent assessment of the respective parent’s parenting abilities. At best, the father’s evidence was that G’s mother agreed to the arrangement because her present partner is violent and G should not be in his care.
The father gave evidence that he is assisted by the paternal grandfather who lives nearby. However, the paternal grandfather did not give evidence and was not part of the interview process with the Family Consultant.
A friend of the father swore an affidavit in which he deposed that G is well dressed and properly fed and appears to be settled with the father. He deposed that the father “has all the skills necessary to raise a child”. He was not required for cross-examination.
However, the child is not a typical or average child. He has moderate/severe autism and ADHD.
There was scant evidence from the father of his understanding of the challenges which would be presented by the child’s behaviour or the skills which would be required to parent the child.
In his affidavit sworn on 1 November 2016, the father deposed:
I am aware of [the child’s] diagnosis of ADHD and autistic spectrum disorder (mild) and have given a great deal of consideration to the challenges that having him live with me would present. I have researched these conditions to the best of my ability in an effort to give myself a better understanding of [the child’s] challenges as well as how I might deal with those issues should I spend time with [the child].
That is the whole of the evidence in the father’s affidavit material about his understanding of the challenges the child presents.
The paucity of his understanding was revealed in cross-examination.
In answer to questions by counsel for the mother about the effect on the child of changing schools and leaving friends, the father said that most children adapt fairly quickly to that sort of thing. He said that the child might have some initial difficulty but that, once he realises that he has a loving father “he’ll fit right in”.
Asked whether he thought that the child would be affected by having to leave his pet dog, the father replied “Minutely”.
The father has made contact with a service in his area which deals with children with autism spectrum disorders but the extent of his contact is to ascertain that they would be prepared to conduct an assessment of the child.
The father has researched on the internet and spoken to friends. He has not spoken to any professionals or undertaken any courses which might have informed him of the challenges involved in caring for the child or equipped him with any strategies. He said, in answer to questions from counsel for the Independent Children's Lawyer about courses, that he was “still looking into it”.
The father said that two schools in his area had “special needs” classes but he had not enquired whether there was a place for the child in those classes or any special programs that might be appropriate to the child’s needs.
In answer to questions put by counsel for the Independent Children's Lawyer, the father said that his research disclosed that autism is a spectrum and it “could be mild”. The father was clearly not aware that Dr C had upgraded his diagnosis of the child’s condition to moderate/severe.
When asked about techniques he would use to deal with the child if he threw a tantrum, the father said that his research had suggested that he should reward good behaviour rather than punish bad behaviour. He said the child would have his own bedroom where he would feel comfortable and at ease and that the child would be able to relieve tension with toys and games. The father acknowledged that he would have to ensure that the child’s behaviour did not affect G. How he could do that was not explained.
The father said that he understood that change and upheaval would create distress for the child and exacerbate his symptoms. Asked what he understood the child’s symptoms to be, the father nominated behavioural issues, disruptive behaviour, that he was “a little bit anxious”, that he doesn’t like change, and that he doesn’t settle well.
Significantly, the father did not nominate violent behaviour as a symptom displayed by the child.
When questioned about violent behaviour by counsel for the Independent Children's Lawyer, the father said that he was “not exactly aware” of any violence. He said that he had read the mother’s affidavit but did not recall reading about violent behaviour.
The mother’s affidavit set out in detail incidents where the child had kicked, bit and punched a teacher requiring four other teachers to restrain him leading to suspension from school for five days, an incident where the child “trashed” the principal’s office, an incident at Suburb D Health where the child punched his mother in the face and bit a psychologist causing the police to attend, and an incident where the child punched another student and was suspended from school again.
The material produced on subpoena is replete with descriptions of violent behaviours by the child, particularly towards his mother.
Reminded of that evidence, the father said that his concerns would be mainly about G and how the child’s behaviour might affect her.
Counsel for the Independent Children's Lawyer asked the father what had prompted him to change his application to seek orders that the child live with him. The father nominated three concerns. Firstly, that the mother had admitted to using illicit drugs, secondly, that the mother had mental health issues, and thirdly, that the mother had tried to throw the child off the balcony.
The father said that, if he believed that those concerns had no foundation, he would be content for the child to remain in the care of the mother and spend time with him.
I was not directed to any evidence that the mother was using illicit drugs. The decision in the application by the mother for victim’s compensation referred to notes of a medical consultation in June 2009 where the mother is reported as saying that she had not used drugs or alcohol since she became pregnant. I am not aware of any evidence that the mother has used illicit drugs since that time.
The mother has been diagnosed as suffering from depression and PTSD. That diagnosis was made when she was a teenager. I was not directed to any evidence that the diagnosis had changed or that the mother had come to the attention of mental health authorities in recent times.
Records produced by the police refer to an incident on 11 December 2015 when the police were called by a bystander who reported overhearing a telephone conversation wherein the mother said she would kill herself. What the mother is alleged to have said is not reported, other than that the informant heard the words “kill yourself”. The informant could not say whether the mother said “I am” or “you” at the beginning of the sentence. The mother told police that she had been talking to Legal Aid and had told the caller to “go jump” and “you’re making me not want to be a parent”. Ambulance officers conducted a mental health assessment. The mother denied any threats of self-harm. No further action was taken.
The reference to throwing the child off the balcony is a reference to an incident that occurred on 26 March 2015. Records produced by the police indicate that they received a call from a neighbour of the mother who stated that she could hear a female voice yelling such things as “I want to throw you off the balcony”, “I wish I had an abortion” and “No one likes you”. Police attended.
The mother claimed that the neighbour did not like her and made up the allegations. She did not deny yelling at the child. The mother is recorded as saying that she had yelled at the child “as he has ADD and doesn’t listen”. The mother denied that she said the things alleged by the neighbour. The police were satisfied with the mother’s response. They later checked with the child’s teacher and were told that he was at school and appeared no different from any other day. The police applied for a non-urgent AVO in relation to the alleged threats to the child.
In relation to the AVO against the mother that resulted from that incident on 26 March 2015, the Family Consultant reported that the mother said:
‘There is no substance to it. The child was holding knives to me. The respite service had pulled out. I had a neighbour call and say that I said certain things but I never said those things. My son was behaving impulsively so I had to lock the balcony door. I do things around my disability, I can’t chase him if he runs.’ [The mother] said that she initially did not have any legal help at all, but she then gained the assistance of [the Salvation Army] and they advised her to fight the AVO, but she decided to agree to it on a ‘no admissions’ basis ‘because I didn’t want to put myself under all that stress.’ [The mother] said that in hindsight, though, she regrets not fighting it.
In cross-examination, the mother pointed out her physical disability. She said it would be physically impossible for her to pick up a cat, let alone the child.
The father has conflated the allegation that the mother shouted at the child and threatened him with an allegation that she attempted to throw him off the balcony. The threat is concerning but not on the level of attempting to harm him.

The father equated his ability to manage G, a “highly strung and active four year old” with managing the child.
The father had little or no insight into the child’s problems, the nature of his behaviour, the challenges that caring for him might pose or the strategies that might be effective.
The likely difficulties of managing the child and working full time did not appear to have been considered by the father. He said that his work is “flexible” but that he works 38 hours a week and is only 15 minutes away from the school if there is a problem.
How his work commitments could accommodate those days when the child has a violent outburst and needs two hours or more to calm down does not appear to have been considered.
He did not seem to have given any consideration to the effect on the child of removing him from the medical professionals with whom he is familiar and replacing them with strangers.
Nothing in the father’s evidence gave any confidence that he could provide for the child’s emotional and psychological needs arising from his autism and ADHD or that he could provide for the day-to-day demands of the child’s care.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has devoted herself to the child’s care as a single parent since he was three months old. While some aspects of her parenting might be less than optimum and, according to the Family Consultant, inappropriate, one could not doubt her commitment.
The father has chosen not to be involved in the child’s care for the past six years, although he has paid child support as assessed.
(j) any family violence involving the child or a member of the child's family;
Earlier in these Reasons, I considered the mother’s allegations of family violence perpetrated by the father upon her.
Those are not the only allegations which must be considered.
G’s mother, Ms H, has also made allegations that the father was violent towards her.
Specifically, G’s mother has alleged that the father attempted to strangle her in the course of an altercation over G. The father’s version of that event is that he was the victim of an assault by the new partner of G’s mother.
The police records of the event were tendered. On 29 June 2015, it was noted that there had been one previous report of domestic violence between the father and Ms H.
It is recorded that on 1 July 2015, Ms H complained that two days earlier, she had gone to the father’s home, with her new partner and a female friend, to collect G. She stated that the father grabbed her around the throat and pinned her against the door jamb. Ms H’s version of that event was corroborated by two witnesses.
Police interviewed the father. He stated that he was in the shower when Ms H arrived to collect G. She or her partner turned off the water. The father went to investigate. The father saw Ms H’s partner menacing him with a house brick. The father was dragged from the front door, knocked to the ground causing grazes to his leg and knee and slapped several times. Police observed the grazing. The father managed to get back inside the house. Ms H’s partner scratched the father’s vehicle with a key as he left.
The paternal grandfather was present and witnessed the event.
The police were unable to determine who was the aggressor. Whatever might have occurred, this was an incident of family violence. Whether G was a witness to what occurred is not known.
A complaint was also made against the father by his neighbour. This was not an incident of family violence but is relevant. In 2013, the neighbour complained that the father had thrown water over her while she was in her backyard and called out “I hope you enjoyed your shower”. The father agreed that he had done this. The neighbour also alleged that the father threatened to “make your life hell on earth for you”. The father denied that he had said those words.
The father threw a paling over the fence, damaging a light. The police notes record:
During questioning [the father] made full admissions to assaulting [his neighbour] by throwing water over her and throwing the fence paling over the fence and damaging the solar light.
The father was charged with common assault and damaging property. He was convicted of the assault. In answer to questions in cross-examination, he said that an Apprehended Violence Order had been made for the protection of the neighbour for 12 months.
This event might seem trivial, but it suggests that the father is capable of antisocial behaviour and gives concerns about his ability to control himself when provoked. Those are not traits which give confidence in his ability to parent a child whose behaviour is difficult and provoking.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The proposal of the Family Consultant for an introduction, by way of supervised contact properly monitored, of the father to the child, has an inevitable consequence of further litigation.
The Family Consultant is unable to predict how the introduction will be perceived by the child. She cannot predict when, if ever, it might be possible to move from supervised to unsupervised time. Her proposal requires the co-operation of the mother which is unlikely to be forthcoming. Her proposal involves the child engaging with The K program which is unlikely to be supported or facilitated by the mother. It also involves counselling for the child which does not involve his mother, again unlikely to be supported or facilitated by the mother.
The Family Consultant, in her report, stated that a program such as “Keeping Contact” would be of limited value as the mother is likely to be suspicious of, and significantly hostile to, any counsellor who did not go along with her views. How any program recommended by the Family Consultant would be differently received by the mother was not explained. In my view, any program which aims to reconcile the mother with orders for the child’s introduction to his father, assuming she attended, would fail.
At its highest, the Family Consultant’s proposal involves an introduction with appropriate monitoring and oversight and a return to the court to determine whether the experiment should be stopped or proceed to unsupervised time.
There is no evidence before me from persons associated with The K, nor is there any evidence from the child’s treating psychiatrist or psychologist as to their willingness or ability to liaise and work with The K or their views about the suitability of the program for the child. All of these deficits increase the likelihood that the matter will come back to the court if orders are made for the parties to engage with such a program.

CONCLUSION

The Family Consultant gave evidence that, in her opinion, the risks that have been outlined, that the mother will not be able to continue to care for the child if he is introduced to his father, are outweighed by the possible benefits to him of spending time with his father.
It was her view that, if the mother could not parent the child, he would be better off in foster care.
That is not an available option.
Whilst the Court is not confined to the proposals of the parents, an order cannot be made which would provide for the child to be placed in the care of the Minister for Family and Community Services when the Minister is not a party to the proceedings and there is no evidence about the availability or suitability of care which could be provided for the child.
The Court is left with the alternatives which are starkly contained in the competing proposals of the parents. Either the child will live with his mother and have no relationship with his father, or he will live with his father and probably have no relationship with his mother. The father’s alternate proposal is that he spend time with the child.
For the reasons I have already expressed, I am not satisfied that the father is able to care for the child or that the child would be able to survive the transition to his father’s care.
There can be no certainty that the introduction of the father, in a supervised setting, would lead to unsupervised contact. Absent such certainty, the Family Consultant in her report recommends that introduction not be tried.
There is a great risk that, if an Order were made for the child to be introduced to his father, the mother’s adverse reaction would lead to her being unable to care for the child, leading to his being placed in care.
The mother’s ability to care for the child is fragile. The risks to the child’s continuity of care are so great that they are unacceptable.
There will be no orders providing for the child to spend time with his father.

ANCILLARY MATTERS

There was no real dispute that the parent with whom the child lives should have sole parental responsibility for him.
At the close of submissions, the Independent Children's Lawyer raised the possibility that the mother would remove the child from his present school. It is to the credit of both parents that the mother agreed to be enjoined from so doing and the father agreed to be enjoined from approaching the school.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 November 2016.

Associate:

Date: 23/11/2016

[2016] FamCA 995

23 November 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Injunction