Aligante and Waugh

[2012] FamCA 10

FAMILY COURT OF AUSTRALIA

ALIGANTE & WAUGH [2012] FamCA 10

FAMILY LAW – CHILDREN – Where the child was put into the primary care of the father when the mother was restricting the development of a relationship between he and the father – Where the child’s relationship with the father has developed – Where the mother has shown better control of her adverse beliefs about the father in the presence of the child – Where it is now in the child’s best interests to gradually increase the child’s time with the mother to a point where it becomes substantial and significant unsupervised time

Family Law Act 1975 (Cth)

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

APPLICANT: Mr Aligante

RESPONDENT: Ms Waugh

INDEPENDENT CHILDREN’S LAWYER: Ms Fiona Reid

FILE NUMBER: SYF 3075 of 2004

DATE DELIVERED: 12 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Leis

SOLICITOR FOR THE APPLICANT: Mark Whelan Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Reid Family Law

Orders (made 24.11.11)

1. Order 2 made 7 July 2010 be varied to read:

   “2.The Father have sole parental responsibilities for decisions concerning the child’s long term care, welfare and development subject to the following provision:

   2.1In relation to any decision that the father intends to take in relation to the child’s long term care, welfare and development, he will advise the mother in writing of the decision that he intends to take.

   2.2The mother within 21 days shall indicate to the father in writing whether or not she agrees or disagrees with the decision he intends to take.

   2.3In the event there is a disagreement between the parties about any long term issue relating to the child, both parties do what is necessary to organise an attendance with a mediator at C Family Centre or such other family dispute resolution practitioner as agreed between the parties.  The cost of any such mediation to be shared equally between the parties.

   2.4If after both parties have made a genuine attempt to reach agreement but have failed to do so, the father will make the ultimate determination about the decision.”

2. Orders 3, 4, 6(a), 10, 11, 12, 13, 15, 16, 17 made 7 July 2010 be discharged.

3. Order 19 made 7 July 2010 be discharged as from 31 December 2012 unless an application is made pursuant to order 13. 

4. The child shall spend time with the Mother as follows:

   4.1.Until the conclusion of term 2 school holidays 2012:

   4.1.1.Each alternate Saturday from 8.00 am until 7.30 pm, commencing on Saturday 26 November 2011. The mother is to attend the father’s residence to collect the child and the father will collect the child from the mother at the conclusion of that time;

   4.1.2.Each Thursday from after school until 7.30 pm.  The mother to deliver the child to his father at the conclusion of that time ;

   4.1.3.From 8.00 am until 7.30 pm on Monday, Wednesday and Friday in the first three weeks of the NSW gazetted Christmas school holidays 2011/2012. The mother is to attend the father’s residence to collect the child and the father will collect the child from the mother’s residence at the conclusion of that time;

   4.1.4.From 8.00 am until 7.30 pm on Monday, Wednesday and Friday of the first week of the April and July 2012 NSW gazetted school holidays. The mother is to attend the father’s residence to collect the child and the father will collect the child from the mother at the conclusion of that time;

   4.1.5.On Christmas Day 2011 from 10.00 am until 3.00 pm;

   4.1.6.On Mother’s Day 2012, from 9.00 am until 7.30 pm.

5. Time pursuant to order 4 above be supervised by one of the following four persons:

   5.1.Ms HH;

   5.2.Ms SS;

   5.3.Ms CC;

   5.4.Ms PP.

   until the conclusion of Term 1 2012.

6. After the conclusion of term 2 school holidays 2012, the child shall spend time with the Mother as follows:

   6.1.Each alternate weekend from Thursday after school until before school the following Monday;

   6.2.Each Thursday in the off week from after school until before school on Friday morning.

   6.3.Subject to orders 14 and 15, for half of each school holiday period as agreed between the parties, but failing agreement, in the first half of the school holiday period in odd numbered years from after school on the last day of term until 7.30 pm on the day which falls in the middle of the school holiday period and in the second half of the school holiday period in even numbered years from 7.30 pm on the day which falls in the middle of the school holiday period until the commencement of school on the first day of the new term.

   6.4.On the Mother’s Day weekend, in the event the child is not already with her, from 5.00 pm on the Saturday before Mother’s Day until before school on the Monday following the Mother’s Day weekend.

   6.5.From 5pm Christmas Eve until 5pm on Christmas Day in 2012 and each alternate year thereafter and from 5pm on Christmas Day until 5pm on Boxing Day in 2013 and each alternate year thereafter.

7. For the purposes of calculating school holidays, holidays will commence from the conclusion of school on the last day of term and end at the commencement of school in the new term with such periods to include pupil free days.

8. Notwithstanding orders 4 and 6 above, the child is to spend time with each parent on special days (if not otherwise spending time with them) as follows:

   8.1.In 2011, with the mother on the mother’s birthday, … December between 8am and 7.30pm if not a school day; or from after school to 9pm if a school day;

   8.2.Each year with the father on the father’s birthday, … November, between 8am and 7.30pm if not a school day; or from after school to 9pm if a school day;

   8.3.Each year on the child’s birthday, with the parent the child is not living with, from 9am to 1pm (if on a weekend) or after school to 6pm (if on a school day);

9. Notwithstanding the above, the child will spend the following times with the Father:

   9.1.From 5pm on Christmas Eve until 5pm on Christmas Day in 2013 and each alternate year thereafter and from 5pm on Christmas Day until 5pm on Boxing Day in 2012 and each alternate year thereafter.

   9.2.On the Father’s Day weekend in the event the child is not already with him, from 5.00 pm on the Saturday before Father’s Day until before school on the Monday following the Father’s Day weekend.

10. The parties are each permitted to attend all school events, including concerts, carnivals, parent teacher nights, open days, school fairs and all other events parents are invited to notwithstanding with whom the child may be living with or spending time with at the time of the event.

11. The parties are each permitted to attend all extra curricular activities in which the child is involved including but not limited to weekend sport, gala days and presentation days, notwithstanding with whom the child may be living with or spending time with at the time of the activity or event.

12. Each party and the Independent Children’s Lawyer has leave to relist this matter before his Honour Justice Watts on 7 days’ notice.

13. In the event that neither party nor the Independent Children’s Lawyer has sought to relist this matter to vary these orders by 31 December 2012, these Orders shall become final orders and all matters shall be removed from the pending active cases list.

14. Subject to order 15, and on one occasion each year, each parent may take the child on an overseas holiday or an extended holiday away from Sydney, within Australia, on the following conditions:

    14.1.the parent taking the child on such an extended holiday will give the other parent 60 days written notice of the intended date of departure;

    14.2.a notice given first in time has priority;

    14.3.the intended duration of travel not exceed 4 weeks, two of which are to  include the allocated NSW school holiday period;

    14.4.the parent taking the child on an extended holiday will provide the other parent with make up time in the following school holidays equivalent to the one week that the non-travelling parent has lost as a result of the arrangement;

    14.5.that any intended overseas destination be a country which is a party to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and in that event, the parent intending to travel, within 21 days of leaving Australia provide the other parent with:

    14.5.1.     the travel itinerary of the parent and child;

    14.5.2.     contact details whilst overseas;

    14.5.3.     the purchase and presentation of return air tickets. 

    14.6.unless otherwise agreed in writing, that if any intended overseas destination is a non-Hague Convention country, the non-travelling parent shall have liberty to apply to the Court, on 7 days notice, for orders preventing that travel or imposing conditions on that travel.

15. Order 14 is to commence immediately for the father and at the beginning of 2013 for the mother.

16. The Independent Children's Lawyer prepare a brief summary of any relevant reports prepared by Dr W, the court’s judgments in this matter and any other document to provide to the contact supervisors.

17. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Aligante & Waugh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3075 of 2004

Mr Aligante

Applicant

And

Ms Waugh

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. J (“the child”) is now 9 ½ years of age.  He was 2 years old when the litigation commenced. I expressed to the parties my hope that this might be the last time his parents come to court, not having been able to work out between themselves what parenting arrangements should be made for the child. 

2. The child is expressing the view that he would like to live with his mother.  For reasons which arise out of the complexity of this case, that is not something that is in the child’s best interests. 

3. On 7 July 2010 I made a final order that the father should have sole parental responsibility for long term decisions about the child’s care, welfare and development and a final order that the child should ordinarily live with his father.  I made interim orders relating to the time that the child would spend with his mother and the circumstances in which that would happen.  Up until now, the child’s time with his mother has been supervised.  There have been problems with arranging supervision, particularly by supervisors who were acceptable to the father.

4. The Independent Children's Lawyer has relisted the matter before the court, primarily to seek final orders in relation to the time that the child spends with his mother on an ongoing basis.

5. The child psychiatrist who has provided expert opinion to the court throughout the long history of this matter has again interviewed the child, the parents and the child’s step mother.  He has provided a supplementary report and given oral evidence.  He has made a set of recommendations.  As I indicated on 24 November 2011, having heard all the evidence, I have reached the conclusion that what Dr W has recommended is in the child’s best interests and I made orders substantially in accordance with his recommendations, saying that I would give reasons at a later time.  These are those reasons. 

APPLICATIONS

Independent Children's Lawyer

1. The Independent Children's Lawyer’s application substantially adopted the recommendations of Dr W. 

2. The one area where that did not happen was in relation to the issue of parental responsibility.  Dr W in his recommendations suggested that sole parental responsibility be changed to equal shared parental responsibility at the conclusion of 2012 in the event that the arrangements operated relatively smoothly up until then.  The Independent Children's Lawyer’s formulation was somewhat ambiguous. 

3. It was in the following terms:

   7.That the father have sole parental responsibilities for decisions concerning [the child’s] long term care, welfare and development until the conclusion of the school year in 2012 and that thereafter, the parties have equal shared parental responsibility for decisions concerning [the child’s] long term care, welfare and development. In the event there is disagreement between the parties about any long term issue relating to [the child] they shall attend mediation with a registered family dispute resolution practitioner agreed between the parties, but failing agreement with the Family Relationships Centre closest the [sic] father’s residence at that time, with the cost of any such mediation to be shared equally between the parties. If no agreement can be reached, the father will make the ultimate determination about the decision on the basis that he is the primary residence parent.

4. As can be seen, the Independent Children's Lawyer proposed that the parties have equal shared parental responsibility but on the basis that if they were unable to reach an agreement they would attempt to mediate a result and if all else failed, the father would have the ultimate decision.  Equal shared parental responsibility however is a concept which requires the parents:

   9.1.To consult the other person in relation to the decision to be made about an issue;

   9.2.To make a genuine effort to come to a joint decision about that issue; and

   9.3.In the event that no agreement can be reached, coming back to the court for determination.

   Placing the ultimate decision in the hands of one of the parents is in fact creating an order for sole parental responsibility.

5. Counsel for the father objected to me entertaining an application that would change the current order for sole responsibility in the father’s favour.  In the end no party actually asked me to do that and although the father originally seemed to object, there was an agreement to insert into the existing final order for sole parental responsibility in favour of the father, an additional mechanism that would require the parties to seek the assistance of a professional third party in the event that their genuine efforts to reach agreement with one another failed.  The ultimate responsibility for the decision however would remain with the father.

6. The Independent Children's Lawyer wished to be discharged from that role after a period of a further 12 months and neither party opposed that happening.

Mother

1. The mother wanted me to revisit the final order as to where the child would ordinarily live. She wished me to change that order so that a new final order be made for the child to ordinarily live with her.  In the alternative, the mother sought an order that the child spent equal time with both his parents.  The mother also sought an order that any requirement for supervision be immediately dispensed with. 

2. In the event that supervision remained, the mother proposed four supervisors. 

Father

1. The father’s position changed throughout the hearing.

2. The father’s primary objection was the timing of the lifting of the order that the child’s time with his mother be supervised. Dr W having reinterviewed the parties and the child, and having considered all the new material, said his best “guesstimate” was that it would be best to lift all supervision at the end of term 1, 2012. 

3. The father’s application was that the removal of the requirement for supervision be delayed until the end of second term 2012. 

4. As already indicated, the father also objected to the appointment of Ms HH as a supervisor.

5. The father also wished for the times that have been suggested by the Independent Children's Lawyer to be more restricted because they would be “long days” for the child. 

6. The father suggested that there be four initial occasions where there is professional supervision given that the child had not seen his mother since July.  Counsel for the father asked Dr W questions about that. Dr W indicated he did not think that was necessary and the father ultimately did not press that part of his application.

7. Whilst initially resisting the notion that supervision was not needed for the mother to be able to attend public extra curricular events in which the child was participating, the father ultimately agreed that no order for supervision was necessary in respect of such events.

8. The father proposed, and the mother accepted, that there be an order that the parties attend C Family Centre or such other family dispute resolution practitioner as agreed between the parties in the event that they are unable to reach an agreement as to a matter relating to the child, whether or not that be a decision in relation to his long term care, welfare and development or dealing with a more day to day problem where it was appropriate that both parents be involved in discussion about an appropriate outcome.

BACKGROUND

1. On 7 July 2010 I made final orders that the child live with his father and for the father to have sole parental responsibility for decisions concerning the child’s long term care, welfare and development. Interim orders were made for supervised time between the child and his mother with an updated single expert report at the conclusion of 12 months.  I also made various specific issues orders and injunctions.

2. There was to be an initial settling period where the child would be in the sole care of his father without seeing his mother. 

3. The child saw his mother in the presence of a supervisor during parts of 2010 and parts of this year. There had been periods of time when the child has not seen his mother because of difficulties or disagreements in relation to the availability of an appropriate supervisor. 

4. Since July 2011 there has been no face to face time between the child and his mother.

5. On 3 August 2011 when the matter was before the Principal Registrar for interim hearing on the application of the Independent Children's Lawyer, the father raised the issue of the mother playing to the child a song that she had written in the second half of 2010. That song contains graphic words about the pain that the mother felt as a result of being separated from the child. I indicated to the mother during the hearing that whilst I understood the mother writing and recording that song, I thought the publication on the internet of that song and the playing of that song to the child, was entirely inappropriate.

6. The matter came back before me on 17 October 2011 and I ordered that Dr W provide an updated report. He saw the parties on 15 November and has provided a report dated 18 November 2011.

STATUTORY CONSIDERATIONS

1. The reason why I made the order in the first place to move the child from his mother’s care to his father’s care was fundamentally as a result of the risk that existed at that time of the mother’s underlying beliefs totally destroying any chance of the child having any further relationship with his father.  It is clear from Dr W’s most recent report that the child has developed and had the benefit of a meaningful relationship with his father.  Dr W is of the view that the child has developed primary attachments with both his parents and a secondary attachment to his step mother.  The child’s strongest attachment remains with his mother. 

2. The child will benefit from having a meaningful relationship with both his parents.

3. That relationship however has to be nurtured having regard to the risks to the child of psychological damage flowing from the unshakeable beliefs held by the mother about the risks posed to the child by the father.

1. Dr W is of the opinion that the mother’s beliefs were unlikely now to be moved by any further counselling.

The child’s views

1. The child has, on a number of occasions in the supervisor’s notes, made it plain that he would prefer to live with his mother.  He also indicated to Dr W that that was his view.  The child’s chronological age is 9 ½ years.  Dr W says that cognitively he is younger than that.  Nonetheless, the child’s views need to be given serious weight.

2. The mother submits that in fact that consideration should be overwhelming and the child should be returned to her primary care. 

3. Given the risks to the child of doing that in the circumstances of this case, other considerations mean that arrangements in accordance with the child’s expressed views are not in his best interests.

The mother’s beliefs

1. Dr W concludes that the mother’s beliefs about the father are unshaken, notwithstanding the hearing that has taken place. The mother in the intervening period has seen a number of professionals, including somebody whom she saw to test whether or not her memory was in any way defective.  The question is not whether or not the mother will ever accept what I have found to be the fact; clearly she believes I am wrong. The question is whether or not she can accept that looking forward, it is in the child’s best interests to have a meaningful relationship with both his parents. That is going to be difficult for the mother. She has an underlying belief that the child’s father poses a risk to him, certainly physically, and probably sexually. 

2. Apart from the significant lapse in judgment in relation to the song, I agree with Dr W’s assessment that the mother however has been able to conduct herself appropriately in the child’s presence.

3. I agree with Dr W that the best that could be hoped for is that firstly the mother does not act upon her fears to do anything that has the effect of disrupting the child’s relationship with his father and secondly, she does not say anything to the child which arises from her beliefs which runs the risk of undermining his relationship with the father.  

Relationships

1. As I have said, the pain that has been occasioned both to the child and his mother as a result of the orders I have made has not been inflicted by the court in vain.  It does appear that the last 18 months have achieved a result which has developed and enhanced the child’s relationship with his father.  I have no doubt that had the child remained with his mother during that period, the child’s father would have been lost to him. 

2. It is important, as Dr W says, that the restrictions that were put in place in order to attempt to achieve that result, now be substantially loosened.  Given the child’s views, there is a greater risk that if the current restrictions are not substantially loosened, the child will eventually “vote with his feet”. 

3. It is time to commence, on a graduated basis, the repatriation of the child back into his mother’s household.  That needs to be done with some caution but in a way that is not so onerous as to create resentment, particularly by the child. 

CONCLUSION ABOUT PRIMARY RESIDENCE AND EQUAL SHARED PARENTAL RESPONSIBILITY

1. I have set out in previous extensive written reasons why it was in the child’s best interests for him to live with his father and for his father to have sole parental responsibility for him. I find that there has not been a significant change in circumstances since I made that determination and I accept submissions from counsel for the father that those matters should not be revisited. As I have said however, there has been a consensual agreement to refine the sole parental responsibility order so that the parties will be required to engage in discussions with a mediator should there be a disagreement between them about a particular course of action. It is hoped that the parties will be able to reach agreement about important long term matters relating to the child. If they are unable to do so however, it will ultimately still be the father who makes the final decision.

CONCLUSION ABOUT WHAT ARRANGEMENTS ARE BEST FOR THE CHILD WHEN SPENDING TIME WITH HIS MOTHER

1. The reality is that although there is mutual distrust between the parties, Dr W assesses, and I agree, that the mother’s distrust of the father is still such that she has a significantly greater capacity to profoundly and permanently disrupt arrangements than does the father’s distrust of the mother.

2. The mother, whilst under supervision, has been able, with one exception, to contain her feelings about the father in the child’s presence.  That occasion was when the mother played the song to the child.

3. Dr W recommends that the interim orders that were made in relation to the child spending time with his mother be changed so that he spends significant time with his mother, to be introduced in a graduated fashion, but not over too long a time frame.  He recommends that there be an immediate reinstatement of the child’s time with his mother under the supervision of Ms HH primarily. He however says there should be a list of two or three other qualified supervisors who could be available in her absence.  Initially there should be full day time on alternate weekends and an afternoon after school, with collection from school and drop off after dinner.  He also suggests during half of each school holidays, visits should occur every two or three days, with there being no visits during the other half of the holidays to enable the father to make his own plans with the child.

4. Dr W sees this as a period where the mother could demonstrate that she could exercise good judgment and not undermine the child’s relationship with his father despite her feelings about him. He suggests that such an arrangement continue to the end of term 1 2012. After term 1 2012, supervision could be lifted but the same regime maintained for term 2.  Again, this would be a test of the mother’s resolve to subordinate her own feelings about the father.  At the end of term 2, 2012, Dr W suggests that the child’s time with his mother be alternate weekends and half the school holidays on an unsupervised basis, with an overnight in the alternate week. He suggests that that be from Thursday afternoon to Monday morning, which would amount to a 5/9 sharing of time per fortnight.

5. What is very obvious from the most recent observations made by Dr W, is that the child has a need to be loved and nurtured by both his parents with whom he has a primary attachment and his step mother with whom he has a secondary attachment.  There is some hope that the child might grow up as a well adjusted adolescent if both parents are able to look to the future focusing on the child rather than the risk each parent believes the other poses to the child in the future. 

6. Dr W concludes that there is probably some fault on both sides. Dr W says that the father has been somewhat obstructive because of his rather pedantic nature, but that is in the context of the mother proposing persons who appeared to be aligned with her and perhaps do not accept the court’s findings in relation to the father and may not be supportive of the relationship between the child and his father.

7. I do not accept the submission by counsel for the father that Dr W’s opinion is not properly substantiated in accordance with the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. In my view his report sets out a clear basis for the conclusions that he has reached.

8. Dr W gave oral evidence that there are two factors in play which are protective of the child’s relationship with his father and against any influence the mother might bring on the child that might destroy or damage the child’s relationship with his father.  The first is the child’s age and the second is the development and strengthening of the relationship between the child and his father.  In the last 18 months, both of those factors have worked in favour of the development of a meaningful relationship between the child and his father.

9. Counsel for the father asked the court to err on the side of caution and to extend the supervision period for a period of a further school term in order for the child to be that much more older and for the child’s relationship with his father to be that much more solidified. 

10. The reasons for not doing that are:

    51.1.It is not in accordance with the expert child psychiatrist’s best “guesstimate” as to what the best outcome would be;

    51.2.The actual supervision regime, given the amount of time the child will now be spending with his mother, is actually quite onerous, even given that there are now four possible supervisors; and

    51.3.There needs to be a balance to guard against any reaction from the mother or the child as to the “unfairness” of ongoing supervision.

11. I agree with Dr W that the time has come to see if both parents can subordinate their own fears about the other and focus more on the child’s needs for the future.

12. I accept Dr W’s opinion, based on the detailed discussions set out in his most recent report, that the “guesstimate” as to when supervision should be lifted is the end of term 1 2012.  I also accept his opinion that the move to extensive overnight time could take place by the end of term 2, 2012.

13. The father opposed the appointment of Ms HH as a supervisor but ultimately accepted the other three alternate supervisors that the mother proposed.

14. Ms HH gave oral evidence before me.  I had the advantage of having in evidence an assessment, prepared by the Independent Children's Lawyer, in relation to Ms HH’s suitability as a supervisor.  I was impressed by Ms HH’s presentation.  She is obviously a close friend of the mother and very supportive of her position.  She had however, read relevant documentation in this matter, including previous family reports and my substantial judgment in the case.  She understood that the mother still harboured an unshakeable view that the father had been violent, including sexually violent.  She understood that it was also Dr W’s opinion that the mother probably continued to harbour thoughts about the possibility of the father being sexually abusive towards the child.  She understood that after an extensive inquiry, the court had found that those notions, held by the mother, were unfounded.  I was satisfied she understood the importance of ensuring the mother did not convey to the child the feelings that she held in relation to his father.  I was satisfied that she understood the undertaking which she had given to the court to terminate any event between the child and his mother where his mother behaved in a way that conveyed her inner beliefs about the child’s father to the child.

15. As noted above, the father also wished for the times that have been suggested by the Independent Children's Lawyer to be more restricted because they would be “long days” for the child.  The child is 9 ½ and I saw no reason to not make the slightly more extensive orders proposed by the Independent Children's Lawyer, particularly in circumstances where change over arrangements were made to accommodate the current working patterns of the father and his wife.

16. The mother would have preferred to have had the child delivered to her at all times and for her to deliver the child back to the father. Although that was the default position in order to assist the father and the step mother with their working schedule, I ordered that the mother attend to collect the child at the commencement of the child’s time with her on some specific occasions.

17. I do not however underestimate the risk of possible future psychological damage to the child caused by the mother arising from the mother’s unshakeable beliefs about the father. That is a significant risk to the child’s relationship with his father. It is why I took the dramatic step that I did in moving the child from his mother to his father in the first place. The risk to the child has not gone away.

18. I do have some hope however that both parents may now look to the future. The mother certainly told me that that is what she intended to do.

19. As Dr W said, the mother should understand that if she is unable to control the expression of her beliefs to the child and it becomes obvious that her behaviour is damaging the child’s relationship with his father, then the matter may well come back to the court for reconsideration.

20. I was told by both the parties that they had read Dr W’s report.  They had therefore read the child psychiatrist’s observations of the child with both his parents and his step mother.

21. The child speaks in very warm terms about his relationship with all three adults. Dr W found the child sitting on his father’s lap in quite a contented pose. The child was excited about seeing his mother again and their reunion during the interview with Dr W was extremely happy (the mother was briefly a little tearful). When the child was leaving his mother he gave her a hug and a kiss and was a little reluctant to separate from her. Dr W concluded that whilst the child was quite familiar and affectionate with his father, he was more affectionate, talkative, excited and animated with his mother and seemed very comfortable in her presence. The child also said to Dr W that he felt torn between his two parents and Dr W said that in an unprompted way the child said that he wished his parents were not even divorced.

22. It is in the child’s long term psychological interests that he have a secure relationship with both his parents. Maybe the mother in time will come to accept, notwithstanding how she feels about the father, that it is in the child’s best interests for him to have a meaningful relationship with his father which can be, for the child, warm and loving.  She may come to accept that she would be doing great damage to the child that she loves so much to impose upon him the burden of her own unshaken beliefs about the father.

TRUST FUND

1. Dr W mentioned that there is one issue between the parties which is an ongoing running sore and suggested that the court attempt to resolve it.  That issue relates to a trust fund with the Australian Scholarship Group (ASG) which has somewhere between $12,000 and $14,000 in it. It was a trust fund set up initially when the parties were together.  Both parties agree that it is for the child’s high school education.  The child is still three years off high school and therefore the issue is not of immediate concern. The mother wishes to have sole control of the fund (which is currently in joint names with an organisation). The money will need to come back from that organisation at the time the child goes to high school and be placed into an account from which monies can be drawn.  The mother wishes that new account to be in her sole name.  The father wishes for there to be joint decisions made in relation to how that money is expended.  He says that over the last 18 months he has been primarily responsible for the costs of supporting the child and any monies the mother has deposited into that fund in that time could be considered her contribution to what is otherwise their joint contribution on an overall basis to the child’s financial support.  I had no application before me in relation to the trust fund.  I expressed the hope that within the next three years the parents might be able to move to the situation where, despite their deeply entrenched mutual suspicions of one another, they are able to develop a working relationship as the child’s parents.  If that happens, in the fullness of time they themselves may be able to work out some appropriate mechanism for the operation of the trust fund.  That may not be too difficult given that the purpose to which the monies are to be used is not a matter of contention. I have indicated that, although I would hope it would not happen, they can come back to the court for a determination as to what is to happen with that fund should that be required.

A HOPE

1. I indicated to both parties that I hoped I did not see them back in my court room.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 January 2012.

Legal Associate: 

Date:  12 January 2012