Ana and Ana (No 3)

[2013] FamCA 841

FAMILY COURT OF AUSTRALIA

ANA & ANA (NO 3) [2013] FamCA 841

FAMILY LAW – PARENTING – time spent – father withdrew from proceedings – relevant principles – mother granted sole parental responsibility – no orders for father to spend time or communicate with child.

APPLICANT: Ms Ana

RESPONDENT: Mr Ana

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Sayer

FILE NUMBER: MLC 1367 of 2008

DATE DELIVERED: 21 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Freckleton SC

SOLICITOR FOR THE APPLICANT: Perisic & Thomas

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr N Eidelson

Orders

1.All previous parenting orders be discharged.

2.Subject to paragraph 3 hereof the mother exercise sole parental responsibility for E born … 2006 (“the child”).

3.The mother shall:

a.      Provide the father notice in writing of any relocation of the child’s principle place of residence not less than 14 days prior to the relocation;

b.      Notice of any change to the child’s school within 7 days of such change;

c.      Notice in writing of any change to the child’s treating medical or allied health practitioners within 7 days of such change;

d.      Notice forthwith of any medical emergency in respect of the child.

4.The child live with the mother.

5.Time and communication between the child and the father be as agreed between the mother and father in writing.

6.The father is at liberty to:

a.      Make at his cost inquiries of and request information from the childs medical or allied health practitioners; (but not including the Psychologist);

b.      Obtain at his own cost school reports and photographs or any other material to which parents would ordinarily be entitled.

7.The parties are at liberty to provide a copy of these Orders to the Principal or Coordinator of any school attended by the child, and to any medical or allied health practitioner upon whom the child attends.

8.Within a period of 6 months, the mother at her cost do all things necessary to enable the child to engage and attend a qualified psychologist for confidential therapeutic counselling with Mr. O or such other psychologist as he recommends in the event he is personally unavailable to:

a.      Assist the child in understanding and coping with tensions created by the parental dispute including his concern about his mother and her level of anxiety; 

b.      Assist the child with any adverse effect of his exposure to an extended history of parental litigation and heightened levels of parental conflict;

c.      Assist the child generally with his own level of personal functioning and well-being and to ensure the child is given to understand that the therapy is for his benefit and separate to any Court proceedings between his parents; and

d.      Address such other matters as the counsellor in their professional opinion considers appropriate.

9.The independent children’s lawyer provide to the Psychologist or professional providing the counselling provided for in paragraph 8 hereof the following documents prior to the counselling commencing:

a)      The family reports of Mr. G dated 21 September 2012 and 23 July 2013, together with his memorandum dated 21 February 2013.

b)      A copy of the transcript of the evidence of Mr. G of 19 August 2013 prior to the commencement of any counselling with the child commencing.

c)      Reasons for decisions given this day.

10.Pursuant to s.68B of the Family Law Act 197, the father be and is hereby restrained by himself, his servants or agents from entering upon or loitering in or near to the vicinity of School M or any other school attended by the child, or at or near the property at C Street, Town B in the State of Victoria or at any other property at which the child permanently resides, or attending upon the Psychologist (noting that the Father is permitted to speak to the Psychologist if the Psychologist initiates the communication)

11.The Airport Watch List Order made 18 December 2008 be and is hereby discharged. 

12.The mother shall provide the father with 30 days written notice in the event that the child is to be removed from the Commonwealth of Australia for a period exceeding 30 days. 

13.The mother be and is hereby restrained by herself, her servants or agents from discussing with the child or in his sight, hearing or presence matters relating to these or any other proceedings between the mother and the father save for notifying the child in the event that the proceedings in this Honourable Court have concluded. 

14.Each of the mother and father maintain an active email account for the purposes of any notifications required to be given pursuant to these orders and advise each other of any change to those email addresses, provided however that any communication between the mother and father shall be limited to the notifications required pursuant to these orders. 

15.In the event that the child expresses the wish to communicate with the father, the mother will allow the child to telephone the father, the mother will do all things necessary to facilitate the child communicating with the father by telephone or otherwise.

16.In the event that the child expresses the wish to see the father, the mother shall do all things necessary to facilitate the child spending time with the father at such times and on such conditions that the mother considers appropriate.

IT IS ORDERED THAT:

17.The Independent Children’s Lawyer be discharged.

18.The evidence of Mr G, family consultant, given on 19 August 2013 be transcribed and when transcribed a copy be made available to the parties.

19.The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

20.Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

21.The Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 28 days.

22.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

IT IS DIRECTED THAT:

23.The minute of proposed orders of the independent children’s lawyer, adopted by the wife and as amended be marked Exhibit “A” and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ana & Ana (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC1367 of 2008

Ms Ana

Applicant

And

Mr Ana

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

By way of introduction

1. These proceedings concern the child, born in 2006, and he’s now seven years old. Broadly speaking, the dispute is whether the parents continue to have equal shared parental responsibility and the amount of time, if any, that the child can spend with his father or communicate with his father. Pursuant to an order made on 30 September 2011, Mr Timothy Mulvany, solicitor, was appointed as the Independent Children’s Lawyer for the child within the meaning of Division 10 of Part 7 of the Family Law Act 1975 (Cth) (‘the Act’). For all intents and purposes, Mr Sayers has carried out that role under the supervision of Mr Mulvany, and I must say he has done it to what seems like an impeccable standard.

Conduct of proceedings

1. As these proceedings were commenced prior to the operation of the reforms in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), those parts of the current act do not apply to these proceedings. I will not, in these reasons, refer to all aspects of the evidence which I have heard or on which there was evidence. Nonetheless, I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard to it.

2. I am satisfied that the proceedings have been conducted in such a way to promote an outcome which is in the child’s best interest, notwithstanding that there have been some stops and starts and that as I deliver these reasons, the father has elected not to participate any further in the proceedings.  As best I understand the situation, he is either in the precincts of the Court or has just left the Court, having absented himself from the last two hours of sitting.

3. The orders that are now sought by the Independent Children’s Lawyer and supported by the mother have been reduced to a minute of order which I have marked as an exhibit in the proceedings: “ICL3”.  There has been a slight amendment to that minute.  These are the orders sought by both of those parties.  The husband has notice of these orders being sought because, in my presence, he was handed a copy prior to an adjournment at 11.20 am this morning.  This slightly alters the relief which had been sought by both of these parties, but I now accept it as their joint application and I am satisfied that the father has been accorded procedural fairness in relation to the relief sought.

4. The father, as best I understand the situation, does not have an application before the Court.  In earlier reasons for decision delivered on 2 April 2013, which I will come to in a moment, I referred to that circumstance in the following terms:

   By virtue of Young J’s dismissal on 19 December 2012 of the father’s application for parenting orders filed 14 December and the Senior Registrar having earlier dismissed the father’s then extant Application in a Case filed on 29 August 2011, I deduce that the father has no current application for parenting orders before the Court. Nonetheless, it is abundantly clear that the father seeks a resumption of his time with the child and that he opposes the mother’s application filed 24 November 2011. At some stage in the not too distant future the father ought to formalise his position so that the mother and independent children’s lawyer are afforded procedural fairness in respect of the relief (orders) he seeks.

5. No further application or current application has been filed by or on behalf of the father.  Nonetheless, I’m confident that what he seeks is a resumption of his time with the child to include day time and overnight time, but he would, in effect, probably take anything including, if necessary, supervised time.

6. Mr Sayer has been the constant presence in these proceedings, as practitioners for the mother have come and gone, and as the father has represented himself. The task of the Independent Children’s Lawyer has been to form an independent view based on available evidence of what is in the best interests of the child and then act in these proceedings in what he believed those best interests to be. It is noteworthy that the Independent Children’s Lawyer is not a legal representative retained for or by the child, and he is not bound by any instructions from him. Neither Mr Mulvany nor Mr Sayers have met the child.

7. Whereas normally I would consider that to be exceptional, given that the appointment of the Independent Children’s Lawyer post-dated what was an obvious adverse reaction by the child to Court proceedings and people associated with the idea of him being reintroduced to his father, it is understandable in this case.  The role of the Independent Children’s Lawyer has been to deal impartially with the parties and to ensure that any views expressed by the child are fully put before the Court, as well as to analyse documentary and expert evidence and reports, and to distil from those evidence significant to matters concerning the child and ensure it is properly put before the Court.

8. The Independent Children’s Lawyer has been under a duty to take steps to minimise for the child the trauma associated with the proceedings and to facilitate an agreed resolution of matters that are in issue in the proceedings to the extent that it is in the child’s best interests to do so. 

9. In this case, Mr Sayers has pursued and brought into effect therapy which was, in the opinion of the family consultant, an absolute necessity for the child.

10. The Independent Children’s Lawyer has not been in a position to arrange any mediation between the mother and the father and himself.  Whereas mediation has been sought by the father, it was the opinion of the family consultant that this was not a matter that was appropriate for mediation, and I must say that that accords with my assessment.

Evidence

1. There were no significant, or any in fact, objections taken to the admissibility or fairness of the evidence relied upon.  The father ceased to participate in the proceedings before he indicated what, if any, documents he did rely upon.  In any event, I anticipated that most of his evidence would be given orally.  The applicant mother relied upon her affidavit affirmed on 16 August 2013 and the affidavit of her treating psychologist, Mr Gary J, affirmed on 8 August 2013.  The mother was cMr Ana-examined by counsel for the Independent Children’s Lawyer and she gave some evidence in re-examination.

2. The Independent Children’s Lawyer relied upon the three reports of Mr G, family consultant.  They are respectively dated 21 September 2012, 21 February 2013 (by way of a memorandum to the Court) and 23 July 2013.  Mr G was cMr Ana-examined at length about two days ago in relation to an earlier aspect of the case and had been cMr Ana-examined earlier in the proceedings.  He was an impressive witness.  I accept his evidence and am assisted by it.  There is also evidence from a psychiatrist, Dr A, which appears annexed to his affidavit sworn on 30 October 2012 and is an assessment of the father that was not challenged in cMr Ana-examination.  There were numerous exhibits.

Proof and findings of fact

1. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter, that is, facts in issue are to be proved by the party with the persuasive onus to the balance of probabilities. In these reasons, the statement of fact is a finding of fact.

Background

1. This matter has an extensive history. The parties separated most recently in 2007, when the child was one year old, and there has been litigation on and off for much of that period. The history of the matter is rehearsed in various documents, but for ease of reference, I refer to reasons for decision delivered by me on 2 April 2013, the case-neutral citation for which is [2013] FamCA 371. I incorporate those reasons for decision into these reasons.

RECORDED  :  NOT TRANSCRIBED

1. Chronologically, my earlier reasons take the matter up to my determination that the child should undergo therapy with Mr F. He did so, having the introductory session on 11 February 2013, as is set out in the reasons, and then seeing Mr F for the first formal appointment on 29 July 2013. On that occasion, Mr F approached the child in the car on the basis that he understood the child would not get out of the car. He stood by the back seat. the child asked for a glass of water. The mother said that he could have a glass of water when he got home. the child asked if he could go to the lavatory whereupon Mr F said that he could and took him into his rooms at the Town P Medical Clinic. It was Mr F’s impression, and it seems to me to be soundly based, that the child was actually trying to extricate himself from the car on that occasion and willing to accompany Mr F and that the child used the request for a glass of water or to use the lavatory as somewhat of an excuse.  He spent something like 45 minutes with Mr F. The only other occasion upon which the child saw Mr F was on 12 August 2013 when the child was adamant that he wouldn’t get out of the car and didn’t want to see Mr F and most certainly he didn’t want to see his father.

2. There were other appointments made and not kept or with which the child would not cooperate. They included one on 24 June 2013 when the child was taken by the mother by car to Town P Medical Clinic but he would not get out of the car.  Again, on 15 July 2013, this happened. the child stayed in the car and the mother went into Town P Medical Clinic to talk to Mr F for approximately 35 minutes. Mr F was cMr Ana-examined at length on Monday, 19 August 2013.  That was in the context of an application for an adjournment by the Independent Children’s Lawyer and by the father, which adjournment would enable the child to continue under therapy of Mr F.

3. The Independent Children’s Lawyer reserved his position in relation to that application subject to hearing the evidence of Mr F because there had been a disclosure that Mr F had, unbeknownst to the child, unbeknownst to the mother, unbeknownst to the Independent Children’s Lawyer and certainly unbeknownst to the Court, seen the father for the purpose of therapy on five occasions postdating the first appointment on 11 February 2013. And it was considered that there was a significant impropriety in him doing so and in the father having similarly concealed the fact from the Court and the practitioners for the mother and the Independent Children’s Lawyer.

4. Suffice as it is to say, there was no excuse apparent from Mr F’s evidence as to why he had allowed, what I consider to be, a significant lapse in professional standards to occur. I was satisfied and expressed my view that it is not viable that he see the child in any way in the future. That doesn’t, of course, prevent him from continuing to treat the father.

5. Having had the benefit of the evidence of Mr F and the evidence of the family consultant and the submissions of all three parties which submissions were very brief, I determined on 15 August 2013 that I would not accede to any application for an adjournment but would proceed with the matter as a final hearing today, 21 August 2013. 

6. The father had a second string to his bow in relation to an adjournment and on 15 August 2013 said that he did not feel “mentally prepared” to conduct a final hearing. That has been his position for about the last three weeks and, on three occasions which he has raised it before me, I have indicated that, in the event that his application for an adjournment failed, the hearing would proceed and he would need to be in a position to proceed at that time, notwithstanding that he did not feel inclined to do so.

7. In spite of Mr F being in the witness box for some hours on Monday, no evidence was adduced from him, in his capacity as the father’s treating psychologist, of the father’s inability to run his own case. I did not grant the father’s application for an adjournment on the second ground.

8. The father’s application in relation to his preparedness to run the trial because of his mental faculties was, accordingly, without any expert evidence to support it. In the course of the morning, I dealt with the father’s application that I disqualify myself and did so in separate reasons which will be published in due course and for which the case neutral citation is [2013] FamCA 840.

Credit and Impression of Witnesses

The Father

1. The Independent Children’s Lawyer submitted that when in Court the father appeared as angry, sometimes muddled.  When he addressed me from the bar table he did not give any sworn evidence, but then it is not necessary that he do so as this is a matter to which the less adversarial trial provisions of the legislation apply. I agree with the assessment of the Independent Children’s Lawyer.  During the morning, the father confirmed that he started to keep some sort of vigil outside the Family Court yesterday and stayed in the precincts of the Court until about 8 o’clock last night when he slept under the Flinders Street Bridge with a number of other homeless people whom he found to have a disregard for the Family Court similar to his own.

1. The father said that since noon yesterday he has been on a hunger strike which he proposes to maintain, if he can, until election night and that after he does so, he will expose the Family Court for the undesirable institution that he says it is, or words to that effect. The father referred, on more than one occasion, to involving the media. He has voluntarily absented himself from participation in the proceedings since about 11.20 am this morning. It is difficult to see any point in the father’s exhibitionism.

2. As best I understand it, the father has remained in the precincts of the Court until well into the afternoon and after 2 pm. Counsel for the mother submitted that, during the hearing, the father presented as erratic, labile, histrionic and engaged in attention seeking behaviour, exhibited persecutory thinking and that he over prioritised his own feelings and his ongoing antagonism for the mother over the needs of the child.  I agree with that assessment.  It certainly does appear to me that the father has been unable to make a distinction between what is in the child’s best interests, and how his case can be conducted accordingly, and his ongoing objections and resentment of the Family Court.

3. I note that the family consultant, Mr G, in his report of September 2012, opined as follows:

   30.      [Mr Ana] acknowledged that he has previously made comments to the child about his mother being a “liar” and how she has “destroyed the family”. He also agreed that he made comments in Court in July 2011 that he would “go to the 8th floor [of the Court building] and suicide”. He provided a context to these comments and explained that in many respects he had felt overwhelmed and upset by the proceedings. He was clear that whilst he had previously been contemplating suicide, at no time had he made any comments to the child about this issue, even though during the week prior to the July hearing he had taken his son to the 8th floor at his son’s request. He stated, “I was thinking that if I am going to suicide then because the child has been there, then he would know where it happened.” [Mr Ana] expressed annoyance and frustration that the Court chose to suspend his time with the child, and particularly when no action had been taken to remove the child from [Ms Ana’s] care when she previously attempted suicide. He perceives that he has not obtained a “fair go” from the Court in respect of this issue.

   31.      [Mr Ana] is uncertain how any future arrangements for him to spend time with the child will be effective. He was insistent that this is an issue for which the Court is primarily responsible to explore and determine. [Mr Ana] explained that various interventions have been tried in the past, and in particular the use of Contact Centres in Geelong and Ballarat. It is his understanding that the Ballarat Centre is no longer prepared to offer a service due to the number of cancellations that have occurred in relation to the scheduled times. [Mr Ana] did suggest however, that one possible option might be to use the services of the child’s previous counsellor to facilitate a reunification. He stated that he has confidence in [Mr O] and believes the child would also feel comfortable about meeting with him where the counsellor was involved. As a final statement however, [Mr Ana] commented to the writer that irrespective of the presence of any Court Order preventing him from doing so, he would nevertheless attempt to see the child even if such an action might result in him being sent to jail.

4. The manner in which the father presents to the Court today and on observations since the matter was assigned to my docket, leads me to have very significant doubts as to whether the husband would be able to contain his behaviour in front of the child.  Furthermore, the emphatic nature in which the husband expresses himself is likely to leave the child feeling anxious and insecure as he perceives the father’s overwhelming need to have him (the child) align himself with the husband’s thinking. This is a very relevant matter when considering the father’s capacity to care for the child (as I will do later in these reasons).

The Mother

1. The mother has sworn a number of affidavits in the proceedings but only one is relied upon for today’s final hearing. She was cMr Ana-examined by the Independent Children’s Lawyer. The Independent Children’s Lawyer previously had concerns about her capacity to parent the child and to function reasonably in a way that she could be a productive and nurturing parent to him. The Independent Children’s Lawyer asked a number of questions which tested the mother’s conviction or acceptance of the orders proposed by the Independent Children’s Lawyer to which her counsel formally agreed and supports. It transpired that the wife was not entirely at home with the orders that were sought in as much as she was not expressing an agreement to have a psychologist treat the child after six months but was thinking, rather, that a play therapist or a counsellor, who is not necessarily a psychologist, could do so.  However, by the end of her evidence, the mother had embraced the idea of a previous psychologist, a Mr O, seeing the child again.  And he is both a play therapist and a psychologist. 

2. The mother was cMr Ana-examined and, in my view, gave reasonably sound answers to questions about her previous functioning and some improvement to it. I must say I was a little concerned that she can’t remember the periods that she was so debilitated by distress, or depression, or the like that she couldn’t get out of bed and what she did in respect of it. It seems now, however, that she is prepared to at least say that she has put some of those days behind her and is now coping much better.  Counsel for the mother submitted that the mother’s evidence should lead me to conclude that she is more stable than she was previously and that she has made consistent efforts to extricate herself from the maelstrom of her emotions and that she is managing to think first of her son rather than herself with the effect that she is managing better on a day-to-day basis, personally, now than she was previously. I don’t know whether I can accept that submission in its entirety but I accept it substantially.

3. I am satisfied that the mother is probably behaving better in front of the child but I suspect, or my impression is, that might be attributable to the fact that she has perceived that she is about to succeed in severing any face-to-face or ongoing connection between the father and the child.

4. I have reservations about the mother’s bona fides in the past and her previous preparedness to permit the child to have any relationship with the father or to have any counselling which could have, even indirectly, have led to that relationship. However, there is no doubt that she is the child’s primary carer and that deficits that she previously gave evidence about in relation to her own parenting, or in respect of which evidence was filed on her behalf, have now been ameliorated to a certain extent.

The relevant law in parenting provisions

1. These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.

2. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-

   (a)       ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)       protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)       ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)       ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   These objects may be regarded as the core values of the legislation.

3. The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-

   (a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)       children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)       parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)       parents should agree about the future parenting of their children; and

   (e)       children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the court can make such parenting order as it thinks “proper”.

5. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.

6. The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-

   (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.[1]

   [1] Family Law Act 1975 (Cth) s 60CC(2)(b).

7. Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”.[2]

   [2] Family Law Act 1975 (Cth) s 4.

8. In this case both of the primary considerations are relevant. That is, the court’s evaluation of the benefit to the child of having a meaningful relationship with both of the parents, but particularly the father, in the context of this case and the need to protect the child from physical or psychological harm and from being exposed or subjected to abuse, neglect or family violence. The latter consideration is to be given greater weight than the earlier consideration and in my view must cover the incidents of high parental conflict which is obviously present in this case. I have no doubt that high parental conflict represents the greatest risk for the child now and into the future. 

9. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the child what benefit that may flow from having a meaningful relationship with both parents and so as to ensure that he is protected from harm and exposure to abuse, neglect or family violence.

10. Finally s 60CC(3)(m) of the Act requires me to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.[3]  

    [3] B and B: Family Law Reform Act (1997) FLC 92-755.

Child’s views

1. In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.[4]

   [4] Family Law Act 1975 (Cth) s 60CC(3)(a).

2. The requirement to focus on the child’s views, as opposed to wishes, means that I have regard to the child’s perceptions and inclinations without requiring the family consultant or Independent Children’s Lawyer to make specific enquiries or elicit the child’s ultimate preference or wish. This is consistent with the reference in the Revised Explanatory Memorandum[5] that consideration of the children’s views will:-

   allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[6] 

   However, consideration of a child’s views does not exclude consideration of a child’s wishes. 

   [5] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).

   [6] Ibid [56].

3. Once a child's views are ascertained, the court is required to consider them in concert with the primary considerations and such of the other additional considerations relevant to the child's welfare. This process was described by the Full Court in R v R: Children’s Wishes (2000) FLC 93-000 as follows:-

   42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view. 

   54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.

4. The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[7] or other expert or appropriately qualified person retained by the parties or through the Independent Children’s Lawyer[8] and I do so.

   [7] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.

   [8] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.

5. I have had the benefit of the thorough and considered reports of Mr G, which I’ve indicated I accept. In relation to the child’s views, Mr G wrote the following in September 2012:

   34.      [The child] is a 6 ½ year old boy who is currently living with his mother and is not spending any time with his father.  He is in Year Prep at school.  During the writer’s assessment with him, [the child] presented as an articulate child who appeared to understand the difference between what might be true and a reflection of his own perceived experience, and what might simply be his own individual thoughts on particular issues.  For example, there were occasions when he made a comment about a certain matter and then corrected himself by indicating that it was what he had thought about the issue, rather than what had actually occurred.  There were also occasions when the child presented as anxious and concerned that either his mother or father might become aware of some of the comments he had made to the writer.

   35.      [The child] described a generally positive relationship with his mother, where he feels safe with and loved and cared for by her. He stated that when he is with his mother he has a “happy.  Very, very, very happy [face].”  [The child] is acutely aware however, of his mother’s distress and poor health functioning and how certain matters have adversely impacted on her.  At present he associates actions by his father as having significantly contributed to his mother’s poor health.  He stated, “guess who made that [him feeling sad about his mother’s ill health].  [Mr Ana] [a reference to his father] … he takes her to Court all the time.  I think mum is sick because of [Mr Ana].  Nothing else could make her sick.  Mum says that dad makes her sick.” 

   36.      In addition, the child understands that his parents have been and continue to be in conflict with each other, and do not view each other in a positive manner.  He commented on how his mother does not like his father and would be opposed to and “very, very angry” about him spending any time with the latter.  He further believes that his mother would not want him to spend time with his father, even if it was at the Contact Centre in Ballarat.  He also clearly perceives that his father does not like his mother, is angry with her, and has said “bad stuff” about her; comments which have upset him and which he does not believe to be accurate.

   37.      [The child’s] reflections about his father were predominantly negative in nature.  There was little, if anything he was prepared to recount that was positive about him.  He stated that there was “nothing, nothing is good … not even one thing” about his father that he was prepared to inform the writer about.  During the assessment the child insisted on referring to his father as “[Mr Anas]”.  Whilst the child was adamant that his father had said “lots of bad stuff” and “bad words” about his mother, he was reluctant to articulate what these comments had been, as “it’s too bad to tell.”  When asked to elaborate however, he commented on his father stating to him that, “mum started it [the parental conflict].  It made them both angry.  But my dad started it.  I know … He said that mum is very, very naughty.  But she isn’t.”

   38.      [The child] perceives his father to be a “mean” person who has not acted in a manner characteristic of a father.  When asked why he refers to his father as “[Mr Ana]”, the child stated, “because that is his name.  I don’t call him dad because it doesn’t feel like he is my dad … because he did bad things in the past.”  [The child] referred the writer to previous comments he had made about his father saying things about his mother.  He was particularly critical and distressed however, by certain of his father’s actions, as he understands his father “stole my dog … [GG] … [Mr Ana] said that he stole my dog … when he stole my dog I gave up … I didn’t like him when he steals my things because he makes me cry.”  He expressed concern and anxiety that his father might again “steal more of my pets.”  He also commented on not feeling safe in relation to his father, “because sometimes [Mr Ana] comes to the gate [of the family property] … [and] because of all the bad things he did.”

   39.      The writer explored with the child what it has been like for him when he has spent time with his father in the past.  [The child] described feeling angry, worried, sad and scared during such times.  When asked what caused him to feel like that, the child commented, “because I don’t like him … he is very mean … [it is] everything he does … he says bad words about mum.”  [The child] was unable to provide any detail as to what these “bad words” had been, except to state that “I remembered they are bad.  I don’t remember what they were.”  [The child] was also clear that he had not enjoyed the time he had recently spent with his father at the Contact Centre in Ballarat and would not be prepared to do so in the future, as “I didn’t like it because he is mean.”  He was insistent that his mother does not make negative comments about his father and had not told him to say that his father was “mean”; instead, he explained, “True [that his mother had not told him to say such things about his father].  I never lie.  I am not a good rememberer.”

   40.      When advised by the writer that he would be seen with his father as part of the assessment process, the child presented as determinedly angry that this might occur.  He responded with, “I will never go. No, never … [because his father is] mean, mean, mean, mean.  25 times mean.”  He also insisted that if he saw his father during the assessment he would refuse to say anything to him and would tell his father to “get out of my sight.”  In terms of spending ongoing time with his father, the child was adamant that “I don’t want to see him.  Never again.  He is mean.  I don’t want to see him ever, ever, ever again.”  When asked how he would feel if his father returned his dog, the child responded with, “and the goat and the quad bike.  I would [then] feel happy and he has to change and like my mum and me.”  He indicated that he would feel “okay” about seeing his father if “he [i.e. his father] gave the quad bike back and the goat and my dog and he changed into a nice person.  I would be okay about seeing him.  Mum would be okay too.”

1. In relation to the effect of making orders which are contrary to the child’s views, I take into account and accept the following opinion by Mr G:-

   41.      The writer made various concerted attempts to encourage the child to be observed with his father, or at the very least to briefly see and greet him.  On each occasion, the child responded in an unequivocally angry and determined manner that he would not agree to such a process.  He presented as clearly angry, hostile, and defiant in his refusal.  Despite a rebuke from his mother about being rude and having referred to his father as “[Mr Ana]”, the child nevertheless maintained his determined resistance to being seen with his father.

   42.      Given the child’s adamant stance, the writer adopted a patient, yet determined approach in insisting that he wanted to see the child and his father together, even if it was for a brief period.  Various limited options were presented to the child in relation to how this might occur.  Although the child initially agreed to one option, he quickly changed his mind and reverted to a determined opposition about seeing his father.  [The child] refused to leave the child playroom and actually hid himself amongst some of the play equipment.  His actions suggested that in many respects he was attempting to ‘barricade’ himself within the equipment so that the writer would not be able to remove him. 

   43.      When it was suggested to the child that the writer might bring his father to the child playroom itself, the child then proceeded to run to the door and attempt to leave the room.  The child carer had to physically place herself in front of the door so that this would not occur.  [The child] only relaxed when the writer assured him that his father would not be brought to the room.  During a subsequent sequence of events, the child was invited to see his father on the basis that the latter wanted to hand him a toy car that he had brought with him.  Although the child presented as being ambivalent about leaving the room, he initially decided to do so.  He then changed his mind however, after walking only a few metres along the corridor towards where his father was waiting. 

2. Mr G’ later report of July 2013 describes the child’s views as follows:

   34.      [The child] [now aged 7 years and 5 months] currently attends Year 1 at school and resides primarily with his mother. He is not spending any time with his father or members of the paternal family and has not done so for some time. As with his father and mother, the writer would refer the Court to previous assessments made of the child. During the current assessment, the child presented as generally cooperative and was able to clearly articulate his views on various matters. He was nevertheless adamant from the outset that he did not want to either speak with the writer or to talk about his father.

   35.      [The child] spoke very positively about the various activities and outings he has had with his mother since the writer previously interviewed him in September 2012. As he spoke about these matters, it was apparent to the writer that he has enjoyed these activities and has had a significant interest in them. In addition, he explained that he enjoys his school and his teacher. [The child] further explained that there are many positive aspects to his current life experience, including his sense that his mother is nowhere near as unwell as she had been in the past.

   36.      [The child] was able to both explain to the writer those occasions when he knows his mother is unwell and when she is functioning on a more positive level, as well as his own reactions to his mother's health in each case. For example, he stated that when his mother is well he feels “happy”, and that when she is not well he feels “upset because she is sick.” Whilst his perception is that his mother is predominantly “well”, he believes that she becomes unwell “when she goes to Court.”

   37.      [The child] continues to identify his father as someone who creates a level of anxiety and apprehension for him. Whilst he explained that he associates his father with things that make him feel ‘unsafe and scared’, he was nevertheless not prepared to provide any significant degree of specificity to his claims, other than to state that his father “lies to me … [about] my mother taking his money. [his father lies about] Nearly everything. It is way too long a list [to inform the writer about] … I don't want to talk about dad because he is a liar. He makes my mum very sick.” the child further emphasised that he wanted the writer to “tell the Court I don't want to see my dad.”

   38.      [The child] explained that if he was to see his father as part of the current assessment process, he would feel “angry. I would start throwing things at him because he is mean. He is the meanest person in the world.” When asked about his reaction to seeing his paternal grandparents, he stated “the same as with [Mr Ana] [a reference to his father]. I don't want to see them today. Never.” In addition, the child identified that on a scale “out of 10” for how “happy” he might be in relation to either seeing his father or his paternal grandparents, he responded with “zero for both. Three zeros.” When provided with the opportunity to nominate ‘three wishes’, the child’s responses were focused around wanting the Court process to cease and also how he felt about his father and paternal grandparents. His comments were emotionally charged and quite negative in respect of both parties. His perception is that they have all “lied to me about everything. [Mr Ana] lies about everything in the world.”

3. The child is a young boy.  He does not have the maturity, in my view, to know what is best for him in any sense that an adult or a competent parent should.  However, I am also satisfied that he holds a very strong view which is adverse to any time being spent with the father and that he is determined to support his mother at the cost of having an ongoing relationship with his father.  In the circumstances of this case I give considerable weight to the child’s views because I accept the opinion of Mr G, given in cross-examination, that there could be serious consequences for acting contrary to the views expressed by this young boy in the unfortunate circumstances of this case. 

Other additional considerations

1. I consider the nature of the child’s relationship with each of the parents and other persons including grandparents and other relatives.[9]  The mother is obviously the child’s primary attachment figure and as such there needs to be some protection of that relationship.  The child has, to all extents and purposes, already lost a positive psychological relationship with his father and I accept the evidence of Mr G that it is absolutely essential that the psychological relationship he has with his remaining parent should be safeguarded.  It is from the mother that the child draws a sense of security and well being and currently the child perceives that any attack upon his mother is an attack upon himself.

   [9] Family Law Act 1975 (Cth) s 60CC(3)(b).

2. There will always be a relationship between the child and the father because they are obviously related. At the moment, however, it is not a positive relationship.

3. The father has contended that the child has a very positive relationship with his paternal grandparents and that it represents a risk to the child’s ongoing emotional wellbeing to be cut off from them. I do not have evidence via Mr G that would corroborate that assertion. I am sure that the child’s paternal grandparents are well meaning and pleasant people.  Mr G saw both of them and certainly did not criticise them in any way. I sympathise with the paternal grandparents that they have not only a bereft son with whom to deal (Mr Ana) but do not have the enjoyment of seeing their grandson. At this time, however, I can’t see that it is in the child’s best interests that they do so or that the father does so.  There is simply not the underlying positive relationship to support it or any realistic hope that it could be established.

4. I take into account the extent to which the child’s parents have taken or failed to take the opportunity to participate in decisions about major long term issues in relation to the child, to spend time with him and to communicate with him.[10]  The mother has for two years now effectively been the only parent to exercise parental responsibility.

   [10] Family Law Act 1975 (Cth) s 60CC(3)(c).

5. It was apparent during the hearing that the father didn’t know whether the child was in preparatory grade or grade one at School M. That probably isn’t purposeful and indeed I am convinced that the father wishes it were not so and that he could have an ongoing and thorough involvement in the child’s life. 

6. The father has been prevented by orders of this court from having any regular time with the child since his face-to-face time was suspended by Cronin J in July 2011 and it has not resumed.  The father has at all times railed against the suspension and sought that there be any form of time or communication between himself and the child. The father has not succeeded in having time reinstated. In fact, to the contrary, there have been further injunctive orders made which prevent the father from approaching the mother’s residence or from approaching the child’s school or from contacting them in any other way whatsoever.  I have no doubt that had the father been given an opportunity to see or communicate with the child, he would have taken the opportunity.  Whether that would have worked to the child’s benefit is another thing but I am satisfied he would have been accessible to the child.

7. The child has been the sole financial responsibility of the mother at least for the last two years.  The father presents to the court as someone who is not able to obtain employment and not fit for employment on his own case.  The mother alleges that there is some $30,000 in arrears of child support owing by the father to her and that she now only receives a nominal or nil amount of child support.

8. It is fair to say that the father presents to the court as someone who has entirely dropped his bundle and who portrays himself as being incapacitated by the disastrous effect that these proceedings have had upon him, certainly to the extent that he is unable to be gainfully employed.

The likely effect of any changes in the child’s circumstances (s 60CC(3)(d))

1. In determining what is in the child’s best interests I am required to consider the likely effect of any change in his circumstances, particularly in relation to separation from his parents or other children or his wider family, including grandparents and other persons with whom he has a relationship.  The effect of the orders which are now sought by the Independent Children’s Lawyer and the mother don’t represent any change of circumstances from that which has persisted for about two years now.

2. In the larger picture, however, the orders will conclude the proceedings and put in place a regime whereby there is no ongoing time between the father and the child or between the child and the paternal family. I take that into account but on the facts of the case and my assessment of the evidence including the expert evidence I see that there is no alternative and that the undoubtedly negative effect of the child losing the paternal side of his family on a day-to-day or regular basis is outweighed by the more negative effect that I think a resumption of the father’s influence in the child’s life would have at this stage if it was implemented now.

Practical difficulty and expense associated with face-to-face time and/or communication with the other parent (s 60CC(3)(e))

1. I would ordinarily consider the practical difficulty and expense of the child spending time and communicating with the father.  In this case there isn’t going to be communication or any time so there is nothing much to consider.  It is suffice to say that the mother has positioned her residence in an area which is remote from where the father lives and that could represent some problem if there was going to be time.

Capacity of parents to meet the child’s needs and the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents (s 60CC(3)(f))

1. In determining what is in the best interests of the child, I consider the capacity of the parents and of other people to provide for the day to day needs of the child, including emotional and intellectual needs.  In this case, the mother’s evidence is that she has a small community of friends upon whom she draws.  In particular, she has someone that helps her with cleaning when she feels unable to do so and someone who helps her with driving when she feels unable to do so. The extent to which the mother has been immobilised by her depressive condition is illustrated by her saying that in the middle of last year she was unable to get out of bed for two or three days and on either the second or third day sought some assistance by way of telephone counselling.

2. The mother has the ongoing assistance of Mr J, psychologist, who she says she sees at least once a month or once every two weeks, but for some reason which isn’t quite clear to me he wasn’t available to her in any form at the time when it seems that she most needed him. 

3. In the context of counselling as recommended by Mr G and to which the mother was quite oppositional, at one point the mother said that there couldn’t be counselling because she couldn’t drive the child to counselling, then when the counselling was arranged through Mr F who was prepared to conduct home visits to the mother and the child, said that she didn’t want him in the home. That was not the mother putting her best foot forward.

4. The Independent Children’s Lawyer through his counsel tested the mother’s evidence about her incapacity and improvements in mental state. He says that the fact that the mother previously did not support any counselling, which I’m satisfied is the case, has now changed and that she now agrees not only that the child should have some therapy to commence at the expiration of approximately six months, but has been able to nominate the professional responsible for that therapy, and that will be Mr O. It’s fair to say that the Independent Children’s Lawyer is more confident of the mother’s capacities to parent the child than he has previously been.

5. The Independent Children’s Lawyer submitted that the father’s behaviour today at Court and earlier in the week was self-focused, that he was unable to accord priority to the child’s needs over his own needs. That’s an assessment with which I must agree. The father complains incessantly of how the court has acted against him, how various judicial officers have been biased against him and unprincipled in their decision-making process. There really isn’t an end to his complaints about the Court or his complaints about the wife and he continues to exhibit absolutely no insight as to how what he says does, in some part, reflect more poorly upon him than those that he describes.

6. I expect that if the child were to spend any time with his father, the father’s capacity to provide for the child’s needs would be restricted by his requirement that the child accept his negative views of the mother and there would be conflict between them as a result.

Any family violence involving the child or any member of the child’s family and any family violence orders (s 60CC(3)(j))

1. As I’ve noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence towards a person, members of their family, or their property. The mother complains of violence prior to separation and to threats and intimidation since separation. She complains of the father arriving unannounced and in breach of orders of this Court at her home and at the child’s school.

2. The father has on occasion spoken of violence which he will inflict to himself by mentioning that he would kill himself or commit suicide. He did so before Cronin J in July 2011 and I would have thought that the result of that hearing left the husband in no doubt as to the seriousness with which the Court takes such disclosures or statements of intention.  Notwithstanding that, it was within the last two weeks that he said it again to me.  At the time, I did not form the view that he was expressing an intention to take his own life, but really it was more a cri de coeur about how desperate he is to re-establish some time with his son and to make these proceedings advance in some positive way.

3. I consider that still to be the case in relation to what he said before me.  However, it must be acknowledged that the father peppers his addresses to the Court with threats of harming himself and that these are threats of violence within the definition of our legislation. 

4. There have been various intervention orders in place and I understand there is currently an interim intervention order applicable to the mother and the child and directed to the father.  The final hearing of that application has been adjourned to 13 September 2013 at Geelong Magistrates Court.

5. Today the father said that he would leave Court, not participate in the proceedings, and go to the child’s school.  The father well knows that he is not permitted to go to the child’s school and he is not permitted to see the child or try to see him in the precincts of the school or anywhere else.  When I warned the father that the police were likely to be waiting for him if he attended the school he said that he expected to be arrested and that going to jail was what he needed to do.  He seemed to anticipate spending a lot of time in jail from now on.  I note that in the second report of Mr G dated 23 July 2013, Mr G described:

   29.      [Mr Ana] acknowledged that whilst he is not allowed to attend [the child’s] school, he nevertheless did do so in late January 2013, in order to obtain some information about the child's progress. He was clear that he intentionally chose to attend on a day when he understood there would not be any students present, and as a result he would not come into contact with the child. He believes that the principal of the school has been “told stories about how bad I am”, and consequently he feels as if he is perceived in a very negative light by the school community.

6. Therefore, it is puzzling as to why the father would want to attend the school today to see the child.  In my experience the father does not do everything he says he will do.  For instance, at 11.20 am this morning he said he would be leaving Court to go to the school and then be jailed but in fact he has been seen by security staff and by one or both counsel who appear before me now to be in the precincts of the Court until at least after 2.00 pm this afternoon. I don’t criticise the father if he thinks better of his brash statements, but there does seem to be an element of not following through on what he expresses his intention to be.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l))

1. It is important to consider whether ongoing proceedings are going to do more harm than good, particularly when one parent has refused to participate in the conclusion of this set of proceedings as the father has here.

2. There is no doubt in my mind that it is preferable that there be no further proceedings. That is likely to put the father at some disadvantage, but I do not see any probability of the father changing how he presents himself such that there should be a material change in how appropriate it is for him to see the child or to have a Court consider that it’s in the child’s best interests that he have some ongoing relationship with him by way of spending time or communicating.

3. Parenting proceedings such as these are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.  There is always the possibility of either of the parents coming back to Court, but in this case the parents would need to show a significant change of circumstances in order to do so.  That does not mean that the father is merely prepared to participate in the proceedings, but that there is some evidence that did not exist today that he could have put before the Court which demonstrates that it would be beneficial for the child to spend time with the father.

1. The father cannot refuse to participate in the proceedings and then rely upon his non-participation as the reason why he should get another chance.

2. The expert evidence of the family consultant, which I accept, is that the child is worn out by these proceedings. The child considers the proceedings to be an indirect persecution of and attack upon his mother. The Independent Children’s Lawyer submits that the proceedings really need to cease as soon as possible.

3. The expert evidence is that the child perceives the proceedings to be at the behest of the father and that a continuation of the proceedings is likely to lead to more resentment by the child of the father. I accept that is the case and that it does no-one any good.

4. The family consultant draws a distinction between the proceedings and the counselling or therapy which he has advocated is in the child’s best interests.  He says that the need for therapy is really quite urgent and ongoing. I note that therapy has always been recommended by the family consultant as necessary for the child’s wellbeing and not just as an adjunct to the proceedings or matters which I have to determine. The family consultant says that the counselling should take place as soon as possible because that would be in the child’s best interests.

5. The Independent Children’s Lawyer and the mother agree that it will commence six months hence and she has made inquiries which indicate that Mr O is available to see the child in February 2014, so that is convenient.  The Independent Children’s Lawyer will be discharged upon the conclusion of these proceedings (now), but has agreed to send all of the relevant documents specified in the orders to Mr O in anticipation of his appointment.  I note that the orders which the Independent Children’s Lawyer and the mother urge me to make provide that, in the event that the child wants to talk to his father or see his father, the mother will facilitate it.

6. All we can do is wait and see.  This isn’t so much a case where I envisage the child saying that he wants to see the father and the mother not permitting him to do so but, rather, a case where living in the mother’s household is living in an environment and in an atmosphere in which the child is not likely to find having a relationship with the father to be attractive or acceptable or something with which his mother can cope. 

Any other facts or circumstance the Court thinks relevant

1. There are no other facts or circumstances which I consider are relevant.  There is a further application of the mother of which the father has notice which relates to her ability to take the child out of Australia.  There was no specific evidence directed to that but it is something that she should be able to do.

Parental responsibilities

1. Section 61DA provides that when making a parenting order[11], I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for him. 

   [11] Family Law Act 1975 (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.

2. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[12] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

   …… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a) the child’s education (both current and future); and

   b) the child’s religious and cultural upbringing; and

   c) the child’s health; and

   d) the child’s name; and

   e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

   [12] Family Law Act 1975 (Cth) s 61B.

3. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[13]  The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[14] and to ‘make a genuine effort to come to a joint decision about that issue’.[15]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared. 

   [13] Family Law Act 1975 (Cth) s 65DAC(2).

   [14] Family Law Act 1975 (Cth) s 65DAC(3)(a).

   [15] Family Law Act 1975 (Cth) s 65DAC(3)(b).

4. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[16] or abuse of the child or another child who is a member of the parent’s family;[17]

   b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[18] or;

   c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[19] 

   [16] Family Law Act 1975 (Cth) s 61DA(2)(b).

   [17] Family Law Act 1975 (Cth) s 61DA(2)(a).

   [18] Family Law Act 1975 (Cth) s 61DA(3).

   [19] Family Law Act 1975 (Cth) s 61DA(4).

5. In this case, the mother and the Independent Children’s Lawyer seek that she have sole parental responsibility. Taking all of the above considerations into account, I’m satisfied that that is not only the preferable course but the only course which is viable for the child. There is no capacity for the parents to communicate in this case. If they were required to do so it would be nothing but a burden visited upon the child as well as upon them.

6. I am satisfied that the father has engaged in family violence towards the mother and need go no further than his threats of suicide before Cronin J in July 2011 (discussed above in relation to s 60CC(3)(j)).

7. It is simply that the only course which is in the child’s best interests is for the mother to be the sole exerciser of parental responsibility. That reverses the current situation but is necessary in my view.

Consideration of equal or substantial and significant time with both parents

1. By virtue of having now determined that it’s not in the child’s best interests for the parties to have equal shared parental responsibility, it’s not necessary for me to consider whether it’s in his best interests or reasonably practicable to spend equal or substantial or significant time with each of the parents.  However, for reasons which appear above, I would consider it neither reasonably practicable nor in his best interest to spend that sort of time with the father, having regard to the factors set out in s 65DAA(5) or otherwise.

Conclusion

1. For the above reasons, I am satisfied that it is not possible or in the child’s best interests to have any face to face time or communication with the father at this stage or for the father to be responsible for the exercise of any parental responsibility in relation to the child. 

2. The orders which are proposed by the Independent Children’s Lawyer and supported by the mother appear to me to be appropriate and consistent with the child’s best interests.  For the foregoing reasons I make orders in those terms.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 August 2013.

Associate: 

Date: