Archer and Parker and Anor

FAMILY COURT OF AUSTRALIA

ARCHER & PARKER AND ANOR

[2008] FamCA 1227

FAMILY LAW – CHILDREN – Best Interests
FAMILY LAW – CHILDREN – Consultation – Major long-term issues
FAMILY LAW – COSTS – Assessment
FAMILY LAW – COSTS – Between Parties

Rice & Asplund (1979) FLC 90-725
Penfold (1980) 144 CLR 311

APPLICANT:

Mr Archer

FIRST RESPONDENT:

Ms Parker

SECOND RESPONDENT:

Mr Owen

FILE NUMBER:

PAF

5501

1999

DATE DELIVERED:

25 August 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Collier

HEARING DATE:

25 - 26 June 2007

LAST WRITTEN SUBMISSIONS RECEIVED:

14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS GILLIES
SOLICITOR FOR THE APPLICANT:	ADAMS & PARTNERS

COUNSEL FOR THE FIRST RESPONDENT:	SELF REPRESENTED
SOLICITOR FOR THE FIRST RESPONDENT:	N/A

COUNSEL FOR THE SECOND RESPONDENT:	SELF REPRESENTED
SOLICITOR FOR THE SECOND RESPONDENT:	N/A

Orders

That orders 4, 8, 9, 10, 11, 12 and 13 of the Orders made by Justice Purdy on 21 February 2002 be and are hereby discharged.
That the Applicant Mr Archer and First Respondent Ms Parker have equal shared parental responsibility for the child … born … February 1995.
That as soon as practicable following the subject child’s sixteenth birthday the Applicant Mr Archer, shall make arrangements with the Second Respondent Mr Owen, and Dr M for a meeting to be arranged to be attended by the Applicant Mr Archer, the Second Respondent Mr Owen, the subject child and Dr M.
That at the said meeting Dr M, in the presence of the Applicant Mr Archer and Second Respondent Mr Owen unless otherwise decided and directed by Dr M, shall inform the child in a manner completely at the discretion of Dr M that the Second Respondent Mr Owen is her biological father.
That the Second Respondent Mr Owen pay all reasonable fees of Dr M of and incidental to such a meeting.
That following the said meeting, as provided for in order 3 hereinabove, the child shall spend time with the Second Respondent Mr Owen in accordance with her wishes.
That the Applicant Mr Archer do all things to facilitate and give effect to any wish expressed by the subject child to spend time with, communicate with or have contact with the Second Respondent Mr Owen.
That the Second Respondent Mr Owen pay one half of the fees incurred by Dr M in preparation of his report.
That subject to the foregoing paragraph there be no order for costs.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 5501 of 1999

MR ARCHER

Applicant

And

MS PARKER

First Respondent

And

MR OWEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 21 February 2002, following a defended hearing, his Honour Justice Purdy made a series of orders concerning the subject child, who was born in February 1995.
The child is the biological child of Ms Parker and Mr Owen. She has never met Mr Owen other than briefly in circumstances where he was not identified to the child as her father.
So far as the present matter is concerned the relevant orders made by his Honour on that day were as follows:
(4)That the Husband, Wife and Second Respondent have joint responsibility for decisions concerning the long term care, welfare and development of the said child.
(8)That as soon as reasonably practicable following the said child’s 11^th birthday, the Husband or his legal advisers, shall make arrangements with the Second Respondent and with the Counselling Section of the Parramatta Registry for a meeting to be attended by the Husband, the Second Respondent, the child and Ms [B] or if attendance of the latter be impracticable, by such Counsellor as may be nominated by the Manager Counselling, Parramatta Registry.
(9)That at the said meeting or at such subsequent meeting as may be arranged at the direction of the said Family Court Counsellor, the said Counsellor in the presence of the Husband and of the Second Respondent, shall inform the child in a manner otherwise completely at the discretion of the said Counsellor, that her biological father is the Second Respondent.
(10)That within one month of the implementation of Order 9 above, a further meeting shall be arranged by the Husband at the home of the Husband to be attended by the Second Respondent and the said child with the minimum duration of one hour.
(11)That following the said meeting, contact shall take place between the said child and the Second Respondent every three months and in the absence of agreement, such contact shall be for at least four hours on the first Saturday in every third month commencing on the second calendar month after the contact prescribed in Order 10 above.
(12)That the Second Respondent shall not without the agreement of the Husband, permit the said child to travel outside the Commonwealth of Australia during any contact pursuant to Order 11 above.
(13)That following the disclosure as set out in Order 9 above, the Husband shall ensure that all written communication and presents forwarded by the Second Respondent or by relatives of the Second Respondent to the said child, are passed on to the said child.
As is apparent, those orders a) confer joint parental responsibility on Ms Parker, Mr Archer and Mr Owen and b) concern a method whereby the child might be introduced to Mr Owen who is the child’s biological father and thereafter spend time with him. It is those orders that are the subject of the application of Mr Archer filed on 21 June 2005. Mr Archer in the application of that day sought to set aside orders 8, 9, 10, 11, 12 and 13 of 21 February 2002.
The mother Ms Parker, the mother of the subject child, filed a Response seeking that Mr Archer’s application be dismissed and that he pay her costs.
On 8 August 2005 Mr Owen filed a Response in similar terms.
On 15 June 2007 Mr Archer filed an amended application seeking a discharge of order 4 as well as the discharge of orders 8, 9, 10, 11, 12 and 13 as previously sought.

Background

A detailed background to the matter is of assistance in reaching an understanding of the matters involved.
Mr Archer was born in April 1947.
Mr Owen was born in May 1957.
Ms Parker was born in January 1960.
Ms Parker and Mr Archer married in September 1986.
Ms Parker and Mr Owen met in the early 1990s. Thereafter they engaged in a sexual affair.
In February 1995 the child was born.
In February 1999 Ms Parker telephoned Mr Owen and informed him that she was certain that her daughter was Mr Owen’s child.
In early 1999 Ms Parker had travelled to Western Australia. She then met Mr N Parker.
On 11 June 1999 Ms Parker informed Mr Archer by letter than she was leaving him to go to Perth. On 15 June there was an argument and Ms Parker told Mr Archer that he was not the child’s father. She suggested a D.N.A test which at that stage Mr Archer refused. They argued on 15 June and Mr Archer stopped Ms Parker from removing the child from the home.
On 16 June they had further discussions. On 17 June orders were made by consent in the Penrith Local Court for the child to live with Mr Archer, for the mother to have contact as agreed and the matter was adjourned for two months. Subsequently once the orders were obtained Mr Archer permitted Ms Parker to take the child to Perth. On her ultimate return the mother made it clear that she was intending to return to Western Australia.
Subsequently the Local Court proceedings were transferred to the Family Court of Australia.
On 15 September 1999 orders were made that pending further order the child live with Mr Archer and if the mother was in Sydney she was to have contact every second weekend and if she lived in Western Australia she was to have contact for all school holidays.
On the 17 September 1999 the solicitors for Ms Parker wrote to the husband care-of his solicitors advising that Ms Parker was concerned that Mr Archer was not the child’s father and asking for his participation in testing.
On 5 November 1999 Mr Owen wrote to Mr Archer.
The matter came on for hearing before me on 6 March 2000. Mr Owen withdrew his amended response and took no further part in those proceedings. On 10 March 2000 judgment was delivered and orders made. Those orders provided for the child to reside with Mr Archer for three weekends in four and for part of each school holiday period, and to at all other times reside with the mother. Neither party was to remove the child from the Commonwealth of Australia. Additionally orders were made concerning the parties’ property.
On 9 May 2000 the mother wrote to Mr Archer indicating that she now proposed to live in Western Australia. She filed an application on 29 May 2000 which was responded to by Mr Archer on 29 June 2000. The matter was then heard by Purdy J between April and August 2001 and his Honour delivered judgment on 21 February 2002. His Honour’s orders were to discharge all existing orders; for the child to reside with Mr Archer; to have specified contact with Ms Parker; and, as I have already indicated, orders 8, 9, 10, 11, 12 and 13 of his Honour’s orders then dealt with the introduction of the child to Mr Owen, and for time to be spent with him.
In April 2004 the mother refused to return the child to Mr Archer. On 19 April 2004 Mr Archer sought orders for the return of the child. On the same day the mother filed an application seeking orders for the child to reside with her.
The mother at that time filed a notice of child abuse in which she asserted that the child had told her that Mr Archer had asked the child to hug him whilst he was naked, that when she did so she could feel his penis, and that he told her not to mention it to anyone. On 30 April 2004 his Honour Justice Purdy delivered a judgment and made orders whereby earlier orders were confirmed and a report was ordered to be prepared by Dr R pursuant to then part 30(a) of the Family Law Rules.
There were then a series of other interlocutory applications affecting this matter prior to it coming on for final hearing.

The Parties’ Applications, Cross-Applications and Written Material

The applicant, Mr Archer, filed his application on 21 June 2005. Ms Parker filed a response on 2 August 2005 seeking the dismissal of the application and costs on an indemnity basis. Mr Owen filed a response on 8 August 2005 in which he sought orders in very similar terms.
Thereafter on 15 June 2007 Mr Archer filed an amended application. That application sought that the orders for joint parental responsibility be discharged in so far as they granted joint parental responsibility to Mr Owen. At the commencement of the hearing there was argument as to the manner in which this application was to be treated. At that stage I declined to allow Mr Archer to rely upon the amended application. I did point out however that in the course of the hearing it may emerge that orders not sought at the commencement of the hearing were in all the circumstances appropriate. Indeed and notwithstanding that course, counsel for Mr Archer in her written submissions makes it clear that her client’s case is that I should indeed discharge that order.
Mr Archer relied upon his affidavit sworn 31 May 2007 and filed on 7 June 2007. Mr Owen relied on his affidavit sworn 3 April 2007 and filed on 4 April 2007 and an affidavit by his sister Ms P sworn 23 May 2007 and filed on 15 June 2007. However Ms P was not available to give evidence, as Mr Owen preferred to have her assist him in presentation of his case. Accordingly her affidavit was subsequently withdrawn.
In addition to the affidavits there were the reports of Dr R of 18 June 2004 and Dr M of 24 April 2006.

Relevant Court Orders

17 June 1999 orders were made in the Local Court Penrith for the child to live with Mr Archer and spend time with her mother.
10 March 2000 final orders were made in this Court providing for the child to live with Mr Archer three weekends in four and part of school holidays and at all other times with the mother, as well as final property orders.
21 February 2002 orders were made for the child to live with Mr Archer and spend time with her mother. Orders were made at this time for introduction to Mr Owen and subsequent contact with him.
24 October 2002 orders were made in the Full Court dismissing the mother’s appeal against orders of 21 February 2002.
29 April 2004 orders were made providing for the child to be returned to Mr Archer and dismissing the mother’s application for continuous contact.
2 December 2005 stay of orders 8 - 13 of the orders of 21 February 2002.

The Evidence Before Me

I heard oral evidence from each of Mr Owen, Mr Archer and from Doctors R and M.
Mr Archer gave brief evidence that the child had asked him if he was still her father and he replied ‘yes’. He said he had never used the expression ‘biological father’ to Dr M.
He was cross examined at some length by Mr Owen. It was apparent from the outset that the two men disliked each other intensely. Mr Archer answered questions in a long winded and often lecturing even hectoring fashion. His answers frequently went outside the ambit of questions he was asked. He agreed that he was an teacher with a good command of English employed by the Department of Education. He said that he understood rules of interpersonal behaviour. He said he was concerned for the child to have a relationship with her mother. He said that ‘biological father’ is an abstract term for an eight year old. He had not shown her photos of her extended family. He had not thought to obtain photos. He had not told the child she was loved by her biological father and had not told her of another grandmother. He had told the child of Court orders. He had not told her of a right to be cared for by the biological father.
He asserted that the child should be free to choose and not have the Court impose a decision upon her. He was proud of the child’s achievements and had assisted her. He said that the question of paternity had never been an issue for the child.
He said everything that the child does was of interest to him. She is involved in horses which have no special interest for him but he is interested because she is.
The child had not sought help about parental issues.
When he was asked what he had done to arrange an introduction he said that he rejects that is what the child wants. He said that as a general rule he would obey Court orders. He said there was a problem with the mother and he did not believe she had the child’s best interests at heart. He asserted that the child had formed a bond with him. He further asserted that for the child to be aware of multiple fathers would cause chaos and confusion. It was put to him that he was determined to put himself in and Mr Owen out as the child’s father. It was put to him based on an earlier report that the child had to be told sooner or later. He said that the mother and he had re-negotiated contact orders. The mother was aware that the child had sat for the selective high schools examination and he was not aware of any objection by the mother. He indicated in answer to a suggestion that the child must know her father, that she need not know until she had attained her majority.
Dr R was then interposed. He said that he had read Dr M’s report. He said he was aware when he did his report that Mr Archer was to postpone the introduction to Mr Owen to accord with the child’s wishes. He was not familiar with a movie ‘Thicker than Blood’. He said he spoken to Mr Owen on the telephone and obtained a sufficient history to prepare his report. He said having read Dr M’s report there was nothing he would change. He said that at the age of sixteen if it was her wish the child should be introduced to Mr Owen. He noted that Dr M appeared to say it should be at sixteen with no right or qualification about the child’s wishes. He accepted that the child was at a selective school. He said he was not sure whether Mr Owen should have a say in decisions concerning the child. He said that Mr Owen indicated that the first visit should be in the presence of the mother and there should be an objective professional person present. He said Mr Owen had made insensitive comments about Mr Archer.
To Mr Owen he said that his brief was to investigate disclosures made by the child. He could not recall whether he had seen Justice Purdy’s orders. He could not recall when he became aware of the issue of introduction of the child to her father. Doctor agreed that he had spoken to Mr Owen by telephone whilst Mr Owen was in Italy. He agreed there were discussions about Mr Owen’s relationship with the mother. He agreed that the telephone call may have been unsatisfactory. He said there was discussion as to what was best for the child and there was some technical definition of ‘father’ introduced. He agreed that it was possible Mr Owen had said that he would send notes. He agreed that an address given was slightly incorrect. His interview with Mr Archer was for one and a half hours. In that interview Mr Archer spoke of Mr Owen. He had little positive to say. Mr Archer was very negative about Mr Owen becoming involved. He felt cheated and betrayed. He felt that Mr Owen’s involvement was an attempt to assist the mother.
Doctor was asked if children could hold multiple parental figures. Doctor replied ‘yes’. Doctor agreed that positive information to the child may give assistance. Her perceptions might be effected by negative input. He was aware of Mr Archer disclosing he was not the biological father. He said further input depended on the child’s development.
He said at sixteen the child would have developed her own identify, before having to deal with being introduced to and knowing her biological father. The child may have the cognitive ability to cope however emotional readiness to do so is another matter. He agreed that the term ‘biological father’ was abstract to an eight year old. Doctor said he was not aware until questioned that the father had showed her a movie in November 2003. That movie allegedly contained a negative portrayal of a biological father and Doctor agreed that it may have a negative effect. He agreed that a movie with a negative portrayal of a mother may have a negative effect. He said it was highly unlikely but possible a child could make enquiries. Doctor indicated that Mr Owen expressed the view that a biological parent should hold sway over a non-biological parent. Doctor said that he found Mr Owen’s reference to Mr Archer as ‘guardian’ derogatory. He put to Doctor that he was entitled to be judged by what he did rather than by inferences drawn. Again Doctor said he found Mr Owen’s comments derogatory. He agreed that a short telephone interview was less than optimal.
Mr Archer then continued in cross examination by Mr Owen. He said that he knew the child had no wish to do something that she was pushed into and to force her would put him (Mr Archer) in an untenable position. He had shown the child the movie ‘Thicker than Blood’. He said this was a fair and accurate portrayal of a case. He said it does not set out to portray anyone negatively.
He agreed that he held an extremely negative view of Mr Owen. He said that what he (Mr Owen) could offer the child was confusion, stress and fear. Mr Archer concluded that Mr Owen would be a highly negative influence unless the child wanted to see him. He said he made no effort to discuss the case or Mr Owen with the child. In any event he said there was an injunction preventing that.
He said the child may or may not want to see Mr Owen. He said he does not have a cordial relationship with the mother, her husband or Mr Owen. He said whilst he can make arrangements with the mother he does not chat with her on the phone. He said that Mr Owen seeking joint responsibility with the mother was a weapon to interfere with the life of the child and himself.

He said he believes the introduction should be made by him (Mr Archer) and always depend upon the child expressing a wish for this to happen openly and freely. He said that a professional could be present at Mr Owen’s expense. He said the mother was not an honest broker.
He said he would want the child’s wish to see Mr Owen expressed to him (Mr Archer). He said he was sure she could make a choice and given her mother’s involvement, that choice needs to be told to him (Mr Archer). He said the child has no problem expressing herself to him.
In re-examination he said if the child came to him and asked for information he would supply it. He would have the information to satisfy her basic curiosity. He said that if an order was made for contact at sixteen and the child did not want to meet Mr Owen, there was little choice but to go through this again.
An order for joint responsibility requires liaison for major decisions. The order has not worked in relation to Mr Owen. There is no effective line of communication. He does not know about the relationship between Mr Owen and the mother. He said that if the child had told a teacher that she wanted to meet Mr Owen, he would have facilitated it.
Dr M was then called. He said he had read Dr R’s report. He asserted that the child did not wish for contact before age sixteen. He said he had a view that Mr Owen was lacking in parenting skills.
He said if the child expressed a wish, Mr Archer would facilitate it. Normally in such a situation her views should be respected and acted upon. He said a definite timetable might protect her from further litigation. His view was that a definitive timetable would give all involved a chance to settle down. Consideration should be given to the child’s views which should be taken into account. A difficulty is the ongoing litigation. He agreed that the child had not met Mr Owen yet. Her wish to see him at age sixteen will depend on what else is going on in her life at the time. He said how a child would deal with an imposed timeframe will depend upon the child’s development. Sixteen years of age was regarded as a time when a child had the capacity to consent in a number of significant ways.
However even at age sixteen if imposed upon her, it was potentially disabling. He said that Mr Owen had neither the empathy nor sensitivity about others in this mix. He said that Mr Owen’s lack of empathy could be destabilising for the future. He said that Mr Owen’s asserted position had changed and that he claimed he had been misquoted in the past. At the end of the report process he was considerably less hostile and demanding, his position had moderated. When he saw Dr R it was not as an active participant but active when he saw him (Dr M). He said that he could not exclude that he was paying lip service to their criticism. Doctor said that Mr Owen was not child focused and was not respectful of Mr Archer. He said that the child’s wish was to be respected. He regarded ongoing litigation as undesirable.
He said that Mr Owen asserted that the child had been coached, for example; the use of the term ‘biological father’ indicated intervention by Mr Archer. He said that ‘real father’ as against ‘biological father’ was not important. He said that Mr Owen rejects the wishes of the child where they do not coincide with his own. He said the use of the term ‘real father’ for himself (Mr Owen) is inappropriate. Doctor said he had formed the view that Mr Owen accepted the child’s residential situation. His view had not shifted to the extent where he was respectful of Mr Archer as a father. He said that in the context of losing his own father he became motivated to ensure he and the child did not suffer the same fate. He said he was not able to delve into the deeper aspects of psychology and personality.
When cross examined by Mr Owen he said sometimes it was hard to find out what the child wanted. Sometimes it was not until the child reached adulthood that this could be done. He said it was not his impression that the child’s wish had been influenced by Mr Archer. He agreed the child may say something different if re-interviewed. He was referred to findings of Purdy J as to Mr Archer and said he accepted his Honour’s assessment. He said that unambiguous statements by the child were not the result of anything done by Mr Archer. She was able to express her own view. His clinical impression was that the child could express her feelings in an open way. Doctor said he did not form the view that she was controlled or dominated to express a view. He said however it was possible she was influenced in regard to Mr Owen and that she may change her mind.
He could not exclude her disclosures. The child understands the concept of egg and sperm and that the person who provides sperm is the biological father. He said he would not know the child’s reaction if she saw photographs. He said an informed choice would be a better choice but what might come with that is additional pressure. He said the child is progressing well. She has had to deal already with profound emotional disturbances. Whilst the more information the better, one cannot neglect the significant emotional burden of more information that she would have to process.
Doctor said he understood Mr Archer wishes to protect the child from being overwhelmed and that Mr Archer is saying “provide all this information to enable her to make a better decision”. These are overwhelming decisions and raise serious concerns for the child. Mr Owen seems to believe this should be a predominant issue for the child, and Doctor said he questioned this. To produce photos he said would cause further emotional burden. It was best for the child to have a stable upbringing. This did not mean it was necessary to reduce variables. It was difficult to reduce variables. The child had developed a relationship with Mr Parker. She has coped with a stepfather figure in her life. She is dealing with an ongoing partner of her mother. That does not mean necessarily that she can cope with a further paternal figure. Doctor said he would be willing to facilitate an introduction. He said while the child’s wishes may change there remains a need for certainty. It would be useful for the child for everyone to have a clear framework. It would be best to de-focus the issue at this stage and in her best interests for it to be taken off the table for a number of years until age sixteen.
She is well aware of the existence of her biological father and the fact that he wants to see her. Again Doctor said it was best to de-focus the child who has some understanding. Provision of further information may cause further distress. He said that this was not leaving the child in limbo.
The next witness was Mr Owen. To Mr Archer’s counsel he agreed that neither Dr M nor Dr R had changed their evidence. He confirmed that he knew Dr M held the opinion that to force the child at this stage would cause her distress. However Mr Owen indicated that he still wanted immediate contact. He said that he had dismissed the reports of both Doctors and did not agree with them. He had made no contribution to the Doctors’ fees. He was not paying child support. He said that ‘real father’ was an expression he had used and believed it was an expression that a 12 year old would use. He believed the child would be better off with her mother. He said he wanted to be on the child’s birth certificate.
When asked if Mr Archer was the child’s primary attachment figure he said that the mother and Mr Archer were. He said the mother had decided to move to Western Australia. He had never received legal advice concerning child support. He said that there had been some money sent to the mother which was returned by Mr Parker who said it should be sent to Mr Archer. He said he had legal advice not to send the cheque to Mr Archer. He said that he had not informed Mr Archer about the paternity testing that he and the mother undertook. It did not cross his mind that Mr Archer should be advised.
He said that in about 2000 he sought orders. He now concedes that some of the orders he sought were inappropriate. In 2001 he sought to have the child’s surname changed to Owen and is now satisfied that that was insensitive. He had also asked that Mr Archer reduce his part in the child’s life. He now recognises that that is insensitive. He agreed that the least conflictive situation was best for the child. He said that he and the mother could work out contact. He said he believed that the child knew that he was someone of significance and not merely because of genetic makeup.
He said there was a chance he could live in Italy and the child could fly to Europe for a period of four weeks. He agrees that demonstrated a lack of sensitivity. The time he spoke to Dr R he chose to use the expression ‘guardian’ to apply to Mr Archer. He could not recall how he had described himself. He believes that he should have the child know him as her father with Mr Archer being known as an effective foster father and caregiver. He said he was not aware if the child's biological parentage was important to her.
He believes that Purdy J was correct in what he said. He said everyone has the right to be heard. He said he does not know the child, he gets some information from the mother. He was not told for example of the child starting high school. He has had contact with the mother’s present household.
It was put that if he were interested, he would be contacting the mother’s household to ask about the child. He said he was not aware of the school the child attends and had made no enquiries. He said he did not want to step on people’s toes. He feel that previously he could not put himself forward. He said that Dr M had told him that the child had said she did not want to meet her biological father. He told the Doctor he wanted to meet the child in accordance with her wishes.
He said that he held the view that the child’s wish not to see him was not her own. He said that nothing could change his view in this regard. He again said that use of the expression ‘biological father’ indicated that she had been coached. When asked if he thought the child should live with her mother he said that would make it easier to negotiate and that he wants cooperation. He agreed the reference he had made to the stolen generation in correspondence was entirely inappropriate.
He agreed that Dr M did not agree that the child not seeing him would cause her to be resentful of him. When he was asked if he thought that if compelled to see him the child might be resentful, he said he did not think what the Doctors were saying was correct. He did not think the child seeing him would destabilise her.
He accepted that Mr Archer was the child’s primary carer. He said that if he got the orders that he sought he has considered the impact on the child. He believes that she would be very pleased, otherwise she may think that he has denied her something important. He said that from everything he had heard it would be best for her.
He said time with him would not have any negative impact on the child.
He said if parental responsibility continues to be shared between three parties, it gives us all a role in long term activities, for example; education. He said that he believed Mr Archer would call police if he, Mr Owen, contacted him. He said he cannot deal with Mr Archer. He said in the mother’s household he speaks mainly with Mr Parker. He said if the child were with him in Italy and wanted to return he would try to find out why but he does not expect that she would say that.
This then concludes the evidence of the parties.
Each of the parties filed written submissions and responses.
The written submissions on behalf of Mr Archer conceded that Mr Owen is established as the biological father of the child. It is made out that the mother and Mr Owen did not in any way seek to advise Mr Archer that tests were to be taken nor as I understand it, the results of those tests.
The current stanza of litigation seems to have its origin in the mother’s retention of the child at the conclusion of a period of holiday time. She alleged that Mr Archer had acted in a sexually inappropriate fashion towards the child. The child was thereafter seen by Dr R who prepared a report. In that report at Recommendation 5, page 20 and over, Doctor said this:
“I would like to make a few comments about [t]he issue of paternity. It is well recognised that it is better for children to be aware their paternity issues from an early age. Children can gradually understand that their psychological parent may not be their biological parent. The collective wisdom for this is that it is believed that when children are adolescents or young adults that they may feel betrayed and deceived if this has not been shared with them. It is my understanding that [Mr Archer] had already started the process of explaining the paternity issue with [the child]. I would agree that it would be important for [the child] to become fully informed that her biological father is a different person from [Mr Archer] prior to puberty. I also would agree that this should be done by [Mr Archer] and done in a gradual way with the support of [the mother]. Whilst I believe it is important for [the child] to know her true paternity I do not believe it is necessary for her to form a relationship with [Mr Owen]. I cannot see any benefits in complicating [the child’s] life any further by introducing the biological father into her life. Whilst [the child] is developing normally I believe that she is under great pressure attempting to understand and come to terms with her parents being separated and her mother living in Perth. I believe it would be overwhelming for [the child] then to be expected to form a relationship with [Mr Owen]. I was not impressed with Mr [Owen’s] approach and I would strongly recommend that [the child] not be introduced to Mr [Owen] before the age of sixteen. After the age of sixteen I believe it should be [the child’s] choice as to whether she wanted to meet him. The issues between her parents are far from resolved at this point in time and I believe that there is a high risk that she will become emotionally destabilised should Mr [Owen] be allowed into her life.”
In his report Dr M made the following comments under the heading Opinion at page 13:
“[The child] was unambiguous in her wishes to not be introduced to Mr [Owen] at this stage. I would strongly support these wishes and support Dr [R’s] concern that premature introduction to Mr [Owen] would be a potentially disorganizing experience for [the child], particularly given her emotional vulnerability due to her parents’ separation and limited contact with her mother. Dr [R] was of the opinion that the age of sixteen would be appropriate for [the child] to be introduced to Mr [Owen]. [The child] clearly stated a wish to meet Mr [Owen] when she was ready. Mr [Archer] and Mr & Mrs [Parker] indicated a willingness to respect this wish.
The only concern regarding leaving an open-ended timetable to this introduction is that this may raise the capacity for further pressure and litigation. In my view it is essential that [the child] is protected from further litigation and assessment. Under such circumstances the timetable suggested by Dr [R], namely that at the age of sixteen that [the child] is introduced to Mr [Owen] would appear unreasonable. Other issues such as the introduction of Mr [Owen] for identification purposes, as identified by Dr [W] were not regarded as relevant to [the child’s] circumstances.
In my view [the child] will continue to benefit from her stable home environment provided by Mr [Archer], with the maintenance of regular on-going contact with her mother and stepfather. I do not share Mr [Owen’s] view that [the child] is experiencing great deprivation from his absence in her life at present. There is of course the capacity for a relationship between them to develop as [the child] wishes in the years to come. It was evidence that Mr [Owen] had had difficulty in formulating a child-centred approach to these circumstances. Given this, it would be appropriate for him to be introduced in the presence of either Ms [B], Family Court Counselor, or myself, when [the child] is sixteen years of age. This would allow there to be the opportunity to meet her biological father with the appropriate supervision and guidance in an initial interview to be followed by contact as desired by [the child].”
The reports are indeed similar in tenor. Neither sees a positive advantage in the child being compelled to meet Mr Owen at this stage. Dr R indicates introduction should not occur before the age of sixteen and at that time it should be the child’s choice as to whether or not she wishes to meet Mr Owen. Dr R in the passage above referred to sees no benefit in complicating the child’s life by introducing the biological father into her life. Dr M formed the view that it would be appropriate for the child and Mr O to be introduced, in the presence of a professionally appropriate person, when the child was sixteen years of age. Thus Dr M was, it seemed, more concerned as to the manner in which a meeting could be conducted and supervised.
The evidence of Mr Archer made it clear that he had little time for Mr Owen and saw no benefit for Mr Owen having a large part, or indeed any part, in the child’s life. Mr Owen for his part, whilst conceding some insensitivity in his behaviour in the past, still held firmly to the view that he was in the right in seeking to have the orders of Purdy J carried into effect as they presently stand.
Whilst it was not argued by any of the parties in their submissions to me, the situation is clearly that the orders made by his Honour Justice Purdy were final orders and were not subject to appeal. Lest there be any doubt or difficulty in connection with this aspect of the matter, I am satisfied that so far as the competing applications before me are concerned, that circumstances surrounding the child in respect of those orders have changed or perhaps more accurately circumstances have arisen since the making of those orders that require the issue of whether or not the child is introduced to Mr Owen, and if so, how that is to be done, to be looked at afresh. (Rice & Aspland)[1]
i)[1] (1979) FLC 90-725
I am satisfied that the circumstances requiring further investigation and determination arise from the medical expert reports of Doctors M and R, not necessarily in that order.
Dr R prepared his report after the retention of the child by the mother. That retention was alleged to have been brought about by statements made by the child of behaviour of a sexual nature towards her by Mr Archer.
In his report, Doctor at Recommendation 5 (to which I have already made reference) dealt with the issue of the child being introduced to Mr Owen. He did this, it would seem, of his own volition, as a matter of concern raised during the course of his interviews.
It seems apparent that, had the mother not retained the child, Dr R’s report would not have been prepared. However once that report came into existence Mr Archer, perhaps understandably, commenced these present proceedings.
Dr M then prepared his report. It is the contents of those reports, together with the evidence I have heard from Mr Archer, Mr Owen and the two Doctors particularly that leave me to my conclusion that the matter requires a further determination.

The Law to be Applied

The orders sought are clearly parenting orders, governed by Part VII of the Family Law Act (1975) as amended.
S.60B sets out the objects of Part VII and the underlying principals. S.60B(1) is in the following terms:
(1) The objects of this Part are to ensure that the best interests of 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.

Subparagraph (a) speaks of the benefit of both parents having a meaningful involvement in children’s lives. However that statement is qualified by the requirement that the involvement is to be consistent with the best interests of the child. Accordingly the maximum meaningful involvement is to be viewed in the light of what is best for the child and is thus not an absolute statement.
The use of the term “both of their parents” has caused me some concern. I have endeavoured to find within the Family Law Act a definition of “parent”. In S.4 of the Act “parent” has the following definition:
“Parent” when used in Part VII in relation to a child who has been adopted, means an adoptive parent to the child. This does not assist me.
In this current situation the biological parents of the child are Ms Parker and Mr Owen. However Mr Archer is considered by the child to be her father. He has orders in his favour which confer upon him parental responsibility for the child as contemplated by S.61D(1) of the Act, and for the child to reside with him.
To my mind when the Act speaks of ‘both parents’ or ‘parents’, it is not intended to refer only to biological parents so as to exclude other persons. Rather I am satisfied the word ‘parent’ is to be given the wider rather than the more limited definition based on birth relationships. In the Macquarie dictionary “parent is defined as follows:
·A father or mother;
·A progenitor;
·A protector or guardian.
I am satisfied therefore that as a person having parental responsibility for the child, and having the benefit of an order that the child reside with him, Mr Archer is to be considered as a parent. I am satisfied that in individual cases the Act must recognise the factual situation that exists. To say that Mr Archer is entitled to a lesser degree of consideration in these matters than Mr Owen or Ms Parker would be to create a most unjust situation.
Accordingly in dealing with the various sections of the Act that I must consider, I am of the view that where the expression “parent” or “both parents” is used, the expression extends to and includes Mr Archer.
It follows therefore that in subsection 60B(1)(a) I am to ensure that the child has the benefit of Ms Parker, Mr Archer and Mr Owen having a meaningful involvement in her life to the maximum extent consistent with her best interests. I am required to ensure that each of those three persons fulfil their duties and meet the responsibilities concerning the care, welfare and development of the child.
Turning to the principles set out in subsection (2) I am satisfied that subsection (a) should be read to ensure the child has a right to know and be cared for by each of Ms Parker, Mr Archer and Mr Owen and I accept that under subsection (b) the child has a right to spend time on a regular basis and communicate on a regular basis with each of those three persons. Of course subsection (a) and (b) carry the caveat, except when it is or would be contrary to a child’s best interests.
Therefore dealing with the objects and principles, I am satisfied that the objects require me to ensure that the child has the benefit of each of Ms Parker, Mr Owen and Mr Archer in her life to the maximum extent consistent with her best interests and that the child has a right to know and be cared for by each of Ms Parker, Mr Owen and Mr Archer and to spend time with and communicate on a regular basis with each of those three except where it would be contrary to the child’s best interests.
S.60CA then tells me that in deciding to make a particular parenting order, regard must be had to the best interest of the child as the paramount consideration.
S.60CC of the Act then sets out how the Court determines what is in a child’s best interests. S.60CC is in the following terms:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Clearly the primary considerations constitute a balancing exercise to be undertaken, on the one hand the child’s having a meaningful relationship with both parents (here I continue to include Mr Archer in that description) and on the other hand the need to protect the child from physical or psychological harm.
The additional considerations are matters that I must also have regard to. Those considerations are of assistance in determining which of the primary considerations should prevail.
The first of those additional considerations is “(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views”.
In this case the child has clearly expressed to Dr R “I like to be home”. By this, I take it to mean with Mr Archer. The child went on “I also like mum and [Mr Parker]”. The child clearly spoke of spending time with each Ms Parker and Mr Archer. She spoke of wanting them to reach an agreement or for her mother to come to Sydney.
To Dr M she spoke of knowing her mum “really loves me” and her dad “really loves me” (by this she clearly means and is referring to Mr Archer). She went on to say she had spent most of her time with “my dad” (again the reference is to Mr Archer) and wanted to stay in Sydney with her friends. She said that her mother’s family in Perth were nice.
As to seeing Mr Owen she commented (page 11 of report) “I would like to make my own choice when I see him. That would be easier. When I think I’m ready for it. I really don’t know. I think I’ll know when I’m ready. I think about a lot of things, about lots of different things, people should have their own choice to be able to make it have an equal voice.”
Later at page 12 of that report, the child is recorded as saying “I really love all my family, all my friends, everyone close to me. I don’t want to meet my biological father at this stage, not just yet, maybe when I’m ready for it.”
Clearly then the child is expressing and continues to express a view that she does not want to meet her biological father at this stage. She speaks to Dr M of making her own choice when she is ready and not knowing when that will be.
Dr M makes it clear that he supports the child in her wishes. He is concerned, as was Dr R, that premature introduction to Mr Owen would be a potentially disorganising experience for the child, particularly given her vulnerability due to her parents’ separation and the limited contact with her mother (page 13 of report).
On the evidence that I have read and heard and despite the assertions by Mr Owen that Mr Archer has clearly influenced the child, I am not satisfied that the child is not expressing her own views and wishes in this regard. I am satisfied from what I have read and what I have heard that the child is a sensible girl who is at least age appropriately mature.
The next of the matters I am required to take into account is subsection (3)(b):
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
In this subsection there appears to be a distinction drawn between “birth parents” and “other persons” who are inclusive of grandparents or relatives. Once again, I am of the clear view that in dealing with the nature of the relationship with the child I should consider each of her mother, Mr Archer and Mr Owen as her parents for the purpose of that subsection. Dr R was clearly of the view that the child had a close, loving relationship with Mr Archer and with Ms Parker. She is reported by Doctor as having a positive relationship with Mr Parker. To Dr M she indicated that she thought it was a correct decision that the judge had ordered that she stay with her dad and visit her mum. “Dad” in this context clearly means Mr Archer. Later the child said that she knew her mum really loved her and her dad really loved her. She had spent most of her time with her father and still wanted to stay in Sydney with her friends. Her mother’s family in Perth are nice. Later again when asked about Mr Archer she replied “I think he’s still my father which he is”.
Clearly the child has no relationship with Mr Owen at this time although I am satisfied that, without knowing him, she now has some understanding of the fact that Mr Archer is not her birth parent and that Mr Owen is.
The next of the matter I am required to consider (c) is in the following terms:
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Once again I take the expression ‘parent’ to include all three adults.
I am satisfied that Mr Archer has strong views about the part or place that Mr Owen has in the child’s life. I am satisfied that Mr Archer would be more than content if Mr Owen were to simply disappear and play no further part in the child's life or by inference, his. Having said this I am not satisfied that Mr Archer has actively sought to influence the child to act negatively towards Mr Owen or the concept of meeting him. However, I am satisfied that Mr Archer has done nothing of a positive nature a) to encourage the child to either find out more about Mr Owen or b) to put in place steps for the child and Mr Owen to meet. Indeed the opposite is clearly the situation here. He has sought by his application to delay in introduction between the child and Mr Owen and as a necessary result, to postpone if not prevent any involvement of the child with Mr Owen.
The mother seems to favour the child knowing Mr Owen and meeting him sooner rather than later. My concerns in this regard are that the mother has when it suited her used Mr Owen to support her position to have the child live with her. I am concerned that the mother may well be acting to satisfy her own needs by taking this position. I am not satisfied that the mother has the child’s needs at forefront of her consciousness.
Mr Owen has never been in the position of being able to facilitate a relationship between the child and either Ms Parker or Mr Archer. On reading the material, Mr Owen remains dismissive of Mr Archer’s efforts and actions as the person caring for the child. Mr Owen refers to Mr Archer in dismissive and belittling terms.
In his report at page 18 Dr R says this:
“For a person who has no interest and no contact with [the child] he appeared extremely opinionated about what is best for the child. He appeared very antagonistic towards [Mr Archer] and he repeatedly made derogatory comments about [Mr Archer] and [Ms Parker]. He state that [Ms Parker] had abandoned [the child] by moving to Perth. He states that [Mr Archer was not the father of [the child]. He didn’t recognise [Mr Archer] as the psychological parent. He referred to [Mr Archer] as “intransigent…… [Archer] is like a guardian.” He appeared to think nothing of recommending that [the child] move from Sydney to Perth and then have contact with [Mr Archer] as well as contact with himself.”
When interviewed by Dr M he indicated a change in his previous position in that he no longer seemed to seek to assume a primary role as the child’s father in place of Mr Archer. However he still wished to be introduced to the child and have her know him as her ‘real’ father.
The next of the matters I must take into account is subsection (d):
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child is at present, I am satisfied, aware of the fact that Mr Archer is not her birth father, and that another person is her birth father. However at the present time she does not know that person (Mr Owen) and has not met him in that role. (I understand that he has spent a very short period of time with the child at the mother’s arranging, but at that stage the child was young and there was no suggestion of the child being told, or of her being aware, of his status in her life). Mr Owen makes it clear that he wishes to meet the child as soon as possible and thereafter take, or assume, a significant part in her life. In this he is supported by Ms Parker.
If the application of Mr Owen was granted and he was introduced to the child as soon as possible, I am of the view that such an introduction would be a potentially destabilising experience for the child (Dr M page 13). Doctor has made it clear that he does not share with Mr Owen the view that the child is experiencing great deprivation by his absence in her life at present. This is in quite similar terms to Dr R’s report which at page 21 says “I cannot see any benefits in complicating [the child’s] life any further by introducing the biological father into her life. Whilst [the child] is developing normally I believe that she is under great pressure attempting to understand and come to terms with her parents i.e. [Ms Parker] and Mr [Owen] being separated and her mother living in Perth. I believe it would be overwhelming for [the child] then to be expected to form a relationship with Mr [Owen]”.
To my mind then, to compel the child at this stage of her development to meet Mr Owen puts her in a position where she could sustain significant and long lasting distress.
Subsection (e).
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The central issue in this case is not a question of what time the child should spend with Mr Owen but more importantly the manner in which and the timing with which the child is to be introduced to him. It would seem that the question of time with Mr Owen is something for the future after an introduction has been performed, if it is to be performed. Accordingly at this point in my deliberations I do not consider it is necessary to further evaluate this factor.
The next factor I must consider is subparagraph (f):
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The capacity of each parent again to my mind draws in Mr Archer as well as the child’s biological parents. Mr Archer has clearly established that he can and has cared for the child in an appropriate manner and to an appropriate standard. He has provided food, accommodation, clothing and schooling for the child. However to my mind in this case the consideration required is more directed to the child’s emotional and intellectual needs, rather than day to day physical needs. I am satisfied that Mr Archer has endeavoured to deal with the difficult situation he finds himself in as best he can. Much is made by Mr Owen of him showing the movie “Thicker than Blood” to the child. However in the circumstances of this case I am satisfied that this is not something that I would find greatly to his detriment.
Dr R in his report expressed (page 18) that Mr Owen appeared extremely opinionated and very antagonistic towards Mr Archer. He is reported as making repeated derogatory comments about Mr Archer and Ms Parker. Mr Owen made it clear that Mr Archer was not the child’s father and that he did not recognise him as “the psychological parent”. He described him as “intransigent…. [Archer] is like a guardian”. In interview with Dr M his position had changed somewhat in that he understood the child would continue to reside with Mr Archer and see her mother. He remained motivated to be introduced to the child as her real father. Mr Owen upon hearing the child’s wishes (that she not meet him at this time) disputed that the child had denied being coached and would not accept Doctor’s impression that the wishes were her true wishes.

I am not satisfied that Mr Owen has been able to focus on the emotional and intellectual needs of the child. Rather I have come to the conclusion that he is more concerned with asserting what he appears to believe are his rights in respect of the child, and to have those rights recognised.
I am satisfied that despite his clear and apparent dislike of Mr Owen that Mr Archer is much better able to focus on the needs of the child in respect of the situation in which the child now finds herself.
Subsection (g) is as follows:
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The child is clearly a sensible and, as I have found, at least age appropriately mature child. She expresses a clear wish in each of the two experts’ reports. Lifestyle in this context means to me the fact that she has lived with Mr Archer now for some substantial period of time and he has clearly in her eyes become her father in all respects save biologically.
The next relevant subsection is (i):
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The attitude to the child and the responsibilities of parenthood to my mind are closely tied to the capacity of parents. In this case again that expression of ‘parent’ must again include Mr Archer. To my mind Mr Archer has shown an appropriate attitude and has, notwithstanding his clear feelings of dislike for Mr Owen, endeavoured to put the child’s interests before his own and to act in accordance with her wishes. I am conscious of the fact that the position that the child has taken is one that finds favour with Mr Archer. However as I have already stated I am satisfied that Mr Archer has not influenced the child’s wishes or the expression of those wishes.
To my mind the further subsections concerning violence are not of significance or indeed relevance in this present situation.
Subsection (4) is in the following terms:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Clearly it is a situation where Mr Owen wishes to be introduced to his daughter, and thereafter play a significant part in her future. Mr Archer opposes this situation and in the past notwithstanding the order made by Purdy J for joint responsibility, I am satisfied has not included nor sought to include Mr Owen in the major decisions or indeed any decisions concerning the child's life. This is clearly a deliberate choice on Mr Archer’s part. There are difficulties in communication between Mr Archer and Ms Parker. As I understand it, Mr Archer speaks more to Mr Parker than to Ms Parker. There appears to be some spasmodic communication between the mother and Mr Owen but this appears not to have developed to any meaningful extent.
I am then left to try and balance the major considerations and they are; the benefit of the child having a meaningful relationship with each parent as against the need to protect the child. In this case the expression ‘parents’ must once again in my view include Mr Archer. The mother supports Mr Owen’s position but takes no effective part in the hearing and has made minimal submissions in this regard.
Whilst the legislation as it now stands makes it abundantly clear that knowing parents is a primary consideration, in appropriate cases, must give way to the needs to protect the child. In this case there is no suggestion that the child needs be protected from any physical harm at the hand of Mr Owen or whilst with him. What is of concern is the psychological and emotional harm that the child could and, on the reports of Doctors M and R, it appears she would suffer if he were compelled at this time to meet Mr Owen against her clearly expressed wishes.

Discussion

As is invariably the case in children’s matters a balancing exercise is indicated and required. The Family Law Act as it presently stands makes it abundantly clear that a relationship between a parent and a child is to be encouraged. However the Act also clearly contemplates that there will be circumstances in which this is not in the child’s best interests.
To my mind in this case the risk of harm is such that the requirement set out in the Act that the child have a meaningful relationship with Mr Owen must give way.
It could be argued that Mr Owen is not seeking to become involved or engage in a meaningful relationship with the child and rather that all he seeks at this stage is to be given the opportunity of having the child meet him and thereafter seeing what develops. To my mind however that argument is flawed. If there was to be no attempt at a ongoing relationship after an introductory meeting then the detrimental effect of that meeting could be even more pronounced.
The child has indicated that she needs more time to be in a position to deal with an introduction to Mr Owen. The expert evidence that I have read and heard makes it clear that to compel the child at this time to meet Mr Owen would very probably have a detrimental effect on her wellbeing. Mr Owen does not acknowledge nor accept that the child’s wishes for a postponement are either a) genuine or b) her own wishes. I am satisfied that the child has reached this decision without being influenced by Mr Archer. Having said that it is of course obvious that Mr Archer supports the child’s expressed wish in this regard.
To my mind and in these circumstances, the risk of harm to the child in being compelled to meet Mr Owen at this stage is such that the risk of harm to the child must be recognised as the overwhelming consideration.
Accordingly I have come to the conclusion that to require the child to be introduced to Mr Owen in accordance with the orders of Purdy J would, I am satisfied, have a detrimental and damaging effect on the emotional and psychological wellbeing of the child. Thus I am satisfied that it is in the best interests of the child that the orders of Purdy J be varied.
What is proposed effectively be both Doctors is that the introduction occur when the child is sixteen years of age. It is not suggested in the proceedings before me that such an introduction should not take place, or not take place until the child has attained adulthood.
There is some difference before Doctors R add M as to what need occur before such an introduction is to occur.
The difference between them in this regard seems to be whether or not in addition to attaining the age of sixteen years the child’s expressed wishes that she be introduced to her father need be obtained prior to an introduction taking place.
Mr Archer indicates that his relationship with the child is such that he and she would be able to decide the appropriate time for an introduction. He says that to compel the child in the absence of her express wishes would adversely affect her. Further he says that if she is not given the opportunity to make her own decision in this regard that litigation of this present type will happen all over again.
Mr Owen seems to indicate that if there were any choice left to the child in the matter then notwithstanding what Mr Archer says he (Mr Owen) remains convinced that Mr Archer would do everything he could to ensure that the child expressed a wish not to meet her father.
I am not satisfied that this is indeed the case. However I am of the view that once an appropriate age is reached, to require the child to express a wish or opinion one way or the other is to place additional and in my view unnecessary pressure upon her. Dr M gave evidence (see paragraph 77) that it would be useful to the child for everyone to have a clear framework. He said (further paragraph 77) that it was in the child’s best interests for the issue to be taken off the table until she attained sixteen years of age. In my view, this is what must occur. The child should be entitled to lead her own life for the next several years without being required, or for that matter even requested, to express a view as to what she wants to happen in respect of an introduction to Mr Owen. I am satisfied that such a course would be in the best interests of the child.
It is trite to say that parents and children should at least have the opportunity to meet and know each other. Where any relation between them goes from that point is uncertain and cannot be predicted. In my view at the age of sixteen, based on the expert evidence presently before the Court, the child would be in a position to deal with an introduction to Mr Owen.
Accordingly and for the reasons I have set out above, I propose to extend to the age of sixteen the time when the child is to be introduced to Mr Owen. I will not impose as a condition precedent to such introduction that the child be consulted and her consent obtained.
I turn now to the question of how this introduction may best be organised. Dr M’s evidence is clear that the introduction can best be done by the use of a professional person.
The respondent in his written submission seeks a variation of Purdy J’s orders so that the first occasion of introductory contact as envisaged by his Honour occur in a family friendly situation in Western Australia. This to my mind further demonstrates the difficulty that exists between the two men. It is to my mind a further indication that Mr Owen simply refuses to acknowledge the importance of Mr Archer in the child’s life.
His proposal would have him spend time with the child whilst she was in turn spending time with her mother away from the place she calls and considers to be her home. I am conscious of the fact that the child says her relatives in Western Australia are nice and that she likes them. However to my mind the proposal by Mr Owen is an indication of the lack of child focus by Mr Owen. Further it highlights the difficulty in communication that exists between Mr Owen and Mr Archer.
I am satisfied that the introduction should occur under the supervision and effective control of Dr M. I am satisfied that Dr M should be the person to determine the manner in which the introduction is to be performed and who is to be present when the introduction occurs. I propose to order that the costs of that introduction be born by Mr Owen.
The issue then remains as to what time the child should spend with Mr Owen once the introduction has been performed. Purdy J set out a regime for time.
My orders provide that the introduction between the child and Mr O will not be performed until the child is sixteen years of age. I do not believe it is either necessary or appropriate for me to make orders at this stage that would govern the ongoing relationship between the child and Mr Owen once the child has attained the age of sixteen years. Rather once the introduction has been performed I believe it would be a matter for the child and Mr Owen to reach an agreement as to what time they will spend together, and the manner in which they will communicate with each other. At sixteen, and having met Mr Owen, the child will be able to formulate and express her wishes as to the extent and nature of her ongoing relationship with Mr Owen.
I do however propose to order that Mr Archer use his best endeavours to ensure that any wish the child expresses to see, communicate with or make contact with Mr Owen is carried into effect.

The Issue of Parental Responsibility

At the outset of the proceedings, I declined to let Mr Archer to rely upon a late filed application to vary the order made by Justice Purdy for each of Ms Parker, Mr Owen and Mr Archer to have equal shared parental responsibility for the child. However as set out in paragraph 45, I did indicate that the issue may well arise during the conduct of the procedures. The issue of parental responsibility remains a live one and it is therefore necessary and appropriate that I deal with it.
S.61DA of the Family Law Act is in the following terms:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court 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.
Accordingly the presumption does not apply if there are matters of violence arising. That is clearly not the case here. However subsection (4) provides that if there is evidence capable of so doing, the presumption may be rebutted.
The starting point is the fact that there are already in orders in existence by his Honour. To my mind there must be demonstrated some good reason for changing those orders. To my mind the level of conflict already demonstrated to exist indicates that there is no real likelihood of Mr Archer and Mr Owen consulting with each other or indeed communicating with each other at any meaningful level for the benefit of the child.
Having regard to the orders I propose to make postponing the introduction of Mr Owen and the child, I am concerned that the potential for dispute between Mr Owen and Mr Archer would be significant and would not be in the best interests of the child. Ms Parker and Mr Archer seem to have at least something of a workable arrangement, with the assistance of Mr Parker, in respect of matters concerning the child. On what I have heard and seen from each of Mr Archer and Mr Owen in the witness box they are unable to communicate with each other in any meaningful fashion that would be of benefit to the child. I am not persuaded that there will be any change in the future.
The effect of this evidence is to satisfy me that the presumption that Ms Parker, Mr Owen and Mr Archer should share parental responsibility is rebutted.
In the circumstances of this case I am satisfied it is in the best interests of the child so as to minimise the potential for conflict which would directly affect her, that the mother and Mr Archer are the appropriate persons to have equal shared parental responsibility for the child. I see no useful purpose being served in Mr Owen having to be consulted and involved in decisions concerning the child’s life at this time, notwithstanding his express wishes to be so involved.

Costs

Mr Archer in his submissions seeks orders that would have Mr Owen pay his costs. The respondent in his written submissions seeks a similar order for costs. Both applications seek that I assess the appropriate level of costs.
Ms Parker also seeks an order for costs.
So far as Ms Parker is concerned, she participated in the proceedings by telephone. She gave no evidence. She made brief written submissions.
It is sought that if I make an order for costs that I assess those costs rather than have them assessed by an appropriate person.
S.117 of the Family Law Act (1975) as amended deals with the issue of costs. Clearly the ordinary rule is that each party bear their own costs. However subsection (2) provides that if the Court is of the opinion that there are circumstances that are justified in doing so the Court may, subject to subsequent subsections and Rules of Court, make such order as to costs as the Court considers just. The circumstances need not be exceptional (See Penfold[2]).
[2] (1980) 144 CLR 311
The considerations relevant to the making of an order for costs are set out in subsection (2)(a) of the Act.
The first of those is the financial circumstances of the parties. I have no direct evidence of the financial circumstances of the parties. For the purpose of this determination I am prepared to assume that none of the parties live in other than modest circumstances. I am satisfied that Mr Archer has employment. I have no details of Mr Owen’s situation nor of that of Ms Parker.
I have no evidence that any of the parties is in receipt of a grant of legal aid.
As to the conduct of the parties to the proceedings before me, I am satisfied that the application by Mr Archer arose from material contained in the report of Dr R. That report came into existence as a result of the mother retaining the child in Western Australia after a period of time the child spent with her.
Dr R clearly raised the introduction issue. From that point on it was to my mind inevitable that the proceedings should flow. Those proceedings were hard fought to their very end. Having said that, I am not aware of any of the matters set out within the subsection that would indicated that either Mr Owen or Mr Archer caused any prolongation or extension of the hearing.
Subsection (d) had no direct application.
Subsection (e) it could be demonstrated that in light of the orders that I have indicated I propose to make that Mr Owen has been entirely unsuccessful in his opposition to the orders that Mr Archer proposed. This however is only one of a number of factors which I have to deal with.
I am not aware of any written offer.
I turn then to the subsection which entitles me to deal with such other matters as the Court considers relevant.
This has been a most unfortunate case for all concerned. One may well have expected that the matter was finalised when Purdy J delivered his orders allowing for the child and Mr Owen to be introduced, and thereafter for a regime of contact to come into play.
It is in my view the report of Dr R to which I have made numerous references in these reasons for judgment that was the cause of Mr Archer bringing the applications before the Court. I am satisfied that Mr Archer had a good and proper reason focusing on the interests of the child in doing what he did.
I am also satisfied that Mr Owen, having the benefit of Purdy J’s orders, did not act inappropriately in seeking to maintain those orders. The issue was one that in the circumstances of the case required litigation and determination. In all the circumstances of the case I am satisfied that no order for costs should be made in favour of or against Ms Parker, Mr Owen and Mr Archer. I do however propose to order that Mr Owen pay one half of the fees of Dr M incurred in the preparation of his report. I am satisfied that the mother paid the entirety of the fees for the preparation of Dr R’s report and I propose to make no further adjustment or any order flowing from there in respect of that amount.

For the foregoing reasons I make orders 1 to 9 as set out at the commencement of this document.

I certify that the preceding one-hundred-and-eighty-seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 25 August 2008

[2008] FamCA 1227

25 August 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Remedies