ATKINSON & ATKINSON

[2019] FamCA 436

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON [2019] FamCA 436

FAMILY LAW – CHILDREN – Undefended hearing – Where following release of Expert’s Report the father filed a Notice of Discontinuance – Where the father has perpetrated family violence – Where the child has oppositional defiance disorder and attention deficit hyperactivity disorder – Where consideration of child’s best interests – Where the expert recommends that the father have identity contact only – Where orders made as sought by the mother and supported by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Atkinson & Atkinson [2017] FamCA 274
Goode and Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520

APPLICANT: Ms Atkinson

RESPONDENT: Mr Atkinson

INDEPENDENT CHILDREN’S LAWYER: Ms Stolier

FILE NUMBER: PAC 4343 of 2013

DATE DELIVERED: 4 July 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 31 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Fay Rose Legal

SOLICITOR FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyers

Orders

1. That the mother have sole parental responsibility for the child X born … 2013 (“the child”).

2. That the child live with the mother.

3. That the child spend no time with and have no contact with the father.

4. That the father is restrained from contacting or approaching the child in any way.

5. That the father be restrained from approaching any school, child care facility or extra-curricular activity on which the child may attend from time to time.

6. That the mother be entitled to travel outside of the Commonwealth of Australia with the child X, male, born … 2013 without the consent of the father.

7. That the mother may apply for an Australian travel document (passport) for X born … 2013 without first obtaining the consent of the father.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4343 of 2013

Ms Atkinson

Applicant

And

Mr Atkinson

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to an Initiating Application filed by the wife in April 2017 seeking final parenting orders in relation to the child X born in 2013.  These proceedings form part of a long history of litigation between the parties in the Federal Circuit Court of Australia and Family Court of Australia dating back to November 2013.

2. The mother has three older children from a previous marriage, Ms W aged 20, P aged 16 and T aged 13. These children live with the mother.

3. The father has three older children from a previous marriage, Mr Q aged 21, R aged 16 and S aged ten. The father did not spend time with his older children during his relationship with the mother.

4. The child has lived with the mother and had spent supervised time with the father since May 2017 although it appears that the father disengaged from supervised time with the child in or around the time that the expert report was released.

The proceedings

1. The parties commenced a relationship in 2011 and were married in 2012. The parties separated on a number of occasions during their marriage but did so on a final basis about April 2014.

2. On 3 May 2017 judgment was delivered in relation to the interim parenting arrangements for the child. That judgment, Atkinson & Atkinson [2017] FamCA 274 sets out the relevant history of the proceedings at paragraphs [6] to [17]:

   [6]Subsequent to separation the child was in the primary care of the mother until May 2014. At that time the child was retained by the father and the mother commenced proceedings.

   [7]On 9 July 2014 interim orders were made for the child to spend time with the mother from 10.00 am Friday until 10.00 am Monday each week and spend time with the father for the remainder of the week. Changeovers were to be affected at the F Town police station.

   [8]Subsequently, a final hearing as to parenting was conducted over some days in 2016 with final orders being made by Judge Harman in the Federal Circuit Court of Australia on 2 September 2016.

   [9]      The orders of September 2016 provided:

   (1)That all prior parenting Orders with respect to the child, X born … 2013, shall be and are hereby discharged.

   (2)That X’s mother, Ms Atkinson, shall have sole parental responsibility for all major issues decisions for X.

   (3)That X shall live with his mother, Ms Atkinson.

   (4)That X shall spend time with his father, Mr Atkinson, as follows:

   (a)Until X commences primary school the following shall apply:

   (i)Each party shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to arrange and attend the first available and offered intake appointment at the B Contact Centre Service to permit an assessment to be undertaken as to suitability for the parties to utilise that service for supervised changeovers;

   (ii)Upon assessment of suitability by the B Contact Centre Service each party shall then attend at such times, dates and places, follow all instructions and rules as are applicable with respect to the provision of supervised changeovers, pay all fees as are required and provide all consents, authorities and instructions as are necessary to permit changeovers to occur through the B Contact Centre Service;

   (iii)Upon the B Contact Centre Service being able to facilitate X’s transition from the care of the mother to the father at the commencement of each period of time and from the father to the mother at the conclusion of each period of time, X shall then spend time with his father for a period not exceeding two consecutive days and nights per fortnight and, if possible, from 5.00 pm Friday until 5.00 pm Sunday each alternate weekend and provided that if the above period cannot be facilitated by the B Contact Centre Service, then time shall be for such period not exceeding two consecutive days and nights per fortnight as can be accommodated and such period shall commence and conclude at such times and on such days as the B Contact Centre Service can facilitate;

   (b)Upon X commencing primary school, X shall spend time with his father each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day) and for such period not exceeding two consecutive days and nights per fortnight as can be accommodated by the B Contact Centre Service during school holidays and Mr Atkinson shall be responsible for collecting X from and returning X to school at the commencement and conclusion of each school term period and school holiday changeovers shall occur through and in accordance with the availability and rules of the B Contact Centre Service.

   (5) Pursuant to section 68B of the Family Law Act 1975, Mr Atkinson shall be and is hereby restrained and injuncted from presenting X to any counsellor, psychologist or medical practitioner, save with the mother’s consent first had and obtained and provided that this restraint shall not preclude a medical practitioner providing medical treatment to X in an emergency situation as defined by section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (being treatment that is required urgently to save life or prevent serious damage to the health of X).

   (6) Notwithstanding any Order to the contrary, each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to enable the details of each parent to be recorded as both a parent and emergency contact person upon any school enrolment for X and so as to enable each parent to obtain directly from X’s school any reports or information they desire and provided, further, that each parent shall provide to the school a copy of this Order and shall make a request of the school (in writing) that the details of each parent be recorded in such a fashion as to ensure that each parent’s details are not accessible by the other and are not provided to the other.

   (7) Each parent shall forthwith and contemporaneous with the event cause any medical practitioner engaged with X and providing emergency medical treatment to him to contact the other parent and advise them of that fact and so as to otherwise allow and permit each parent to be advised as to X’s treatment and diagnosis and to visit X if hospitalised.

   [10]Subsequently, by Notice of Appeal filed 13 September 2016, the father appealed in part the orders made on the 2 September 2016 to the Full Court of the Family Court of Australia. The father’s appeal was in relation to orders 2, 3 and 4 made by Judge Harman.

   [11]An application for a stay of the operation of the orders the subject of the appeal was dismissed by Judge Harman on 10 October 2016.

   [12]On 24 March 2017 the appeal was allowed with the Court relevantly making the following orders:

   (a)By consent, the appeal be allowed.

   (b)Orders 2, 3 and 4 made to September 2016 be set aside as on and from the first return date of the rehearing of the proceedings before the Federal Circuit court of Australia.

   (c)The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Harman.

   [13]Otherwise, the further orders being orders 5, 6 and 7 were not disturbed on appeal and have remained in force.

   [14]Consequent upon the orders made in September 2016, the child moved in to the mother’s primary care with the child spending time with the father as ordered.

   [15]The mother says that subsequent to the child coming into her primary care it took some time to get the child into a firm routine. She found that the child was better behaved when he knew what was going on. Initially, the child had difficulty settling into day care. The child had previously only attended his father’s day care centre. The child was initially aggressive with other children and would not share toys. He was spitting, scratching and throwing items at the other children. However, over time the mother reports that the child’s behaviours improved.

   [16]She says that the child’s behaviours on his return from time with the father are not present at her home or at the child’s day care.

   [17]In circumstances more fully discussed below, the child subsequent to spending agreed time with the father was not returned by the father to the mother’s care and has remained in the father’s care spending no time with the mother pending determination of the present applications.

3. Following the father unilaterally retaining the child, the mother filed an Application in a Case seeking a recovery order for the child.

4. This application was heard and interim orders were made on 3 May 2017 that provided for the mother to have sole parental responsibility for the child, for the child to live with her and spend two hours of supervised time per week with the father.

5. In May 2017 the father filed a Notice of Appeal to the Full Court and soon after sought a stay of the orders made on 3 May 2017. His application for a stay of orders was dismissed and the father was ordered to pay the mother’s costs of the application.

6. On 20 February 2018, during a case management list, the father told the Court that he would not be taking any further part in the proceedings, however, his solicitor continued to engage in the proceedings.

7. In June 2018 it was ordered with the consent of the parties that an expert be appointed to provide the Court with an Expert Report. The parties were interviewed and observed by the expert in October and November 2018.

8. The Expert Report was released to the parties on 27 February 2019.

9. On 18 March 2019 trial directions were made to ready the matter for final hearing.

10. On 16 May 2019 a compliance check was conducted and the father had not filed documents in compliance with trial directions. On this date the father filed a Notice of Discontinuance.

11. As the father has discontinued the proceedings, the matter proceeded to an undefended hearing on 31 May 2019. At the undefended hearing judgment was reserved.

The mother’s documents

1. At trial the mother relied on the following documents:

   a)Further Amended Initiating Application filed 20 May 2019;

   b)Her trial affidavit filed 10 May 2019;

   c)Affidavit of Ms U filed 29 May 2019.

2. In her Further Amended Initiating Application filed 20 May 2019 the mother seeks final parenting orders, in summary, as follows:

   (1)That the child live with her;

   (2)That she have sole parental responsibility for the child;

   (3)That the father have no time with or communication with the child;

   (4)That the father be restrained from contacting or approaching the child or his school, child care or extra-curricular activities;

   (5)That the mother be allowed to travel with the child overseas without first obtaining the consent of the father;

   (6)That the mother is entitled to apply for an Australian passport for the child without the consent of the father.

The evidence

1. The mother, who is 41 and the father, who is 49 began a relationship in approximately … 2011 and married in 2012. The parties are of Country Z heritage and registered their marriage in Country Z.

2. Shortly after the parties’ married, the father began perpetrating physical and emotional abuse against the mother.

3. In June 2012 there was an incident in which the father became verbally abusive towards the mother calling her a “slut” and stating she is “nothing but filth”. He then spat at the mother, threw her onto the bed and punched and kicked her. At this time the mother was in the early stages of a pregnancy.

4. The parties’ had regular verbal arguments in regards to the father not wanting the mother to spend time with her older children. On an occasion in August 2012 the father and mother were arguing about her children when he kicked her in the legs and stomach, sat on top of her and attempted to put out his cigarette on her mouth. When she tried to get away from the father he stepped on her head. The father threatened the wife that if she leave he would burn her ex-partner’s vehicle. Shortly after this incident the mother miscarried her pregnancy.

5. Following the miscarriage the mother attempted to leave the father, however, the father became verbally and physically abusive and refused to allow the mother to leave. That night the father left the family home for a number of hours.

6. The next morning one of the mother’s older children said that the mother’s former partner’s vehicle had been burnt. The mother became fearful that the father had burned the vehicle and began walking away from the father’s home with her older children. The father found the mother and her children and began verbally abusing her. A stranger observed the abuse and offered the mother and her children assistance and drove them to the mother’s friend’s home, where the police were contacted.

7. The police took out an interim Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the mother and he was charged in relation to the assault. However, shortly after this incident the mother returned to live with the father and withdrew her statement resulting in the charges and ADVO being withdrawn and dismissed.

8. The mother again left the father in October 2012 and stayed in a women’s refuge, however, returned to the relationship a short time later.

9. In late 2012 the mother became pregnant with the parties’ only child. The father continued to be abusive towards the mother during the pregnancy, including hitting her on the legs and back of the head.

10. The father exercised financial control over the mother only allowing her money to buy groceries. The father was also controlling over the mother’s relationships and did not allow her to spend time with her older children.

11. In … 2013 while the mother was working in the business owned by the father, the father put his hands around the mother’s neck and began to squeeze. The mother screamed and the father stopped.

12. The mother immediately began to make arrangements to leave the father including leasing out an apartment and purchasing furniture for it. The father once again convinced the mother to stay in the relationship.

13. The parties’ only child, X was born in 2013 and is currently aged five.

14. An incident occurred on 23 September 2013 which precipitated the parties’ separation. The father told the mother that she would never see her children again then dragged her to the floor and hit her repeatedly over the head. The mother was unable to get up from the floor for two hours. The following day she left telling the father she was going to visit her older children.

15. Following the separation the child lived with the father and the mother spent time with him on approximately six occasions between then and 16 October 2013. In October 2013 interim orders were made by a judge of the Federal Circuit Court of Australia for the child to live with the mother and spend supervised time with the father.

16. Following separation in December 2013 the father attended at the mother’s home and physically assaulted her by pushing her onto a couch, covering her mouth and nose with his hands and then biting her mouth, resulting in her bleeding and developing an infection. Police attended the incident and asked the father to leave. No further police action appears to have been taken.

17. Regrettably, the parties resumed their relationship in January 2014 and the parties discontinued the Court proceedings in the Federal Circuit Court of Australia.

18. Shortly after recommencing their relationship, the father returned to behaving in an abusive manner towards the mother. In February 2014 the mother was punched in the face by the father and she called the police. However, she remained in the relationship.

19. In March 2014 the father told the mother that he wanted her to leave and told her to sign an agreement in which the child would live with the father and she would spend time with him for two hours each day and all day Saturday. The mother was scared for her safety and signed the agreement.

20. The parties separated on a final basis in April 2014 at which time the father took the child and refused to return home unless the mother had left. He went to police and accused the mother of being violent and of mistreating the child.

21. The mother re-commenced proceedings in the Federal Circuit Court of Australia on 26 May 2014.

22. Following final separation the mother did not spend time with the child until 4 June 2014, after she signed consent orders which allowed her to spend two hours of supervised time with him a fortnight.

23. On the mother’s first supervised visit with the child the father had become abusive towards the people who had agreed to supervise the mother’s time with the father. The supervisors then told the mother that they no longer wanted to supervise her time. This led to the father ceasing the child’s time with the mother.

24. On 10 June 2014 the mother was charged with a breach of an interim ADVO in relation to allegations made by the father. The mother attended court in relation to the ADVO in August 2014, the outcome of this court event is not known.

1. In July 2014 interim orders were made for the parties to share parental responsibility, for the child to live with the father and spend time with the mother from Friday to Monday each week. These orders were operative until September 2016 and during this time the parties struggled to cooperate with the parenting of the child. The father made multiple allegations against the mother during this time in regards to her care of the child and exposed the child to an excessive number of medical appointments.

2. Following the final orders of Judge Harman in September 2016 the child lived with the mother, however, the father continued to make allegations that the mother was abusive towards the child. Although the police investigated the allegations no charges were laid against the mother.

3. The child’s behaviour became increasingly difficult when he returned from the father’s care and as such the mother ceased making the child available to the father in November 2016. The father’s time resumed in January 2017. However, in April 2017 the father did not return the child to the mother’s care claiming that he had been hit by the mother.

4. Following the interim orders of May 2017, the child has lived with the mother and spent supervised time with the father. The mother reports that the child’s behaviour has markedly improved.

5. The child has been diagnosed with Oppositional Defiance Disorder and Attention Deficit Hyperactivity Disorder and has been prescribed medication to manage these conditions.

6. Since separation the mother has sought the support of a number of counselling and therapeutic services specialising in domestic violence.

The Family Report

1. The parties attended upon a family consultant for the purposes of a Family Report, dated 23 February 2015. In my judgment dated 3 May 2017, I summarised the opinions of the family consultant, the relevant paragraphs have been extracted below:

   The family reporter notes that the mother has three children from a previous relationship who, at the time of the report were aged 15 and 12 and 8, who live with the mother. Observations by the family reporter demonstrate a good relationship between these children and the subject child. It would appear probable that these relationships have strengthened in the period that the child has spent in the primary care of the mother since September 2016.

   The family reporter notes many and varied allegations by the mother and father one against the other. The ultimate resolution of those allegations will now await a further final hearing at a future date.

   It is noted that the father during the course of the family report interviews proposed that the mother’s eldest daughter Ms W who is now almost 18 years of age would be an appropriate supervisor of the child’s time with the mother. Ms W at present remains a member of the mother’s household.

   As a result of observations of the father and the child the family reporter expressed concerns about the father’s presentation. She expressed the view that if the father is controlling of the child and/or prioritises his needs above the child’s a particular concern would be the lack of opportunity for the child to achieve differentiation of self, which is significant in identity development. A failure to achieve differentiation of self can have a detrimental impact on self-esteem, independence decision-making capacity, reality testing, emotional and/or psychological well-being and their capacity to form healthy adult relationships.

   Yet on the other hand the observations of the mother with the child were generally positive.

   As to the issue of violence, the family reporter noted that the mother made very serious allegations regarding family violence from the father. If the Court accepts her account of the violence it would be considered coercive and controlling violence which is likely to have caused the mother both physical and psychological injury. The family reporter noted that the father claimed that the mother’s complaints were fabricated and that her physical injuries were self-inflicted. These issues can only be resolved following contested evidence. Although the family reporter noted that both the Department of Family and Community Services and New South Wales police held concerns for the mother’s safety, it appeared that the father was also charged with violent offences against his previous wife Ms V.

   The family reporter opined that children can be negatively affected in numerous ways by having ongoing contact with a person who perpetrates family violence including controlling behaviour. This includes by having that person undermine their family relationships, increasing their own risk of exposure to violence and controlling behaviour, increasing their risk of experiencing psychological and emotional abuse and increasing their risk of being neglected physically and emotionally. Parents who perpetrate violence can also be overly permissive or authoritarian, they can use this as a weapon against the other parent and have impulsive reactions in disciplining the child.

   The family reporter notes the father’s allegations as to the mother suffering some mental health disability. Although it is noted that in the context of the present application he makes no such assertion. Ultimately, the family reporter’s recommendations were dependent upon the Court’s factual findings in relation to the many and varied allegations that the mother and father make one against the other.

Child Responsive Memorandum

1. A Child Responsive Memorandum dated 28 November 2017 was produced by a family consultant of this Court after observations and interviews were conducted with the parties and the child.

2. The family consultant observed that the father was observed to lead rather than follow the child’s play. He was observed to make comments to the child such as “why is your hair so long? Why not cut it” and “you are not eating?” which were observed to be negative in tone.

3. The family consultant observed that the child had lived amongst toxic parental conflict since birth, and that the intensity of the conflict leads to serious concerns for his short and long-term mental health and well-being.

4. The parties reported to the family consultant that the child was experiencing behavioural difficulties including that he slapped a childcare worker and bullies other children, which the family consultant reports is due to or exacerbated by the chronic parental conflict and that it is possible that the child has been psychologically impacted by abuse and/or neglect by one or both parents.

5. The family consultant held serious concerns in regards to the child’s well-being and recommended an expert report be ordered and that the matter be expedited.

Expert Report

1. In October 2018 the parties, the child and the mother’s older children were interviewed by Ms L (“the expert”), a psychologist and clinical psychology registrar for the purpose of the preparation of a Single Expert Report.

2. The Expert observed the child with the mother and her older children and opined that although the child displayed some challenging behaviours the mother was able to respond quickly and appropriately to him and was emotionally supportive of the child allowing him to remain largely relaxed during the observation. She was also observed to be the child’s primary attachment figure.

3. On the contrary the Expert held serious concerns regarding the father’s parenting practices following the observation between him with the child, stating:

   [The father] was not child-focused, was not attuned to, or flexible in responding to [the child’s] needs, and continued to utilise coercive, indulgent and emotionally saturated statements in an attempt to encourage [the child’s] compliance (which was hugely unsuccessful).

   The observation was also consistent with the provided documentation which indicates long-standing concerns that [the father] is controlling of [the child] and continues to prioritise his own needs over those of his son. It is noteworthy, that despite [the child’s] challenging (and outrageous) behaviour’s, [the father] did not become dysregulated or aggressive in the interaction, and it is very clear that [the father] loves his son. However, [the father] was unable to provide any clear containment for [the child], no consistent limit-setting and thus did not assert any appropriate parental authority that would assist in effectively managing such challenging behaviour. The importance of this, is that due to [the child’s] young age he requires an adult to assist him in these moments to co-regulate, provide behavioural and emotional boundaries (and thus containment) for him to feel safe, and then in time, be able to learn how to independently self-soothe and regulate.

4. The expert was of the view that the father’s lack of insight into appropriate parenting practices was unlikely to improve and opined:

   Of greatest concern is that despite [the father] attending multiple parenting courses, being directly accused by police of coaching [the child], breaching Orders by continuing to take [the child] to doctors or psychologists, and receiving ongoing feedback from independent professionals, [the father] is continuing to show this emotionally coercive behaviour whilst being supervised, and thus, does not recognise the need for change or the negative impact it is having on [the child]. In the observation, [the father] also showed these tendencies (i.e. emotional manipulation, unable to manage [the child’s] behaviour or respond to his emotions) despite suggestions from myself, which suggests he is unable to adapt his behaviour, even with feedback or assistance. He was also unable to reflect on [the child’s] experience after the fact, despite being explicitly prompted to consider his sons thoughts and feelings. My view is that the lack of behaviour and attitude change demonstrated by [the father] further escalates the risk posed to [the child] if he was to spend unsupervised time with [the father].

5. It was ultimately the expert’s view that if the child was to have ongoing exposure to his father it would have a negative and detrimental effect on the child. Indeed, the expert held such serious concerns about the father that she recommended that the child spend time with him for identity purposes only, on a maximum of six occasions per year.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, 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.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. In the circumstances of this matter where there has been significant ongoing family violence the presumption will not apply. Otherwise, for the reasons set out below, it is clearly in the best interests of the child for the mother to have sole parental responsibility.

Best Interests

The Primary Considerations: s 60CC(2)

1. 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. It is readily apparent that the child’s ongoing relationship with the mother as his primary carer is important, significant and valuable.

4. The expert observed that the child demonstrated trauma behaviours while spending time with the father. That the father was unable to provide suitable boundaries or calm the child down. It is the opinion of the expert that the child will be negatively affected by having ongoing exposure to the father and therefore a meaningful relationship with the father is not recommended by the expert as being in the child’s best interests. The orders sought by the mother will effectively end the child’s relationship with the father. It may be the case that when the child is an adult he may choose to rekindle this relationship.

Section 60CC(2)(b) – need to protect

1. This is a salient issue in these proceedings. There is significant concern regarding the risk to the child in the father’s care. While there has been no suggestion that the father poses a physical risk of harm to the child, there is evidence which suggests he would pose a risk of psychological harm. The expert opines:

   Given my assessment of the entitled, coercive and controlling behaviour of [the father], as [the child] matured and attempted to develop more independence, a greater level of conflict (including physical harm) might be anticipate.

   Regarding psychological harm, it is my opinion that [the child] displays the behaviours consistent with considerable attachment trauma that is most often associated with emotional/psychological abuse. In the observation with [the father], [the child’s] behaviours were dysregulated, aggressive, and regressed and were markedly different to those he displayed in the presence of his mother. Of most concern, is that [the child’s] behaviour became highly disorganised where he was seen to seek proximity with [the father] while also actively rejecting it, mixing proximity seeking with aggression, and avoidance with hiding, freezing and self-harming behaviours. Nothing [the father] did could reduce [the child’s] distress, nor could he be soothed, and this suggests that [the child] is not provided consistent, reliable and attuned responses to his needs and emotional expressions.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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 extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

   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)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   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; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The child was not able to be interviewed by the expert in any meaningful way, however, expressed excitement when he initially saw both his mother and father. Given the age of the child, his diagnoses and the fact that he was unable to engage in an interview of any substance with the expert no weight is given to his views.

1. The child has lived in the primary care of his mother since 2016 and it was observed by the expert that the mother was the child’s primary attachment figure. The expert opined that the child shared a close and warm relationship with the mother. The child was also observed with his maternal half-siblings who he clearly shared a close bond and attachment. He was particularly responsive to his oldest sister, Ms W.

2. The child has spent minimal, supervised time with his father since the child was aged three. The expert opined that while the father clearly loved the child and they share a close relationship, the child’s attachment to the father was disorganised. In particular, the child was unable to be soothed by the father and quickly became dysregulated, distressed and engaged in self-harming behaviours while in the presence of the father.

3. Until recently when the father discontinued the proceedings, the father has consistently sought orders that would facilitate the child living with him and spending time with the mother. Despite this the father has not demonstrated a positive attitude to the responsibilities of parenthood. He has continually denigrated the mother, failed to work cooperatively with the mother in a shared parenting arrangement and failed to comply with Court orders. For example, he breached Court orders by withholding the child from the mother in 2016 and taking the child to the doctor despite a Court order restraining him from doing so without permission. In this regard the Court can have no confidence that should he spend time with the child that he would comply with orders or restraints placed upon him by the Court.

4. The parties have entrenched conflict and there has been an irrevocable loss of trust between the mother and the father due to the father’s physical and emotional abuse towards the mother during their relationship. The parties do not have the capacity to share parental responsibility, as they currently do not communicate with one another. Any attempt at joint decision making would increase the conflict between the parties and would, therefore, have a detrimental effect on the child. As the child will live with the mother it is in his best interests that the mother have sole parental responsibility.

5. The orders sought by the mother will not see a significant change in the child’s circumstances in that the child has been living primarily with the mother for some years now. However, it will result in the child no longer spending any time with the father, which was occurring for two hours each fortnight. The decrease in the child’s time with the father is largely in accordance with the expert’s recommendations which were for identity contact only. The father has removed himself from the proceedings and does not seek any orders as to time with the child and, therefore, an order for identity contact is not appropriate. There is no practical difficulty or expense associated with those orders.

6. All of the aforementioned relevant considerations are indicative of orders being made in the best interests of the child as sought by the mother. Orders are made accordingly.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 July 2019.

Associate: 

Date:  4 July 2019