Barlow and Jarman

[2017] FamCA 682

FAMILY COURT OF AUSTRALIA

BARLOW & JARMAN [2017] FamCA 682

FAMILY LAW – CHILDREN – PARENTING ORDERS – where there is a long history of litigation and a previous final hearing – where orders arising from that did not work successfully – where the mother concedes major issues leaving supervision and the extent of her time only to be determined.

Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357
Doherty and Doherty [2016] FamCAFC 182
Rice and Asplund [1978] FamCA 84, (1979) FLC 90-725
Stott and Holger and Anor [2017] FamCAFC 152

APPLICANT: Ms Barlow

RESPONDENT: Mr Jarman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: AYC 66 of 2009

DATE DELIVERED: 6 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24, 25 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swan

SOLICITOR FOR THE APPLICANT: Swan Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kildea

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rama Myers Family Lawyers

Orders

1. All existing parenting orders are discharged.

2. The father has sole parental responsibility for all major long-term decisions concerning X (the child) born … 2008.

3. The child shall live with the father.

4. Unless the parties agree to a shorter period, for 2 years from this date, the child spend time with the mother under supervision by the C Town Children’s Contact Service for one day every 4 weeks for as much of that day as can be accommodated by the manager of that service.

5. The father (or his nominee) shall deliver the child to the said contact service and collect her at the times nominated by the manager.

6. Upon the expiration of the 2 year period, the child spend such time with the mother as the parties agree and failing agreement, during each alternate weekend from 10 am on the Saturday until 5 pm on the Sunday including during school holidays.

7. Unless otherwise agreed, all changeovers shall take place at the contact service.

8. That the child communicate electronically with the mother (by FaceTime or by mobile telephone) every alternate Wednesday at 5.30 pm for up to 30 minutes but all such communications may be within the hearing of the father who may terminate the call if the mother discusses inappropriate matters with the child.

9. That for the purposes of paragraph [8], providing the mother gives the relevant telephone/FaceTime number details to the father, he shall be responsible for facilitating the communication.

10. By injunction, the mother is restrained:

    (a)from attending at the child’s school save with the specific written permission of the school principal;

    (b)communicating with the child otherwise than according to the terms of these orders;

    (c)attending at the child’s home without the written permission of the father; and

    (d)attending a venue at which the child is participating in an activity unless the father has given written permission.

11. The father is;

    (a)at liberty to provide a copy of these orders to the child’s school and any health professionals upon whom she attends;

    (b)at liberty to provide a copy of these orders and the reasons for judgment published this day to the Manager of the C Town Children’s Contact Service; and

    (c)to promptly advise the mother electronically of any serious medical condition or injury suffered by the child and details of any medication provided for such condition or injury.

12. Should any party (or the Independent Children’s Lawyer) desire to seek a costs order arising from these proceedings, they may make such application by written submission filed and served by no later than 4 pm on 29 September 2017 (with such submission duly endorsed that it has been so served and if so, how) and the recipient of any such submission shall have until 4 pm on 13 October 2017 to file and serve any reply (and with such submission similarly endorsed) and any such application shall be heard and determined in chambers.

13. The order for the appointment of the Independent Children’s Lawyer is discharged subject only to the issue of any costs application.

14. All extant applications are otherwise dismissed.

15. It is certified that it was appropriate for the father and the Independent Children’s Lawyer to brief counsel.

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 Barlow & Jarman 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

FILE NUMBER: AYC 66  of 2009

Ms Barlow

Applicant

And

Mr Jarman

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. X aged nine years is the only child of the relationship and marriage of Ms Barlow (“the mother”) and Mr Jarman (“the father”).

2. This case is about the extent of the child’s relationship with her mother and whether it should be supervised into the future. It did not begin that way because the mother sought that the child’s care be shared with the father. By the end of the hearing, after making substantial concessions, her position was entirely different and indeed, supportive of orders for the father to have the predominant role of the care of the child.

3. It will be seen from what follows, and the orders at the beginning of these reasons, that I consider there is currently still an unacceptable risk of harm to the child if her mother’s time is not supervised.  The difficult question then becomes, for how long?

Background

1. Because of the way the case was conducted, the background history has to be set out in some detail.

2. The short relationship of the father and the mother began in November 2006, they married in 2007 and then separated in November 2008.  When they separated, the child was not even a year old.

3. The father began litigation in the then Federal Magistrates Court in February 2009. Thus, the parties have litigated about the child all of her life.

4. Because of the constant litigation and the difficulties that I accept were created by the mother, any trust of her by the father is absent. I accept his reticence about that but looking at what has happened over the years, I find he has been persistent in wanting a relationship with the child and nothing about his conduct could be criticised.

5. Because of the final position adopted by the mother, it is unnecessary for me to detail every piece of evidence and every court consideration of what occurred during the 9 years of the child’s life. Thus, I have relied heavily on what I was told by the parties. I begin with proceedings that led to a final hearing in 2011.

6. In 2010, arising from evidence of a forensic psychiatrist given to a Federal Magistrate, the child was removed from her mother on an interim basis pending that 2011 final hearing of the parenting dispute.

The final hearing in 2011

1. The final parenting case along with the parties’ property dispute, was heard in the (then) Federal Magistrates Court by Judge Harman. The hearing was over six days in the months of December 2010 and May 2011 culminating in orders being made on 11 May 2011 that provided:

   1.        The parents have equal shared parental responsibility;

   2.Over a period of time, the child spend time with the father from after school on Thursday until before school on Monday in the first of two weeks and after school on Wednesday to before school on the following Friday in the second of the two week cycle (relevantly, from 2014, six nights per fortnight with the father);

   3.the child’s school holidays were to be shared equally; and

   4the child was to spend time with the father on a variety of the usual special occasions.

2. In the 2011 proceedings, the parties relied on three experts. Judge Harman rejected the evidence of all three. One of them was the psychiatrist who gave evidence in the earlier interim proceedings.

3. In the case before me, the family consultant (who had not been previously involved) referred to the opinion of the psychiatrist in 2010-2011 as explaining (in her mind) why the mother behaved as she did about contact between the father and the child. Judge Harman’s rejection of that psychiatrist’s evidence does not mean that it cannot be relied upon later. Its relevance was that the family consultant looked for some medical explanation and considered she found it. Adopting that approach does not mean her evidence is flawed and in any event, the psychiatrist was not called upon to give evidence again. The family consultant looked to explain something outside of her discipline in social work. I am satisfied the family consultant looked to the factual behaviours of the mother to explain what happened to the child rather than formed any opinion based upon the psychiatrist’s medical explanation.   She did not rely for her opinion solely on that evidence but rather felt what she saw was thereby explained. In my view, the evidence of the opinion of the psychiatrist is of little consequence.

How does the mother present her 2017 case?

1. In the 2011 proceedings, the mother, then represented by lawyers, asserted that the father was “controlling”. Judge Harman found that allegation unfounded.  The mother explained to the family consultant, and it apparently began as her case, that her own difficulty in encouraging the child at times to have a relationship with the father was due to her background. That necessitated her asserting that she was traumatised by having been subjected to family violence but no objective evidence supported that assertion.

2. Initially, the mother relied on a number of affidavits but that changed during the hearing. One example was an affidavit by her twin sister Ms B; in the hearing, she chose not to rely upon it. There is an incident to which I return below which involves the sister and would seem, in hindsight, to have nothing to do with the mother’s inability to get the child to have contact with the father. It is relevant because the mother now wants the child to have something approaching a normal relationship with her aunt and her young cousin and the father expressed reticence. It was Judge Harman in 2011 who heard evidence from that sister and described her as having a poisonous and malicious attitude towards the father. I did not have the opportunity to hear from the sister but as the mother wants future contact to include extended family members, both the finding of Judge Harman and the finding I make below about the handover incident, become important. They certainly explain the father’s reticence about the mother and her family.

3. Initially, a feature of this case (as pleaded by the mother) was her request for a shared care arrangement. To propose such an arrangement had to mean that there was no dispute about the father’s parenting capacity or his sense of parental responsibility at least for a week at a time. Indeed, in the findings of Judge Harman in 2011, the father’s capacity to care for the child was found to be entirely appropriate.

4. Despite the findings by Judge Harman which were positive about both parents and which led to orders about a significant sharing of the child, the period of time thereafter was traumatic and unpleasant leading to the current focus on whether or not the mother could:

   (a)get the child to school; and

   (b)enable the child to spend time with the father under court orders.

The 2011 hearing

1. In the hearing before Judge Harman, his Honour found there was no evidence of physical or psychological harm to the child in the care of either parent.

2. One of the unique features of this case is that the Court has now had the advantage of seeing how orders worked; in this case they did not. More importantly, the evidence focuses on whether findings made about parental behaviour and responsibility were correct or whether, in the case of the father, they were as he had always asserted.

3. I find that within weeks of the orders of Judge Harman, there were problems of the mother’s doing. In the context of what happened, the findings of Judge Harman about physical or psychological harm to the child in the care of the mother were not supported by the evidence I heard although his Honour was certainly right about the fact that the father’s capacity to care for the child was entirely appropriate.

4. The other unique feature of this case is that the Court had the advantage of the effect of interim orders made in 2016 but also evidence of what had happened before they were made. Over the last 12 months, the Court has had the unusual opportunity to see the way the child dealt with the dispute between her parents and what happened after the court intervened in 2016. All of that was based upon the family consultant’s consistent involvement. The evidence establishes that the child needed a stable and settled routine and for 12 months now, that has been provided by the father with very restricted and limited involvement of the mother. According to the family consultant, the change in the child has been “amazing”.

5. Because of the mother’s assertion that her incapacity to handle the two matters mentioned above was something to do with the trauma of her background, the 2011 finding of Judge Harman is also helpful. His Honour contemplated (as he was required to do) the family violence issues and noted that the only evidence before him was that on one occasion there was a “push” and “slap” to the mother by the father.  That incident was prior to the separation which occurred two years before the final hearing. From the perspective of Judge Harman, at [145], family violence was of no note, or in other words, of no influence in the determination. Before me, the father’s evidence was that the push and slap arose out of an incident where each parent was involved in that conduct.

6. In 2011, Judge Harman made an order for equal shared parental responsibility. The mother began the 2017 case indicating she was again pursuing an order for equal shared parental responsibility consistent with the order of Judge Harman notwithstanding her own acknowledgement of difficulties dealing with the father. The case ended with the mother conceding that there should be an order in the father’s favour for sole parental responsibility in relation to medical and health issues. It is not clear why other major long-term issues would not also fall into the same category but I shall deal with that below.

7. I earlier mentioned the child’s removal in 2010. Before the final hearing by Judge Harman, a different federal magistrate had removed the child from the mother and ordered that she live with the father. That structure was reversed with the final orders in 2011.

8. Below, I set out a variety of incidents that gave rise to the various proceedings after the 2011 orders. They are of importance because they indicate how fettered the relationship had been between the father and the child. The question now is whether the mother’s conduct leads to a finding that unsupervised time will lead to a return to the anxiety experienced previously by the child.

Proceedings subsequent to 2011

1. In December 2014 a recovery order application was brought by the father in the Federal Circuit Court complaining of a breach of the 2011 orders. Nothing much happened.

2. Interlocutory orders were made in June 2015 including for the preparation of another family report.  There were interim hearings in January 2016 and March 2016 before a transfer of the proceedings to this court in June 2016.  Some of the incidents surrounding those hearings are detailed below.

3. In June 2016, interim orders were made by Senior Registrar FitzGibbon which substantially changed the sharing arrangement.  The Senior Registrar ordered that the child live with the father and that the child’s time with her mother be supervised at a contact centre. That hearing and order had all of the hallmarks and circumstances of what occurred before the Federal Magistrate in 2010. 

The issue(s)

1. Until shortly prior to the commencement of this trial, the mother was without legal representation.  She did not file any evidence as required by a court-ordered timetable.  Her explanation about that was that she had not understood her obligation.  At the last moment, she engaged solicitors one of whom appeared for her as her advocate.

2. On a number of occasions, the mother’s solicitor said the case had been hastily prepared and the evidence was limited but forensic decisions were made to continue. To the extent that there is a complaint about that, the Court endeavoured to accommodate the mother.

3. For example, the case was listed for two days because the mother had not filed any material. Her statement of not understanding the obligation has to be questioned because at a mention hearing some weeks before the trial began, she said she did not intend to do so and that all of the evidence was in the court file. She was informed that it was not the way the hearing would occur and she was reminded of an earlier directions hearing.

4. Because the mother failed to comply with the timetable, the father did not have an opportunity to respond to material provided at the last moment.

5. Over opposition by both the father and the Independent Children’s Lawyer, the mother’s affidavits were provisionally admitted. As the trial progressed, some of that evidence became patently inadmissible and as I have already indicated, other affidavits were not relied upon.  This created confusion but it also highlighted the importance of clarifying what the court was being asked to determine.

6. At the end of the second day, the hearing had to be adjourned in the mother’s solicitor’s cross-examination of the family consultant because of the nature and extent of her questioning of the family consultant.  I suggested that interrogatory style questions could be sent to the expert but any involvement, including a return to give evidence, had to be at the mother’s expense because, apart from not having anticipated any of the type of approach adopted by the mother’s solicitor, the father had paid all previous expenses even though it would seem the mother was also liable.

7. Over resistance from the mother’s solicitor, I ordered that the mother pay those anticipated expenses before the hearing or the expert could not be recalled, as there was no guarantee she would be paid. The family consultant was not an employee of the Court. As then transpired, no payment was made. The mother said she could not afford the cost yet she instructed two solicitors to attend Melbourne from Sydney.  The court was told that that arrangement had a ceiling or limit but the decision was made to continue that rather than fund the family consultant.  The father’s position was that the mother had a home and that can be seen in the property orders of Judge Harman.  I do not know details of the mother’s financial circumstances otherwise because no evidence was produced.

8. When I asked about the return of the family consultant, the mother’s solicitor indicated that the court would proceed without further hearing from that witness. Despite that, the family consultant made herself available for a telephone conference with all counsel and solicitors to discuss options. This was on the third day and presumably without charge at least to the mother. Whilst there was agreement between the legal practitioners about what was said in that teleconference, the mother’s solicitor submitted that as she had not had the opportunity to “test” certain propositions in cross-examination, she did not consider it appropriate to concede the statements of the expert could be admitted into evidence. I ruled that I would not accept the family consultant’s statement in those circumstances.

1. The Court had heard the evidence in chief of the family consultant and there were three reports. Cross-examination by the Independent Children’s Lawyer and counsel for the father had already concluded. In addition, the mother’s solicitor cross-examined for some time on the afternoon before the adjournment. Just what if anything, was untested, remains unclear.

2. The mother’s proposals should have been clear in any event from the summary of argument she filed on 20 July 2017 but that gave no indication of what issues were to be determined.  Whilst that document is not evidence, it set out the mother’s proposed orders. The legal practitioner’s cursory comments in relation to headings drawn from s 60CC of the Family Law Act 1975 (Cth) (“the Act”) did not address what it was that was actually required by the court. The timetabling order from March 2017 had made that clear.

The mother’s position at the end of the trial

1. At the conclusion of the father’s evidence, the mother’s solicitor said she wanted to make “an open offer” which had been put to the other practitioners but rejected. Because that proposition had not been put to the father in cross-examination, I had him recalled to comment on the proposal. He explained why he did not consider the mother’s position would make a difference to the child.

2. The mother proposed that:

   (1)The father have sole parental responsibility for health and education;

   (2)She have time with the child for two weekends out of three from after school Friday to 4.45pm on Sunday (with changeover at the contact centre);

   (3)The parties share all school holidays (equally);

   (4)There be the usual provisions about information-sharing;

   (5)The mother have telephone communication with the child twice per week for ten minutes but with privacy from the father.

   As the father indicated, that concept was rejected. For the reasons that follow, I agree it is not in the child’s best interests.

The position of the Independent Children’s Lawyer and the father

1. Both the Independent Children’s Lawyer and the father proposed that:

   (1)      The father have sole parental responsibility;

   (2)      the child live with the father;

   (3)For an indefinite period, the mother have contact under supervision at the contact centre for 1 day every 4 to 6 weeks as may be accommodated;

   (4)There the mother be restrained from spending time with the child outside of the orders unless with the father’s agreement including attending at the child’s school or communicating with school staff;

   (5)The mother be restrained from taking the child to any health professionals;

   (6)The father provide the mother with information about the child;

   (7)      There be non-denigration orders; and

   (8)      The Independent Children’s Lawyer explain the orders to the child.

Non-denigration orders

1. I do not propose to make “non-denigration” orders.  There are difficulties establishing or proving a breach and the evidence often comes from the child.  That would be unfair for the child because she may become cautious about what she says. 

2. More importantly, there is no evidence that the father has said anything inappropriate and, at least for the next two years, the mother’s time will be supervised.

Explanation to the child for the orders

1. I do not intend to order the Independent Children’s Lawyer to explain the orders.  If the father and the Independent Children’s Lawyer consider it appropriate, arrangements can be made.  It is unnecessary for there to be an order. The order for the appointment of the Independent Children’s Lawyer should otherwise be discharged save as to issues of costs

Obligation to inform the mother

1. The proposal that an order be made requiring the father to keep the mother informed of illness, likes and progress at school is also unnecessary.  I found the father child-focussed so I expect he would provide that information.  That view is strengthened by the evidence of Ms D, the father’s partner of seven years, offering to meet the mother; I did not detect any enmity there. There are opportunities for the lines of communication to be opened without formal orders.  It also makes sense for the father to communicate so that the child does not become confused about what her mother does and does not know about her development. Keeping the mother informed will also enable the mother to communicate with the child about issues of interest to the child.

The different positions of the father and the Independent Children’s Lawyer at the beginning and the end

1. The proposals at the end of the case were very different to how this case began. Initially the father and the Independent Children’s Lawyer each proposed a positive build-up approach but that was based upon the written evidence of the family consultant. As I canvas later, the opinions of that witness about the future were very guarded and conditional. There were many “ifs” in the report. That changed after the family consultant acknowledged her own pessimistic opinion about the mother and her lack of confidence there would not be a reversion to previous behaviour. It was that behaviour that worried the family consultant because of the impact on the child.

2. Reference was made in final address to the family consultant’s pessimism. It was submitted by counsel that the family consultant had previously been “too kind”.

3. When the case began, in respect of the proposals of the father and the Independent Children’s Lawyer, I raised the arbitrariness of nominating dates by which a child of the child’s age and background would be ready to “move forward” with unsupervised and/or increased time with her mother. It was artificial but underpinned by assumptions that a change in both the mother and the child had occurred.  The family consultant ultimately agreed that the safety net for the child to prevent a repetition of what went on for a number of years, was most likely to only become unnecessary in adolescent years when the child will be emotionally and psychologically stronger.

Two questions raised by the mother

1. Consideration of the father’s proposal caused the mother’s solicitor to raise two important points. First, the child has been having fortnightly time with her mother under supervision at the local contact centre for most of this year which is said to have been successful.  What now justifies a reduction in time as proposed by the father and the Independent Children’s Lawyer?

2. Secondly, bearing in mind the mother’s position of immediate unsupervised time, how does the Court justify an order for any (let alone long term) supervision?

3. The answers to both questions lie in considering the facts which led to this court’s interim intervention in 2016. 

How does the mother explain why all this happened?

1. When the mother spoke to the family consultant, she explained the child’s removal on the basis of not going to school and not spending time with the father under the 2011 orders.  Those responsive answers were the subject of cross-examination by the mother’s solicitor of the family consultant. She put to the family consultant that the responses of the mother were indicative of her having insight into her problem.  The family consultant did not agree.

2. The mother also said she had undertaken a course “Keeping Kids in Mind” at the end of 2016 as a result of which “it made a significant impact” on the way she saw the father; that is, she saw him as the child’s father, not as her “enemy”.  From this, the family consultant was probed about whether the mother had “woken up” to the importance of the role of both parents in the child’s life.  Again, on a predictive basis, the family consultant was not enthused.

3. The argument about having insight has to be seen in the context of the mother’s approach to this litigation. If the father was such an important parent, what was the purpose in setting out the violence allegations said to have occurred in the short period of their relationship?  It was submitted by the mother’s solicitor advocate that this was relevant to explain the mother’s trauma over the ensuing years subsequent to separation.  However, in 2011, whilst represented by counsel, the evidence of violence and trauma was not put before Judge Harman.  I am aware of the nature of this proposed evidence because I had to rule upon its admissibility. It was graphic in detail and the father had not been given an opportunity to respond to it.  I ruled it irrelevant.

4. It could only have been relevant if there was some substance to the submission that there was an explanation for the mother’s inability to separate from the child. The mother’s summary of argument made reference to an expert forensic psychologist (Mr E) being relied upon but as the trial began, his report had not been received even by the solicitor for the mother.  In discussion, the mother’s solicitor said that the psychologist was a “treater” having had some “sessions” with the mother. It was said the purpose of this proposed evidence was to explain the “trauma” of the mother which would explain her behaviour that led to the removal of the child in 2016.  That expert’s evidence was not filed nor was it relied upon.  In her final address, the mother’s solicitor said that she received the report very late and it had not addressed the issue she intended.

5. Throughout the child’s life, the mother has apparently been in counselling which she said arose from a violent relationship prior to the marriage with the father. An affidavit was filed from that counsellor and the mother’s solicitor initially indicated it was to be relied on but then altered that position and it was not read into evidence. 

6. The mother’s adult son was called as a witness in respect of a specific event to which I return below. His disdain for the father was obvious. Insofar as the mother wanted to attribute her own incapacity to encourage the child to have a relationship with the father, the son made no reference to violent incidents involving his mother even though she had said that her children witnessed them.

7. The mother’s submission about insight is not supported by any corroborative evidence. Insight was rejected or at least doubted by the family consultant.

The incidents leading to removal

1. When Judge Harman made the orders, the child was not at school but there were soon problems.  Analysis of what occurred is necessary having regard to the fine line between an anxious parent being overprotective and one who is prepared to disregard the role of the other parent regardless of court orders.  Having regard to the way the mother conducted her case and the absence of any probative evidence about her state of mind, findings are necessary about a range of incidents that I consider shed light on whether the problems endured by the child which were manifested as anxiety, were deliberately orchestrated by the mother or not. To some degree, her concession that the father should have the full time care of the child adds to the complexity of that question.

Father’s Day 2012

1. On Father’s Day 2012, the mother asked the father to reduce his time but he declined.  Under the 2011 orders, the father was to have the child until the Monday morning.  The mother maintained the orders meant that the child was to be returned on the Sunday night.  In 2011, the mother was represented not only by counsel but also by solicitors, and that this was a special occasion that obviously fell outside the normal handover routine. Any simple reading of the orders would then have provided the answer.

2. When cross-examined about an explanation for her position then and then again at this hearing, the mother maintained that there “may” have been some misunderstanding on her part. I reject that as the order is clear.

3. When challenged, the mother maintained that there was an “express” understanding (presumably with the father) but she added that “child protection” assisted in her thinking.  These statements all added to a justifiable concern about what she was then doing and whether she had some insight into the difficulties she was creating for the child. Leaving aside why there was any confusion about the order, was there a necessity to involve other authorities as the mother did?

4. This involvement added to an intriguing answer that she was “surprised” by what the father did.  Even if she had misunderstood the orders, there could be no suggestion that the child was at risk in the father’s care.  Under the orders, the father was to care for the child for a number of days at a time; an extra night was hardly a protective issue.  The child was not at school so getting her somewhere on the Monday morning was hardly an imperative. 

5. Whilst the mother may have been “surprised” about the father’s position, she or her family, called police a number of times that might using the emergency 000 number.  A demand for a “welfare check” was made and the police complied.  It is appalling that that happened.

6. The mother was of the view that the father had over-held the child and she took the view was entitled to know where the child was, thereby justifying the welfare check.  The mother’s solicitor submitted there was a justifiable concern on the basis that the father had taken the child gliding. That concern could not justify the approach she took in relation to the order. This was not only invasive of the father’s time and privacy as well as an inappropriate use of police resources but also, it was the beginning of concerns about the mother’s behaviour as a parent. 

7. It will be remembered that Judge Harman rejected the expert evidence which his Honour acknowledged was critical of the mother and his Honour was at least impliedly critical of another Federal Magistrate who removed the child from the mother based upon the evidence of the expert given at the time.  It is interesting that the same sort of conduct that gave rise to that earlier Federal Magistrate’s order began again, if it ever ceased. 

8. I find the mother’s interpretation implausible from any reading of the orders. 

Christmas 2012

1. The father asserted that despite the 2011 orders, he did not have the child over Christmas in 2012.  When the mother was challenged about this, her first response was to say that the father was not correct but she then added she might be wrong about that. 

2. The relevant period is dealt with in the May 2011 orders and like the Father’s Day incident, it is difficult to see how there could be any misunderstanding for the same reasons as before.  If I add her 2017 statement that she might have been wrong about the interpretation of the orders, it adds to my concern about the implausibility of her explanation but also whether she has any insight into the problems.

School commences

1. When school commenced in 2013, the child was described by the mother as “nervous and agitated”.  The father’s view was that the mother was the cause.

2. In the child’s first year at school, there were problems whenever the parties met.  For example, at a parent-teacher meeting in April 2013, the father was responsible for the child’s care. The mother spoke to the child who then refused to return home with the father.  Whilst that might be understandable if the child was distressed, anxious or confused, that was not the apparent difficulty.  Even if the child was clingy, the mother should have reinforced the father’s position and sent her home but she did not. 

3. It was not suggested that the father was incapable of managing the child; when he did have her in his care, there were no complaints. When Judge Harman made the 2011 orders, the child had not long turned three years of age.  There was no suggestion that her attachment to the father was lacking nor that Judge Harman accepted or rejected evidence from any social scientist that a child of the child’s age should not be away from her then primary attachment figure.  No appeal was raised by the mother against the orders of Judge Harman. 

4. During that time, the father had the support of his partner Ms D. The mother was asked about Ms D’s relationship with the child.  She acknowledged the child loved Ms D.  That is unsurprising as the child has known Ms D for over seven years. 

5. Nothing in the evidence of Ms D indicated that in 2013, there were problems of the nature described by the mother save that the child had expressed to Ms D concern about attending events where her parents were likely to be together because “they might fight”. None of that evidence was challenged nor was anything put to Ms D to indicate that she was entirely responsible for the child’s welfare or that the father had difficulty caring for the child.

6. Ms D had given evidence that at times the child remarked that there were some things that only her mother could do such as swimming and tennis.  That evidence too was not the subject of comment but it indicates the child was influenced by her mother to understand that there was a distinction between the roles of her parents. 

The school athletics carnival

1. In May 2013, there was a school athletics carnival.  The child was to spend the night with the father.  At the carnival, the mother went to the child and left with her.  The mother said that the father was late and the child had started crying.  The mother maintained that the child wanted to go home with her.  The father was cross-examined briefly about what occurred but he was not challenged at all about the mother taking the child home.

2. The mother’s description was that the incident was unpleasant and that the child was crying and wanting to return home with her.  But it was clear that the mother did not reinforce the differing roles each parent had under the orders. She saw no difficulty in adopting the child’s position.  The mother could not separate from the child.  Four years on, from the middle of 2016 when orders were made removing the child, there was no such difficulty (and has not been since) with the child spending limited time with the mother under supervision and then separating from her.

School disco

1. In July 2013, the school held a dance and the father took the child.  At the dance, the father went to collect the child only to find that she had left.  The mother then sent a text message to the father indicating that the child was with her and would be remaining with her. Nothing in that statement indicates there was difficulty in getting the child to return to the father or more importantly, what attempts she made to have the child return. I find there was no justification for her actions.

2. Considering the positive comments of Judge Harman in the published reasons ([2011] FMCAfam 1566) and the order for equal shared parental responsibility, one might be entitled to presume that both parents should be able to attend school events and participate in the childhood activities of their children. But here, the school has intervened to have a say because its concern about what was happening to the child.

The school’s position

1. The Family Consultant and the father both gave evidence about the views of the current principal of the school; her view was that the attendance of the mother at school destabilised the child in 2013. 

2. In 2014, the school principal expressed concern to the father about “possible emotional abuse or duress” inflicted on the child.  The father clarified that the principal told him that she was not talking about him but rather the mother.  That evidence is now supported by comments made by the current but different school principal who said to the family consultant that it was better for the child if the mother did not attend school at all.

3. The mother offered not to attend school during any period of time that the child was in the father’s care.  The mother’s solicitor cross-examined the family consultant about the mother keeping away and suggested that it might be a good idea.  The witness’ evidence was that perhaps a collection from school by the mother during her periods of time might be fine but I am more concerned that the school is reticent to have her there at all.

1. Both the Independent Children’s Lawyer and the father sought injunctive orders relating to the mother’s attendance at school. The evidence indicates the mother’s attendance has been disruptive but there may come a time where that changes such that the child no longer becomes anxious at those attendances. I do not intend that the Court tell the school principal how to conduct that operation but simply to note that the Court is supportive of the role the school plays in the child’s life. The principal may assist the father in working out when the child is ready to fully embrace the mother into the school community’s activities again.

Two significant statistics

1. Between 2012 and December 2015, on approximately 79 occasions, the child was not provided to the father.  That is a remarkable number of failures to fulfil court orders only made in May 2011 in circumstances where both parents had equal shared parental responsibility and the trial judge was complimentary of their abilities to care for the child.

2. The second and equally concerning statistic is that the child was absent from school for a significant number of occasions particularly culminating in the 2016 orders.  The precise number does not matter but on any view, the child missed a significant amount of school.   Although I have not done the precise calculations, there is a correlation between the number of occasions that the child was not at school and when she should have been handed over to the father.

December 2014

1. On 3 December 2014, the father received a message from the mother indicating that the child was coughing and sneezing and appeared tired.  Two days later, when the father saw the child, she looked well.  The child told him:

   Daddy, Mummy didn’t let me go with you because you wouldn’t let me go to (a cousin’s) birthday party.

2. That evidence was not challenged.  The cousin is the daughter of the mother’s twin sister whom Judge Harman described as poisonous and malicious.  When the mother’s solicitor cross-examined the father about the nature of the child’s relationship with this cousin, he was clearly uncomfortable and reticent to say that he should support any such association. I accept his evidence that having regard to what he had had to deal with from the mother’s sister, that reticence was unsurprising. 

3. Subsequent to the orders of Judge Harman, there was a school incident involving that sister and the father in the absence of the mother. It was said to have been electronically recorded by the sister but for the reasons earlier outlined, the mother chose not to read that document into the proceedings.  Bearing in mind the strident observations of Judge Harman about the sister, that may have been just as well.  What I was told however, was concerning.  The child clung to her aunt and was supported in remaining in that situation rather than going home from school with her father.  Police were called not only to defuse the problem but to ensure that the child went home as she was supposed to. It is interesting that the police were able to get the child to go home with her father.

4. The mother’s solicitor submitted that the child was close to her cousin suggesting that there was little the mother’s sister could do. Even so, the mother’s sister did nothing to alleviate the problem for the child. Police attendance should not have occurred.

5. I do not criticise the mother for her sister’s behaviour particularly in circumstances where the mother was not even present, but insofar as the father was cross-examined about his reticence in encouraging physical contact between the child and her cousin, I can well understand and accept his position.

6. A second incident occurred in December 2014.  This was the evening of the school presentation night.  The mother attended with a number of other people from her family.  During the night, the child went to her mother but at the end of the performance in which the child had taken part, she was taken to her mother’s car.  She was either clinging to her mother or being held by the arm and taken to the car.  The mother’s then partner was present and told the father that the child was going willingly when an observation was made by the father about “abduction”.  This partner was not called.   The problem was that the mother seemed incapable of separating the child from her own interests.

7. The mother’s evidentiary focus seemed more about what the paternal grandmother did and there was evidence about running up flights of stairs and being on crutches and the like. But all of that missed the point. Had the mother stood firm and said that the child was going home with the father as she was supposed to, no such problems would have arisen. The litigation then deflected attention from what should never have occurred.

8. The mother’s adult son corroborated the mother’s version but it is interesting that when they left the immediate area, they called the police.  Whilst that call may have been about the altercation between the mother and the paternal grandmother, on any view, that dispute came down to whether the grandmother slipped or in some way struck the mother. There was no suggestion of any significant injury.

9. In my view, the dispute was unnecessary.  For reasons earlier outlined, it is concerning when parents use police as an arbitrator or repository of complaints where there have been court proceedings and a determination according to law.  It is particularly concerning in circumstances where the parents have equal shared parental responsibility.  It is a good example of equal shared parental responsibility not working because if the parties cannot agree to work co-operatively about small issues requiring communication, it is hardly likely they will work positively together on major long-term issues.  I find there was little or no recognition of the father’s important role in the child’s life as was required by Judge Harman’s orders.

10. In the context of the mother’s assertion that she now has insight, I find the mother was not just responding to the child’s distress; she was doing things her way regardless of the 2011 orders and the views of the father.

11. In her evidence about the presentation night, the mother said that the child was scared, crying and asking her to take her home and ultimately she did. What she did not explain was what she had learned from that incident or how she would do things differently now. If she had seen herself as the problem, what was the solution?  She said in evidence that she contacted the manager of the Contact Service asking for assistance but that assistance was about how to overcome the child being “manhandled”. Only days later, the child went to her father’s home for two weeks. Nothing in the mother’s evidence indicated that there was any problem arising from that period.

12. In addition to those matters, the removal of the child from the school venue with all of the mother’s entourage present, gives credence to the evidence of Ms D about how the child perceived what her father was “allowed” to do.

2016

1. In 2016, there was a continuation of problems.  Until August 2016, the child had missed large amounts of school.  Whilst it was suggested that the mother was “home schooling” the child, her own better description was that she obtained material from the school and dealt with it at home.  But that did not help the child.

2. It is now common ground that the child is behind her peers in reading skills but otherwise progressing well at school. The mother’s approach of not getting her to school deprived the child of an opportunity and a right to participate in learning.

3. When the mother was pressed about why she had not promoted the relationship between the father and the child, her response was that her hurt and anguish about the marriage breakdown made her tentative and concerned that too much was on the line with the father.  That answer came in probing why the problem had continued for so long. Many years after the breakdown of the marriage and apparently with counselling throughout that time, the problem was not resolved.  No explanation was given by the mother as to why it took court intervention to see a totally different and largely anxiety-free the child.

4. The mother saw the father’s role in the child’s life rather simplistically. She was asked some questions about how she saw him. For example, she was asked whether she gave him any credit for the apparent transformation of the child since her removal in 2016. Her response was that we could have seen the same results if the child had been in her care and the father had had time with the child at the contact centre. There was a begrudging acceptance that there had been an improvement in the child’s anxiety. Her response was “it would seem so”. Why there would be any hesitation is unclear because there has been no apparent separation anxiety, clinginess or tearfulness at the contact centre.

5. When asked what role the father had played in the improvement, the mother said that his role was to house and feed the child. There was no apparent acknowledgment that the father had done a good job or that he had succeeded where she had failed.

6. When she was asked what she saw as the change in the child, the mother replied that the child had grown up and with the assistance of the contact centre, had developed “strategies”. What that meant was not explored but the inference I have drawn is that the child manages living with the father. That was an opportunity for the mother to acknowledge that the father had significantly contributed to the settling of the child, her regular attendance at school and her generally happiness; the mother could not acknowledge that role.

7. Despite cross-examination of the father about the depth and stability of his relationship with his partner Ms D, the same cross-examination occurred of Ms D.  This was after the mother’s solicitor had put to the father a proposal about the mother’s time with the child under which the father would be the child’s primary carer.  The approach in cross examination was that with the child’s attachment to Ms D, if the loss of that relationship occurred (by a breakdown of the relationship between the father and Ms D), the consequences would be traumatic for the child.  The relevance of that cross-examination was questionable but, assuming it was done on the mother’s instructions (or at least the foundation was from the mother), it raises questions about whether the mother does have insight into her own behaviour. 

8. Thus, when her final position was that the child should remain with the father and her own time be restricted to weekends, what was the relevance of a breakdown of any relationship between the father and Ms D?

June 2016

1. In June 2016, with proceedings back in the Federal Circuit Court again which seemed to be an endeavour by the mother to change the parenting orders and for the father to enforce them, Judge Harman transferred the proceeding to this court.  His Honour requested expedition and noted on his orders that there had been a breakdown of the relationship between the child and the father but he was also concerned about the child not attending or, was experiencing significant difficulty in regularly attending school.  His Honour’s notation attached to the transfer gives emphasis to the real issue in this case which is the health of the child. His Honour wrote:

   The parties have been involved in litigation for some years with little or no respite;

   Significant issues are raised as to the emotional and psychological health of the child the child and the capacity of the parents to address those concerns.

2. The father has no difficulty attending to the emotional and psychological health of the child.  Nothing in the evidence indicated that the father has any difficulties managing the child’s welfare. All of the expert evidence says he has a good relationship with the child.  The father is supported by the evidence of Ms D who also saw no difficulties in that relationship.  In 2011, the then Federal Magistrates Court made an observation that there was no difficulty with the father’s capacity to care for the child.  I too make a similar finding in 2017.

Evidence of Ms F

1. With the proceedings transferred to this court, the Senior Registrar ordered an update of a report that had been provided to the Federal Circuit Court.  That report was before the court. 

2. In her February 2016 report to the Federal Circuit Court, Ms F (a Regulation 7 family consultant, family therapist and social worker) opined that the child’s overall emotional needs were not being met.  That presumably was what concerned Judge Harman and gave rise to his observation mentioned above.

3. Despite the mother’s description of the father as possessive and domineering, Ms F found nothing other than a calm, patient man who had continued to demonstrate that patience over seven years. I too observed the same calm person as a witness. He was responsive to questions and gave every indication that despite his frustration for years, he was still focused on the child’s needs.

4. Ms F described the mother as either an insecure woman fearful of losing the child or of being a very manipulative parent who had worked hard to control the child.  In Ms F’s view, the mother had not worked in the best interests of the child because the child had taken on her mother’s anxiety during the father’s contact time.  Ms F had no doubt in February 2016 that the child would settle into living with the father because he could provide a calm environment without the stress or anxiety that was present in the mother’s home. That evidence was before Judge Harman in 2016.

5. It is to be remembered that at the time that February report was written, all of the problems that I have earlier described had occurred. 

6. Such was the gap between February 2016 and July 2016 that when the case was transferred, the Senior Registrar thought that an updated report was appropriate.  Ms F reported on 29 July 2016.  She made an observation that the “same old issues continue” including the child having difficulty separating from the mother. The issue of abuse by the father was raised again.  Ms F noted that the child was still suffering anxiety about her father and attending school.

7. Ms F had the benefit of subpoenaed documents to show the child had been the subject of a lot of attention by professionals including paediatricians, psychologists, psychiatrists, school staff, child contact centre staff, family report writers, CAHMS, hospital staff and speech pathologists.  Ms F thought that bordered on systemic abuse. I agree the attention is concerning. Whilst there is evidence that the mother dutifully attended to speech therapy, what was not explained was why she thought the contact centre staff could sought out the anxiety and handover problems.

8. Ms F took the view that the mother wanted to push the father out of the child’s life but that the mother’s protestations were inconsistent with what the subpoenaed documents showed.  Those documents were not in evidence and no-one challenged Ms F’s perception of them. I accept that evidence and consider the issue again below.

9. Prophetically, Ms F said that the child should live with the father “before any serious damage is perpetrated”.  Alarmingly, Ms F described the matter as having reached a “crisis point” to enable the child to lead a normal life as a child without being subjected to the expectations of being an anxious and insecure child.  Those were prophetic words.

10. The Senior Registrar removed the child from her mother’s care and placed her immediately with the father.  The circumstances of change thereafter were remarkable. 

How did the child react to the change?

1. On her first day, the child dressed as usual and the father was able to convince her that she would have plenty of things to do at school and meet friends including on the bus. She got on the bus without his coaxing and entered her classroom without supervision. The school rang to say that she had arrived. The father described his actions as “tough love” but remarkably, the first week was uneventful.

2. In the second week, there was some resistance as the child wanted to do things the way her mother did such as coming home from school when she felt like it.  The father stood his ground.

3. Over the ensuing weeks, the school’s own observations of the child support the conclusion that the premonition of Ms F was correct.  Whilst there was resistance to routine, the father and Ms D were not challenged about how quickly the child settled. There was no contact occurring then with the mother. It was not said that the difficulties encountered were insurmountable but the remarkable thing was how quickly the child settled into her new routine. The anxiety has largely dissipated.

4. The best evidence of how successful the changeover has been is found in the evidence of Ms F.  She said:

   [75](The school principal) explained since the child has lived with (the father), she is attending school regularly so the school are now able to work with the child to assist her academically as she is behind.  The child is back into making friends, [sic] [the child] thrives in her school environment.

   [76]The issues of anxiety for [the child] are not present as they were when [the child] lived with (the mother) in addition, [the child] is able to spend time with (the mother) supervised at the (contact centre) for two hours each fortnight (and) then she is able to separate from (the mother) without suffering the high level of anxiety she did prior to living with (the father).

   …

   [79]At no time did [the child] demonstrate any anxiety during (the process of [Ms F] interviewing mother and child) and she happily left with (the father) and (his partner).

5. Ms F asked the child how she was managing the major change in her life.  The child said that she was doing quite well and that her father helped and calmed her down.  

6. Ms F was asked by the mother’s solicitor about attachment because the child had now had two separations (2010 and 2016). That issue could be of no relevance unless there was some expert evidence about long term problems affecting the child’s development if the attachment was lost. That evidence was not before the court and Ms F acknowledged the importance of the child having a relationship with her mother. She acknowledged that the child wanted contact with her mother. There is no evidence here of long term future damage as a result of separation but there is ample evidence of the anxiety and difficulty having a relationship with her father throughout the last few years. Attachment theories therefore have little relevance when the child had such a disrupted childhood not only in respect of her relationship with her father but also her peers with whom her association was disrupted by not being taken to school.  Ms F was well aware of the historical background and was not concerned about the child in the father’s care. 

7. There is also no evidence of trauma arising from that loss of attachment. The child knows and recognises her mother and separates well at the contact centre. She looks forward to her time with her mother and shows no resistance attending or at its conclusion.

8. The mother had apparently been seeing Mr E because he was described as a “treater” so his evidence may have assisted as to whether the mother understands the needs of the child. Mr E had not seen the child so any commentary or opinion by him would have been limited to either his observations of the mother or alternatively, if he was appropriately qualified, any opinion about the long term impact of the child of having limited contact with the mother. The opportunity to call that evidence was there because the solicitor for the mother said that she was waiting for a report as the hearing began. The adjournment of the proceedings gave further opportunity but the best that was said was that whatever the psychologist had written, it did not address the issue the mother wanted to present.

1. In relation to the current arrangements, the child expressed the concern that she would not be seeing enough of her mother and cousins and that she wished to see her family “evenly” and that response was the subject of final address by the mother as an indication of the child’s wishes. I do not consider it assists other than to confirm what Ms F said which is that the child knows her mother and wants to spend time with her. That leads to the question of the child’s views. The mother’s solicitor submitted that the child’s statement is an indication of how significant the mother is in her life.

The wishes of the child

1. The family consultant was of the view that it was usual for children in conflictual situations to express a desire to spend time as the child had because they wanted to treat their parents equally. 

2. The child’s level of maturity is unclear but I am hesitant to give her stated view much weight where she articulates equality because of the observation of Ms F about children exposed to conflict.  It may be that the child well knows that the conflict has not abated and the desire to be fair is a way of trying to stop the conflict. But, there are other factors to be taken into account before any priority is given to the child’s wishes.

Separation of the child from the mother; how the mother saw it

1. In her evidence, at [87] the mother said:

   I cannot imagine what (the child) is feeling currently having been removed from me and her only siblings twice.

   That statement ignored the impact on the child of being prevented from having time with her father on a consistent basis but it also shows a person whose focus is on herself because all of the objective evidence from the child going to school on the first day to the separations at the contact centre all indicate a child who is not upset by the absence of her mother.

2. However, the mother’s summary of argument said:

   Precluding the child from seeing either of her parents, as has occurred in the past, has given rise to separation anxiety issues, which the child, fortunately, is beginning to overcome. (My emphasis).

   When I consider that statement which appears positive and indicative of an understanding of how the child is faring against the evidence of the mother, they do not match.

3. When the mother was asked about the father’s role in stabilising the child, she said that we could have seen the same “results” if she had been in her care and the father had had time with the child at the contact centre.  At best however, when asked whether she accepted that the child was doing better from an anxiety point of view, her response was:

   It would seem so.

   Those answers indicate either no insight into what has occurred or alternatively, the relationship between the mother and the father is so bad that she cannot acknowledge the importance of the role he plays.

4. The summary of argument was drawn by the solicitor but it is not a good assessment of what is happening here. The reticence of the mother to give credit to the father for the changes in the child is a better way of assessing whether the mother has insight.

5. The mother’s summary went on to consider the future as follows:

   Allowing the child to spend time with both parents equally will allow her to continue to foster her relationship with both parents, and have the benefit of their love and support.

6. That assertion could not be justified on the evidence either unless there is a finding that the mother’s relationship would not cause a reversion to past problems.  It became unnecessary to consider the equality issue because after completing her evidence, the mother conceded her time should be limited.

7. I find the mother has limited insight into the difficulties the child was having which have largely, if not entirely, been overcome as a result of the father’s efforts.  Indeed as Ms F said, there was “an amazing difference”.

Ms F’s view of the future

1. Notwithstanding what I earlier said about attachment, Ms F did consider the future for the child generally in her father’s care and what sort of relationship she should have with her mother.  She opined that the following matters assisted her:

   ·    The issues of anxiety for the child are not present as they were when the child lived with (the mother).  In addition, the child is able to spend time with (the mother) supervised at the CCS for two hours each fortnight, then she is able to separate from (the mother) without suffering the high level of anxiety she did prior to living with (the father);

   ·    At [77] the mother expressed a view that the contact centre had built up the child’s “resilience” and helped her manage her feelings about moving between her parents.

2. I find that it is too early to move to an arrangement that would alter what has been established and what is now seen as a settled environment for the child.  Ms F addressed that too.

   ·[77]          If the mother is unable to take any responsibility for the circumstances leading to the child being removed from her care, it raises the concern that unsupervised time will revert to what was happening prior to August 2016.

Is the mother’s action deliberate or otherwise?

1. Whether the emotional abuse to which Ms F refers has been caused by manipulation or by anxiety, objectively, the child’s problem has largely disappeared.  There is no dispute from the mother about the father’s capacity to care for the child.  Apart from conceding from the outset that he could care for the child half of the time, she also acknowledged that there were no problems with his capacity.  The evidence of Ms F which I accept would not be anywhere near as positive about the mother. She said that the mother could meet the physical needs but not the emotional and psychological needs.

2. The more important question is what role the mother will fulfil.  The evidence of Ms F is again helpful because it corroborates the father’s basis for mistrusting the mother.  Ms F referred to the mother’s allegations against the father.  This was not an issue in the evidence before the Court but as Ms F raised it, all parties had an opportunity to flesh out what, if any, impact it had on Ms F’s opinion. There were allegations made by the mother against the father other than those that I earlier mentioned about violence. They were described by Ms F as unsubstantiated. No practitioner asserted that the statement by Ms F was incorrect.

3. Ms F opined that there may have been a form of ongoing unintentional emotional abuse of the child by the mother.  She then described what she meant:

   [84]Emotional abuse is elusive and usually difficult to assess as there may be no visible signs.  Visible signs of some forms of emotional abuse may be observed through the following behaviours of the abuser including control, humiliate, degrade and punish.

4. I find the mother’s desire after May 2011 was to exclude the father from the child’s life.  She made allegations about him and continues to do so in an environment where, on her own evidence, they have no impact on his capacity as a parent.

5. The reasons why a relaxation of restrictions is not in the child’s best interests are:

   (a)the risk of reverting to the previous emotional abuse, continued separation from the father and the likely destruction of the father’s role as a parent;

   (b)the lack of communication and high mistrust militates against the parties working in any cooperative way in circumstances where the child was previously articulate in indicating what roles and what tasks, her mother would fulfil;

   (c)the current progress at school has been very satisfying and could be prejudiced if the mother felt she could not separate from the child; and

   (d)any sharing arrangement would require school involvement by the mother and Ms F’s opinion is that the school does not want that to occur because their view is that it may destabilise the child.

6. I find some of the mother’s actions have been deliberate such as the presentation night and the special occasions contact. I consider the calling for welfare checks was not about seeing if the child was safe but rather to harass the father and waste time of authorities. There are other occasions such as the school attendances where she simply adopted the wishes of the child and took her home and made no efforts to support the relationship with the father. Those were most probably deliberate but more importantly, they indicate she was oblivious of the longer term impact upon the child.  The then ever-present anxiety in the child was not being addressed and as it seems most probable that it revolved around the parental relationship and conflict, the mother did nothing of significance about it.

7. I find the mother’s evidence does not give me comfort that there is likely to be a change in the foreseeable future. As such, unsupervised time at least at this stage, would place the child at risk of reverting to the anguish and anxiety she previously suffered.  The risk of that happening is clear the question is whether it is unacceptable. Ms F was strongly of the view that it would not be good for the child to slip back into that state. It is for the court to assess the degree of the risk. In my view, the lack of insight and the lack of enthusiasm of the mother for the father’s role means at least for the foreseeable future, the risk is unacceptable.

Family violence

1. I rejected the request to allow the mother to lead evidence about allegations of family violence on the grounds of relevance. Her desire to do so, absent some evidence that the violence underpinned her trauma such that she could not separate from the child, means that she could not co-parent with the father and    that she still sees him an inappropriate role model for the child. That can be concluded because in respect of the findings of the court in 2011, the mother’s summary of argument said:

   Although there have been findings of family violence against the Respondent Father, the Applicant Mother accepts that this is unlikely to impact on the Respondent’s ability to effectively care for the child.

   She added:

   There was domestic violence, although I do not believe that this is what caused the child to react the way she did.

   In other words, they have no relevance other than to show how she could not manage the separation of the child. As this evidence was not called, I must conclude the problem has not disappeared. If it was being addressed by counselling such as through Mr E or the psychologist she had been seeing for a number of years, the evidence was not presented.

2. When the mother attended Ms F on 6 July 2017, only 12 days before she signed her affidavit of evidence in chief, she told Ms F that she wished to again raise the violence issue notwithstanding it was dealt with six years before (see paragraph [81] of the family report). That comment was not made in the context of her own difficulties but rather that the father was a problem. If that perception of Ms F was wrong, it was not put to her that way in cross-examination.

3. I find the mother still harbours considerable resentment and mistrust of the father.  Although she said she wanted to work with the father and have some form of communication with him (as her solicitor urged was something to be considered), the lack of trust indicates there is little or no future prospect of any cooperation. The mother is very reliant on the contact centre management to give her advice as can be seen from her statement about seeking advice about “manhandling”.  

Supervision?

1. Ms F’s written opinion (as distinct from her oral evidence) was that if after twelve months, the child had not been exhibiting separation anxiety when leaving her mother, and changeovers had worked smoothly, there could be an increase to alternate weekends.  (See [101] of the report).  If changeovers continued smoothly, time could be further extended.  Conversely, if the child reverted to exhibiting separation anxiety and was held over by the mother, the father should have the right to stop unsupervised visits.  Similarly, Ms F said that if the mother failed to return the child, then the father should be able to lodge a recovery order.

2. Ms F conceded there were many “ifs”, or put another way, she had no sense of what the mother would do.  In her view, the mother had to acknowledge her role in the problem. 

3. The mother’s solicitor submitted that with the concessions made to the court and the statements made to the family consultant when asked about why she lost care of the child, the acknowledgment was apparent.  I reject that. 

4. There was no acknowledgment of her role.  When cross-examined, the mother was defensive and reticent to acknowledge any improvement for the child had occurred. 

5. Ms F opined that when the child reached adolescence, she should be able to protect herself and make decisions of a forceful nature. She would by then most likely have overcome her anxiety, and conditions on her time with her mother would not be necessary.

6. Predicting the point at which the risk is no longer unacceptable is the difficulty. In my view, having assessed the father as a responsible and concerned parent who acknowledges the importance of the mother in the child’s life, the Court can rely upon him to use proper judgment to decide when to relax restrictions. To avoid conflict, there should be a sunset clause but if he considers all is working well before then, he always has the opportunity to remove the restrictions.

7. If the child is approaching 11 years of age, and has been in a routine and settled environment for the next two years, I consider she will be able to deal with the issues that concerned Ms F. Prediction cannot be a precise science but the past 12 months has indicated that the child is settling after visits with her mother and at present, they have been fortnightly. Two more years (or less if the father considers it appropriate) should suffice.

8. The second question is also troubling. Predicting the impact on the child of reducing the time as advocated by both the father and the Independent Children’s Lawyer is more difficult.

9. Ms F was concerned to continue the mother and daughter relationship because the child does feel that she is a part of her mother’s life ([97] of the report) and she identifies with her siblings. But then Ms F said this (at [97]):

   [The child] has a right to spend time with (the mother) but this also needs to be weighed up with how the child can remain safe from emotional harm and also from reverting or regressing back to the very insecure highly dependent unhealthy relationship the child had with (the mother) in the past.

10. I return to the question of reduced time below in the context of the s 60CC factors.

11. In the end, I find the court could not have the confidence that an unsupervised environment would not mean the mother would not manipulate or create that dependency environment, nothing in the evidence indicates that there will be an adverse impact on the child if the gaps between visits is extended. That gap in any event could be overcome by electronic communication.

12. However, the drafting of orders is to be considered after an examination of the best interest principles.

The legal issues

Equal shared parental responsibility

1. The mother conceded orders should be made for the father to have sole parental responsibility for education and health issues. That concession must therefore be seen as acknowledging that the Court does not need to contemplate s 65DAA (Doherty and Doherty [2016] FamCAFC 182 per May and Ryan JJ at [34] and per Kent J at [56]). That does not mean that the court ought not consider the allocation of parental responsibility for decision-making about other matters not otherwise conceded. To determine those, best interests must be considered and that focuses on the capacity of the parties to reach agreement.

Section 60CC and parental responsibility

1. Section 65D of the Act contains the source of power to make a parenting order of the nature described in s 64B. Both parties here seek parenting orders notwithstanding Judge Harman made such orders on a final basis in 2011.

2. Neither party relies upon any argument such as that found in Rice and Asplund [1978] FamCA 84, (1979) FLC 90-725.

3. Section 65D(2) permits a variation of earlier orders but that provision is subject to s 61DA which is the presumption of equal shared parental responsibility. That presumption does not need consideration because the mother does not seek an order that would arise from the presumption (even though she purported to limit the parental responsibility issue to education and health).

4. Even if a parental responsibility order was considered using s 64B, 65DAC would have to be contemplated. Both parents acknowledge that they could not meet the criteria there set out if it was viewed as a checklist.  Any form of sharing of responsibility for decisions about the child would not be workable and thus, any such order would not be proper.  It would not be in the best interests of the child because there would be prospect of an impasse with no obvious way of resolving it. 

5. Section 60CA requires a court to regard the best interests of the child as the paramount consideration and s 60CC mandates those matters to be considered by the court to so determine best interests.

6. The mother’s solicitor focussed on s 60CC(3)(a), (b) and (d) and less so in respect of s 60CC(2)(a) and (b).  In my view, each is important but so too is s 60CC(3)(l). 

7. It is unnecessary to elaborate on the full extent of s 60CC because many of the factors are not relevant.  For example, it is unnecessary to consider the father’s capacity and responsibility as a parenting because the very nature of the mother’s proposed orders conceded there were no issues of concern about those (even though her solicitor cross-examined both the father and his partner about some of them). 

8. Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both parents.  That however is subject to s 60CC(2)(b). If there is a need to protect the child from psychological harm from being subjected to abuse, neglect or family violence (see s 60CC(2A)), that protection prevails over the meaningful relationship question.

9. The family consultant at [102] referred to a safety net for the child.  Ms F said that if the separation anxiety was exhibited again or that the child was over held by the mother, the father be permitted to stop all unsupervised visits.  She went on to say that the child should not be placed in circumstances which caused her to regress in a way prior to the removal in 2016.  She said:

   It is my view that should these circumstances arise there may need to be consideration for [the child] to spend supervised time with (the mother) at the (contact centre) four or five times each year.

10. That evidence has to be seen in the context of the family consultant’s oral evidence that she was pessimistic about the prospects of success of unsupervised time.  I find there is just cause for pessimism but even if wrong about that, I have sufficient confidence in the father to accept that if he considers the child is capable of managing the stress and anxiety, he can relax the environmental conditions.  In the meantime, the question is whether or not the risk of such things as over holding, or regression to separation anxiety, is unacceptable. 

11. The unacceptable risk test was expressed by the High Court of Australia in M v M (1998) 166 CLR 69 at 78 where the court endorsed the test of balancing the risk of detriment against the possibility of benefit from “parental access”. That case related to sexual abuse but the same test applies to other forms of risk (see Stott and Holger and Anor [2017] FamCAFC 152 at [35]).

12. In B and B (1993) FLC 92-357, the Full Court described the unacceptable risk test as one in which the court finds the risk unacceptable where the harm outweighs the benefit. In Stott (supra) the Full Court referred at [37] to the two steps as to whether there was a risk and whether it was unacceptable.

1. I find on the evidence of both the father and Ms F that there is a risk of harm to the child manifested by a return to separation anxiety and indeed, over-holding possibility.  I find in the circumstances that when benefit is balanced against detriment, the former must give way to the latter. 

2. It was the mother’s final submission that orders would cure the difficulty.  The mother would, on that submission and proposal, return the child to the contact centre rather than school.  Whilst that might overcome the separation anxiety in one form, it is too early to say whether that overcomes the reticence of the mother to separate from the child at the conclusion of contact time. Returning to the contact centre may prove as stressful as what occurs there. 

3. It is too early to say whether the current absence of anxiety in the child means that it will not be resurrected again in the future.  Although not in evidence, the mother’s solicitor submitted that if one examined the contact centre notes, they show that there was no problem in the child separating from her mother.  That too is not a good example because it is of such limited duration and under strict control by the contact centre and is not the same situation as the mother taking the child back to the contact centre.  Under the present regime, the child does not leave the control of the contact centre operative. 

4. I accept the evidence of Ms F that these are early days and there is cause for pessimism having regard to the duration of this litigation but also my view that the mother has no insight into the cause of the anxiety exhibited by the child.  It would be most unfortunate if all of the work that the father has undertaken in the last twelve months was destroyed simply by the mother creating the problem again.  As Ms F opined, it may be that the child has to be much more mature to be able to resist all of the problems created previously by the mother.

5. In my view, when the detriment is balanced against the benefit, the risk is such that it is unacceptable at this time.

6. In my view, that risk may be ameliorated by time and having assessed the credibility of the father, I have no doubt that he will be able to assess when the child is capable of managing those issues.  Orders need to be crafted with that in mind.

Section 60CC(3)(a) – the views of the child

1. I have already set out the views of the child and in my view, absent some evidence as to her level of maturity and understanding of the problem, it would not be appropriate to give her views significant weight. 

Section 60CC(3)(b)

1. Section 60CC(3)(b) refers to the nature of the relationship between mother and child in this particular case.  The mother’s solicitor submitted that it was wrong to exclude the mother as proposed by the Independent Children’s Lawyer and the father.  She said she could not understand why the child was being “punished” by less time with the mother.  It was a puzzling remark.  All of the incidents to which I have earlier referred indicate that the mother had difficulty separating from the child and vice versa.  There is no evidence from any professional other than the family consultant in this case to indicate that the mother is sufficiently capable of doing what the father has done since August 2016.

Section 60CC(3)(d)

1. The court is also obliged to take into account the likely effect of any changes in the child’s circumstances by separation from her mother. 

2. Until now, albeit with fortnightly visits since the start of the year, the child has progressed remarkably.  I reiterate the word of Ms F that the change has been “amazing”.  This particular issue raises the question of a reduction in time and I refer back to the evidence of Ms F that if there is a likelihood of reversion to anxiety and over holding, then the mother’s time with the child should be limited.  Having found that the risk here is unacceptable at this point in the child’s life, a reduction in time seems of little consequence.  Whilst the child indicated that she wished to see her mother more, nothing in the evidence indicates that there will be ill effects for the child by a reduction in physical time.  It was the mother’s submission that there should be telephone contact each week. 

3. In my view, the sort of electronic communication envisaged by the mother on a fortnightly basis but under the control of the father, would meet the suggestion of Ms F to continue the parent and child relationship.  Ms F initially thought that the child’s emotional wellbeing and healthy functioning needs an opportunity to spend unsupervised time with the mother (see [100] of the report) but that observation has to be seen in the context of all of the conditions recommended.  Importantly I take into account her pessimism.  Against that however is the father’s view that there should be a relationship between the mother and the child and he would encourage it providing the child was protected.  It seems to me that one solution to the fulfilment of any needs of the child is for there to be a fortnightly electronic communication.  I shall deal with that accordingly in the proposed orders.

What sort of orders?

1. As to orders, Ms F’s evidence was:

   [101]In my view the alternate Sunday visits for two hours should continue for six months then increase to alternate Sundays from 10 am to 4 pm.  If after twelve months [the child] has not been exhibiting separation anxiety when leaving [Ms Barlow] and the changeovers work smoothly then there could be an increase to alternate weekends from 10 am Saturday to 4 pm Sunday.  If after six months, the changeover continue to be smooth for the child then there could be an increase to alternate weekends from after school Friday to 5 pm Sunday.  At this time, some school holiday times could also start with half of all school holidays.  Where possible, the changeovers be at the CCS but if not always possible then outside the local Police Station.

2. Ms F altered that position significantly in a restrictive way when I highlighted to her the conditional nature of that advice.  In my view, it is not appropriate to take an artificial view that the child would be ready and capable of moving into a different phase of a relationship with her mother bearing in mind that she is nine years of age and has had a very disruptive childhood. 

3. I have a lot more confidence however in the father whose evidence I accept, to know when the child is ready to move out of the controlled environment to have a natural relationship with her mother.  Whilst it is also artificial to fix two years as that relevant period of time, that timeframe will see the child closer to an age where she can resist the anxiety and have some form of free relationship with the mother. The fortnightly electronic communication which can be either Facetime or telephone will meet her need. I intend that communication to be every fortnight regardless of the face to face time. Thus, as the face to face contact gets closer, there will be things about which the mother and the child can communicate as well as a discussion not long after such a weekend to talk about all of the things they did and what they could do next time. The monthly break between personal contact visits will allow the child to do other things with her peers and in the community. Whilst I shall make restraining orders about the mother’s attendance at extra-curricular events as a result of what has happened in the past, there may come a time when the father is confident about the child and content for the mother to attend sporting, cultural and school events such that he can agree to her attendance. I have confidence in his good intentions.

4. If the father considers at any time during the two years that the child is ready to spend unsupervised time, he can also so dictate.  I have confidence that he will decide properly.  

5. I do not propose to limit the day time activities of the contact centre. There appears flexibility in the relevant centre. I intend that the manager reads these reasons to understand the Court’s concerns about how the child manages anxiety and the risks about which I have concerns that all of the last 12 months’ good work may come undone. Whilst I respect the service’s flexibility, I consider that any decision as to time must be in consultation with the father and although the manager may make the final decision, provided the time is under supervision, I have no doubt the views of the father will be taken into account. If there is a dispute, the matter may have to be resolved by the Court.

6. I intend to make an order that time beyond two years be extended to a more flexible arrangement as can be determined between the parties including school holidays.  I will set a default period of overnight once per fortnight otherwise. If that approach fails and there is an indication that the child is again anxious arising from the manipulation of her mother, or agreement cannot be reached about the length of time for such contact, the parties will have to return to the court.

7. As a matter of precaution, I propose to restrain the mother by injunction from communication outside of the basic terms of the orders. I do so here because it is in the child’s best interests, and therefore for her welfare, not to have past problems resume. I intend that order to be an exercise of the s 68B power. In my view, it is appropriate here because of the history to which I have referred. In saying that, the father is at liberty to alter that position if he considers it beneficial to the child but he must also be cautious to ensure that the child is able to manage whatever he contemplates.

Financial matters

1. In her amended application filed 5 June 2017, the mother sought an order that “outstanding property settlement be addressed by the court”. 

2. The mother’s summary of argument proposed the father paying the “outstanding” amount for the property settlement.  In her affidavit, the mother sought to define the outstanding amount as $17,253.96 plus interest from 10 April 2013. 

3. The mother’s evidence was that the father paid her $75,115.85 as at 10 April 2013.  She said that given his “lateness”, he owed her the shortfall earlier mentioned. 

4. Judge Harman ordered on 11 May 2011 that within three months, the father pay to the mother $78,000 plus transfer to her his interest in Property B but that she had to discharge his liability as mortgagor.

5. Paragraph [27] of the orders read that until the father paid or “completion of the sale” of Property B, each party had to contribute half of the interest payment under the mortgage. 

6. The completion of the sale was a curious concept because the father had to pay the $78,000 plus give the mother the equity in Property B.  Paragraph [26] provided that if within 21 days of 11 May 2011, the mother elected in writing not to keep Property B, it was to be sold and naturally, the mother receive the proceeds. 

7. The father’s unchallenged evidence was that no election was given by the mother so he was entitled to presume that it was to be sold.  The order was silent on how quickly it was to be sold so then the only interpretation could be that it was to be listed for sale forthwith.  That did not happen and the father was not made aware of what was happening.  In April 2013, the father sent a bank cheque to the mother.  He had previously sent documents to her solicitors when requested.  As he observed in a letter then written, he found out about the property being sold in late 2012.  He had apparently had his finance available in early 2012 but in the meantime, the sale of the mother’s home was delayed.  The father’s obligation towards the mortgagee continued under the order.  He paid $14,161 whereas his calculation showed that half of the interest payment for the relevant period was $11,276.  In other words, on that evidence, at the point that he wrote his letter in April 2013, he was “in front”. 

8. The critical date under the orders however was the date of the settlement of the sale.  There is no evidence of that provided by the mother.  That date was the one upon which the father had to pay the $78,000.  What the trial judge said was that the payment had to occur contemporaneously with the settlement of the sale of Property B because the father’s property was collaterally secured. 

9. The unchallenged evidence of the father is that he paid his obligations.  The mother’s application is therefore without merit and must be dismissed.

I certify that the preceding One Hundred and Ninety-Eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 September 2017.

Associate: 

Date:  6 September 2017