Baulkham and Lester
[2017] FCCA 2311
•14 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAULKHAM & LESTER | [2017] FCCA 2311 |
| Catchwords: FAMILY LAW – Parenting – no dispute over live with – dispute over – whether child should spend any time with father – child strongly resistant – entrenched attitude – impact on child’s mental and psychological health – position of Independent Children’s Lawyer – whether mother should have sole parental responsibility – final orders in child’s best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA |
| Cases cited: Goode & Goode (2006) FLC 93-286 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS BAULKHAM |
| Respondent: | MR LESTER |
| File Number: | MLC 4212 of 2012 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 7 September 2017 |
| Date of Last Submission: | 7 September 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 14 September 2017 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Solicitors for the Independent Children’s Lawyer: | Dandenong Family Lawyers |
ORDERS
THE COURT ORDERS THAT:
All previous orders in relation to the child [X] born (omitted) 2006 (“the child”) be discharged.
The mother have sole parental responsibility for the child.
The child live with the mother.
The father communicate with the child in writing not more than once each month to an address provided by the mother and the mother facilitate any request by the child to respond to the father’s letters.
The child spend time with the father as agreed with the mother or in accordance with the child’s wishes.
The mother keep the father informed as soon as reasonably practicable of:
(a)Any medical problems or illness suffered by the child;
(b)Any specialist medical appointments for the child with any medical doctor, psychiatrist, psychologist, counsellor or therapist;
(c)The address for the purpose of the correspondence referred to in paragraph 4 above.
That each of the mother and the father refrain from negatively criticising or denigrating the other parent or members of his or her family or friends to the child or in the presence or within the hearing of the child and the mother and the father do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent or members of his or her family or friends to or in the presence or within the hearing of the child.
The Independent Children’s Lawyer explain the meaning and effect of the Orders to the child.
The appointment of the Independent Children’s Lawyer be discharged.
All extant applications be dismissed.
Pursuant to s 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Baulkham & Lester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 4212 of 2012
| MS BAULKHAM |
Applicant
And
| MR LESTER |
Respondent
REASONS FOR JUDGMENT
(Revised for transcript)
Introduction
These proceedings concern a dispute over parenting orders, as that term is defined in the Family Law Act 1975 (“the Act”), for the child [X], born (omitted) 2006 (“the child”).
The applicant in these proceedings is Ms Baulkham, (“the mother”). The respondent is Mr Lester (“the father”). The mother is 39 years of age, lives in (omitted), and works as an (occupation omitted). The father is 42 years of age, also lives in (omitted), and gives his occupation as (occupation omitted).
Background
The parties met in the (country omitted) where they began their relationship in 2002. They were married there in 2004. The child was also born there in 2006 before the parties returned to Australia later that year and established themselves near the mother’s family in (omitted).
The parties separated in November 2008. In January 2010, the parties signed a parenting plan which saw the child reside with the mother and spend six days a fortnight with the father.
In December 2011, the parties entered into a financial agreement under section 90C of the Act.
The mother began taking the child to a psychologist in 2012 following a referral from his GP as a result of problems at school and incidents which occurred when the child was spending time with the father. The father had also begun to attend a different psychologist in 2012 for, inter alia, an adjustment disorder. During that year the father who had also been abusing alcohol lost his licence for drink-driving.
There was a divorce order made in June 2012. Disputes between the parties increased following the child’s time with the father, in 2013 including when the mother says the father took the child to a beer festival at the (omitted).
Also in 2013 the father had problems at work, felt his mood was acutely decompensating, and began trialling different antidepressant medication.
In December 2013, the parties when they were represented made an application for parenting orders to the Family Court of Australia. On 24 December 2013, a Registrar of the Family Court made final parenting orders by consent for the parties to have equal shared parental responsibility, the child to live with the mother and spend substantial and significant time with the father (2013 Orders).
In 2014, the father’s mental health deteriorated. There were several suicide attempts. The father was admitted to a psychiatric unit, and there were text messages from him to the mother threatening self harm over a number of months. The father, who was not working, says at or around this time, he had intense suicidal ideas and voluntarily ceased spending time with the child.
In October 2014, the father attended the child’s school and left a number of things for the child with staff, including a book which contained a story he had written about, inter alia, a monster Medusa.
The mother believed the child was becoming increasingly anxious as a result of the father’s actions and took the child back to his psychologist (Ms C), who as a result, made a notification to the Department of Health and Human Services.
The mother obtained an intervention order against the father in November 2014 naming the child as an affected family member. After the father had filed a contravention application, the mother commenced these proceedings on 2 June 2015 seeking that the 2013 orders be discharged, the child live with her, and time with the father be reserved pending a full psychiatric assessment.
By the time the father filed his response on 31 July 2015 seeking, inter alia, “enforcement” of the 2013 orders, “penalty for false allegations and defamation”, the proceedings had already been listed for an interim hearing, there had been an order for a family report and the appointment of an Independent Children's Lawyer.
There was a report prepared by the child’s psychologist (Ms C), a report from the father’s psychologist (Mr K), and a report from Dr W, a consultant psychiatrist on the father. On 6 November 2015, there were interim orders made by consent for the child and the parties to attend Mr S for therapeutic counselling, to enrol at a supervised contact centre, and the matter was adjourned. When the proceedings returned to Court on 1 April 2016, there had been a report from Mr S and there were further interim orders made by consent for supervised time to occur at Family Life (omitted) for the Independent Children's Lawyer to explain the orders to the child, and the matter was adjourned.
When the proceedings returned to Court again on 30 August 2016, the supervised time had broken down. The parties signed interim consent orders for, inter alia, the child and the parties to engage with a child and family counsellor from the Parenting Orders Program with a view to resuming supervised time, and the matter was adjourned to February 2017.
Ultimately, the parties didn’t participate in that program, with the father objecting to the delay in resumption of supervised time. The child, however, attended upon Ms F for therapy.
In late 2016, the mother, following discussions with Ms F, was concerned about the child’s mental health and threats of self harm he had made, as well as his behaviour in her home. The mother returned with the child to see Ms C, who met with the child in early 2017 and provided a report to the Court.
When the proceedings returned to Court in February 2017, the father didn’t appear, the mother was no longer represented, and the proceedings were fixed for final hearing as soon as was possible thereafter.
Currently the child lives with the mother (who has re-partnered) has two half siblings, and has not spent unsupervised time with the father since 2014.
At the final hearing on 7 September 2017, the mother and the father both appeared in person and Mr E of Counsel appeared on behalf of the Independent Children's Lawyer.
Material relied on
The parties told the Court they relied on the following material:
a)
the mother relied on her case outline filed 4 September 2017, her affidavits filed 7 August 2017, 18 August 2016, 9 March 2016,
7 October 2015, 2 June 2015 and 1 February 2017, along with the affidavit of Ms C, filed 19 June 2017;
b)the father relied on his affidavits filed 22 August 2017, 17 March 2017, and 6 January 2017;
c)the Independent Children's Lawyer relied on her case outline filed 31 August 2017, along with the affidavit of Dr W, filed 7 September 2015, the Family Report of Ms D released on 21 October 2015, the affidavit of Ms C filed 28 August 2015, the affidavit of Mr S, filed 8 April 2016, the affidavit of Ms L, filed 25 July 2016, and the further affidavit of Ms C, filed 19 June 2017.
Position of the parties at the hearing
After the Court was satisfied the mother and the father both had the opportunity to get legal advice, understood the process that would be followed at the hearing, and the relevant sections of Part VII of the Act (and consistent with the principles set out by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348) the Court explained to them both the manner in which the final hearing would proceed, the order of calling of witnesses, and the right to cross-examine witnesses.
Both the mother and the father abjured the opportunity to cross-examine any of the witnesses relied on by the Independent Children's Lawyer and (save for two questions by the mother of the father), each other. As Counsel for the Independent Children's Lawyer observed, it appeared that given the history they both saw no value in doing so.
Mother’s position
In her application filed 2 June 2015, the mother sought the following orders:
“(1) That the orders made 24 December 2013 be discharged;
(2) That the child, [X], born (omitted) 2006, live with the mother;
(3) That [X]’s time with the father be reserved pending a full psychiatric assessment of the father;
(4) That the father pay the mother’s costs of and incidental to this application;
(5) Such further or other orders as this Honourable Court deems appropriate.”
At the start of the final hearing, the mother told the Court that the final orders she sought were as contained in her outline of case filed 4 September 2017, which were as follows:
“(1)All previous orders in relation to the child, [X], born (omitted) 2006, be discharged.
(2)The mother have sole parental responsibility for the child.
(3)The child live with the mother.
(4)The father communicate with the child in writing not more than once every month, containing no more than one page, including any photos, to an address provided by the mother and the mother facilitate any requests by the child to respond to the father’s letters.
(5)The child spends time with the father as agreed by the mother or in accordance with the child’s wishes.
(6)The father be restrained from making an application to spend time with the child until a period of no less than two years from 7 September 2017.
(7)The mother keep the father informed as soon as is reasonably practicable of:
(a) Any serious medical illness suffered by the child;
(b)Any specialist appointments other than that of Ms C;
(c)The address for the purposes of the correspondence referred to in paragraph (4) above;
(8)The independent children's lawyer or [X]’s psychologist, Ms C, explain the meaning and effect of the orders to the child.”
At the end of the hearing on 7 September 2017, the mother told the Court she agreed to the final orders sought by the Independent Children's Lawyer, to which I will return.
The Father’s Position
In his response filed 31 July 2015, the final orders sought by the father were:
“(1)Enforcement of MLC 4212 of 2012, which has been breached since 6 September 2014. Additional time granted to make up for time stolen. A recovery order in place for future breaches for more efficient action. Penalty for future false allegations and deformation (sic) of my character.
(2)No further communication. I collect [X] from school Wednesday afternoon. Drop to school Thursday morning. On my weekend, I collect Friday after school and drop to school Monday morning. Therefore we never see each other.
(3)Pre-worded texts, e.g., I am unwell, can’t look after [X], can we swap this weekend? yes or no. [X] not well, medicine in bag. okay?” This eliminates the likelihood of further conflict.”
At the hearing on 7 September 2017, the father had not filed a case outline. However, the father told the Court the final orders he sought were as contained in his affidavit filed 17 March 2017[1] and were as follows:
“My proposal on September the 7th 2017 remains the same. It has to. This is a final hearing. The enforcement of orders dated 24/12/2013 MLC 4212, but with the additional Friday, therefore 35% access. Communication through pre-worded text and a communication diary only, and a recovery order for future breaches.”[2]
[1] not what was referred to in the second last paragraph on page 9 of the affidavit filed 22 August 2017.
[2] Page 47 of affidavit dated 17 March 2017.
I note that those were not the orders that were referred to on the last page of the father’s affidavit filed 22 August 2017. Nonetheless the father was adamant the orders extracted above were the orders that he sought on a final basis.
The Independent Children's Lawyer’s Position
The Independent Children's Lawyer filed a case outline on 31 August 2017. Counsel for the Independent Children's Lawyer told the Court his instructor sought that the Court make final orders for the child as contained therein, which were as follows:
“(1)All previous orders in relation to the child, [X], born (omitted) 2006, be discharged.
(2)The mother have sole parental responsibility for the child.
(3)The child live with the mother.
(4)The father communicate with the child in writing not more than once each month to an address provided by the mother, and the mother facilitate any request for the child to respond to the father’s letters.
(5)The child spend time with the father as agreed with the mother or in accordance with the child’s wishes;
(6)The father be restrained from making an application to spend time with the child until a period of no less than two years has elapsed since the date of these orders;
(7)The mother keep the father informed as soon as reasonably practicable of:
(a) Any medical problems or illnesses suffered by the child;
(b)Any specialist medical appointments for the child with any medical doctor, psychiatrist, psychologist, counsellor, or therapist;
(c)The address for the purpose of the correspondence referred to in paragraph (4) above;
(8)That each of the mother and the father refrain from negatively criticising or denigrating the other parent or members of his or her family or friends to the child, or in the presence or within the hearing of the child, and the mother and the father do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent or members of his or her family or friends to, or in the presence, or within the hearing of, the child;
(9)That the Independent Children's Lawyer explain the meaning and effect of the Orders to the child;
(10)The appointment of the Independent Children's Lawyer be discharged;
(11)All extant applications be dismissed.”
Evidence
The Mother
The mother relied on her affidavits referred to earlier. As has already been noted, the father abjured the opportunity to cross-examine the mother as did the Independent Children’s Lawyer. Overall, the mother’s affidavit evidence painted the picture of someone who with primary care of the child, consistently said she was doing either what was best for the child or was making the child’s voice heard. I’m not satisfied it’s either as simple or as dignified as that.
I accept the criticisms made of the mother by Counsel for the Independent Children's Lawyer and find that she is not the blameless figure that her affidavit material sought to display. The unchallenged evidence of the experts involved with the child do raise real concerns about the mother’s understanding of her responsibility as a parent to this child. As Counsel for the Independent Children's Lawyer observed, the mother has, by failing to properly exercise her parental authority, over-empowered this child. The mother has repeatedly demonstrated an ambivalent attitude to the child about the prospect of the child spending time with the father and, in doing so, has played a part in “entrenching the child’s views”.
However, given the evidence of the experts, I accept the mother’s evidence about the child’s distress and her concerns for his emotional welfare.
The Father
The father chose, having had the opportunity to get legal advice, to rely only on the affidavits referred to earlier. Also, as was indicated earlier, the mother told the Court she did not want to cross-examine the father, but then appeared to change her mind, but only to ask two questions, which served only to underscore the binary positions of them both and the hopeless positions they each believed they were in due to the behaviour of the other. The father wasn’t cross examined by the Independent Children’s Lawyer.
The mother made repeated complaints about the father’s communication and the pressure this placed on her, those involved in these proceedings and, more importantly, the child. The father has filed over 14 affidavits in these proceedings and, even allowing for his status as an unrepresented litigant, they are prolix and incognisable. Two examples, the first attached to the affidavit relied on by the mother filed 18 August 2016 and the second the most recent affidavit filed by the father dated 6 January 2017, are all that is necessary to illustrate this point.
Even allowing for the very understandable distress caused by the breakdown in his relationship with the child, the father’s communication style as evident in that material is grandiose and self-entitled. As was noted by Counsel for the Independent Children's Lawyer in submissions before the Court, the father’s evidence elides his own demands with the child’s best interests and either ignores or dismisses any other interpretation. I accept the submission of Counsel for the Independent Children's Lawyer that the father’s attitude is only he can save the child and the child’s observed distress is all due to the mother.
The father’s material was redolent with the language of quasi psychologists. However, the father explicitly abjured the opportunity to pursue with the experts in these proceedings the allegations he made against the mother about her alleged alienating behaviour. There was no recommendation made by them, on the face of their reports or by the Independent Children's Lawyer that this allegation needed to be addressed before the Court could determine what was in the child’s best interests. The parties provided no expert evidence on the issue and, on the material before the Court the father’s allegations in relation to this are not made out.[3]
[3] Note the discussion on that issue in the decision of Irish & Michelle [2009] FamCA 66 at [77] to [79].
Dr W
Dr W is a consultant psychiatrist who, pursuant to orders made in June 2015, prepared a report on the father. Dr W report, dated 25 August 2015, was filed with the Court under cover of her affidavit sworn 2 September 2015 on 7 September 2015. Dr W’s affidavit was taken into evidence and she was not required for cross-examination.
Family Report
Ms D, an experienced Regulation 7 Family Consultant, prepared a Family Report pursuant to orders made in June 2015, which was released to the parties in October 2015 (the Report). The Report was taken into evidence and Ms D was not required for cross-examination.
It is also important to note the current position of the family consultant, referred to in the Independent Children's Lawyer’s submissions. This was that the child’s mental health must be given priority and that, at present, the child feels persecuted, burdened, and is not able to move forward.
Given neither party required the family consultant for cross-examination, I note her earlier recommendations and those made recently, as noted by the Independent Children's Lawyer, and will take them into account along with the rest of the evidence when determining orders in the child’s best interests.[4]
[4] see In the Marriage of Hall (1979) 5 FamLR 609.
Ms C
Ms C is a clinical psychologist who has been seeing the child since 2012. Ms C prepared two reports during these proceedings. The first report, dated 24 August 2015, was filed under cover of her affidavit sworn 27 August 2015 on 28 August 2015. The second (progress) report was dated 25 January 2017 and filed under cover of an affidavit sworn 15 June 2017 on 19 June 2017. The 2 affidavits sworn by Ms C were taken into evidence, and she was also not required for cross-examination.
Of all of the experts involved in these proceedings, Ms C’s involvement with the child and understanding of the family dynamic and the child’s experience of this, is the most longstanding. Whilst Ms C was engaged initially by the mother, on the material before the Court, there is no reason not to accept the submission of Counsel for the Independent Children's Lawyer that she has provided the necessary, gentle, therapeutic encouragement the child needs, and that she will support the child should he choose to reach out to the father in the future.
Mr S
Mr S is a clinical child and educational psychologist who, pursuant to orders made in November 2015, provided the parties with therapeutic counselling to assist with the child spending time with the father. Mr S prepared a report following this dated 29 March 2016, which was also filed with the Court under a cover of an affidavit he swore 5 April 2016 on 8 April 2016. Mr S’s affidavit was taken into evidence and he was not required for cross-examination.
Mr S’s report in particular, the summary and conclusion, paints a sad picture. The palpable despair he felt that the “painful and protracted process” had failed was clearly evident. Neither parent emerges vindicated by that process or from that report. Nonetheless Mr S’s report was provided at a point in time, and it’s now almost 18 months ago. The father did not seek to call Mr S or any of the other expert(s) to ask them or him to elaborate on his or their reports in light of subsequent developments.
Ms L
Ms L is the coordinator of the Family Life Children’s Contact Service in (omitted) where, pursuant to orders made in April 2016, supervised time between the child and the father occurred. Ms L prepared a report based on observations of those sessions, which was dated 19 July 2016, and filed with the Court under cover of her affidavit sworn the same day on 25 July 2016. Ms L’s affidavit was taken into evidence and she was also not required for cross-examination.
As chronicled in that report, after a referral was made by the service to the Parenting Orders Program, the father withdrew due to what he regarded as an unreasonable delay in further supervised visits. The view of the contact service was that the child needed further assistance by way of therapy before any further attempts were made at supervised visits.
Submissions
The mother confirmed the orders she sought were the same as those of the Independent Children's Lawyer, save that she wanted any letter to be limited to one page. The mother submitted this would protect the child from being overwhelmed by harassing conduct by the father. The mother told the Court she believed these proceedings were just about the child’s voice, and orders allowing for the father to send letters to the child would keep the “door open” to a relationship with the father in the future.
Conversely, the father maintained the Court should make the orders he sought. The father maintained the child has lost his father, the threats of self-harm were due to the mother not allowing him to be involved, and he continued to blame the mother for what has happened and the situation the child is in.
Counsel for the Independent Children's Lawyer relied on the submissions contained in the outline of case filed 31 August 2017. Counsel for the Independent Children's Lawyer submitted there had been “exhaustive attempts” over the course of these proceedings to re-establish a relationship for the child with the father. Notwithstanding the various interventions and the involvement of many independent professionals, the child presented with an “entrenched mindset”. Counsel submitted, “[I]t is what it is,” and the child does not want to see the father.
Counsel for the Independent Children's Lawyer submitted that the evidence in this case demonstrated that the child is young, intelligent, but adamant he did not want to see the father. It was submitted the child had met the Independent Children's Lawyer three times, seen the report writer, supervisors, Mr S, and Ms C, and had made his views “abundantly clear”. It was submitted despite the various therapeutic interventions since the proceedings had commenced, “things had got worse” and the child was “totally and utterly entrenched”.
These parties are clearly not able to reconcile their differences. For her part, the mother considers that she should have sole parental responsibility for the child who should live with her and spend no time with the father but he be able to communicate with the child by letters and cards. The father is steadfast in his approach, namely, that historically he had a good relationship with the child and that, notwithstanding the significant hiatus and disruption to that relationship, it should be restored.
The Independent Children's Lawyer sees no other option than for the Court to make orders sought in the outline of case.
Approach to parenting orders
The power to make a parenting order is provided for in s.65D of the Act.
In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary.[5] The objects and principles set out in s.60B provide:
[5] See approach in Eyton & Eyton & Ors [2013] FamCA 657 at para 31 to 38.
“60B [Object of Part and Principles underlying it]
(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) [Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In deciding whether to make a particular parenting order in relation to the child in this case, the Court must regard the best interests of the child as the paramount consideration (s.60CA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. This is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable. Section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonable practicality’.
These principles have been examined in numerous authorities, including the decision of the Full Court in Goode & Goode (2006) FLC 93-286 and the High Court in MRR v GR (2010) 240 CLR 461.[6]
[6] Ibid. see also Starr & Duggan [2009] FamCAFC 115 at [38] and approaches in Crowley & Mendoza (2010) 43 FamLR 463 at [35] to [43] (Murphy J); Heath & Hemming (No.2) [2011] FamCA 749 at [87] (Kent J) and SCVG & KLD [2014] FamCAFC 42 at [68] to [91].
I have already set out the parties’ competing proposals which identifies the issues in dispute. Given this, it is now necessary to turn to a consideration of the relevant section 60CC factors, given the evidence in these proceedings in the context of the principles outlined above. In doing so, it’s important to note that I have, of course, considered all of the evidence and the parties’ submissions, all of which, for the sake of brevity, won’t be rehearsed.
Consideration
Relevant s.60CC factors
Primary Considerations
The benefit to the child in having a meaningful relationship with both of the child’s parents
While it is well accepted by the case law that ‘meaningful’ does not mean ‘optimal’, the provision is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that the children may derive from it. The work of the provision is not ended by answering the question “will there be a meaningful relationship under this particular arrangement?” Rather, the provision requires an assessment of the relationship and a consideration, in the context of how that relationship is to be exercised, of the benefits that will accrue.[7]
[7] see also Sigley & Evor [2011] FamCAFC 22.
The extreme distress and opposition displayed by the child to spending time with the father calls into question how the opportunity for the child to have the chance to have a meaningful relationship with the father is to be supported and, ultimately, what the benefit to the child is to him having a relationship with the father that engenders such anxiety and distress.
The father is unable and/or unwilling to accept the weight of the opinion of the experts who have been involved in these proceedings about the child’s views and the distress and anxiety he has presented with. Over many years, attempts to re-establish a relationship have proved counterproductive to the point that the child genuinely decided not to communicate or spend time with the father.
The father does not accept those views or that time or communication with him causes the child stress and anxiety. Any benefit in the child having a meaningful relationship with the father is, in this case, overwhelmed by other factors.
Counsel for the Independent Children's Lawyer noted the view of both the report writer and those involved with the child that Ms C was an “honest broker” who, through her ongoing therapeutic relationship with the child, could keep the door open to the opportunity to have a relationship with the father into the future.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Plainly, it is a serious matter to order that a child spend no time with a parent. Such orders as are called for by the mother and the Independent Children's Lawyer in this matter, should be restricted to the cases where that outcome is mandated in the child’s best interests and no other regime of orders is appropriate or workable.
I do not find the child is at risk of physical or psychological harm in the mother’s household. The mother has been the child’s primary carer since separation and, on the material, there is no reason that this should not be in the child’s best interests. Whilst the mother’s parenting could be and has been the subject of criticism for the failure to support and promote the child’s relationship with the father, the views of the experts are to the effect that the child is supported and protected in the mother’s care.
This case has seen the child attend upon six different professionals and the Independent Children's Lawyer has met with him three times over an extended period. There have been exhaustive attempts to address the child’s presentation when confronted with spending even supervised time with the father. The parties and the child attended upon Mr S for many months, then supervised contact, and ultimately the assessment of all of the professionals involved was the child’s mental health had to be given priority.
The un-contradicted opinion of the experts in this case as at the date of the trial, after all that has been attempted, is that the child’s best interests demand he be supported. The father’s proposal is the child should be forced to see him. This has been tried and tried and it has failed. The father who believes only he can save the child effectively demands an outcome which is not supported on the evidence as it now stands.
Given the unchallenged evidence relied upon by the Independent Children's Lawyer, I am satisfied there is a risk of psychological harm to the child in the event that orders are made that compel him to spend time with the father.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Full Court in R & R: Children’s Wishes (2000) FLC 93-000 at 87, 071, said the wishes of the child are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child. Importantly, it was made clear the overall welfare of the child is the determining factor.
Having regard to the evidence of the various experts involved with the child over the course of these proceedings, I am satisfied he is estranged from the father. Further, given that evidence which, over time, consistently recorded levels of distress experienced by the child when contemplating spending time with the father, I am satisfied significant weight must be given to the child’s expressed views notwithstanding his age.
The nature of the relationship of the child with each of the child’s parents; and other persons
The child has a close relationship with the mother, her new partner, and half siblings. There have been reported problems with the child’s behaviour at home and elsewhere as a result of him being burdened by exposure to the parties’ conflict and the prospect of spending time with the father.
The child’s relationship with the father has been interrupted, is now estranged and must defer to the urgency which must be attached to prioritising the child’s emotional and psychological welfare. There were historical disputes about the child spending time with the paternal family, but nothing to indicate this overwhelmed the priority that must be accorded to addressing his most pressing needs referred to earlier.
The child currently does not have a functioning relationship with the father. For the child to have a relationship with the father it would require a period of reintroduction. It would require the father to be patient and calm during that period, and also require him to be committed to accepting that time needed to be built up. It would require the mother to be willing to facilitate time.
There is in this case, on the material before the Court, no prospect of any of those building blocks being in place. If I did try to make an order for the father to spend any time with the child, the chances are extremely high that the orders would break down and the order least likely to lead to further proceedings in this matter is an order that does not compel him to spend time.
The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The matters relevant to this factor have been discussed elsewhere in my consideration of the relevant s.60CC factors.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child or other person with whom he or she has been living
At present the child has not spent unsupervised time with the father since 2014. The material before the Court is the child was profoundly distressed in late 2016 and early 2017, and is burdened by the prospect that he may be forced to spend time with the father.
The Independent Children's Lawyer’s submissions, which I accept, were to the effect that “enough is enough”, and the child’s emotional and psychological welfare must be given priority. Any change in the child’s circumstances along the lines sought by the father, are not supported as they are likely to be deleterious to his emotional and psychological health.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live in close proximity and their residential and working arrangements, at least on the evidence, are not suggested to pose any practical difficulties to the child spending time with the father. However, the history of these proceedings make it more likely than not that the child’s vehement opposition to spending any time with the father poses a significant practical difficulty.
I am satisfied the demonstrated level of opposition exhibited by the child to spending any time with the father will be a significant impediment to any future arrangements that compel him to do so.
The capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs
In a decision cited as Reiner & Reiner [2009] FamCA 926, His Honour Justice Cronin had this to say in relation to emotional needs:
“245.Emotional needs are just as important in a child’s development as physical needs. The term “emotional needs” is vague and undefined. By it, the legislators intended to convey the importance of parents providing comfort when a child is hurt, frightened or distressed...”
There is clear evidence of concerns in relation to the child’s needs, both intellectual, psychological and emotional which must be addressed above all else.
If the child is an Aboriginal child or a Torres Strait Islander child
There were no submissions made that this was a relevant factor.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other relevant characteristic of the child
There was a great deal of dispute between the parties as to what the child was exposed to when spending time with the father prior to 2014. It is, however, possible to find that the child has been exposed to the father’s alcohol abuse and mental health problems as well as overwhelmed by the parties’ conflict.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent
In Wang & Dennison (No. 2) [2009] FamCA 1251 at [77], Justice Bennett said:
“It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of children can appear to reward bad behaviour on the part of one parent… ultimately, parental interests must be subordinated to what is in the best interests of the children.”
It is important to note the circumstances confronting this child and the behaviours he exhibited (as observed by the unchallenged evidence of the experts referred to earlier). It is that evidence which should be the focus of the Court’s inquiry rather than engaging in a discussion of pseudo-psychological concepts that were referred to by the father in his submissions before the Court. Those experts gave evidence as to the matters they had observed, their interactions with and observations between the parties and the child, and most importantly the profound effect of the parents’ behaviour on the child.
Any family violence involving the child or a member of the child’s family; Any family violence order
The mother’s material made many claims about family violence during the course of the relationship. The mother did not adequately explain how, given her concerns about the father post separation, she, when represented, entered into the 2013 orders.
However, there was a final intervention order made against the father protecting the child and the mother from the father engaging in family violence, and which I shall take into account.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Plainly, this is a case in which the parties have been litigating for far too long. It would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child. As noted earlier, given the history of this matter, if there was an order for the child to spend time with the father, the chances are extremely high that the orders would break down, and the order least likely to lead to further proceedings is an order that does not compel time with the father.
Consideration in light of s60CC factors
Parental responsibility
The Independent Children's Lawyer proposed that the mother have sole parental responsibility for the child. The reality for this child since 2014 (if not before) is that the mother has been exercising sole parental responsibility already. The parents have had a highly conflictual relationship since separation. I am satisfied in light of the evidence, the highly conflictual relationship between the parties, their consequential difficulties in communicating, that the presumption of equal shared parental responsibility is rebutted and it would not be in the best interests of the child for his parents to have equal shared parental responsibility in accordance with the provisions of section 61DA(4).
In those circumstances, the only appropriate order will be one which reflects the living arrangements for the child in that the mother, who has the predominant care of the child, should be given the parental responsibility in relation to long term decision making. Anything else would be unworkable.
Equal time, substantial and significant time or time with each parent
Given the finding made in relation to parental responsibility, the requirement to consider equal time or substantial and significant time pursuant to the provisions in s.65DAA is not triggered and as Kent J indicated in Heath & Hemming (No 2) [2011] FamCA 749, the Court should then make parenting orders consistent with the findings made in relation to s.60CC, having regard to s.60CA and s.60B.
Neither parent is proposing a shared care arrangement for the child. Given the level of antipathy between the parents, that in any event would not be an appropriate order to make or reasonably practicable.
In weighing up all the relevant section 60CC factors, those which attract substantial weight in these proceedings are each of the primary considerations along with the additional considerations referred to, including the child’s views, nature of the relationship, lifestyle of the parents, and the need for finality. For these reasons, it is not in the child’s best interests or reasonably practicable for the child to live with one parent and spend substantial and significant time with the other.
This child was first interviewed in October 2015 by the report writer, and has maintained his opposition to spending any time with the father and exhibited significant distress at the prospect of being forced to spend time with him. Such is his level of distress and opposition to spending time with the father that he has threatened self-harm. I am satisfied that any proposal requiring him to do so is likely to be unsuccessful. That this is so is evident from the attempts that have been made to have supervised time with the father at the contact service.
I accept the submissions of the Independent Children's Lawyer that the child’s mental health must be given priority. The evidence is that the child feels persecuted and burdened. Any regime compelling time with the father is not supported on the evidence but in order to keep the door open, there should be an order for the child to receive letters from the father. I accept the submissions of the Independent Children's Lawyer that there is nothing to indicate the mother will not provide this to the child and will not facilitate that communication.
The Independent Children's Lawyer made clear that the prospect of the child establishing a relationship with the father in the future should be kept open. The orders proposed by the Independent Children's Lawyer, which I accept as being more likely to promote the child’s best interests, provide that the father has the opportunity to communicate with the child and the child to spend time with the father when the child is ready to do so.
The father will be kept informed of any medical problems, illnesses, or appointments, and the address for communicating with the child.
In all these circumstances, it is apparent that the orders that are more likely to be in the child’s best interests and be reasonably practicable accord with those proposed by the Independent Children's Lawyer.
Finally, both the Independent Children's Lawyer and the mother, because of the position she adopted (which was to seek the same orders), sought an order restraining the father from making an application to spend time with the child for a period of no less than two years. I accept there is a need for finality in these proceedings. Absent an order under either Part XIB[8] of the Act and/or section 118[9] of the Act there could in any event still be an issue as to whether the rule in Rice & Asplund (1979) FLC 90-725 stood in the way of any further application. Ultimately Counsel for the Independent Children Lawyer did not press the Court to make such an order, and the mother took a similar approach. Accordingly, in light of the approach referred to in the authorities and the changed position of the parties on the issue it is not necessary to consider doing so.
[8] see the approach in Cannon & Acres [2014] FamCA 104.
[9] see the approach in Oscar & Trainer [2008] FamCAFC 158 at [93] to [96] and Marsden & Winch [2013] FamCAFC 177.
Accordingly, and for the reasons set out above, I otherwise make orders as set out in the Independent Children's Lawyer’s case outline.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 22 September 2017
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