Baxland and Vincent

[2014] FamCA 330

FAMILY COURT OF AUSTRALIA

BAXLAND & VINCENT [2014] FamCA 330

FAMILY LAW – CHILDREN – Where the child has spent limited time with the father – where the mother alleges the child is at risk of harm in the father’s care – where the parties and the child have been attending family therapy – where family violence has occurred – where the presumption of equal shared parental responsibility is rebutted – where the presumption would, otherwise, have been rebutted in the child’s best interests – whether orders for time with the father are in the child’s best interests – where orders made requiring the parties to attend therapy with the child – where any time between the father and the child to occur in accordance with that therapy – where no specific orders for time made.

Baxland & Vincent [2009] FamCA 1041

Carlson and Ors & Bowden (2008) 40 Fam LR 327
Cox & Pedrana (2013) 48 Fam LR 651

Harris v Caladine (1991) 172 CLR 84
MRR & GR (2010) 240 CLR 461

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Baxland

RESPONDENT: Ms Vincent

FILE NUMBER: BRC 11198 of 2007

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 May 2014

REPRESENTATION

FOR THE APPLICANT: In Person

FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

THE INDEPENDENT CHILDREN’S LAWYER: Bint Family Lawyers

Orders

IT IS ORDERED THAT:

1. All previous orders be discharged.

Parental responsibility

1. It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of N (born … 2004) (“the child”).

2. The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   a)Use her best endeavours to advise the father in writing of the decision intended to be made;

   b)Seek the father’s written response in relation thereto;

   c)Consider, by reference to the best interests of the child, any such response prior to making any such decision; and,

   d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.

3. The mother have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst he is in her care.

4. The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst he is in his care.

Live with

1. The child live with the mother.

Consultation with Dr T

1. Each of the mother and father shall do all such things and sign all such documents as might be necessary so as to facilitate each of them and the child consulting with Dr T, Clinical Psychologist, at such times and with such frequency as he might recommend for a process of family therapy.

2. In order to give better effect to the therapy contemplated in the preceding paragraph:

   a)Each of the mother and father shall comply with all such reasonable requests as might be made of them by Dr T so as to facilitate the process contemplated in paragraph  7 of these Orders including, but not limited to:

   i)The attendance by Dr T at either party’s home for the purpose of observing the child with either or both of his parents;

   ii)The observation of and/or participation in changeovers for any periods of time; and,

   iii)The attendance of both parties together for any joint sessions proposed by Dr T.

   b)The father shall pay the costs of consultations with Dr T involving himself alone.

   c)The mother shall pay the costs of consultations with Dr T involving herself alone.

   d)The parents shall meet equally the costs of consultations with Dr T involving the child.

3. The parents shall keep confidential to them, and to the child, all things said by them or Dr T in each of the sessions conducted in accordance with these Orders and shall do all such things and sign all such documents as might be required to have Dr T keep confidential those matters save as he might otherwise be obliged by law or professional obligation to disclose.

4. The processes contemplated by paragraph 7 of these orders shall continue for a period of twelve (12) months unless otherwise agreed to in writing by the parties.

Time with the father

1. The child shall spend time with his father at all such times agreed upon in writing by the parents during, or consequent upon, the processes contemplated by paragraph 7 of these Orders.

2. In the event that the parties are agreed as to the time that the child should spend with his father, they shall each do all such things and sign all such documents as might be necessary so as to file in the Brisbane Registry of the Family Court of Australia, Consent Orders giving effect to their agreement.

Publication

1. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the Independent Children’s Lawyer shall have leave to publish an account of these proceedings, including these Orders and the Reasons accompanying same, together with the Reasons for Judgment delivered by Jordan J in this matter on 16 October 2004, to:

   a)Dr T;

   b)The child’s treating General Practitioner; and,

   c)The principal of any school attended by the child.

2. The Independent Children’s Lawyer shall, as soon as reasonably practicable, cause each of the documents referred to in the preceding paragraph of these Orders to be provided to each of the persons there referred to.

Provision of Information about the child

1. Each party shall do all such things and sign all such documents as may be necessary or required to:

   a)Authorise each other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults;

   b)Speak to, and receive oral or written communication from, any school or other educational institution, attended by the child, after payment of any necessary fee;

   c)Notify the other party as soon as reasonably practicable should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

2. In the event that any party fails or refuses to do any such thing or provide any such document or authority, this Order shall, of itself, be sufficient authority for each and all of the matters referred to in paragraph 15 of these Orders to occur.

Miscellaneous

1. The mother be restrained and an injunction is granted, restraining the mother from facilitating the child’s further attendance upon Dr H.

2. Pursuant to s 65DA(2) and s 62B, Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11198 of 2007

Mr Baxland

Applicant

And

Ms Vincent

Respondent

REASONS FOR JUDGMENT

1. The parents of N, born in 2004, (“the child”) have been involved in litigation about his parenting arrangements since about 2006.  His parents separated when he was a baby.  The current proceedings emanate from the father’s application in which he seeks orders, the central effect of which is that he have sole parental responsibility for the child, and that the child live with him.  Orders to that effect would change fundamentally the child's erstwhile care arrangements; he has always lived with his mother, and the father has only spent limited overnight time with the child.

2. For reasons shortly to be amplified, I find that the presumption in s 61DA of the Family Law Act 1975 (Cth) (“the Act”) is rebutted in the child's best interests. I further find that his best interests require an order that sees him live with his mother. Again, the reasons for that conclusion will emerge shortly.

3. A more acute issue is the nature, frequency and extent of time, if any, that the child’s best interests dictate he should spend with the father. 

The Parties’ Proposals

1. In the latter respect, the Independent Children's Lawyer (“ICL”) contends for orders, the effect of which is that the child would spend no time with his father (save as might be agreed between the parties). That possibility is, at face value, contrary to the contemplated co‑nurturing that underpins the Objects and Principles of Part VII of the Act, and more specifically, for example, s 60B(2)(c).

2. The contention can be seen to derive from the history of manifest extended conflict between the child's parents, to which he has been exposed, and his exposure to litigation emanating from that. His parents have been litigating about him for virtually the whole of his young life. Proceedings under the Act and steps taken by the mother have seen the child consulting his own therapist (for about four years), at least three family consultants attached to this Court (incorporating five interviews), and most recently, a clinical psychologist, Dr T.

3. In short, the orders sought by the ICL are supported by contentions that:

   ·There is little or no realistic prospect that significant conflict between the parties will cease.

   ·It is highly likely that the child will continue to be exposed to that conflict and be adversely affected by it psychologically and emotionally.

   ·Earlier orders have tried to provide the means by which the parties might address their "adult issues" and work together to the child's benefit, and they have apparently failed.

   ·An order that the child live with his father is not in his best interests.

   ·On any view of the evidence, the child is a highly anxious child (whatever might be the aetiology of that anxiety).

   ·The only realistic way to bring an end to about nine years of conflict and upset to the child, and specifically the significant emotional upset caused to him by visits with his father, is for time with his father to cease.

4. The child has not seen his father unsupervised since April 2012.  Save for the preparation of family reports and two therapeutic sessions with Dr T, he has not seen his father at all since July 2013.  The latter circumstance arises because time at the D Contact Centre, occurring since about mid‑2012, was brought to an end by that centre in July 2013 because of the level of apparent distress and anxiety exhibited by the child separating from his mother for the purposes of those visits.  It seems that the level of apparent anxiety and upset had increased in the period from about March 2013.

5. Ironically, perhaps, in light of the long history of conflict and litigation, each of the mother and father contend (in differing ways) that this Court should, in effect, not give up hope.  Rather, they seek to have the Court place faith (or at least hope) in the continuation of a process (or processes) of what might conveniently be called "family therapy" that seeks to focus on assisting the child, and perhaps additional or parallel counselling or therapy that seeks to assist them with their "adult issues" as they were called in the trial.

6. The father contends that the process/processes just described will lead, effectively by agreement, to a resumption of orders made by Jordan J on 16 October 2009 that, in broad terms, provided for him to have alternate weekend time with the child, and time during school holidays.  If, however, the faith or hope given to the therapeutic processes provided for is not productive of that, and conflict continues to flourish with consequent effects on the child, the father will, in effect, accept that what the ICL now contends for should then occur.  In that respect, he contends for a "sunset clause" in respect of the therapeutic interventions of 12 months. 

7. The mother, too, implores the Court not to, as it were, give up hope.  She, too, seeks to have the Court place hope (or faith) in a process similar to that just referred to. She, however, has a different end point.  She contends that consequent upon the therapeutic process (to which she does not attach a time frame) orders should be made for what can conveniently be described as graduated time, commencing with supervised time and graduating to unsupervised time for a half day each alternate Sunday for six months, and thereafter, each alternate Sunday for the whole day (as well as, in each case, some provision for time on special days).

8. A central question - indeed, the central question - in these proceedings, is whether the child's best interests point to faith or hope triumphing over, if not expectation, then the pessimism generated by past events.  That central issue of whether any of the mooted orders best meet the child's best interests aside, the orders posited by each of the father and mother have other difficulties.  For example, the mother contends that the unsupervised time just referred to should commence when "the child's counsellor makes a positive recommendation that the child commence spending unsupervised time".

9. Leaving aside questions of interpretation and enforceability, that order, in terms, seems to me to contemplate impermissibly the abdication of judicial function to someone other than a judge (see, for example, Harris v Caladine (1991) 172 CLR 84 at 122, per Dawson J). If that difficulty can somehow be overcome, how might orders be framed that are both clear and enforceable?

The Circumstances in which The Child Finds Himself

1. Orders were made by Jordan J on 16 October 2009. His Honour's reasons ([2009] FamCA 1041) are relied upon by the mother in these proceedings (per s 69ZX(3) of the Act). Concerns for the child expressed by his Honour in those reasons are mirrored by evidence contained in two reports from a family consultant, Ms E, prepared for these proceedings - that is, some four and a half years later.

2. Jordan J’s concerns and findings are important in these proceedings and the context to them.  Sadly for the child, the concerns referred to by his Honour have manifested, and are directly relevant to the instant application. It is, then, important to quote some of what his Honour said:

   4.The matter was first before me on 24 February of this year.  That attendance by the parties was preceded by post-separation parenting courses attended by each of the parties.  It was preceded by the parties viewing a video which addressed, quite directly and tellingly, through the eyes and mouths of children, the adverse impact of parental conflict upon young children. 

   5.At that hearing, each of the parents confirmed that they had understood the importance of that message and each expressed a wish to improve matters in that regard.  The father was unrepresented at that hearing but it was, indeed, a striking moment in the trial when, not long after making those expressions, the father informed the court that he had no intention of responding to the mother’s greetings at the beginning and conclusion of contact in the presence of the child and reasserted his resistance to the exchange of information, both ways, about matters relating to issues such as medical treatment or accidents. 

   6.I had the opportunity to not only hear what the father said but to observe his demeanour and presentation during the course of those proceedings.  I have made it clear that I was left with a great deal of concern as a result of what the father had to say on that occasion.  I was left with a sense of pessimism about the future.  Sadly, that pessimism appears to have come to pass.  Sadly, it appears that the conflict between the parents has continued, even under the microscope of a pending trial, when they each were to know that their conduct and the events between February and this date were matters which would be reviewed by the court.  All of the evidence and, in particular, the affidavits of evidence in chief of each of the parties filed on the eve of the trial, are the clearest indications that nothing has improved.  I read, and continue to read, of allegations and counter-allegations and each party seeking to hold the other entirely responsible for all of the ongoing problems. 

   7.In the period after 24 February and pending this trial, there have been serious issues between the parties, including allegations of drug use, suspension of contact, impasse over the child’s very enrolment at pre-school, public altercations about hair cuts, misuse or abuse of the one reliable means of communication, being a communication book, and serious allegations raised by each of the parents against the other of what could only be described as gross emotional abuse of the child in the form of serious threatening suggestions about the other parent to this young child.

   8.After this period from 24 February, [Mr L] re-interviewed the parties and, most importantly, re-interviewed the child.  What he observed, with great concern, was a marked deterioration in the child’s presentation, with heightened levels of sadness and anxiety.  He expressed very serious concerns for the welfare of the child if this were to continue. 

   9.I have a sense that, in terms of the child’s short and medium-term welfare, in terms of the prospects of him having a happy and meaningful life and of reaching his full potential, that the parents in this case are literally facing one minute to midnight. 

   10.One of the saddest features of this case is that, individually, they have so much to offer their son.  Individually, they present as intelligent, loving, caring parents.  As a collective, however, I say that they are capable of destroying the very child they love so much.  The reality for the child has now become that, no matter how much love and care and nurturing he receives individually from his parents, if they are unable or unwilling to completely relieve him of the burden of dealing with their ongoing conflict, they are facing the prospect of committing their young son to the potential of a very bleak future indeed. 

   11.A child who feels anxious and unsafe in the presence of his parents is a child whose healthy development is being placed at risk.  The evidence of such anxieties can have a very serious impact upon the child’s prospects in the future in terms of his education, his socialisation, his emotional and even his mental well-being.  The child is entirely dependent upon his parents to enable him to negotiate his pathway through childhood.  He is dependent upon his parents for appropriate nurturing, for appropriate role modelling, and to keep him safe from the prospect of harm, and particularly emotional harm.  The impact upon children whose parents fail to meet those responsibilities can be both very serious and long term. 

   12.As I have indicated earlier, the cases as presented in the affidavit material of the parties have reinforced the concerns I held in February of this year.  The reading of the material and the case outlines gave me no cause for optimism at all. 

   13.Happily, the first positive signs in this matter may be emerging in the course of the further hearing of these proceedings.  Of course, the difficulty for me is that it is impossible to determine to what extent the parties might embrace their proposals as opposed to determining to what extent they feel compelled to enter into these arrangements. I need to observe that these eleventh hour developments are not consistent with what appears in the affidavits or what emerged from [Mr L’s] exercises.  They appear very recent developments.  Nevertheless, I must acknowledge the reality of the positive implications of the proposals put forward by the parties.  Further, the parties deserve some credit in that they have chosen not to proceed with a contested hearing, which would have exposed parties to a difficult exercise which may not have augured well for the future.  Having said that, the one outstanding, important issue in this case did, unfortunately, necessitate some analysis of the history which presented the parties with some difficulties.

1. Sadly, the pessimistic tone of his Honour's comments is reflected in the child's current circumstances, which will be canvassed in the following discussion of the issues.

Issues of Credibility

1. As I said during the course of argument, I have doubts about the veracity of the evidence of both parents. 

2. I consider that each, after eight years of litigation and continual conflict, tailor their evidence to accord with the premise that all that is good for the child lies with them, and all that is bad for the child lies with the other.  The result is that truth or objectivity is the victim.  Yet, that conclusion does not result in entirely rejecting the account of one or the other. 

3. For example, contrary to what the father asserts, I do not accept that the mother's expressions of anxiety for the child are false, and are part of a design to remove him from the child’s life.  I think it much more likely that her anxieties are founded in her own background (which, for example, saw her not having a father in her life), her anxious personality, and the fact that she has been a sole primary parent dealing with an extended period of conflict and litigation about a child who she loves deeply.

4. So too, I do not accept that the father is a contumelious liar, who seeks to hide through lies, a number of behaviours alleged against him which are harmful to the child.  I consider he has underplayed his use of cannabis.  I also reject his entirely benign account of his visit to the child's therapist's rooms.  I think it likely that his account of the child's behaviour, when with him on earlier visits as entirely exemplary and without blemish or upset, is not entirely true.  Yet, I do not accept that the father has punched his child.  I do not accept that he has, for example, blown cannabis smoke into the child's face.  I do not accept that, as a form of punishment, he has barricaded the child behind chairs (effectively imprisoning him).

5. As but one of the considerations by which I do not accept those matters, I note that, as is evident from the mother's affidavit of evidence‑in‑chief, the actions of the father, and the child's statements about the actions of the father, have, in effect, been "under the microscope" for some considerable time, and the father was plainly aware of that fact.

Allegations of Risk of Harm

1. The mother alleges that the father was "domestically violent towards her" during the parties' relationship. The father concedes that there was domestic violence during the parties' relationship, but contends that each party was a perpetrator. Whilst not attached to the mother's affidavit (as required by r 2.05 of the Family Law Rules 2004 (Cth)), she deposes to (and it does not appear to be controversial) that a "domestic violence order" was made "against [the father]" following separation, and which expired on 28 September 2007.

2. I must take that matter into account (s 60CC(3)(k)) and I do so. Since expiry of the order, no further orders have been sought. Since expiry of the order, the parties have been in contact, including at handovers, and there is some evidence of behaviour engaged in, as I find by both parties, that might be described as "threatening" behaviour, that causes the other to be "fearful" (s 4AB(1) of the Act). The child has been "exposed" to that behaviour because he has seen and heard it (s 4AB(3)). No specific finding is sought on behalf of the mother, to the effect that either party has engaged in "family violence", or that the child has been exposed to such conduct on those occasions, such that, of itself, it ought impact upon the orders to be made (save that the proposed family therapy might address the issue of conflict).

3. To the extent that there is evidence of "family violence" (as that term is used in Part VII and defined in s 4AB of the Act) between the parents, there is little evidence before me of any incidents in the last six and a half years. No specific finding was sought on behalf of the mother that the child is likely to be exposed to family violence in the future. The ICL submits that a much more significant issue is whether the child is at risk of emotional harm whilst in the care of either parent. I agree.

4. The mother makes a number of allegations that the father physically and emotionally abused the child.  He denies each and every one.  Those allegations can be seen conveniently summarised at paragraph 147 of the mother's affidavit of evidence‑in‑chief.  Examples (which again have echoes in the issues raised before Jordan J some four and a half years ago) include:

   2010

   …

   c.On 4 February 2010, [the child] said, “Daddy’s calling you names and smoking again”.

   …

   i.On 11 October 2010, upon his return from [the father’s], [the child] said he had a bad weekend and that [the father’s first name] was unhappy. [The child] had a thumb sized bruise on his right shoulder just under the clavicle bone. I made a doctor’s appointment.

   …

   2012 to April 2012

   …

   s. On 19 February 2012, whilst watching morning cartoons, [the child] told me that he did not want to go to his Father’s place. I asked if he could tell me why. [The child] said “I’m scared that he’ll be angry and punch me again”.

   …

   u.On 7 May 2012, [the child] said. “He made this circle of chairs and chucked me in and I couldn’t get out”…

   [The child] made the following comments during this conversation:

   “The chairs have bars so I couldn’t crawl through and I was scared I’d hurt my leg or something if I crawled over the top of them and they fell over and [the father’s first name] was there. [The father’s first name] had bricks to hold the chairs, but I did work out to push the brick and then I could push the chair, but [the father’s first name] picked me up and chucked me back in. He kicked my butt and told me to get back in there. He said that I had to stay there for another five hours”…

   I asked [the child] when this happened. [The child] said “last weekend”. The last weekend [the child] spent time with [the father’s first name] unsupervised was on 20 April 2012 to 23 April 2012…

   (Italics in original).

5. The latter allegation featured prominently in the trial, with the father being asked a number of questions about it by both the mother's solicitor and counsel for the ICL. The father consistently and comprehensively denied the allegations.  The mother's affidavit charts things said by the child, and events said to have occurred during time with the father, in considerable detail.  Where the report is of the child saying things, it is relatively contemporaneous with the event.  In that context, it is significant that the child is said to wait a fortnight to tell his mother about what was, if accepted, apparently a very traumatic experience on the last occasion he spent time with his father.

6. Documents subpoenaed from the Department of Communities, Child Safety and Disability Services (and tendered by the mother - exhibit M8) indicate that on 13 April 2012, the child was interviewed at his home by two departmental officers.  The documents record that:

   …

   [The child] indicated that “one time [the father’s first name] punched me in the back”. [The child] indicated that this happened maybe on January 26th 2012.

   [The child] indicated that the day before [the father’s first name] had an argument with his sister and was angry. [The child] indicated that instead of calling his sister “[The father’s first name] threw me on my back on the couch and punched me on the back”. [The child] indicated that he had a mark on his back and was very upset…

   …

   [The child] disclosed on 25th January 2012 he took his “Pooh Bear” to [the father’s first name]’s. [The child] disclosed that [the father’s first name] cut out his eye. [The child] indicated that [the father’s first name] used a knife with a wooden handle…

   …

   [The child] disclosed that [the father’s first name] makes his own cigarettes. [The child] indicated that this makes him feel a bit unsafe. [The child] disclosed that he doesn’t like smoke so will walk away and go outside. [The child] indicated that [the father’s first name] follows him to watch where [the child] is.

   …

7. It seems to be agreed that the Department “substantiated” a risk of harm to the child following that interview (although the two pages tendered from the Department documents do not indicate the outcome of the investigation). Documents annexed to the mother’s affidavit clarify the "harm" the child is said to have suffered as the alleged punch. Whilst relevant, the outcome of an investigation by the department does not determine whether the child is at risk of harm for the purposes of s 60CC(2)(b) of the Act; a decision made by reference to the whole of the evidence before the Court.

8. In her affidavit, the mother deposes that on 13 February 2012, the child told her that the father "dumped me on the couch and punched me on the back".  The mother states that she asked the child to show her where on his back, but did not observe any bruise.  Nonetheless, in light of the child complaining about his back still being sore, the mother says she made a doctor's appointment.  No medical certificate or notes from the doctor were relied upon by the mother.  In a similar vein, the mother makes no mention of the child returning from a visit to his father with a "Pooh bear" missing an eye, or of the child telling her that his father had cut his teddy's eye out with a knife.

9. Despite allegedly being told by the child that he was "scared" of his father, that his father had "punched" him, leaving his back sore, and notwithstanding having observed a "thumb‑sized bruise" on the child's clavicle which concerned her enough to make a "doctor's appointment", the mother nonetheless continued to facilitate the ordered unsupervised time with the father until, it seems, the child told her about the chair incident (deposed to at [174(u)] of the mother's affidavit quoted earlier in these reasons).

10. Another matter that featured prominently in the proceedings before me was the father's use of cannabis.  The father conceded in cross-examination that he continues to smoke cannabis "socially".  When asked how often, he indicated that he had smoked the drug approximately 3-4 times in the last six months.  Orders have previously been made prohibiting the father from using the drug within 24 hours of any time with the child, and have also required that the father undergo regular drug testing.  Whilst the mother asserts that the father failed to consistently provide the results of those tests (an allegation which the father denies), there was no suggestion that the father ever returned a positive result. 

11. Further, the mother has taken the child on at least one occasion to be tested in light of statements by the child to the effect that his father had smoked the drug in his presence.  The results of that test were not put into evidence by the mother, but oral (hearsay) evidence was given that the result of the test was negative.  The father denies consuming cannabis (in any way) in the presence of the child.  Save for the child's statements, there is no evidence (including drug tests of either the father or the child) to indicate that the father has consumed the drug at a time when the child was (or was likely) to be in his care.  In any event, it was not submitted on behalf of the mother that I could make a positive finding on the evidence presently before the Court, that the child was at risk of harm as a result of the father's use of cannabis. 

12. Whilst allegations and findings about family violence must predominate (s 60CC(2)(b) and s 60CC(2A)) in the instant case, as Ms E's evidence sought to emphasise in a number of different ways when she was cross‑examined, the greater potential harm for the child exists within much broader parameters than the specific assertions of defined family violence.  In particular, Ms E reiterated that both parents' exposure of the child to their conflict was harmful to him.  Ms E agreed that that exposure has already caused damage, and ongoing exposure will cause further damage.

13. Further, Ms E gave evidence that in her view - a view which I share – the child is acutely aware of his mother's insecurities and the issues she has with the father.  That the mother has exposed the child to her opinions of the father is, in my view, plain on the evidence.  As but one example, in her first report dated 7 August 2013, Ms E records the child as stating that "[the father’s first name]" is not his dad, but his "biological father", and is "not part of my family and is not related to me". Ms E opined in oral evidence that the term "biological father" was not an "age appropriate" expression for the child, who was eight years old at the time he used it.  The mother could give no explanation for the child's use of the term.  She maintained that she had never used it, nor had she heard the term used in the child’s presence by others.  I reject that evidence.

14. Similarly, the child frequently refers to his father by his first name “[the father’s first name]”.  Indeed, in the notes of the interview by the department referred to earlier, the child is recorded as stating that "...he calls [his father] dad when he is with him, but when he isn't around, he will call dad [the father’s first name]".  The mother conceded in oral evidence that she uses "dad", "your father" and "[the father’s first name]" interchangeably.  Whilst she contended that the child sometimes calls her by her first name, that is not apparent in any of the material before me.  At no point during the interview with the departmental officers did the child call his mother by her first name.  Likewise, Ms E does not record the child as using his mother's first name when referring to her.  In contrast, the child referred to his father as "[the father’s first name]" at times during the interviews with Ms E.  Ms E gave the opinion, which I accept:

    9.7 ...There appears to be ongoing relationship issues of an adult nature which have inhibited [the mother's] ability to facilitate and encourage a relationship between [the child] and his father ... This is evidenced in information provided by [the child], referring to his father by his first name, and indicating that he is his "biological father" and not his "dad".

15. Whilst I am conscious that the instant proceedings were instituted after s 60CC(3)(c) had been amended, it is nonetheless relevant to a consideration of s 60CC(2)(b) that the mother has exposed the child to her own issues with the father. In my view, the impact of the mother's exposure of the child to her views of the father is epitomised by a letter provided by the child to Ms E in late April this year, just prior to her updating interview with the child. That letter, which was attached to an affidavit of the ICL, annexing Ms E's second report, states:

    What I want is…

    Safety

    Friendlyness

    Fairness

    Respect

    Listening

    Just daytime visits no staying over night

    Only when other people are around.

    Me and [the father’s first name].

    No masks

    And lying

    Being fairer

    Listen to others

    That is me.

    I don’t want him coming to school events or to school at all.

16. The mother maintains that she did not have any involvement in the writing of that letter.  Whilst not dated, it is clear that the letter was prepared between July 2013 and early April this year - that is, when the child was eight‑nine years old.  When asked whether the letter was "age appropriate", Ms E stated that it was "nothing that [she] had ever seen" from a nine year old.  I do not accept that the child wrote the note unaided or completely of his own volition.

17. There is little doubt in my mind that the father, too, has exposed the child to not only the conflict between his parents, but also to the father’s own (mostly adverse) opinions of the mother.  The father concedes he has spoken to the child about his desire to have him live with him half the time, something which - the father conceded in the witness box - caused the child distress and was not appropriate.  Similarly, the child stated to Ms E that things "[the father’s first name]" had "...said hurt his feelings, including calling his mother a 'bitch' or an 'ass'.  [The child] stated that [the father’s first name] does not like his mother or him."

Parental Responsibility

1. Section 65DAC of the Act provides:

   (1)This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2)The order is taken to require the decision to be made jointly by those persons.

   Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3)The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

   (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

2. It cannot seriously be contended that the mother and father in this case have any current capacity to consult without conflict.  Each effectively concedes as much, not only because each contends for an order for "sole parental responsibility", but also in their evidence.  Historically, their interrelationship has been attended by significant conflict, and it has involved the child directly and indirectly.  I adopt, with respect, the finding by Jordan J that "individually, [the parents] present as intelligent, loving, caring parents.  As a collective, however ... they are capable of destroying the very child they love so much."

3. The terms of s 65DAC aside, the undefined "equal shared parental responsibility" imports - if the best interests of the child are at its core - the need for a level of maturity, commonsense and cooperation between parents. Historically, the parties have not exhibited those traits when decisions about, and interactions toward, the child are concerned. The absence of one party having the "final say" in decisions about major long‑term issues, has the potential for significant future conflict.

4. I consider it antithetical to the child's best interests that the parties be required to consult in the manner required by s 65DAC or, more broadly, to make decisions about major long‑term issues equally or together. The s 61DA presumption is rebutted in the child's best interests (s 61DA(4)). It might also be said that the presumption of equal shared parental responsibility is rendered inapplicable by reason of my earlier findings with respect to family violence. For this reason, too, the presumption of equal shared parental responsibility does not pertain to the present case.

5. I will order that the mother - who has, effectively since the child's birth, been his day‑to‑day carer - have sole parental responsibility for him.  An order in those terms has, without more, the potential ramification that the father has no "duties, powers, responsibilities and authority which, by law, parents have in relation to their children" (s 61B).  That is an order of considerable gravity (see the discussion in Carlson and Ors & Bowden (2008) 40 Fam LR 327).

6. In order to meet those concerns, while accommodating the earlier findings, I will make orders for sole parental responsibility, but provide for a process that permits an input to the mother's decisions by the father, but which resolve any resulting impasse.

7. The findings in respect of parental responsibility result in the Court's power to make parenting orders being "at large" (see, s 65D; s 65DAC; MRR & GR (2010) 240 CLR 461; and, Cox & Pedrana (2013) 48 Fam LR 651).

“Live with” Orders

1. As has been said, the child has lived since he was a tiny baby in the day‑to‑day care of his mother.  His father has spent time with him in varying amounts and with varying frequency (he would say, despite his efforts to spend more time with him), but he has never at any stage cared for the child for a prolonged period. 

2. Although the father contends for an order that the child live with him, he provides no affidavit evidence of where he is to live, with whom he would live, where he would attend school, and the like.  The father currently lives about a half an hour's drive from Brisbane; the mother and the child approximately a further hour's drive.  When asked by counsel for the ICL about his plans should the child live with him, he advanced a vague plan to move to the town where the child has erstwhile lived, but was unable to provide any evidence of concrete plans that would give certainty and stability to the child.

3. The father described the child to Ms E as "very sensitive".  The mother speaks of the child's significant anxiety upon separating from her.  Ms E's opinion is that: 

   Given [the child’s] age and life stage, it is critical that his family arrangements, routine and home environment are stable and structured, given that changes may cause significant impairment in the following areas;

   9.4.1   Emotional attachments and relationship building;

   9.4.2   Emotional expression and regulation;

   9.4.3 Personal and Social relationships, which are increasingly important for personality and identity development; and

   9.4.4   Stability and consistency across all areas of his life.

4. In effect, the father contends for a "live with" order as a measure of last resort; he asserts that the mother has engendered in the child a reluctance to spend time with him, and in effect "puts him up to" displays of anxiety upon separating from her, of which the early 2013 contact centre issues referred to in the evidence are perhaps the best example.  Particular cases may admit of the possibility of changing longstanding "live with" arrangements, where evidence is persuasive that, for example, a parent has deliberately and contumeliously engaged in behaviour of the type asserted by the father as being perpetrated by the mother, and it is considered that the particular child's best interests can otherwise be met by immersing the child in the day‑to‑day care of the other parent where, again, evidence suggests such a course is otherwise consistent with the child's best interests.

5. I was very troubled by aspects of the mother's evidence.  For example, she swore that she commenced therapy for the child "...with regard to the relationship with his father".  Yet, she provided to the therapist an eight‑page document (exhibit ICL1) she says was intended to provide a background for the therapist and which, she admitted in the witness box, contained not a solitary positive comment about the father.  Later, she was, she says "uncomfortable" about acceding to a suggestion by Dr T - a therapist agreed to by her and the father - who was assisting the child, that he (the therapist) and the child should attend at the father's home.

6. It might be thought that this presented a prime opportunity for an independent person in whom ostensibly at least, both parents had reposed some trust, to observe for himself the child's reaction;  to work with it;  and to, in effect, provide the potential for a breakthrough in the concerns which the mother alleges the child has.  The mother was quite unable to articulate why she was "uncomfortable" with the therapist's suggestion, and I consider her comment that the therapist could nevertheless have facilitated that contact without her support, to be disingenuous at best.

7. Despite those reservations, I am not ultimately able to persuade myself that the child's anxiety has an aetiology as uncomplicated as the father would contend, or specifically that his exhibited anxiety results solely from actions, both overt and subtle, by the mother.  I consider that the child is by nature sensitive and anxious.  I accept the evidence of Ms E that just as Jordan J had portended, the conflict and litigation surrounding the child - in which both parties are, as I find, active - has significantly heightened his anxiety, and his healthy development has been compromised over the years as a result.

8. Equally, I think it is highly unlikely that, as the father contends, the child would react to a transition to the father's care with calm equanimity.  I consider that his assertions to that effect exhibit a lack of insight into the child's emotional needs, and a lack of understanding of the complexity of the emotions engendered in the child, arising solely from his parents' ongoing conflict.  (The latter affliction is one which I consider is shared, albeit to a lesser extent, by the mother.)

9. Those factors, together with the father's limited historical role in the co‑nurturing of the child, and the father's exhibited lack of preparedness for having the child in his full‑time care, point strongly against orders involving the child being immersed in his father's day‑to‑day care being in his best interests.  It is not in the child's best interest for an order to be made that he live with his father.  In matters unconnected from the relationship with the father (and the child's relationship with his father), there is no evidence to suggest that the mother is anything other than a loving, caring mother appropriately concerned for, and committed to, the child's needs.  An order should be made that the child live with her.

Time

1. The matters just discussed have, obviously enough, a direct connection to both primary and additional considerations.  Primary relevance has been given to the primary concern that the child should have the benefit of a meaningful relationship with his father, consistent with his best interests, but effectively by way of corollary, the benefit of any such relationship, and the manner in which orders might frame it, has been sought to be considered against the potential for the child to suffer emotional and psychological harm by exposure to conflict, by the heightening of anxiety, and by the potential to have a stable post‑separation care arrangement significantly disrupted.

2. As with so many parenting cases in this Court - and all the more so, those which extend over long periods of time in one guise or another, and which involve significant ongoing conflict - the parties seek to agitate and prove a plethora of facts which, it must be assumed, they contend shows them in a favourable light and the other party in an adverse light.  Invariably, underlying many if not all of those assertions and counter assertions, is in truth a central contention that, "There may be conflict, but it's not my fault;  it's his/her fault."

3. This case, as it seems to me, is no different. Again, Jordan J referred to this nearly five years ago (see, for example, [6] and [7] from his Honour's reasons quoted earlier). The allegations raised before his Honour are again raised in the material before me. As noted earlier, there are fresh allegations too, including allegations that have involved the Department. Over thirty paragraphs of the mother's affidavit (and a number of documents annexed) depose to events occurring on or before time between the father and the child. Paragraph 147 of the mother's affidavit details in 21 subparagraphs things allegedly said by the child between January 2010 (when he was five) to April 2012.

4. Yet, when regard is had to the mandatory considerations by which the child's best interests are to be judged, against a background of parenting litigation that spans now some eight years or so, and the child's best interests take centre stage, a number of central tenets emerge independent of the rights and wrongs of each of the parties, and their allegations and counter allegations. 

5. The mother concedes that there is real benefit for the child in having a meaningful relationship with his father.  Indeed, I canvassed very specifically and at some length with the mother, her attitude to the possibility that the child spend no time with his father.  I asked her why I should be hopeful about time occurring in the future, given what the evidence revealed of the past.  To her credit, the mother gave - in what I considered to be honest and sincere evidence - answers indicative of the benefit of the father having a role in the child's life.  She is worried about his safety; a topic to which I shall return.

6. Each of the parties concedes that their remorseless conflict is doing significant harm to the child.  Neither party challenged (in the mother's case, through her solicitor; the father, himself) the poignant evidence of Ms E to that effect, and her recitation of the potential harm for the child if it continues. 

7. There is little doubt that the child has a close, loving attachment to his mother.  In issue is the extent to which the nature of that relationship involves a projection of her anxieties onto the child, and whether that has manifested itself in both overt and more subtle actions which have influenced the child's relationship with his father.  The father himself described to Ms E the nature of his relationship with the child as "seriously fractured".

8. The evidence is replete with views expressed by the child.  A real issue is whether those views are his own or entirely his own, or whether his mother has influenced them.  A striking example detailed in Ms E's report has already been referred to in these reasons:

   When we began discussing family, and I was asking [the child] about his mother and his father, [the child] stated that “[the father’s first name]” is not his Dad, but his “biological father”, and is “not part of my family and is not related to me”.

   [The child] reported that his “biological father” had beaten him up “mentally and physically”.

9. Ms E was appropriately circumspect about the child's "views", at least insofar as those views might be thought discernible from his statements alone.  The child's views, like the views of any child, are shaped by his experiences including, fundamentally, his experience of his primary loved objects, and the nurturing which they provide.  As noted earlier, the child provided a note to Ms E at the time of the interview for the second report (on 22 April 2014).  The father asserts, in effect, that the child has been "coached" to say things, or that the mother is otherwise directly complicit in the negative or adverse things the child has said about him.

10. I think it unlikely that the mother has, in a measured or structured way, "put words in [the child’s] mouth", or, for example, directed verbatim the writing of the note just referred to.  However, I have no doubt that this intelligent and sensitive child is acutely alive to the (apparently entirely) negative picture of the father held by the mother.  I have no doubt that, in a multitude of ways, both overt and implicit, that message has been conveyed - and conveyed regularly - to the child.  The mother's eight‑page document given to the child's therapist, and the evidence of her attitude to including the father in that therapy and the child's schooling, evidenced by the completion of the enrolment form, provide good examples of her underlying attitude.

11. The child's therapist was also the mother's therapist.  The mother did not call that therapist as a witness.  I am convinced that the mother presented an entirely negative view of the father to her therapist (as, of course, she was entitled to do) but that same therapist was also seeing the child.  I have little doubt that the negative views of the father were reinforced for the child by and during the therapy with that person.

12. An example of a subtle but, I think, telling means by which negative perceptions of the father might be reinforced, is in the evidence concerning a telephone call between the child and his father, which involved (on either party's account) the child referring to his father as, "fucking [the father’s first name]," and hanging up.  The mother said she told the child that this behaviour was unacceptable, and that he should telephone his father to apologise.  I think this evidence is untrue.  In any event, she was asked what happened when he refused to ring his father.  Nothing further apparently occurred, save that the child "went to his room".  When asked why she herself did not ring the father so as to make it clear that flagrantly disrespectful behaviour of this type was unacceptable (from an eight‑year‑old boy) she was unable to provide an answer, nor was any evidence offered by her as to why no further attempts to have the child address this behaviour were made.

13. Of course, the father's behaviour does not assist in the amelioration of conflict and the inculcation of trust.  I accept his evidence that his attempts to involve himself in the process engaged in by the child's therapist (which, according to the mother's sworn evidence, had as it purpose, the child dealing with the relationship with his father) were frustrated.  Quite why he would not be involved remains mysterious, and my comment about the lack of evidence from the therapist pertains.  Yet, I entirely reject the father's account of his behaviour when he attended at the therapist's office in April 2011 (after over two years of consultations between the child and the therapist, in which he had no involvement whatsoever).

14. There is evidence to suggest that he was rude, demanding and aggressive.  He denies this.  I do not believe him.  The combination of the matters just discussed;  the child’s age;  the years of intense conflict between the parents to which the child has been exposed for virtually the whole of his life;  the lengthy period of litigation of which, I find, (accepting Ms E's evidence in particular) the child is well aware;  the child’s intelligent and sensitive nature;  and, the child’s knowledge of court proceedings (again accepting Ms E's unchallenged opinion at 9.7 of her first report) all point in my view to the need for considerable circumspection, in not only according weight to the child's express views, but also to the specific complaints he has made about his father to Ms E and to the department.

15. Concern must, of course, attend reports by the child of violent behaviour by his father toward him, but accepting what he says must also axiomatically involve a rejection of the husband's evidence completely denying any such behaviour.  In that respect, I accept the opinion of Ms E expressed at 9.19 of her first report that: 

    It is my opinion that the historical and ongoing discord between [the father] and [the mother] is contributing to [the child’s] sense of confusion and possibly causing identity disruption. [The child] is isolating himself from his father … which appears to be related to his mother’s own feelings towards him and their previous relationship…

16. As has been seen, a number of allegations are made by each parent against the other.  Their respective accounts of their own behaviour, and what the child has said and done, and the circumstances surrounding what he has said and done, inform relevant considerations; for example, the child's views, the parties' capacity to parent, and the responsibilities of parenthood.  As will be self‑evident, the relationship between the parties is marked by mistrust and a complete inability to communicate in any adult or meaningful way.  That, in my view, colours their evidence, and in particular their accounts of each other's actions, and the words and actions of the child.  As importantly, it also affects their capacity to parent. 

17. Again, I agree with Jordan J, that those matters may not affect the capacity of each to parent individually, but it undoubtedly affects their respective capacities to co‑parent and to provide co‑nurturing for the child. Each is not only central to what the Act's objects and principles contemplate; each is also central to what the child's healthy development into adulthood requires.

18. I consider that the father's capacity to parent is affected by a lack of insight into the child's needs.  He plainly loves his son dearly.  The father is an intelligent man who understands, at an intellectual level, his son's needs.  Yet those perceptions are, in my view, coloured - and his actions accordingly - by an attitude of self‑righteousness (which might be expressed, for example, as, "the mother is consciously turning [the child] against me, and that is wrong, and she should not get away with it,") and, whether as a result of that or otherwise, a lack of insight.

19. Jordan J spoke of a specific instance exemplifying that in the proceedings before him (see [5] of his Honour's reasons).  In these proceedings, it is, I think, best exemplified by his questioning of the child as to how and when he might visit him, and his comments to Ms E reported at 5.56 of her first report that: 

    He reported that he feels [the child’s] presentation of distress looks like “play acting” to him, and he sees [the child] revert back to a “baby cry”. He stated that his looks like [the child] has an irrational fear.

20. The parents' conflicted interaction, and their incapacity to communicate on a mature adult level is also, to one degree or another, an abdication of the responsibilities of parenthood. In assessing the child’s best interests, the Act specifically requires the Court "to take into account whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings, in relation to the child". Commonsense and ordinary human empathy for the child’s position would suggest that yet further proceedings about him would be antithetical to what is best for him.

What Orders Best Meet The Child's Best Interests

1. The issues just discussed are, as is obvious, related to what I consider to be the relevant considerations which the Act, and s 60CC in particular, mandates as the means by which the child's best interests might be established. A difficulty with this case, as with many parenting cases, is that the findings, including in respect of the mandatory considerations, do not necessarily impel a particular remedy or set of remedies. The task is to use those findings to illuminate orders that best meet the child's best interests in his particular circumstances (see, ss 65D and 60CA).

2. Jordan J said in 2009 that it was "one minute to midnight" for the child because his parents needed to find a way of addressing their issues, and cooperate sufficiently to allow healthy development for the child.  The risks to the child's emotional and psychological welfare, should they fail to do so, have been flagged by a number of expert reporters to this Court whose reports the parents have read.  Jordan J flagged some optimism.  The events in the intervening four and a half years suggest that optimism was misplaced.

3. In essence, the ICL submits that the conflict has to stop.  That submission underpins the contention that no order for time between the child and his father should be made.  The orders contended for by the ICL include an order (in substance although not in terms, a mandatory injunction) requiring the mother to facilitate counselling with an unnamed and unspecified counsellor, recommended by the child's doctor, yet the mother is, in any event, accorded relevantly "sole parental responsibility" in another mooted order.  No real basis is provided for why I should order the mother to do something that another order gives her the right to do in any event.

4. Further, the evidence suggests that any such order is unnecessary.  The mother has availed both the child and herself of therapeutic assistance in the past, indeed three or four years of it, albeit each of them with the same counsellor.  More broadly, the orders sought by the ICL for parental responsibility include a mandatory process of consultation (para 3).  That paragraph refers to the previous paragraph of the orders which gives the mother "sole parental responsibility" for the "major long‑term parenting issues".  It is not clear in terms whether the latter expression is intended to refer to the defined term "major long‑term issues" or something else.  If the former, the orders should embrace a defined term; if something else, the term should be defined because otherwise the interpretation of para 3 becomes problematical.

1. In broad effect, the orders sought by the ICL would see the role of the father in the child's life confined to consultations with the mother about "major long‑term parenting issues", and the forwarding of gifts and cards on birthdays and Christmas, together with such information as the father might request from doctors, schools, etcetera.

2. Each of the child's parents contends that I should not exclude the father from the child's life in the manner suggested by the ICL. In short, they contend that faith, or hope, should triumph over what their co‑parenting history indicates the future might hold.  In doing so, each appears to accept that neither ongoing conflict between them, nor ongoing anxiety on the child's part (whatever be its cause) is in his best interests.  Each contends that I should facilitate the hope of better things for him.

3. They each do so by suggesting an ongoing role for Dr T, a clinical psychologist, to conduct what might conveniently be called "family therapy".  As a result, each of the parties, whatever might be their respective anxieties for either their own positions or for the child, accord to Dr T the relevant expertise and consequent processes on which the hope of a productive outcome for the child is based. 

4. The contemplated process comes at a cost. The father says that the parties should each pay half, but if it means the process occurring or not occurring, he will pay the whole amount to ensure it continues. The mother has, for a number of years, paid for therapy for both herself and the child at a cost of $180 per session. Although it is suggested that she receives "assistance" in respect of at least some of the cost, I consider that each of the parties should be seen to contribute financially to a process to which they each assert they are committed. Equally, they should be seen to share the costs of therapy directly involving the child - that is consistent with their position as his co‑nurturers and the Act's objects and principles.

5. The process agreed upon with Dr T erstwhile was not intended to be reportable.  The reasons for that are both obvious and sensible.  Each of the parties and the child ought to be freed from the concern that what they do and say will find a home in a future affidavit in yet further proceedings.  Yet, that approach is not without some difficulties.  First, in the event that maturity and commonsense should fail, the process may potentially provide extremely valuable evidence for a court as to what is best for the child, particularly if the process is multifaceted, involving, for example, home visits or presence at changeovers between parents and the like.

6. Here, despite the fact that the parties were apparently agreed that the erstwhile process with Dr T was not reportable, each of the parties indicated to Ms E (and she reported) aspects of what each had said to Dr T or he to them and, importantly, their (hearsay) accounts of what the child had allegedly said and done.

7. The matters there referred to are absent from these reasons; I have ignored them.  The "[Dr T] process" if it is to continue, should not embrace the possibility of future proceedings - any further proceedings are, as the parties appear to accept, antithetical to the child's best interests.  The process has, as its aim, a purpose directed to the child, not court.  If the process is to continue, it should, save where otherwise required by law, be entirely confidential.

8. In seeking orders involving Dr T, the mother appears to abdicate judicial function to Dr T.  Implicitly, at least some of what the father suggests Dr T should do, falls foul of the same difficulty.  Yet the underlying intention in each case is sound:  the parties receiving direction from, and seeking to implement strategies and actions directed to assisting the child, and to re‑establishing and have flourish a relationship between the child and his father.

9. In addition, Dr T has already faced some difficulties.  The request to see the child at his father's home earlier referred to is an example.  Dr T properly sought the mother's permission for that to occur.  When that was not forthcoming, Dr T is, in the absence of court authorisation, in a difficult position.  If the contemplated "[Dr T] process" is to take place, orders should take account of that factor, so as to require reasonable commitment to what the process might entail.

10. I am not prepared to either anticipate an optimistic outcome for the Dr T process, or portend a pessimistic outcome by providing now for specific orders in respect of time that the child should spend with his father.  The father has indicated that, if within a 12‑month period, Dr T's contemplated process is unsuccessful in having the parties reach some form of adult cooperation, with time between him and the child eventuating from it, he says, in effect, that the pursuit of time by him will not likely be beneficial for the child.

11. So too, despite the mother seeking specific orders for limited time, and effectively abdicating to Dr T the decision for when that should occur unsupervised, neither those periods of time, nor any alternative periods of time commend themselves to being currently in the child's best interests.

12. The ICL contends for, and submissions on behalf of the mother do not contradict, an order restraining the mother from continuing the child's consultations with his earlier therapist.  Earlier interim orders to that effect were made.  I consider that order appropriate if the contemplated process with Dr T is to take place.  The reasons for that should be obvious, not only from what I have earlier said in these reasons, but because the Dr T process should be given the freedom to work.

13. There is no direct evidence from Dr T, but the evidence as a whole seems to me to permit safely of the conclusion that he would be prepared to continue to work with the parties and the child.  Certainly nothing said by either party suggest to the contrary. 

14. Those issues considered, there remains the central question:  has the time come in the child's best interests to make orders such as those mooted by the ICL, or should I accede to the submissions of both parties to give the prospects of a relationship a further chance.  I am convinced that this cannot occur unless there is work done by the parents with a person in whom they are prepared to repose some trust, and who can work with the child to establish and foster a relationship with his father, as the mother suggests should occur, and as plainly the father desires.

15. Doing the latter is certainly more consistent with the objects and principles of Part VII.  That said, I would not so order if I was convinced that doing so was contrary to the child's best interests.  On balance, I think the potential benefit of the child having a meaningful relationship with his father and, crucially, the potential for his parents to develop some capacity - even at a most basic level - to co‑nurture the child, is facilitated by the process earlier discussed.

16. Ultimately, I am persuaded that this is in his best interests, primarily because of the potential for the future psychological and emotional harm to the child identified by Ms E if he does not develop a proper relationship with his father. Orders of the type discussed above in respect of the "[Dr T] process" will buttress that central conclusion. In order to better facilitate those orders, I will make orders (to which no party objects) for leave pursuant to s 121(9)(g) of the Act, and an order then requiring the ICL to provide a copy of my orders and these reasons, and a copy of the reasons of Jordan J of 16 October 2009 to Dr T.

17. There is no reason why the father should not receive any and all information relating to important aspects of the child's life.  The father should receive school reports, notices of school activities and the like, and there should be nothing preventing him participating in events at which parents would usually participate.  I am conscious of my findings as to the father's behaviour at the offices of the therapist and, of course, it goes without saying that if the father exhibits insulting, aggressive or other childish behaviour (or either or both of the parties exhibit otherwise any behaviour or conflict) which the school authorities properly consider to be inappropriate, they should - and no doubt will - take any such actions as might be appropriate.

18. Similar considerations apply to the father receiving notice of medical issues for the child, and remaining informed of all such matters as are appropriate for both parents to be appraised of. Orders pursuant to s 121(9)(g) will be made so as to furnish the child's school and usual treating general practitioner with a copy of my orders and these reasons, and the reasons of Jordan J.

19. I order accordingly as follows.

ORDERS DELIVERED

1. I direct that a copy of my orders, when signed and sealed by me, be provided to each of the parties and/or their legal practitioners as the case may be via email, and thereafter forwarded by post.  I direct that when the reasons for judgment issue from Auscript and are settled by me, a copy be forwarded via email to each of the parties and/or their legal practitioners as the case may be, and subsequently forwarded by post.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 May 2014.

Associate: 

Date:  22 May 2014