Beadel & Beadel
[2021] FamCA 591
•10 August 2021
FAMILY COURT OF AUSTRALIA
Beadel & Beadel [2021] FamCA 591
File number(s): ADC 982 of 2019 Judgment of: BERMAN J Date of judgment: 10 August 2021 Catchwords: FAMILY LAW – CHILDREN –With whom a child lives and spends time with – Best interests of a child – Meaningful relationship – Where the father seeks that the child live with him and spend time with the mother – Where the mother seeks the child live with her and spend time with the father subject to the child’s wishes – Where there are allegations of family violence – Where the mother ceased the father’s time with the child in 2018 – Where supervised time and reunification therapy has been unsuccessful – Where the child currently lives with the mother – Where there is no relationship between the father and the child and the child does not wish to have a relationship with the father – Where a removal from the mother’s care would place the child at risk of psychological harm – Orders.
FAMILY LAW – CHILD ABUSE – Allegations – Where the mother had raised sexual abuse at various times in the proceedings – Where the mother does not allege that the father presented a risk of sexual abuse but places weight on concerns expressed by the child of the father’s conduct – Where the child believes he has been sexually abused by his father – Where there is no evidence to support that belief – Where a health professional is to explain to and counsel the child that he was not the subject of sexual abuse.
Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 69ZT, 69VA
Family Law Rules 2004 (Cth) r 15.13
Cases cited: Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Hunter & Berg [2017] FamCA 1051
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Sigley v Evor (2011) 43 Fam LR 439
Number of paragraphs: 231 Date of hearing: 7 – 11 December 2020 and 29 March 2021 – 1 April 2021 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: SE Lawyers ORDERS
ADC 982 of 2019 BETWEEN: MR BEADEL
Applicant
AND: MR BEADEL
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
10 AUGUST 2021
THE COURT ORDERS:
1.That the mother have sole parental responsibility for Z BEADEL (“the child”) born … 2011.
2.That the child live with the mother.
3.That the child spend time with the father pursuant to the child’s wishes.
4.That within twenty eight (28) days of this order the parties agree upon and nominate a suitably qualified therapist or counsellor to assist the child in understanding that he has not been the subject of sexual abuse by the father and that his continued belief to the contrary may well be detrimental to him in terms of his future development.
5.That the parties keep each other informed of their current residential address, mobile and landline telephone numbers and any available email address and advise the other party of any change thereto within seven (7) days of such change.
6.That each party shall be at liberty to receive reports, notices and any other information that is usually provided to parents by any school, educational institution, sporting body or extracurricular organisation at which the child may from time to time be enrolled or attend.
7.That the father will be at liberty to forward gifts, cards and correspondence to the child that coincide with special occasions.
That the father be declared to be the father of the child and the parties do all things necessary to register the father’s name on the child’s birth certificate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beadel & Beadel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Beadel (“the father”) and Mr Beadel (“the mother”) are unable to agree the future parenting arrangements for Z born in 2011 (“the child”).
The parties are agreed that pursuant to s 69VA of the Family Law Act 1975 (Cth)(“the Act”) there be a declaration that the father is the father of the child and that the parties shall do all things necessary to ensure that the father is included on the child’s birth certificate.
An order under s 69VA is not a parenting order and does not require the application of the principle that the child’s best interests must be the paramount consideration. The import of the order is that it is conclusive evidence of parentage. The consent of the parties and the circumstances of the proceedings are such that I can be satisfied the father is the child’s parent.
By Further Amended Initiating Application filed 16 November 2020 the father seeks orders summarised as follows:
(1)That the father have sole parental responsibility for the child.
(2)That the child live with the father.
(3)That the father be at liberty to have the child engage in counselling from the date that the child comes into the father’s care.
(4)That for a period of two months from the date that the child comes into the father’s care, the child spend no time with the mother.
(5)Thereafter for a further period of two months the child spends time with the mother at a children’s contact service for six fortnightly supervised visits for a period of two hours on each occasion.
(6)At the completion of the six fortnightly visits at the children’s contact service, the child shall spend time with the mother each alternate Sunday from 9.00 am to 5.00 pm for a period of six fortnightly visits.
(7)Following the conclusion of the six fortnightly visits, the child shall spend time with the mother each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday for a further period of six fortnightly visits.
(8)Thereafter, the child shall spend time with the mother each alternate weekend from the conclusion of school on Friday to 7.30 pm on Sunday.
(9)That during the April, July, September/October school holiday periods the child shall spend one half of the holiday time in the care of each of the parties.
(10)That the child shall spend week about with each of the parties during the Christmas school holidays.
(11)That the child shall spend time with each of the parties on Christmas Day, Easter, Father’s Day, Mother’s Day, each of the parties’ birthdays and on the child’s birthday.
(12)That from the time the mother spends unsupervised time with the child, the mother shall be at liberty to telephone or Skype the child for 30 minutes each Tuesday or as otherwise agreed.
(13)That the parties keep each other informed of their residential address, telephone numbers, email addresses and other contact information.
(14)That the parties be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party.
(15)That the parties notify each other in respect of any medical emergency relating to the child.
(16)That the parties shall each receive school reports, notices and other information usually provided to parents by any school, education institution, sporting body or extracurricular activity at which the child may be enrolled or attend.
(17)That each party be at liberty to attend all school functions, school sport and related extracurricular activities and events to which parents are ordinarily invited to attend.
By Amended Response to Initiating Application filed 21 September 2020, the mother opposes the orders sought by the father and seeks the following orders:
(1)That the mother have sole parental responsibility for the child.
(2)That the child live with the mother.
(3)That the child spend time with the father pursuant to the child’s wishes.
The proceedings commenced on 7 December 2020 and concluded on 1 April 2021 with judgment being reserved on day nine of the proceedings.
DOCUMENTS RELIED UPON BY THE FATHER
The father relies upon the following documents:
(1)Trial affidavit of the father filed 16 November 2020; and
(2)Affidavit of Mr B filed 16 November 2020;
DOCUMENTS RELIED UPON BY THE MOTHER
The mother relies upon the following documents:
(1)Trial affidavit of the mother filed 21 September 2020;
(2)Affidavit in reply filed 27 November 2020;
(3)Affidavit of Ms C filed 21 September 2020; and
(4)Affidavit of Ms D filed 21 September 2020.
Pursuant to orders made by her Honour Judge Kari in the Federal Circuit Court of Australia on 4 September 2019, the parties engaged the services of Mr E to supervise the father’s time with the child as ordered.
The observational reports of Mr E dated 29 September 2019 to 1 July 2020 covering 22 separate supervised visits comprise Exhibit “3” in the proceedings.
On 4 September 2019 her Honour Judge Kari further ordered that the parties attend upon Ms F for family therapy to assist with the breakdown of the relationship between the child and the father. Ms F’s report dated 4 December 2019 forms Annexure “C” to the affidavit of Ms K filed 4 December 2019.
By joint letter of instruction dated 9 October 2020, Ms G was engaged to undertake relationship counselling between the child and the father.
By order of her Honour Judge Kari on 22 July 2019, the parties attended a child inclusive conference convened by Ms H.
Ms H was not required for cross-examination and her report dated 3 September 2019 was read into evidence and is comprised in Exhibit “25” in the proceedings.
LEGAL COSTS OF THE PARTIES
An order was made pursuant to r 19.04 of the Family Law Rules 2004 (Cth) (“the Rules”) requiring each of the parties to set out their legal fees, costs and disbursements paid and unpaid up to and including the conclusion of the proceedings.
The father has paid $126,548.25 and as at 6 December 2020 the estimate of his legal fees to the conclusion of trial was a further $60,001 totalling $186,549.25.
The mother’s costs up to and including the trial was in the sum of $92,922.16. The mother’s costs are likely to increase given that the costs for trial were based upon five days whereas the proceedings extended to nine days.
It is an unfortunate observation that the total costs of the parties are likely to be between $280,000 and $300,000.
Each of the parties and their solicitors may well question the extent to which the child has benefited by the amount expended by each of the parties on their legal fees.
SUMMARY OF ARGUMENT
The father contends that the basis for the orders sought by the mother, namely that the child is never again to spend time with the father, is because she asserts that the child is at risk in the father’s care by reason of having been sexually abused by the father or exposed to sexualised grooming behaviour.
The father considers that up until November 2018 the child was confident, well behaved and happy and importantly, held a strong relationship with each of the parties.
It was a feature of the manner in which each of the parties sought to parent the child that they would celebrate certain events including the child’s birthday and Christmas together.
The father contends that he was involved in the child’s curricular and extracurricular activities.
The father argues that the mother was keen to resume a relationship with the father however she became jealous of the father’s relationships with others and she embarked upon a campaign to persuade the child to reject the father.
The father alleges that the mother has placed the child in psychological harm in his trenchant rejection of the father for no good reason.
The father’s proposal is that the child should live with him and initially spend no time with the mother in order to reset the child’s relationship with each of the parties and to restore what had been a respectful relationship between the father, his family and the child.
The mother concedes that up until November 2018 the parties maintained a respectful friendship and the mother was wholly supportive of the child developing and maintaining a meaningful relationship with the father.
The mother concedes that for an extended period of time the parties attended social functions together with the child and acknowledges that she had hoped that there could be a resumption of a close relationship with the father. The mother emphasised that a family environment would be the best foundation for the child’s development.
The mother rejects the father’s contention that she had embarked upon a course of conduct designed to promote the child’s rejection of a relationship with the father.
The mother points to an incident on 27 November 2018 at her home when the father was verbally abusive to the child and the mother and it was after that incident that the child rejected all efforts by the mother that he resume a relationship with the father.
The mother highlights the efforts made to facilitate supervised time utilising the mother’s friends and family and then when unsuccessful, agreed to engage Mr E to conduct supervised visits on 22 separate occasions. The mother considers that even though the arrangement was supervised in a professional manner, there is little or no evidence to support the child demonstrating an interest to spend time with the father.
Relationship therapy conducted by Ms G, Ms H and Ms F only served to exacerbate the child’s disdain for the father.
For the purposes of the proceedings, the mother conceded that the father does not pose an unacceptable risk of abuse to the child.
The mother’s assessment of the child’s disdain and hatred for the father was further demonstrated by the unsuccessful attempt to re-establish a relationship under the guidance of Ms G. The mother acknowledges that the child refused to engage with the father and acted in a rude and disrespectful manner. For his part, the father seeks a change in the primary care arrangements for the child as being the only possible option to enable the child to restore a relationship with the father that had been loving and respectful. The father does not consider that the orders he seeks will place the child at risk of emotional or psychological harm.
EVIDENCE
At the commencement of the trial the Court highlighted the provisions of Pt VII Div 12A of the Act and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
In circumstances where the mother no longer alleged that the father represented an unacceptable risk to the child by reason of sexual abuse the provisions of s 69ZT were not dispensed with.
Each of the parties relied upon voluminous affidavits. Counsel for the parties pressed extensive objections to evidence and in the circumstances of the case I did not consider that the matter should proceed on the basis that the evidence of each of the parties would be received but that I would exercise my discretion under s 69ZT(3) of the Act as to the weight that should be given to any matter, particularly if it was considered contentious.
It is an issue associated with the significant legal costs incurred by each of the parties that substantial portions of the trial affidavits were struck out pursuant to r 15.13 of the Rules and s 135 of the Evidence Act as being inadmissible.
The issue of contention as between the parties was whether there was good reason for the child to reject the father and if not whether a relationship can be safely restored.
Much of the affidavit material was irrelevant to the issues between the parties.
The mother
The father placed significant reliance upon the text message exchange between the parties. The purpose was to demonstrate that in the period leading up to November 2018, whilst at times the relationship between the parties was strained, the text messages demonstrate the father’s involvement with the child was supported by the mother.
The text messages spanned a period from 2010 to 2019. There are in excess of 1442 pages comprising 12,155 text messages. Significant proportions were tendered as exhibits in the proceedings. The mother considered the folders of text messages and whilst not being able to identify any particular message or messages, it was her evidence that some of the text messages had been cut and pasted and that they were phony, manufactured and doctored.
In addition some text messages were not familiar to the mother. When further challenged, the mother’s evidence was that the text messages between 2014 to 2019 were not accurate and that she doubted the correctness of the time lines.
The mother conceded that until 2018 the child had spent unsupervised time with the father but not overnight time.
The mother made it clear that she was not seeking a finding that the father posed as an unacceptable risk of abuse. She did not allege that the father presented as a risk of sexual abuse or that he had engaged in deliberate inappropriate behaviour.
The mother did however place weight on the expressed concerns of the child that when the father and the child had shared a bed it was likely that the father had allowed his genitals to rest on the child’s leg.
The mother conceded that the alleged genital touching did not amount to sexual abuse but she nonetheless accepted that the child considered it to be gross and disturbing.
The mother had raised sexual abuse at various times in the proceedings.
The mother’s evidence was that she had formed the view that the inadvertent contact might have been sexually abusive and in any event considered that it was inappropriate.
In 2019 the parties attended upon Ms H for a child inclusive conference.
Paragraph 13 of the report of Ms H dated 3 September 2019 is in the following terms:
[The mother] claimed that her most significant concern for the child was the “borderline sexual abuse” experienced in the father’s care, and the trauma this caused the child. She referred to the father’s genitals touching the child’s leg in the bed, and also raised claim that the father continued to kiss the child on the lips against the child’s wishes. She argued that the father refused to acknowledge the effect this had on the child and had referred to her as a “crazy bitch” and other such names when she raised the issue with him.
The mother denied that she had any concern that the father had sexually abused the child. She also did not consider that the father was engaging in grooming behaviour.
The mother argued that the child’s relationship with the father had been relatively intact leading up to November 2018 and that thereafter it had deteriorated to such an extent that the child was distressed to spend time with the father and had vomited and cried prior to handover.
The mother conceded that in terms of allegations that the father had engaged in family violence, there did not appear to be any issue from mid-2016 to the end of 2018.
The mother accepted the accuracy of paragraph 53 of her trial affidavit in the following terms:
From approximately February 2018 to 27 November 2018, [the child’s] time with the father was extended to each week from the conclusion of school on Monday until the commencement of school on Tuesday, each week from the conclusion of school on Tuesday until 8:00 pm (for the purpose of taking [the child] to swimming and basketball) and each alternate weekend from Saturday at 8:00 am until Sunday at 7:30 pm. I agreed to this additional time because [the child] was older and the father’s conduct towards me had improved during 2017. [The child] often complained to me that he did not want to sleep over the father’s house and would become agitated and distressed on Saturday mornings for alternate weekend sleepovers. …
The apparent basis for the cessation of time between the father and the child after 27 November 2018 is to be found at paragraph 54 of the mother’s affidavit. The mother sets out the examples of the basis for the child’s reluctance to see the father as follows:
(a) That the father would yell at [the child] if he would bite his fingernails and tell him that he would have to pick up dog excrement with his hands.
(b)That the father would yell at [the child] because he did not want to sleep in the dark.
(c)The father would become angry and yell at [the child] if he would not eat his dinner and make him sit at the table for hours until he had finished. [The child] said he has vomited onto his plate
(d)That the father would give [the child] alcohol to drink. I asked him what alcohol and [the child] replied “red wine and beer”.
(e)That the father questioned [the child] about what we did together, who I spoke to and who visited our residence. He wanted to know about any men who visited and would become angry at [the child]. [The child] told me that on 1 occasion the father grabbed his mobile out of his hand while [the child] was playing a game in the car on the way home and yelled at him when [the child] said “I don’t want to talk about it”.
(f)That they would sometimes sleep in the same bed and the father would not wear underpants and [the child] did not like it.
(g) That the father would kiss [the child] on the lips and he did not want him to.
(h)That the father sometimes wore nail polish and make up and that he had high heel shoes at his house and [the child] did not like it. [The child] told me that his father wore black nail polish on his toes. He stated that his father had lots of big high heel shoes. I suggested to [the child] words to the effect that the high heel shoes belonged to a woman. [The child] said “No Mum they are big, they are his shoes and he wears them”. [The child] also stated to me on 1 occasion that he had seen his father wearing make up. He stated that he did not see his father put the make up on, but when he went into the bathroom after his father there was a wet make up sponge on the basin and the father was wearing the make up in his car.[1]
[1] Trial affidavit of the mother filed 21 September 2020, paragraph 54.
The mother’s summary of the matters raised by the child was such that she considered there were questions as to the father’s ability to appropriately parent the child.
The mother was clear that the child had stated his distress at having to pick up dog faeces.
It was put to the mother that she knew the father had told the child that if he owned a dog he would have to be responsible for all aspects pertaining to the dog’s care including the collection of dog faeces.
The mother did not concede that the child could be mistaken as to the context of the father’s direction but did agree that there was no evidence that it had actually happened other than stated by the child.
The mother was asked to consider her attitude if the child had said that he wanted to see his father. The mother’s evidence was that she would still consider that the child was unsafe in his care.
The father has denied that he engaged in kissing the child on the lips. It was the mother’s recollection that the further allegation of the father kissing the child on the lips was raised in 2018 for the first time. The mother acknowledged that it was one of the relevant issues she considered underpinned her decision to cease the child’s time with the father.
In response to the mother’s reliance on the child’s advice that the father was wearing nail polish, make up and women’s shoes, it was put to her that the father had indeed painted his toe nails for the purpose of a domestic violence charity event and that the child knew that because the father considered his painted toe nails to be humorous, he then painted all of his nails.
In any event it was put to the mother that all of these assertions even taken at their highest may well have raised the possibility that the father’s time with the child should be under supervision but would not in and of themselves have warranted her conduct, namely to cease the father’s time.
Paragraph 56 of the mother’s affidavit filed 28 June 2018 was put to her and she accepted that the issues of high heel shoes, make up and the allegation of the father kissing the child on the lips were not included in the earlier affidavit.
The mother’s evidence was that she spoke to the child and he said that he was uncomfortable about the father wearing high heel shoes and make up.
The mother observed that the child would use the back of his hand to wipe off the alleged kisses of the father. It was apparently a topic of discussion between the parties as to the mother’s concern that the father displayed a propensity to kiss the child on the lips.
The mother considered that the father’s behaviour was unacceptable.
It is not controversial that the father was not recorded on the child’s birth certificate. It was put to the mother that she showed the child her birth certificate to highlight the difference in the parentage details on the child’s birth certificate.
The mother denied that she had spoken to the child after every supervised visit to further alienate the child in preparation for the next visit.
The mother specifically denied that she told the child the father had wanted to have an abortion.
There are text messages which show that the mother was focused on the proposition of the father wanting her to have an abortion. In circumstances where the child was aware of the issue, the mother denied that his knowledge came from her.
The mother’s denial is unimpressive.
It was put to the mother, that the father’s first affidavit in the proceedings alleges that on 27 November 2018 the child had told him that the mother had shown him text messages concerning the parties’ discussion about an abortion.
The father’s evidence is that the child believed that his father wanted him dead.
As discussed, there has been extraordinary focus on the history of communications between the parties as far back as 2010. The mother has resiled from some of the content of the text messages on the basis that they are either a fabrication, a concoction or have been doctored.
The issue arose in respect of the mother’ evidence that there were no communications between the parties from the time of Z’s birth to April 2011.
When asked to reconsider the content of the three pages of text messages, the mother conceded that it was likely a matter of poor recollection rather than that the text messages were fabricated or doctored.
I do not draw an adverse inference in respect of the mother’s concession that it was one of recollection rather than false content. It is inconceivable that a party could or should be asked to remember the content of text messages that span a period of ten years and number in the thousands. The sheer volume of text messages that the father sought to be tendered, highlights the mischief that can be caused when the forensic hunt reaches an extraordinary and ultimately unnecessary level.
On the balance of probabilities, I find that the text messages are genuine but equally I do not necessarily draw any adverse conclusion simply because the mother is not able to accurately recollect their contents.
Of more relevant concern is the mother’s concession that she has not read the father’s affidavit, had only skimmed it and in particular has paid little attention to the extracts of text messages.
It is unhelpful that a party to proceedings should not have given careful consideration and mature reflection to the trial affidavits of the other party.
The mother agreed that following the child’s birth and about the time of the christening she considered that the parties, the child and their extended families constituted a family unit albeit not a traditional one.
In 2012 the practice developed that the mother and child would stay with the father on Monday to Thursday of each week. The mother agreed that the father was involved and engaged with the child and later in the year the parties travelled to Egypt and Thailand for a period of ten days with the child remaining in the care of the maternal grandparents.
There was a further holiday in Brisbane in 2012 which came about as a result of a work event for the mother. The mother agreed that the father cared for the child whilst she was at work.
The parties and the child also travelled to Singapore and Bali for twelve days in circumstances where the hotels that were booked were selected on the basis that they were child friendly.
The parties went to Port Douglas in February 2013 and later that year the mother went to Las Vegas leaving the child with the father and the paternal grandmother.
In 2014 the mother agreed that the parties were together for about three nights per week and discussed a change in the child’s surname which ultimately occurred in 2015. The mother described the relationship between the parties as working together towards being a family.
Whilst there was some distance between the parties, the mother conceded that the communication between them was generally positive until October 2018.
The following text message exchange has relevance to the proceedings:
[The mother (2/6/18):]
Two things
[The child] picking up [the dog’s] poo. She’s your dog. Please don’t get him to clean up after you or her. He complains endlessly about doing it & resents you more & more for it.
Secondly the tanning bed & it’s usage whilst he’s there. He is not happy you scold him whilst he’s doing his homework whilst u tend to women in your garage.
[The father] you have him for all of one night a week, try to maintain somewhat of a decency in front if the kid. He thinks your shady enough as it is & your not doing your relationship with him any favours.
…
[The mother (4/6/18):]
just a fyi I’ve gone through his birth certificate with him. so he understood I showed him mine & placed his side by side.
I did not glamour it up & went straight into facts. He’s fine, he had question time yesterday & today & fully understands.
[The father (4/6/18):]
Do u honestly believe the conversations & angle u are taking is in [the child’s] best interests?
If one party was unable or unwilling to participate in the conversations u are conducting then absolutely but this is NOT the case & feel what u are doing is not only unfair but doing our son a disadvantage. [2]
[2] Exhibit “12”, page 1418.
The further exchange between the parties has relevance:
[The mother (16/6/18):]
He has questions Offcourse he does. & as I explain things to him such as “ surgery”
I show him emails & text that validate what is being said (didn’t know that one did you).
There was always going to come a time [the father] when it came out, as you put it “sorry, not sorry”. Correct! Bravo … & 100%. Because sorry would have meant the only thing I’d have needed to correct was the before the birth. But wait as with [the father], no there’s more to the “sorry, not sorry behaviour”.
Save the open communication line, your behaviour has stunk for a decade, a decade to late for conversation
[The mother (16/6/18):]
Ps – my agenda which funny enough translated to Mummy wanted to marry daddy.
Went down a whole lot better than “daddy did not want the family, to busy being the life of the party”
Do you really believe that a child, [the child] hearing his mothers desire to give him a family unit rather than this…was wrong?
Doesn’t fit [the father]. One minute Goldcoast were the most important ppl in your world, next minute
Continue to make me wrong [the father] for my agenda. There was never anything wrong with it, not for [the child] that is for sure
…
[The mother (16/6/18):]
Nah not at all
U havnt heard him call u a asshole yet have u
He says it regularly to my parents… [3]
[3] Exhibit “12”, page 1433.
The mother continued to press her proposition that the father had told the child that he wanted to terminate the pregnancy.
The mother’s evidence was unimpressive. It is likely that the mother was upset that she had been rejected by the father and set about on a course of conduct designed to make the child believe that he was not wanted by the father.
A theme that formed a continuing thread through the proceedings was the allegation that the child had slept in the same bed with the father and had felt his genitals on his leg.
Despite the mother’s counsel resiling from a previous position of the mother that the father’s conduct may be interpreted as child abuse, it was nonetheless pressed by the mother as a significant reason why the child should spend no time with the father.
The parties discussed the matter in the following text message exchange:
[The mother (16/1/18):]
That reminds me…his ability to over share & hide no secrets
“Mum, do u know dad sleeps with no pants on, it’s gross he has fat balls”
That’s great [the child] …[4]
[4] Exhibit “12”, page 1113.
The father responded by a thumbs up emoji followed by the mother’s response “Night fat balls”[5] with what might be described as a laughing emoji.
[5] Ibid.
The mother was asked to consider how what she treated as a joke in early 2018 had become the basis for an allegation of sexual abuse.
The allegation was raised with Ms H who prepared the child inclusive conference memorandum dated 3 September 2019 (Exhibit “25”).
Ms H considered that the potential for a false allegation to have been made and then reinforced with the child was concerning. It is unfortunate that the child considered the father may have subjected him to sexual abuse.
The relevance of the child’s false belief appears in the reports of Ms F and Ms G.
By orders made 4 September 2019, the parties attended upon Ms F for family therapy targeted to assist in the reunification or rectification of the relationship between the father and the child.
Ms F considered that the child’s presentation during his interview and from an assessment of reports of observed interaction prepared by Mr E were consistent with an alienated child who is being drawn into the adult conflict and ultimately was required to choose a side.
At paragraph 60, Ms F considers the importance of the mother’s allegation that the child had been the subject of sexual abuse in the following terms:
[The mother] is urged to reflect closely on how she best assists [the child] to feel safe in both parent’s care. If she were to pursue the allegations of systematic sexual abuse and it is without foundation this is likely to have a significant and detrimental impact upon [the child].
The mother considers that Ms F and Ms H did not understand the proper nature of the mother’s concerns. The likely detrimental impact on a child of a false allegation of sexual abuse was taken up by Ms G at page 10 of her report. The father was advised of Ms G’s concern that the child’s mental health in the long term may be negatively impacted if he continued to hold the belief that he was abused by the father.
The mother’s evidence should properly be considered as unreliable. I am left in little doubt that there is little or no substance to the mother’s allegations that the father ignored the child’s wishes in terms of the sleeping arrangements or that he was overtly disciplinarian in his treatment of the child prior to October 2018.
The evidence suggests that whilst the relationship between the parties was dysfunctional, that could not describe the nature of the relationship between the child and the father.
As is candidly conceded in the mother’s case outline document, the realisation by her that the father had no intention of formalising a relationship with the mother galvanised her resolve to disrupt the relationship between the father and the child. That finding is underpinned by the mother accepting that there have been times when the child has let his guard down and reacted in a positive way towards the father.
The maternal grandmother
The maternal grandmother relied upon her affidavit filed 21 September 2020. She agreed to supervise the father’s time with the child on four occasions between July and August 2019. Her affidavit is comprised of her observations of the events that took place on the various supervised occasions.
On 28 July 2019, the maternal grandmother observed the child to become immediately emotional, to cry and ask to go home. The child was distressed for a period and on one occasion ran off whilst crying.
The child was seen to yell at the father “I don’t like you, I don’t want to see you, you put your balls on my leg”.[6] He also stated “You forced me to eat until I vomited and you threatened to smack me”. [7]
[6] Affidavit of Ms C filed 21 September 2020, paragraph 2(e).
[7] Ibid.
The child was also observed to tell the father that he did not want to live with him. The maternal grandmother made similar distressing observations on 5 August 2019.
On 6 August 2019, the child was observed to become tearful, stressed and make a gurgling noise. The child later vomited into the toilet. He was then taken home.
The maternal grandmother was impressive in her observations and I accept that her assessment of the child’s open and hostile distress was accurate.
Ms D
Ms D relied upon her affidavit filed 21 September 2020.
Ms D was a close friend of the mother and she was well acquainted with the child.
On the evening of 27 November 2018, Ms D was speaking with the mother on the phone and overheard a conversation between the parties. Ms D overheard the father call the mother a “fucking cunt”[8] and a “fucking bitch”.[9] Ms D then reports that she heard the child yelling loudly and telling the father to leave the house.
[8] Affidavit of Ms D filed 21 September 2020, paragraph 6.
[9] Ibid.
Ms D rejected the proposition that she was not able to hear the father and was certain of her recollection of hearing the child cry and tell the father to leave.
The father
The father denied that he had ever assaulted the mother.
The child was born in 2011. The father did not complete the birth certificate.
The mother alleges that the father threatened her during her pregnancy that he would “kill the monster growing in her stomach”.
The father denied that he had used that expression but did agree that the parties discussed an abortion and confirmed that he was prepared to pay the cost of the procedure.
The father conceded that he was shocked and angry that the mother was having a baby.
By reference to the text message exchange between the parties, the father conceded that on 17 May 2010 he said:
“Here’s a solution, get rid of it..No more problems”[10]
[10] Exhibit “17”.
And then on 23 May 2010 the following exchange occurs:
[The mother (23/5/10):]
Offcourse not. If I honestly wanted a child and to fuck my life in the ass I would have done it when I was engaged, not by accident with u. But u won’t hear me out on that. I’m not going against my beliefs because u refuse to back me on it. But thought more of u than to go silent and turn your back on ur responsibility. Fine we’ll go with what you want, discussion over. Like I said financially wont impact u but when ppl ask I’m not humiliating myself by telling them what u really feel, leave that to u. Not fighting, it’s life accidents happen.
[The father (23/5/10):]
Your little “life accident” as u so elloquently put it is actually preventable so perhaps try factoring that into your equation of a child fucking your life & reasons why won’t abort..The one time actually think your selfishness would prevail..Guess not[11]
[11] Exhibit “17”.
On 25 May 2010 the father left the mother in no doubt when faced with the mother’s uncertainty about having an abortion, by telling her to “Get a fucking abortion!”.[12]
[12] Exhibit “17”.
Given the demonstrable lack of support by the father during the mother’s pregnancy, the father was asked when he decided that he wanted to take an interest in the child. The father’s response was that he first became interested when he saw him in hospital.
The father agreed that at present he had no relationship with the child.
The father was asked to reflect on the period since the child’s birth and to consider that up until 2018 the mother had been supportive of the child having a relationship with him. The father agreed that the mother had promoted a relationship as was evident by the time that the parties spent together with the child and the occasions when the mother was prepared to allow the father to look after the child.
The parties also sought counselling to better understand the limits of their relationship and how they could properly co-parent.
The father conceded that the mother had been fully supportive of his relationship with the child but that when the father would not commit to a long term relationship with the mother, he considered that she was no longer supportive.
It is apparent from the father’s evidence that his relationship with the mother waxed and waned between 2016 and 2017.
Paragraphs 143 to 149 of the father’s trial affidavit provide the chronology of the father spending time with the child in 2018.
The father relies upon the time he spent with the child as an indication of the strength of the relationship leading up to the period when the child refused to see him.
The father also conceded that the parenting arrangements during this period was an indicator of the extent to which the mother was prepared to facilitate the relationship. In summary, the father considered that the mother’s support for his relationship with the child was satisfactory.
Paragraph 149 of the father’s trial affidavit provides the mother’s assessment of the father’s time spent with the child:
On 14 August 2018 the mother sent me a text message and as part of that text message the mother said “Secondly, I’d like to formalise your time with [the child]. Time spent has been consistent in the past 6months & with no major hiccups so think that it would work. Feel that current arrangements can be legally formalised to avoid unnecessary conflict in future…happy to discuss one on one in person regarding the formalisation & care requirements I need to ensure [the child’s] safety”. I responded to the mother and said “Hi [the mother], sounds great and more than happy to discuss in person…”
(Emphasis in original)
Paragraph 150 of the father’s affidavit provides a summary of the content of the mother’s various complaints as contained in a text message.
The father denied the mother’s allegations but did admit that the child had slept with him on five occasions and subsequently told him that he didn’t like it. Moreover the father agreed that from time to time he had kissed the child on the lips and as discussed, had worn black nail polish.
The father specifically denied that he had been abusive to the mother or that he had used threatening language.
The father accepted that for reasons he was unable to fathom, the child has refused to engage with him in any meaningful way.
The father agreed that on 15 December 2018 he attended the child’s basketball game and sat in the grandstand. He gained the child’s attention however whilst the child was not visibly distressed by his attendance the father conceded that the child ignored him.
The mother raised a peripheral issue of the father’s cocaine use. Paragraph 25 of the mother’s trial affidavit refers to the mother returning from an overseas conference in May 2012 and discovering cocaine concealed in her motor vehicle. The mother confronted the father who explained that it was cocaine but that he was looking after it for a friend.
The father’s denial that it was his cocaine was unconvincing.
The father’s use of cocaine was again raised by the mother at paragraph 37 of her trial affidavit. In April 2014, the father telephoned the mother and asked her to look for his wallet that he may have left at her home. The mother discovered the wallet and on closer inspection found that it contained some plastic zip lock bags containing white powder. The mother assumed that it was cocaine. The father’s explanation was that the white powder was crushed Panadol.
In evidence, the father said that he had deliberately crushed Panadol in order to trick the mother into thinking that it was cocaine. It is difficult to make sense of the father’s evidence. The father’s explanation was nonsensical.
The father was asked whether the child had expressed his distress and displeasure at the father not wearing underwear in bed. The father acknowledged that the child had expressed a concern but he initially thought that it was a joke by the child. At a later stage and when he realised that the child was serious he decided to wear underwear.
The father’s evidence on this important issue was unsatisfactory. If the father was telling the truth then he lacks considerable insight.
The father admitted that the child barely engaged with him during the supervised sessions. His assessment of the child was that he was cold and distant and no amount of encouragement elicited a positive response.
The father acknowledged that he had given consideration to the reports of the supervisor Mr E. He agreed that it was difficult to connect with the child and having made that concession, was asked to reflect upon his motivation for his application for primary care of the child.
The father is demonstrably motivated by his belief that away from the influence of the mother, the child would be able to resume a normal and close relationship with him.
The father accepted that at first the child may be highly resistant to remaining in the father’s care and may resort to running away. The father’s evidence was that he would not let the child go alone but that he would try and work through the problem.
It is reasonable for the father to consider his relationship with the child through a lens of wanting to resume a close relationship.
The father’s evidence did not impress as to his insight in circumstances where there is little to suggest that the child’s clear opposition to the father could be altered.
A further tangential issue between the parties arises from the mother providing the father with $100,000 on 21 September 2012 and then a further $50,000 by way of personal loan. The father’s evidence is that the money was for an investment which did not come to fruition.
Eventually the mother was able to regain some of her money by a direct approach to the recipient of the funds.
Again, the father’s evidence as to the financial transaction involving the mother and the third party was at best unconvincing.
Mr B
Mr B was a friend of the father but of more relevance was his assertion that his eldest son J had formed a close friendship with the child.
Mr B made positive observations of the father’s relationship with the child prior to December 2018.
His observations of the time with the father during supervised time were in stark contrast.
Even though the circumstances where such that the child had the advantage not just of the father, the maternal grandmother, Mr B or his son J, it did not appear to assist in enabling the child to reconcile with the father. Mr B’s observations were that all attempts made by the father were met with rejection and silence.
The child appeared unreservedly unresponsive to any entreaty to engage with the father, J or Mr B.
Mr B records his shock at the language used by the child to the effect of “I hate you”[13] and “I don’t want to be here”.[14]
[13] Affidavit of Mr B filed 16 November 2020, paragraph 17.5
[14] Ibid.
Mr B’s summary of the child’s presentation is that it lacked any respect for authority.
The child’s behaviour during the supervised sessions was in stark contrast to the period leading up to December 2018.
Supervised time with the father
By orders made 4 September 2019 and 16 December 2019, the father was to spend time with the child supervised by Mr E. Mr E holds considerable expertise and experience in the facilitation of supervised time. He holds Graduate Diplomas in Psychological Science, has completed a two year internship and holds a Bachelor of Laws.
He is a member of the Australian Psychological Society, the Association of Family and Conciliation Courts and is a registered psychologist.
He was aware of Div 15.2 of the Federal Circuit Court Rules 2001 (Cth) and the expert evidence practice note published by the Federal Court of Australia.
In preparation for the ordered supervision, Mr E conducted an intake interview with each of the parties and a child familiarisation session with the child at the mother’s home. Mr E conducted 22 separate supervised sessions between 29 September 2019 and 20 June 2020. Each session was between 1.25 and 2 hours.
Following the last session in June 2020, Mr E decided to terminate the provision of his services.
The basis of Mr E discontinuing his services is the trenchant refusal of the child to engage with or spend time with the father.
A summary is set out by Mr E in his termination of children’s contact service report at paragraphs 16 and 17:
16.[The child] has demonstrated in various ways across the twenty-two (22) occasions where I have provided supervision that he does not want to spend time with [the father]. [The child] has given various reasons why this is the case which have been documented in my subsequent Reports. The primary reason which he gives is because he claims that [the father] at some point in the past put his penis on [the child’s] leg while he was in bed. [The child] also holds a generally negative view towards [the father].
17.[The child] has taken part in supervision despite his negative feelings towards [the father]. [The child] will occasionally refuse to respond to me when [the father] is present, walk away from [the father] when a Service is over without waiting for me to end the Service, argue with [the father] or make impassioned statements to [the father] that brings himself to tears. This is distressing for everyone concerned.[15]
[15] Exhibit “3”, page 145.
Mr E found that despite his encouragement to the child and the father not to focus on issues in the past but to have fun in their engagement, he was unsuccessful. Perhaps somewhat understated, Mr E considered that the child’s “strongly held views are in opposition to supervised time taking place in a pleasant manner”.[16]
[16] Exhibit “3”, page 145, paragraph 20.
Mr E’s summary understates the extent to which his reports of observed interaction reveal the child being prepared to sabotage the supervised visits. It could not be said that Mr E’s observations reflected that the child was distressed and upset, nor was it a matter of ambivalence but rather it appeared that the child had given careful consideration to the manner in which he would conduct himself to ensure as best as he could that he would not engage with him.
Ms G
Ms G holds significant qualifications as a clinical psychologist with a long experience in the preparation of family assessment reports for use in parenting proceedings.
Given the termination of services by Mr E, the parties decided to instruct Ms G to undertake “reunification counselling” between the child and the father.
Ms G was aware of the father’s frustration arising from the failed 22 supervised visits and considered that the child realised he was in a positon of power.
Ms G recorded the father’s observation that the child did not utter a word and engaged in deliberate misbehaviour with a preparedness to advise the father that he hated him, considered that he had abused his mother and with no offer of any support and now lived in a nice house with no regard to the circumstances of the mother and the child.
Ms G interviewed each of the parties and was again informed by the child of his particular worry that when sleeping with the father in his loft bed in the child’s room, he woke to find his father’s genitals on his leg.
Upon initial interview on 5 March 2020, the child reported that he was aware of the reason for the interview with Ms G and said:
‘he doesn’t really seem like a Dad to me, I don’t want to see him, he puts his balls on my leg, I asked him to put his jocks on and he said yeah he would put them on, but when I woke up he didn’t have his pants on, and it happened lots of times.’[17]
[17] Report of Ms G dated 4 November 2020, page 3.
Not dissimilar to the observations of Mr E, Ms G was unable to achieve a breakthrough in encouraging the child to engage with the father. If anything, the child’s conduct had become more extreme with Ms G noting that the child displayed escalating distress and refusal to communicate, prompting a decision to discontinue the joint sessions due to concerns regarding the child’s mental health. Ms G considered that the child had developed a strong attachment to the mother and in circumstances where the parties’ relationship was toxic it would have been difficult for the child to navigate the difficulty in maintaining a relationship with each of the parties.
In evidence, Ms G confirmed that the mother did not attend during the sessions and was confident the child’s presentation was not the subject of overt influence by the mother.
Of note was Ms G’s observation that the child was able to interact and engage freely with her but upon the father’s attendance became angry and anxious. Ms G summarised the child’s presentation as comprising an ongoing theme, namely the refusal of the father to take action consequent upon the child’s complaint of his genitals on his leg and the recognition by the child of the ongoing conflict of the parties.
Simply put, the father was unable to communicate at any level with the child.
Moreover, Ms G opined that the child would be devastated if removed from the care of the mother.
Ms G was certain that the child believed in some way he had been a victim of sexual abuse by the father.
Ms G was concerned that it would be dysfunction for a child to grow up believing he has been sexually abused when it has not occurred. Such a belief has the potential for adverse consequence on a child, particularly if at some point they learn they were not the subject of sexual abuse.
Ms G could not contemplate or devise a possible future pathway other than it being important that it is explained to the child that he has not been the subject of sexual abuse.
Ms F
Ms G’s report and involvement was not the only attempt to reconcile the relationship between the father and the child. Intended to run in tandem with Mr E’s observed interaction, orders made on 4 September 2019 provided for the parties to engage in family therapy with Ms F.
At the time, Ms F was a Regulation 7 family consultant and held the qualifications of a Bachelor of Arts, Bachelor of Social Administration and Social Work, Certificate IV in workplace assessment and training and was a medicare accredited mental health social worker.
From 2012 to 2017 Ms F was a family consultant attached to child dispute services for the Family Court of Australia and the Federal Circuit Court of Australia.
In interview, the child was not complimentary towards the father. He alleged that the times he spent with the father were not enjoyable and that he pretended to be enjoying himself in fear of the father removing his privileges.
In regard to his father, the child made it clear that he did not miss him nor did he love him.
In describing what was then his current supervision experience, the child reported the following:
“I cried … I had a panic attack … I badly wanted to go home…. It was so hard to breathe… I felt I had to use my puffer… like I was having an asthma attack… I shouldn’t have to see him. I am 8 years old I can stand up for myself… He put my balls on his leg not just once between the ages of 4 and 7… He would sleep with no pants on … I have finally stood up to him… I actually hate him.”[18]
(Emphasis in original)
[18] Report of Ms F dated 4 December 2019, paragraph 31.
At that time, the father expressed to Ms F that he was optimistic with the therapeutic intervention and supervised time. He believed that the child’s relationship with him would improve.
Ms F took the unusual step of holding a joint interview between the parties. The mother indicated that she was feeling unsafe in the meeting and despite the level of optimism expressed by the father, the mother’s position was that she did not consider the parties would be able to work together at any level.
The mother observed the child to be highly distressed both prior to and post spending time with the father during the supervised sessions.
She also understood that the child’s school had made a notification to the child abuse report line given that the child had made a claim that he had been the subject of sexual abuse by the father.
Ms F was pessimistic as to the utility of the ongoing supervised time.
At paragraph 62 of her report she expressed her concerns for the child in the following terms:
The Consultant is concerned that at age 8 [the child] has found himself at the centre of supervised time spending which renders him powerless but simultaneously has given him considerable power. This is likely to be overwhelming and his rude and belligerent responses are maladaptive and highly concerning as they will not be tolerated elsewhere and [the child] will likely report feeling bullied by his peers.
In evidence, Ms F considered that the mother may well have engaged in conduct that could be seen as alienating the child from the father.
Ms F considered that the father presented with more insight than the mother however it is not straight forward and each of the parties participate in a toxic relationship, placing the child in the unenviable position of having to navigate between the parties.
PRINCIPLES RELATING TO PARENTING
The child currently resides with the mother and spends no time with the father.
The mother seeks sole parental responsibility for the child and that the child spends time with the father subject to his wishes.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I am mindful of the directions contained in s 60CC(2A) of the Act and have regard to the allegations of the mother that the father has engaged in serious family violence.
I propose to adopt the following approach:
(a)Give consideration to the proposals put forward by the parties;
(b)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(c)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(d)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;
(e)Have regard to the additional considerations under s 60CC(3) of the Act; and
(f)The evidence adduced in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
PARENTING CONSIDERATIONS
Meaningful relationship
Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:
that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley v Evor (2011) 43 Fam LR 439 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513 [191]:
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the court, not an expert, to determine what constitutes a ‘meaningful relationship’.
There is no relationship between the father and the child.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long-term”.
It is not controversial that a child’s best interests would be served by maintaining a meaningful relationship with the father however s 60CC of the Act contains a raft of factors that must be considered. It is not the case that the benefit to a child of a meaningful relationship is to be considered a presumption.
In this case, the best efforts of the parties and the Court to explore whether a pathway exists to restore a relationship has not eventuated.
The parties, but in particular the child, have been the subject of initial assessment by Ms H, 22 supervised visits by Mr E and 2 attempts by separate skilled practitioners to reinstate and restore a relationship between the father and the child. Despite the best efforts, the various interventions have met with no success and rather, in terms of the involvement of Ms G and Mr E, the interventions have been terminated because of a rising fear that the child may suffer an adverse mental health outcome.
It may be said, that the mother is disingenuous in the order that she seeks that suggests that she will facilitate any wish expressed by the child to spend time with the father.
It is a serious matter to order that a child neither spend time with nor communicate with a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said at [39]:-
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
The evidence supports a finding that irrespective of orders made other than an order that would require the forcible removal of the child from the mother’s care to that of the father, there is no evidence that would suggest a less extreme option would produce a successful outcome.
The evidence of the various practitioners is that the forcible removal of the child from the mother’s care would likely place the child at risk of significant emotional and psychological harm.
The evidence presented by the mother does not support or provide a basis for the child’s trenchant refusal to engage with the father. On her own case, she accepts that the father did not perpetrate sexual abuse. The evidence in any event falls a long way short of any finding of that nature.
I have given careful consideration to the mother’s allegations of family violence.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight:
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
Whilst I do not consider that family violence has been established by the mother, the father’s conduct towards her was at times egregious. It is difficult to opine as to the basis upon which the child has determined to adopt a position of total opposition to the father, but it may be as simple as the mother’s counsel suggests, namely that when it became a reality that there was no chance of the parties reconciling there was no longer any restraint on her conduct.
The child’s wishes
All parties involved agree that the child has been consistent since 2018 that he does not wish to have a relationship with the father. Whilst it is a relevant factor that the child was not able to easily articulate a rational basis for his stance, the evidence supports a finding that it is strongly held. The child is unlikely to be swayed from his pathway and has clearly understood that he has the ability to dictate what happens in the future.
It could not be said that the child’s current predicament is desirable but given the effort and energy that has been invested in attempting to re-establish a relationship between the father and the child, the Court can see no alternate way forward without subjecting the child to the most significant and substantial risk of an adverse mental health outcome.
The nature of the relationship of the child with the parties
The child’s primary attachment is clearly with the mother. The child has spent little or no time with the father since separation other than in the environment of supervised time which was demonstrably unsuccessful.
The child’s relationship with the father at present is at best non-existent.
The likely effect of any change in the child’s circumstances
The father’s orders would see a dramatic change in the child’s current circumstances. It is not viable for there to be more therapeutic intervention. To do so would be to risk a deterioration in the child’s mental health. Equally there is no factual support for the child being forcibly removed from the mother’s care and placed into the primary or significant care of the father.
CONCLUSION
It is an outcome of last resort that orders are made which will likely result in a total cessation of any relationship that this child will have with his father. It must be remembered that the findings on the evidence do not support any proper basis for such an outcome that might be found in either family violence or in particular that the father presents as a risk to the child by reason of sexual abuse. The fact that the child appears to hold a view that his father is the perpetrator of sexual abuse is a tragic outcome in circumstances where there is no evidence that would support that belief.
I propose to make orders as sought by the mother but with a further order that will require the mother to engage with a suitably qualified health professional agreed by the parties to explain and counsel the child that he was not the subject of sexual abuse by his father and to assist the child in better understanding that such a false belief may have long-term adverse consequences for him.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and thirty-one (231) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 10 August 2021
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