Beardsley and Shelford
[2017] FCCA 94
•10 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEARDSLEY & SHELFORD | [2017] FCCA 94 |
| Catchwords: FAMILY LAW – Parenting – one child aged 12 – high conflict parenting arrangements – alignment with mother – child has psychologically difficult relationship with father – mother’s lack of insight – spend time with father as child wishes – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), Pt VII |
| Cases cited: Goode & Goode[2006] FamCA 1346 |
| Applicant: | MR BEARDSLEY |
| Respondent: | MS SHELFORD |
| File Number: | NCC 2279 of 2007 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 15, 16, 17 June 2016 |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 10 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bates |
| Solicitors for the Applicant: | John Ticehurst & Co |
| Counsel for the Respondent: | Mr Rugendyke |
| Solicitors for the Respondent: | Denise Clark Solicitor & Advocate |
| Mrs Kearney Hunter Family Law Centre Pty Ltd |
ORDERS
The child X born (omitted) 2004 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The child shall spend time and communicate with the father in accordance with the child's wishes.
The parties shall do all acts and things and execute all documents to instruct the principals of the child's school to forward to both parties copies of all school reports, school photographs, any notifications and other documents relevant to the child's welfare and education.
Each of the parties shall advise the other party as soon as practicable in the event of a serious accident or illness of the child whilst the child is in their care.
Neither party shall denigrate nor allow any other person to denigrate the other party in the presence or hearing of the child.
Each of the parties is restrained from using any form of physical discipline on the child or allowing any other person to do so.
The father is at liberty to communicate with the child in writing at least once per month to provide an update as to the circumstances in the father's life.
The child is at liberty to communicate with the father at any time he so wishes to do so and the mother will do all acts and things necessary to facilitate such communication.
All other outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Beardsley & Shelford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2279 of 2007
| MR BEARDSLEY |
Applicant
And
| MS SHELFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for a child X born (omitted) 2004.
The parents commenced a relationship in 2002. The parents did not live together. The relationship ended in April of 2006.
Proceedings were first commenced in July 2007.
On 25 September 2007 final orders were made in the Federal Magistrates Court at Newcastle providing for X to live with his mother and spend time with his father from Thursday a.m. until Sunday p.m. in week one and in the alternate week from Friday to Sunday with provision for school holiday time to commence in 2009 when X commenced school.
Within a month of those orders the father sustained serious injuries in a motorcycle accident resulting in paraplegia. The father was discharged from hospital in March 2008.
The mother commenced fresh proceedings thereafter proposing a relocation to Queensland.
On 9 September 2010 final parenting orders were made by consent providing for the parents to have equal shared parental responsibility, X to live with his mother, X on an increasing scale to spend time with his father culminating in a regime that from Term 1 of 2012 allowed X to spend time with the father five nights a fortnight from after school Friday to before school Wednesday each alternate week, to spend half school holidays, and to spend with his parents on special occasions.
Those orders were largely complied with until on 31 October 2014, X refused to go to his father's home and instead ran away to a friend's home. Subsequent to that situation the father filed on 17 November 2014 an application in a case and an application for contravention.
The contravention application was withdrawn on the first day of trial.
As at the date for hearing the trial X had not seen his father since Christmas Day 2015 when X refused to leave his mother's car at changeover.
The issues to be decided are:
a)Is the child at an unacceptable risk of harm in the care of the father;
b)Is the child at an unacceptable risk of harm in the care of the mother;
c)Is the child an aligned child;
d)With whom shall the child live;
e)What amount of time should the child spend with each parent;
f)Should the presumption contained within Section 61DA apply.
Short history of events
Since the filing of the current proceedings on 17 November 2014 the parties participated in a child inclusive conference on 25 February 2015.
On 31 March 2015 the final orders made in 2010 were suspended and alternative interim parenting orders were made which provided for:
a)X to live with his mother;
b)The parents retaining equal shared parental responsibility;
c)The child spending time with his father each weekend overnight from 5.00pm Saturday until 5.00pm Sunday;
d)The parents being restrained from discussing the proceedings with the child or denigrating each other in the presence of the child;
e)The parents being required to participate in a “Keep in Contact" program auspiced by Unifam.
On 30 April 2015 the family again participated in a further child inclusive conference.
On 12 May 2015 the orders made on 31 March 2015 were varied so as to extend the time the child spent with the father to each alternate weekend from after school Friday until the commencement of school Tuesday.
On 1 June 2015 the parents agreed to extensive interim parenting orders which in effect confirmed the previous final orders made with respect to where the child lived and how much time he spent with his father.
On 13 October 2015 the family participated in family report interviews.
On 28 October 2015 the family report was released.
On 30 October 2015 X was not at school when the father attempted to collect him in accordance with the agreed orders. That same afternoon and some hours later the mother arrived at the father's home with the child in the car and the child refused to get out of the car.
The child spent time with his father for a one week holiday in Queensland between 30 November 2015 to 20 November 2015. The child was collected from school by the paternal grandmother and the child was informed by his mother that in the event he did not go with the paternal grandmother she was not to be contacted.
The child did not spend time with his father for the weekend visits scheduled for 27 November 2015, 11 December 2015, and 14 December 2015.
The child was delivered to the father on 16 December 2015 and at some time around 7:30am on 17 December 2015, whilst the father was showering the child left the father's home and came into the mother's care some time before 10:30am that same day. The child was not returned to the father.
On 25 December 2015 at noon the mother arrived at a car park with the child in order for changeover to occur. The child refused to get out of the car and there was no time spent with the father.
Since that time the child has not spent any face-to-face time with his father nor has he spoken with the father.
Competing proposals
The father sought orders pursuant to his case outline filed on 14 June 2016 as amended by his written submissions filed on 14 July 2016.
The mother sought orders as outlined in her amended response filed 10 June 2016.
The Independent Children's Lawyer sought orders as outlined in the written submissions of the Independent Children's Lawyer filed on 14 July 2016.
The evidence
The father relied on the documents as set out in his case outline filed on 14 June 2016.
The mother relied on the documents as outlined in her case outline filed on 14 June 2016.
The Independent Children's Lawyer relied upon the documents as outlined in his case outline filed on 14 June 2016.
During the proceedings there were eight exhibits tendered.
Exhibit 1 was a file note from the Department of Family and Community Services dated 26 August 2015.
Exhibit 2 consisted of three pages of handwritten notes relating to an interview between the child and Ms M and Ms C.
Exhibit 3 was a handwritten letter addressed to the Prime Minister Tony Abbott under the hand of the child.
Exhibit 4 is a contact record from the Department of Family and Community Services dated 18 November 2014.
Exhibit 5 is an assessment record from the Department of Community Services dated 17 February 2015.
Exhibit 6 is a history of the absences the child had from (omitted) School primary school (omitted) between 31 January 2009 and 18 December 2015.
Exhibit 7 is a COPS entry dated 19 October 2012.
Exhibit 8 is a screenshot from a Samsung mobile telephone showing a text message.
The Law
Section 60CA provides that I must regard the best interests of the child as the paramount consideration.
I must determine what is in the child's best interests having regard to the objects and principles set out in section 60B of the Family Law Act 1975.
In determining what is in the child's best interest I must also have regard to the matters as set out in Section 60CC of the Act.
I must also make a determination in relation to parental responsibility. Section 61DA provides a presumption for equal shared parental responsibility unless the presumption does not apply or it is rebutted because it is not in the children's best interests.
If I make an order for equal shared parental responsibility then the provisions of section 65DAA are triggered.
I must follow the legislative pathway as the Full Court held in Goode & Goode.[1]
[1] [2006] FamCA 1346, [65].
As the Full Court said in Starr & Duggan:[2]
[2] [2009] FamCAFC 115.
“The legislation does not mandate consideration of the relevant sections in any particular order."
Accordingly I am of the view that it is appropriate to approach the legislative provisions in this order:
a)First make findings concerning the relevant Section 60CC factors;
b)Then consider the presumption in Section 61DA having regard to any findings of abuse or family violence and the findings made in relation to Section 60CC with regard to the best interests principles;
c)If an order is made for equal shared parental responsibility, then consider whether equal time is in the best interests of the child and reasonably practicable and if so consider making such an order;
d)If it is not in the best interests or reasonably practicable for the child to spend equal time with each parent then consider whether substantial and significant time is both in the child's best interests and reasonably practicable.
In the event that I do not make an order for equal shared parental responsibility then pursuant to Section 65D(1) I may make such parenting order as I think proper.
There is, in my view, a clear legislative intent that children have the benefit of both of their parents having a meaningful involvement in their lives to the extent that it is in their best interests for this to occur.
The Parents
It is accepted by both parents that there is enormous conflict between them concerning arrangements for the child.
The parents have very limited communication, a complete lack of trust of each other, and both vehemently believe that the other is responsible for the child's current presentation.
At times both parents have behaved badly.
The father does not accept that he has been responsible for involving X in the conflict.
The father blames the mother entirely for the child's current presentation and says that he has done everything he can to reduce and avoid conflict in the presence of the child.
The father is firmly of the view that he has had to battle for nine years with the mother in order to develop a relationship with his son.
The father believes the mother has been deliberately attempting to destroy his relationship with his son.
The father says that his concern that the mother is continually undermining his relationship with his son is supported by the evidence contained within all of the reports and memorandums that have been written about this family.
The mother firmly believes the child is at risk of physical harm in the father's care however Counsel on her behalf conceded that the mother does not believe the child has been abused. The mother simply cannot get the child to go to his father. She denies that she is engaging in behaviours that cause the child to be aligned with her.
The mother has refused to engage with counsellors from time to time for the benefit of the child. Her evidence as to why she did not do this was very unconvincing in my view.
The mother says that X does not like doing things the father has organised, for example (hobby omitted) was “too hot" and with regards to the (hobby omitted) lessons organised by the father X, according to the mother, “didn't like it."
The mother has taken the child to the police from as young as four years of age. The mother conceded that she was warned at the time that it was dangerous to do that to the child.
The mother made a complaint to a politician about Family Court proceedings, made a complaint to the Attorney General, and threatened to report the father's former solicitor to the Law Society for “harassment" over the past five years.
Exhibit 3 in these proceedings is a letter written to the Prime Minister Mr Tony Abbott under the hand of X. In that letter X tells Mr Abbott that he doesn't want to live with his father because he is “very cranky and hits me with his stick and I get very scared." Furthermore X tells Mr Abbott that his father told him that he would never see his mother again and that he doesn't “want to be his carer." The letter goes on to allege that “the other night he made me sleep with him. He didn't have any clothes on and he peed and pood all over me." The child ends the letter by pleading with Mr Abbott to “please help."
The father alleges that the mother must have assisted X in the preparation of that letter. The mother says she knew nothing about the letter and that the child “did it off his own bat.”
The mother enrolled the child at his school using her surname only. The mother refers to the father as Mr Beardsley and the child calls the father Mr Beardsley whilst in the presence of the mother and only dad when alone with his father. The mother says that the father told the child to call him that however the father denies that.
There are many incidences throughout the years where the mother has simply withheld the child from the father and in particular I note the mother agreed that she did not make the child available for four to five occasions when supervision had been lifted because she “didn't agree with the judgment. I was going to appeal it but I didn’t get a copy of the judgment in time."[3]
[3] Paragraph 23 of the report dated 20 July 2010
In relation to the most recent withholding of the child the mother denies that she is withholding the child and says “no, X says he didn't want to go to school."
The mother acknowledged that the child has accessed files containing affidavits and evidence in these proceedings on her computer.
The mother could not answer the question as to whether she had ever told her son that it was good for him to have his father in his life.
Whilst the mother didn't resile from any allegations and believes that the child is at risk with the father she also gives evidence that the child should have a relationship with his father.
The mother gave evidence that she could hide her fears and dislike for the father from the child. I formed the view watching her give that evidence that that was highly unlikely.
The mother conceded that she told the child that he would have to live with his father but gave the explanation “because Ms D told her to."
Both the mother and father were cross-examined as to what steps they had taken to reduce conflict for the child when the child was in their care. Both parents gave evidence that they changed their behaviours within their homes.
It is noted however that in the joint interview between the child and the mother on 13 October 2015 in the presence of Ms D the child looked “genuinely surprised and a little shocked when the mother told him she wanted him to have a relationship with the father. X was asked if her comments had surprised him and he said it did.”
The child inclusive memorandum dated 30 April 2015 notes that the child believed the father was “nice” with regards to his mother.
The child was asked why he experiences that change as a negative thing rather than a positive thing and he said “it's just weird.”
The father told the Family Consultant during that child inclusive conference that he had been trying really hard to speak positively about the mother rather than his previous behaviour of not mentioning her at all.
When considering the independent evidence contained within the various memorandums and reports, I am satisfied that the father has tried to amend his behaviours over time however I am not satisfied that the mother has done anything to amend her behaviours and that the child is left with a very clear view that the only reason why the mother makes him spend time with the father is so that “she does not get into trouble from the Court.”
Ms D Family Consultant
Ms D was firmly of the view that the alignment between the child and his mother was now entrenched and cemented.
She was of the view that if the child remained living with the mother that there was a very real likelihood the child would have no relationship with the father.
She indicated that nothing had changed in the mother since her report of 2010.
Ms D also noted that the child had been under constant pressure as a result of the ongoing dispute between his parents for some nine years and that as a result the child had eventually just cut one parent off, in this case the father.
The Family Consultant agreed that X would have a lot less stress if he spent no time with his father and agreed that X had presented with a lot less stress since spending no time with the father.
It was Ms D's opinion that the mother was incapable psychologically to facilitate a relationship between the child and his father.
Application of the law: section 60CC(2)(a)
In McCall v Clarke[4] the Full Court held that the proper approach when considering the issue of meaningful relationship is the “prospective approach", that is, I should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child's best interest, orders can be framed to ensure that the particular child has a meaningful relationship with both parents.
[4] [2009] FamCAFC 92.
The definition of “meaningful” is not contained within the Family Law Act. Brown J considered this in Mazorski & Albright[5] and after setting out the common definitions of ‘meaningful’ said this:
“What these definitions convey is that meaningful when used in the context of meaningful relationships, is synonymous with significant which, in turn, is generally used as a synonym for important or of consequence. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child".
[5] [2007] FamCA 520.
Their Honours in McCall v Clarke accepted as appropriate the interpretation of the meaningful relationship as set out by Brown J in Mazorski.
It is not in issue that the child has a very close, secure and very significant bond with the mother.
Indeed it is the opinion of the Family Consultant that the child is aligned with the mother.
What is in issue is the nature of the relationship that the child has with his father.
The father says he has a loving relationship with his son and the mother concedes that the child loves his father.
This child has been involved in Court proceedings for nine years of his life. Throughout that entire time the child has been exposed to the mother’s dislike and lack of respect for the father together with an awareness that his half-sister A also does not like the father.
In 2010 at paragraph 33 the Family Consultant notes that X also speaks of being aware that the mother does not want him to spend time with the father, particularly overnight, and that the mother is fearful for him in the father's care as “Mr Beardsley might take me away”."
During the interviews for that report it was observed that the child had a close and affectionate relationship with his father and appeared to enjoy playing and chatting with him.
In February of 2015 the child described his experience regarding his care arrangements as “hard.” He indicated that he had been exposed to denigration by both parents and indicated that he had been exposed to some preoccupation with past Court proceedings in the mother's household.
The child informed the Family Consultant during that interview that he understood from his mother with regards to his parenting arrangements that it was “all up to me.”
During the interviews for that child inclusive conference the child initially appeared keen to explain how much he disliked his time with his father. The child outlined the allegations as contained within the mother's notice of risk but was unable to recall any specific detail about those allegations.
The child was also having difficulty at that time identifying any positive times that he had had with his father.
The child was ambivalent in his wishes regarding spending time with his father. He initially stated that he didn't want to spend any time with his father, however, when it was later suggested to him that the Judge might order that he spends time with his father anyway the Consultant noted that the child smiled and expressed his happiness about that. It was noted by the Consultant that the child clarified that it would be the Judge's decision and not his own and expressed his desire that the Judge make the decisions because of how “hard" things are for him.
During the interviews for the child inclusive conference on 30 April 2015 the child once again continued to describe the circumstances as “hard” for him.
The child went on to say that things had become somewhat “harder” because he has now been made to spend time with the father.
The Consultant noted that the child clearly wanted to remain living with his mother and that he expressed the view that things will continue to be hard for him if he had to continue to spend time with the father.
During the interviews the child described that he has felt great pressure on him since Court proceedings recommenced.
In the final report dated 28 October 2015 the Family Consultant observed the conflict present in the child when she observed that the child was easy, relaxed and affectionate in his demeanour toward the father in the absence of the mother but refused to acknowledge the father when he was in the company of his mother. The Family Consultant noted that that demeanour suggests that the child does not feel free to be able to have love and affection for his father.
The Family Consultant observed that at no time did X appear anxious or uncomfortable in the father's presence and that when it was time to leave his father the child gave his father a very long close cuddle with his head on the father’s shoulder.
When the father did leave the room the child told the Family Consultant “some kids hate their fathers.” The Family Consultant challenged the child about that, saying that she did not think X felt that way and the child said he just did not want to see his father ever again.
The child was asked what is current level of stress was during the Family Consultant’s interviews in October and he replied “on a scale of 1 to 10 it is a 10.”
The child was asked what his level of stress would be if he no longer spent time with his father and he stated zero.
The child was asked if his parents allowed him to be free to have love and affection for both parents what his stress levels would be and the child indicated 3.
An assessment of that evidence leads to the conclusion that this child currently has a relationship with his father that is psychologically distressing for him.
The child has a very close bond with his mother and has real concerns that he will never see her again if he lives with his father. That could potentially add to this child’s psychological difficulties and the child would need ongoing assistance from an appropriate adolescent psychologist.
The father has not developed any meaningful plans to help manage any stress that X might experience.
The father had no real answers as to how he might prevent the child from running away again as he has in the past.
In circumstances where the parents live approximately 30 minutes apart there is a very real danger that the child will be exposed to significant risk if he is at large in the community trying to find his way back to his mother's home.
There is absolutely no evidence before me as to how the child's stress levels would be affected if he were ordered to live with his father. It was conceded by all that the child would be distressed and that counselling would be needed. There is no evidence before me as to what type of counselling would be required and as to whether that particular type of counselling would be effective in any meaningful way.
An assessment of the evidence satisfies me that this child does not currently have a relationship with his father that is important, significant and valuable. Rather this child currently has a relationship with his father that is psychologically difficult for him and in those circumstances not of value to him.
I am of the view however that there is sufficient love and bond between the child and his father that orders should be made that could best promote the relationship becoming meaningful.
Section 60CC(2)(b)
There are two risks alleged in relation to this child namely:
a)The risk of physical abuse to X in the father's care and;
b)The risk of psychological harm in the mother's care.
The child has reported being physically abused by his father since 18 November 2014. The allegations include that the child was hit around the head with a metal claw, struck on the bottom with a wooden spoon, that the father would pick up the child's dog and throw it against the wall when he became angry and that he would throw things around the home.
Those allegations were reported again to the Family Consultant during the child inclusive conference on 25 February 2015 and again during the interviews with the Family Consultant for the final report dated 28 October 2015.
There is no objective evidence to support those allegations.
With respect to whether the child has been aligned to his mother the independent evidence of the Family Consultants provides the context in which this may have occurred.
In 2010 it is noted that the mother becomes tearful when she considers the child spending overnight time with the father. It is noted that the mother withheld X because she didn't agree with the judgment of the Judge. It is noted that the mother couldn't be sure whether the child loved his father. It was noted that the mother calls the father Mr Beardsley in the mother's household rather than dad. It is noted that the child is aware that his half-sister A does not like the father and that the child is experiencing difficulty being the only one in the household having love and affection for the father. It is noted that the child is aware that the mother does not want him to spend time with the father, particularly overnight, and that the mother is fearful for him in the father's care as “Mr Beardsley might take me away.” It is noted that the child is aware that the mother and father are not friends. It is reported that the child was aware that when he spends time with the father the mother is “worried, sad and upset." It is further noted the child is aware that the father is someone the mother does not like and does not trust to keep him safe.
In the Family Consultant memorandum dated 25 February 2015 it is noted that the child expressed that he had been exposed to denigration by both parents and that he had been exposed to some preoccupation with past Court proceedings in the mother's household. It was noted that the child had been burdened by the issues in his family and that he needed to be protected from any notion that he is responsible for those issues in the future.
In the memorandum dated 30 April 2015 it is noted that the child continues to present as a child clearly burdened by the issues in his family and that he continued to describe his circumstances as hard. It is noted that the child provided the somewhat conflicting account of his time with his father noting that his father was nicer than before but describing that as a negative because it was just “weird.” It was noted that the child was of the view that the mother makes him spend time with the father only so she does not get into trouble from the Court. It was noted the child felt great pressure on him since Court proceedings recommenced.
During the interviews for the report of 28 October 2015 it was noted that the mother always referred to the father as Mr Beardsley rather than ‘dad’ or ‘your father’. It was noted that there was a continuing hostility against the father and an apparent unwillingness or inability on behalf the mother to ensure that the child spends time as ordered with the father. It was noted that the mother said she would leave the state if the child was ordered to live with the father. It was noted that the child was consistently concerned that he would never see his mother again if he lived with his father. It was noted that the child was surprised and a little shocked when he heard his mother say that she wanted him to have a relationship with his father. It was noted that the child was well aware of the mother's continued hostility towards the father. It was also noted that X was having difficulty psychologically spending time with the father.
I am satisfied based on that evidence that the child has been exposed to a very difficult situation in his mother's home that has led him to believe that he should not spend time with his father and that there is a risk that his father will take him away from his mother.
There was significant criticism of Ms D by the mother in her written submissions, however Ms D's views are consistent with the other Family Consultant Ms B and their respective reports when looked at overall provide a consistent theme of the mother having great difficulty in facilitating and promoting a relationship between the child and his father and of the child being exposed to the mother’s significant difficulties in this regard.
Having regard to the allegations of physical abuse it is noted that the mother did not report those allegations to anybody and that she has allowed the child to spend time with the father during holiday periods notwithstanding the allegations.
The evidence in relation to the allegations does not satisfy me that the child is at an unacceptable risk of harm in the father's care.
The child whilst making complaints cannot give any specific examples of when the alleged incidents occurred. The child's demeanour and behaviour around the father, when not in the mother's presence, is not consistent with a child that is in fear of his father. There is also the complete lack of any physical evidence to support the allegation that the child was struck with a stick or claw.
Those factors when considered in light of section 140 of the Evidence Act do not support a finding on the balance of probabilities that there is a risk of physical harm in the father's care.
I am not satisfied that the mother has engaged in any brainwashing of the child in order to alienate the child from his father.
The evidence establishes in my view that the child has become aligned with his mother. I am satisfied that this has occurred as a result of the long standing conflict in which this child has been raised. The child has been in the mother's care his entire life and has been as a result exposed to the mother's views and denigration of the father more than he has been exposed to the father's views and denigration of the mother. I am satisfied that the father has the capacity for change and that the mother does not have the capacity for change.
I am satisfied that the alignment of the child has occurred in the main as a result of the mother’s lack of insight in relation to her behaviours around the child. I am satisfied that the mother has not deliberately attempted to disrupt the child's relationship with the father but rather this has occurred as a result of the mothers lack of parenting capacity and lack of insight.
As a result of the mother's failures this child has become aligned to her and has been adversely psychologically affected.
The risk of harm that flows from continual proceedings must come to an end as a result of the orders I make. The question remains of the orders proposed by the father, Independent Children's Lawyer and mother which of those will have the likely effect of discontinuing conflict and relieving the child from further psychological harm.
Relevant section 60CC(3) matters
The views of the child have been quite clear for some considerable time now. His views however must be viewed through the prism of his current circumstances and the effect that his circumstances have had on his psychological well-being.
The evidence supports a finding that the child has simply become tired of the conflict and has now decided to resist spending time with his father as a self-protecting measure.
In those circumstances very little weight can be attached to the child's views.
As previously indicated the child has a very close bond and loving relationship with his mother.
The child has a psychologically difficult relationship with his father that is nonetheless close and loving.
The evidence supports a finding that the child does enjoy his time with the paternal extended family members when he spends time with them on holidays. The evidence also supports a finding that the child has a close relationship with the extended maternal side of the family.
It is very obvious that the father has done all that he can to participate in making decisions about the child, to spend time with the child and to communicate with the child.
The mother has also taken every opportunity to make decisions about the child, to spend time with the child and to communicate with the child.
The mother has interfered with the father's capacity to have a meaningful relationship with the child as a result of her lack of parenting capacity previously discussed.
It is conceded by all that should the child live with his father as a result of my decision it is likely to have a significant impact upon his psychological well-being such that he will need ongoing counselling.
There is no evidence put before me as to who might be an appropriate psychologist or counsellor or as to the nature of any psychological intervention that might have a positive impact upon the child.
Indeed the evidence establishes that the father has made no enquiries in relation to appropriate psychological care and I agree with the Family Consultant’s opinion that that is a very naive approach.
The mother’s response that the child “probably won't care” followed by “I don't know” highlights the distinct lack of insight the mother has in relation to the child's psychological well-being. This lack of insight has brought about a failure in the mother’s parenting capacity.
Having regard to the mother's proposal; that is, that the child live with her and that the child choose when he spends time with the father, whilst I acknowledge that this is most likely going to result in the child spending no time with his father it is also supported by the independent evidence that the child's stress levels will go from ten to zero if he spends no time with his father.
I find it more likely than not that the child's alignment with the mother is as the Family Consultant opined entrenched and cemented.
Having found that the child is aligned with the mother I am left with a decision to either remove him from his aligned parent or keep him with the aligned parent.
If I order that the child live with the father I will remove the child from his aligned parent but potentially cause him further psychological harm as a result of being removed from the one person who he has a significantly close, loving and secure attachment to.
In other words I am left with the decision as to which of the options provide for the least amount of harm for the child.
Again in circumstances where there is absolutely no evidence as to the type of psychological assistance X would receive in his father's care and the likely effect of it. I cannot be satisfied that the harm from being removed from his significant primary attachment would be either addressed or alleviated in the father's care.
It is not only his mother that X would be removed from it would be his half-sister who he has on all accounts a close relationship with. Indeed, if the mother follows through with her incredibly poor choice to relocate to Queensland should X live with his father this would have on any view the potential to have disastrous effects for X.
The evidence establishes that it is more probable than not that should X continue to live with his mother and be able to decide what time he spends with his father his stress levels will be reduced. As I said earlier that order would most likely see a result where X spends no time with his father which seems very unfair to the father, however I must have the child’s best interests as my primary concern.
In circumstances where I have found that the current existing relationship between X and his father whilst full of love and care is psychologically difficult for him and therefore not meaningful it is in that context that greater significance must be given to X’ psychological well-being as against the statutory intent for a child to have a meaningful relationship with both parents.
With regard to the practical difficulty and expense of the child spending time with and communicating with either parent it is my view that it will become difficult for X to spend time with his father due to the knowledge that his mother does not want him to have a relationship with his father.
The Family Consultant’s evidence is consistent in that X needs to be relieved from the conflict involved in these proceedings.
If he were to live with his father there would be ongoing conflict in my view. The conflict will cease, if he lives with his mother.
Both parents have revealed a lack of capacity to provide for the child's needs on an emotional basis. Both parents have engaged in behaviours that have caused psychological harm to the child as he has grown over the last nine years. Indeed both parents should reflect on each of their respective contribution to the current factual matrix in which I make this decision.
I have found that the mother lacks insight and that this has impacted upon her parenting capacity.
There is no evidence however to suggest that X suffers on a social level or an academic level as a result of that lack of parental capacity.
Whilst it appears that the mother has no ability to manage the child's refusals to spend time with his father there is no evidence to suggest that the child has behavioural issues in the mother's home or at school.
The evidence supports a finding that the child is an intelligent, caring and loving child who has unfortunately been exposed to too much conflict in his life.
I am satisfied on the evidence that both parents believe they are doing their utmost to meet their responsibilities of parenthood. As I have said earlier both parents in my view have demonstrated an irresponsible attitude towards parenthood at times and have put their own interests above those of the child.
With respect to family violence I have previously found that the evidence does not support a finding of family violence in the father's home.
It is obviously preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to this child.
The child has previously refused to go to the father's home on a number of occasions.
The child has previously taken himself to a friend's home after school rather than be picked up by his father.
The child has previously run away from the father's home while spending time with the father.
The child has clearly established in my view a propensity to put himself at risk by taking it upon himself to find a safe haven with others.
The father had no plan as to how he might prevent the child from running away should the child live with him.
I am concerned that if the child lives with the father he will take it upon himself to run away to his mother and by doing so place himself in a situation of real risk whilst at large in the community.
If the child did run away to the mother, proceedings would commence again.
If I make orders consistent with the father's proposal there is a real chance the child will indeed run away, particularly in circumstances where I cannot be satisfied that there are any plans in place to provide an appropriate psychological framework for this child to work within.
On the other hand if the child did not run away and subsequently commenced spending time with his mother again in three months as proposed by the father and the Independent Children's Lawyer there is a real risk, having regard to the mothers lack of insight and inability to facilitate a relationship between the child and his father to undermine that relationship again and cause further proceedings to be commenced to have the child live with her.
The mother's proposal would see the child living with her and being able to choose when he spends time with the father. As previously stated it is unlikely that he will choose to spend time with his father however the conflict will be over, his stress levels will lower and there is less likelihood of further proceedings being commenced.
Parental responsibility
As I have found that there is no abuse or family violence the presumption provided for in Section 61DA must apply unless I consider that it be rebutted by evidence that it is not in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Nine years of high conflict relating to parenting arrangements for this child is perhaps evidence enough that an order for equal shared parental responsibility is not in the best interests of the child.
There is, however, further evidence that would support a finding that it is not in the best interests of the child for an order for equal shared parental responsibility namely:
a)The very poor communication between the parents;
b)The lack of trust between the parents;
c)The entrenched bitterness and dislike of each other;
d)The fact that they have never agreed on any long-term issues relating to this child.
In all of those circumstances the evidence establishes a finding that it is not in the best interests of this child for the parents to have equal shared parental responsibility for him.
In those circumstances it is in this child's best interests for parental responsibility to rest with the parent with whom he resides.
As I am not making an Order for equal shared parental responsibility the provisions of Section 65DAA are not triggered and accordingly pursuant to Section 65D(1) I may make such parenting Order as I think proper.
For the reasons outlined I am satisfied that it is in the best interests of the child to make the Orders I have made.
I certify that the preceding one-hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 10 February 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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