Beck & Beck
[2025] FedCFamC2F 305
•12 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beck & Beck [2025] FedCFamC2F 305
File number(s): SYC 5845 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 12 March 2025 Catchwords: FAMILY LAW – PARENTING – where the parties are engaged in a second tranche of litigation – where the mother seeks the child have no time with the father unless agreed in writing – where the father seeks that time gradually progress to unsupervised time two nights per fortnight and half school holidays – where the child has made allegations of violence upon him by the father – where no finding as to family violence is sought – where the child steadfastly refuses to spend time with the father – where the child assails the mother prior to and in the wake of time with the father – where the father and Independent Children’s Lawyer impractically view family therapy as the sole remedy or “magic wand” for the re-establishment of the relationship –where risk of harm is inherent in both proposals – where such risks are intricately weighed – where the mother has damaged the relationship (be it deliberately or inadvertently) to such an extent that no orders as to time with the father would be safe for the child – where the mother is an unimpressive witness – where the father has not prioritised the relationship or engaged fulsomely with family therapy – where the parties are diametrically opposed – mother granted sole decision-making responsibility with a requirement to consult with the father and orders made for no time with the father. Legislation: Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC, 60CG, 61C(2), 61C(3), 61D, 65AA, 65D Division: Division 2 Family Law Number of paragraphs: 188 Date of last submissions: 6 February 2025 Date of hearing: 3 – 6 February 2025 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Southern Waters Legal Solicitor for the Respondent: Mr Maroulis, Alexander Maroulis Lawyers Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Jlm Family Lawyers Pty Ltd ORDERS
SYC 5845 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BECK
Applicant
AND: MR BECK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
12 MARCH 2025
THE COURT ORDERS THAT:
1.All previous Orders are discharged.
Long Term Decision Making
2.The Mother shall have sole parental responsibility and decision making responsibility in relation to all major long-term issues in respect of the child X, born in 2017 (“X”), save for X’s name.
3.The Mother and Father equally share parental responsibility and decision-making responsibility for the name of X.
4.In exercising sole parental responsibility and decision making:
(a)The Mother shall inform the Father in relation to all major long term, non-urgent issues for X of her proposed decision no less than 14 days prior to such decision being made;
(b)the Father may provide input in relation to the proposed decision within 7 days of the mother informing the Father;
(c)the Mother shall consider the Father’s input in making any decision in relation to major long-term issues for X, however she will have the final authority to make decisions in this regard.
Live With and Spend Time
5.X shall live with the Mother.
6.X shall have no physical contact with the Father unless agreed in writing between the parties.
7.The Father may communicate with X by sending letters, photographs, cards and gifts, provided such communication occurs no more frequently than once every two months.
8.In addition to communication in accordance with Order 7, the Father is permitted to send X a card and gift on his birthday and at Christmas.
9.In the event the Father sends X communication in accordance with Orders 7 and 8, the Mother shall facilitate X participating in a session with Dr C for the purposes of reading that letter or opening the gift with the support of Dr C.
10.In the event X wishes to send a letter to the Father, the Mother shall do all acts and things to facilitate the sending of such letter to the Father.
11.The Father shall keep the Mother informed via email of his contact telephone number and postal and email address at all times and notify the Mother in writing no later than 7 days after any changes to these details.
12.The Mother shall facilitate any reasonable request made by X to spend time with or have video or telephone communication with the Father.
Parental Communication
13.The Mother shall keep the Father advised of the health of X including any serious illness, medication or hospitalisation of X as soon as reasonably practical.
14.Within 7 days of the date of these Orders the parties shall provide to each other their current mobile telephone number, email address and current residential address and provide any changes thereto to the other party within 48 hours of any such change occurring.
15.The parties shall communicate in relation to urgent matters involving X via text message, and non-urgent matters involving X via email.
Authorities
16.Both parties are permitted to liaise directly with X’s school and sporting bodies to obtain any necessary information about X’s progress and both parties shall, within 7 days from the date of these Orders, authorise the school and sporting bodies in writing to facilitate this.
Restraints
17.The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of X and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of X or permitting any other person to do so.
Passports and Travel
18.The Mother may apply for an Australian travel document (passport) for X born in 2017 without first obtaining the consent of the Father and shall be the only person with ‘parental responsibility’ of X born in 2017 for the purposes of applying for, and being issued with, an Australian passport for X born in 2017.
19.The cost of any renewal of X’s passport pursuant to the previous Order shall be borne by the mother.
20.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the Mother is permitted to remove X from the Commonwealth of Australia for the purpose of a holiday subject to the following:
(a)That the Mother provide to the Father notice of the intended travel in writing no less than 7 days prior to the proposed travel with details as follows:
(i)Dates of departure from and return to Australia; and
(ii)A copy of an itinerary provided by a travel agent or airline including return airline tickets.
21.The Mother shall hold X’s passport at all times.
Costs
22.Within 90 days the mother shall pay to the Legal Aid Commission of NSW the sum of $9,226.50 in payment of her contribution to the Independent Children’s Lawyer’s professional cost unless otherwise waived by the Legal Aid Commission of NSW.
23.Within 90 days the father shall pay to the Legal Aid Commission of NSW the sum of $9,226.50 in payment of his contribution to the Independent Children’s Lawyer’s professional cost unless otherwise waived by the Legal Aid Commission of NSW.
Disposition of the Proceedings
24.The Initiating Application filed 22 August 2022 and amended on 21 June 2024, and the Response to Initiating Application filed 4 February 2025 are otherwise dismissed.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as indicated in Orders 2 and 18.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are the second suite of parenting proceedings concerning the sole child of the relationship between Ms Beck (“the mother”) and Mr Beck (“the father”); X who is currently seven years of age (“X”).
Final Orders were made on a defended basis on 31 July 2020 (“the final orders”) following two years of litigation which was initiated by the father when X was one year of age. The mother commenced these proceedings just over two years later subsequent to X making concerning disclosures to third parties that the father had assaulted him. Such allegations are denied by the father. The parties have thus been involved in litigation as to X’s parenting arrangements for over four years of his seven year life.
X has steadfastly refused to spend time with the father and has not done so since 9 May 2023, save for approximately five minutes on 12 September 2023 during observation for the purposes of the Single Expert Report.
The two days required to hear this matter and the manner in which it was conducted belies its complexity. For the reasons recorded below, I am faced with a situation where this near eight-year-old child has no relationship with the father because the mother, who remains the uncontested resident parent, has either deliberately or unconsciously acted in a manner to damage the relationship to the point where the child unwaveringly rejects him. The parties’ competing proposals mean that I am faced with weighing the risk of harm to X of persevering with the father-son reunification against the harm arising from an order that X spend no time with the father.
My determination as to what is in X’s best interests in the circumstances of the competing proposals manifestly illuminates the blunt tool that is the legal system in parenting matters. The parties and X require an outcome that I cannot give them. I cannot make either parent appreciate their contribution to X’s conduct, nor the gravity of the situation and the impact on him. I cannot make either a better parent. The outcome is pyrrhic.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered and specifically referred to during the course of submissions.
The applicant mother relied on the:-
·Further Amended Initiating Application filed 21 June 2024;
·Outline of Case filed 28 January 2025;
·Mother’s Affidavit filed 18 December 2024; and
·Material tendered during the course of the hearing.
The respondent father relied on the:-
·Response filed 4 February 2025;
·Outline of Case filed 2 February 2025;
·Costs Notice filed 2 February 2025;
·Father’s Affidavit filed 12 July 2024;
·Affidavit of Ms D filed 27 July 2024;
·Affidavit of Ms F filed 11 July 2024; and
·Material tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the:-
·Outline of Case filed 28 January 2025;
·Child Impact Report of Ms E dated 29 December 2022;
·Mental Health Assessment of Child of Dr C dated 10 July 2023;
·Single Expert Report of Ms G dated 10 October 2023;
·Family Therapy Report of Dr C dated 10 July 2024; and
·material tendered during the course of the hearing.
The mother, father, Ms G and Dr C were all cross-examined briefly.
BACKGROUND
The father was born in 1981 and is currently 43 years of age. The mother was born in 1988 and is now 36 years of age.
The mother is employed on a part-time basis as a medical professional. The father lives with a housemate in a rental property. He is self-employed as a professional. His work commitments are usually over the weekends, and he often travels interstate for work. On rare occasions, he travels overseas.
The father reported to the Single Expert that he was subject to significant physical abuse during his upbringing, and he resided in a volume of different foster homes and children’s refuges. He left home aged 14 and described “not feel[ing] loved as a child or adolescent.”[1]
[1] Single Expert Report of Ms G
The parties commenced cohabitation in 2011, were married in 2014 and separated in April 2017. X was born in 2017 and thus was only an infant at the time of separation.
On 31 July 2020 the final orders were made and judgment delivered following a defended final hearing (“the final orders”). Such orders broadly stipulated that:
·The parties equally share parental responsibility (as it was then known);
·X live with the mother;
·X spend time with the father on a graduating basis commencing with supervised time and culminating in face-to-face time during school terms together with block period school holiday time and on special occasions.
·Until X started primary school, changeovers occurred at Suburb H train station, after which time changeovers were to occur at school
The father was due to spend time with X on 11 August 2020, however the day prior the mother cancelled the visit as X had to be “Covid swabbed and must remain in isolation for 72 hours.”[2] It was uncontested that despite this, the mother sent X to daycare on 11 August 2020.
[2] Father’s Affidavit paragraph 74.
X spent supervised time with the father pursuant to the final orders on six occasions commencing 18 August 2020.
X was due to spend time with the father on 8 September 2020. On 7 September 2020, the mother messaged the father and advised him that X had a COVID test and would not be available for time the following day. The mother conceded during the course of cross-examination that she had received a message on 7 September 2020 that X’s test result was negative, however she did not tell the father and so time did not commence. The mother was unable to provide an explanation as to why she did not subsequently arrange for time to occur after receipt of the test results. This does the mother little credit and is reflective of her insouciance towards the father-son relationship that is a significant component of this matter.
On 29 September 2020 X commenced unsupervised time with the father each Tuesday from 8:30am to 3:30pm in accordance with the final orders, save for three occasions on 24 November, 8 December and 15 December 2020, when the mother asserted that X was unwell. The mother made four notifications to the Department of Communities and Justice alleging the father had excessively disciplined X subsequent to unsupervised time commencing.
X attended J Preschool on Mondays and Wednesdays and K Daycare on Thursdays and Fridays. Pursuant to the final orders as outlined above, he spent time with the father on Tuesdays.
From December 2020 the mother began to observe X to be distressed and hesitant to spend time with the father. At the beginning of 2021, the mother further noticed a shift in X’s behaviour during changeovers, becoming quiet and hesitant to move into the father’s care coupled with acting clingy towards her.
In early 2021 X began saying to the mother, among other things, that:
·“Daddy called me a bad, ugly child.”
·“Daddy told me to get out.”
·“A boy named [L] was at Daddy’s house today. He was bigger than me. He kicked and punched me. My nose was bleeding.”
·“Daddy kicked my blocks all over the floor and broke them.”
·“Daddy was mean to me. Daddy was angry and said I’m bad.”
·“I want to be a police officer when I grow up…so I can put Daddy in jail… Daddy hit me in the head and then in the stomach. But I’m not allowed to talk about it.”
On 17 February 2021 the maternal grandmother told the mother that when dropping X off to the father, he had told her that “Daddy slapped my face and it hurt” and showed her a fist, demonstrating that the father had punched him in the face.[3] When the mother collected X on the next occasion he said to her: “You left me with Daddy! You didn’t want me there with you! You didn’t want me around!”
[3] Ibid, paragraph 67
The mother telephoned Suburb M Police Station in February 2021 in relation to X’s disclosures. Police spoke to X and attended the father’s home to investigate the mother’s concerns. The mother deposes that the Police told her that X had told them that the father had hit him and kicked him and was being bullied by a boy named L. Police took no further action, noting that the father denied the allegations and did not purport to know any individual named L.
On 23 February 2021, the maternal aunt told the mother that X had told her that the father had hit and kicked him, and that he wanted to be a police officer when he grew up so that he could put the father in jail as he had hit him on the head.
Throughout February 2021, X continued to mention “L” to the mother and that “L” was being rough with him whilst at the father’s home. The mother recalled X telling her at the time that “Daddy was there when [L] hurt me.”[4]
[4] Mother’s Affidavit, paragraph 71.
In that same month, X’s daycare educator from K Daycare telephoned the mother and informed her that X had told her that the father had hit him in the side of the head and kicked him in the stomach, and that he was always hungry when he was at the father’s home.
On 25 February 2021, the mother received a telephone call from the Director of J Preschool who told the mother that X had been saying that his father had slapped him in the head and kicked him in the stomach and that she was:
…becoming concerned about [X] as I also feel his behaviour has regressed. He is becoming very attached to the educators and is needing help with more things he could otherwise do independently, like eating and toileting.[5]
The mother was advised that a notification would be made to the Department of Communities and Justice, however deposes that she was not followed up by the Department.
[5] Mother’s Affidavit paragraph 77
The mother took X to a General Practitioner on 2 March 2021 following X’s disclosures at preschool, who recommended he attend upon a psychologist. On this date, the mother sent an email to the father advising him of X’s allegations that “L” had hit him at the father’s home. The father responded by email that X had told him that the “L” who had hit him was at the pre‑school “and as such under your care at the time.”
The mother was advised by the pre-school that there was no child by the name of “L” there. The parties agree and I find that “L” does not exist.
In response to the recommendations of X’s General Practitioner, the mother made arrangements for X’s attendance upon psychologist Ms N. The mother met for an introductory session with Ms N on 7 May 2021 without notice to the father, notwithstanding the existence of an order that the parties have shared parental responsibility.
On 16 May 2021 the mother informed the father by email confirming that X had had his first session with Ms N and provided him with Ms N’s contact details. Rather than providing the father with information when he requested it as to this appointment, the mother told the father to contact Ms N directly with any questions he may have. This does the mother little credit.
The mother deposes as to the father cancelling his time with X on 18 May, 15 June and 29 June 2021, and on this last occasion the father cancelled all visits “until at least the 10th August”.[6] X consequently did not see the father for a period of at least six weeks. The mother failed to depose, but had to concede in cross-examination, that from July 2021 to August 2021 she was aware that the father was in Queensland and unable to return to New South Wales due to COVID restrictions as to travel at the time. I am satisfied that the drafting of the mother’s affidavit in such a manner was misleading and designed to present the father in a bad light. This reflects poorly on the mother.
[6] Mother’s Affidavit paragraph 55(c)
X had his first appointment with Ms N on 16 May 2021 and attended three visits thereafter, there being four visits in total. Ms N’s correspondence to X’s general practitioner stated that X presented with a history of anxiety, nocturnal enuresis and somatic symptoms. Treatment included play therapy sessions. The father advised Ms N on 25 June 2021 that he did not support the sessions.
On 25 May 2021 X refused to attend time with the father at changeover at Suburb H station and was crying. It took an hour for X to changeover into the father’s care. The father subsequently advised the mother via WhatsApp that he would be keeping X an extra hour because the visit had started late.
During a phone call on 25 June 2021, X picked up the phone and positioned himself to be seen through the camera, however the mother “quickly and forcefully told [X] to put the phone down.” The phone was then repositioned to face the ceiling.
The mother indicated that “with such short notice” she could not accommodate the father’s time with X on 10 August 2021, when the borders between New South Wales and Queensland reopened.
The mother did not make X available for time with the father on 12 and 19 October 2021 as he had “transition to school visits so was unable to spend time with the father on these dates.” The mother again fails to depose that such transition sessions were to occur via Zoom. To the question why such sessions could not then have occurred at the father’s home, the mother’s evidence was vague: she did not think she received a response to the “back and forth” communication about this with the father. When questioned further as to the form such “back and forth” communication took, the mother could not recall whether these were verbal or written communications; she “vaguely” recalled there being a conversation about it. I do not accept the mother’s assertion that she “vaguely” recalled an oral conversation as this would have been highly unlikely given the lack of verbal communication between the parties at that time and the mother’s own assertion in her evidence that from 31 July 2020 until August 2022, she and the father communicated as to parenting matters by email or text message. There is no evidence to satisfy me that such an exchange occurred in written form.
In January 2022, X commenced kindergarten at O School.
In February 2022, X commenced time with the father on one night per fortnight.
The father cancelled time with X on 8 March 2022. No reason was provided as to why.
In March 2022, X commenced seeing the school counsellor. It is recorded that X said:
…his father had died and diverted the conversation to an easier topic. He came back to his father and stated ‘He didn’t die, he was just in hospital because he hurt his leg.’ Soon after this he stated ‘Dad hurt his leg stepping over the snake…added he didn’t go to hospital or die he just was like he was going to die.[7]
(As per original)
[7] Exhibit ICL3 – NSW Education Case Notes dated 10 March 2022.
The father cancelled time with X on 22 March 2022.
On 5 April 2022, X did not spend time with the father. The mother deposes that she had emailed the father and told him that she was positive for COVID, but X was testing negative and could still attend if he attended her home to collect him. The father declined the opportunity to spend time with X on this occasion, with no reason as to why in evidence.
It appears that the child did not spend time with the father on 13/14 June 2022. The parties depose as to different days such time was to occur, the mother asserting 13 June and the father asserting 14 June. The father deposes that the mother told him X “[had] other commitments. He will see you at the next scheduled visit.”[8] The mother plainly states that the father cancelled time. Neither party was cross examined on the issue and thus I cannot make a finding as to why time did not proceed on this occasion.
[8] Father’s Affidavit, paragraph 111.
Accordingly, by virtue of the father’s cancellations of time, the father spent just three overnights with X, being on 22 February 2022, 19 April 2022, and 3 May 2022.
In May 2022, the mother received a phone call from X’s teacher who told her that the school had noticed that X was upset when dropped off to school by the father. On 4 May 2022, the mother received another phone call from X’s teacher who told the mother that X had been overheard in the playground telling another student that the father got angry at him and kicked him out of the house. On 4 May the school counsellor notes that X kept changing his story regarding being kicked out of his house, and when she called the mother, the mother told her that X often makes things up.[9] The mother accepted this was so in cross-examination.
[9] Exhibit ICL3- Ms Q notes.
On 17 and 31 May 2022, X was again unwell with a “high fever, virus and then a secondary bacterial infection” and was unable to spend time with the father.[10]
[10] Mother’s Affidavit, paragraph 98.
In mid-2022, X told the father that he had been on a plane to Country P and met the extended maternal family. It is uncontested that X has never been to Country P – this was clearly false.
From 12 July 2022, X began spending alternate Tuesdays and Wednesdays overnight with the father in accordance with the final orders.
On 28 July 2022, X met with the school counsellor subsequent to the school holidays and the further increase in X’s time with the father. The counsellor’s notes record that X appeared unsettled in class during week one of Term 3. X disclosed that he had stayed with his father who “says ‘no’ a lot” over the holidays, though this related mostly to playing with his toys. He stated he brings his toy dinosaur when he goes to stay with his father and sleeps with it in the same bed as his father. The notes record that:
[X] appeared happy when talking to his Dad. When asked if he ever feels sad at either his mum or dad’s house, he replied no.[11]
[11] Exhibit F4 – NSW Education Case Notes dated 28 July 2022.
On the Monday evening and Tuesday morning prior to X being collected by the father from school in the afternoon of Tuesday 9 August 2022, X told the mother that he did not want to go to the father’s home. That night, the mother received a phone call from the father’s phone and spoke to X who was upset and missing her. The mother alleges that X was incoherent - sobbing and telling the mother he wanted to come home. The father denies this and asserts that X just wanted to talk to the mother. Neither party was asked any meaningful questions as to this contradictory evidence and I make no findings in this regard.
During a session with the school counsellor on 11 August 2022, X was recorded as telling her that the father had “said something bad to him” and around dinner time they had a fight, with X stating that he hit his father in the face first but his father went on to punch him in the face “during the fight.” X described how he was hit to the counsellor:
[X] closed his fist and hit himself above the right eye, on his forehead. [X] stated that he then kicked his father to get away. His father kicked him back and said he could not sleep in his bedroom with him.[12]
[12] Exhibit F3 – NSW Education Case Notes dated 11 August 2022.
X then informed the counsellor he slept on the lounge chair and had a nightmare but was too afraid of his father to tell him, so he hid under the father’s bed and went to sleep, but when the father saw him under the bed he told him to get out of his room. The counsellor recorded no visible bruises on X’s forehead where he purported to have been hit.
This disclosure was reported to the Child Wellbeing Unit and to the mother.[13] The mother noticed X was “particularly on edge and more sensitive than usual” when she collected him from school that day.[14] It is uncontested that officers from the Department of Communities and Justice attended the father’s home and after observing the father’s bedroom determined that it would be impossible for anyone to sleep under the father’s bed. No further action was taken. X’s assertions in this regard reflect his propensity to tell untruths.
[13] Ibid.
[14] Mother’s Affidavit, paragraph 114.
In light of the allegations, the mother unilaterally ceased X’s time with the father on 11 August 2022. Subsequent to this time, X continually asked the mother if he was in trouble or if she was angry at him. On 13 August 2022, X told the mother that “when Daddy gets angry, he hurts me.”[15]
[15] Mother’s Affidavit, paragraph 120.
X refused to speak to the father via Facetime on 17 August 2022.
On 19 August 2022, the mother and X attended Suburb R Police station to make a statement and X was interviewed by the Police at the mother’s home. A Provisional Apprehended Domestic Violence Order as against the father for X’s protection was made in August 2022. The Order is not in evidence however the father deposes that the Order prohibited him from having any contact with X.
The mother commenced proceedings on 22 August 2022 seeking both interim and final orders.
At a school counselling session on 8 September 2022, X is recorded as telling the counsellor that he had left a stuffed toy at the father’s home but he could not go back and get it as “he is not allowed to go to his father’s anymore”. He was recorded to be happy about this. X told the counsellor that he had been worried about a Police car out the front of the school because he thought the father was in the car and noted if he saw the father he would “run very fast to my teacher and tell her.”[16] The mother deposed not to have told X something had happened so that he did not see the father anymore, nor had the maternal family.
[16] Exhibit F2
At the first return date on 27 September 2022, orders were made by consent that pending the interim hearing on 28 February 2023, X’s time with the father pursuant to the final orders be suspended and that a Single Expert be appointed for the purposes of a Child Impact Report. The parties attended interviews for such Report on 29 November 2022.
The Child Impact Report of Ms E dated 29 December 2022 recommended that unless the Department of Communities and Justice had concerns as to X’s safety, consideration could be given to a resumption of time.
Interim Orders were made on 2 March 2023 on a defended basis (“the interim orders”) broadly that:-
·X spend time with the father each Tuesday for three hours supervised by S Contact Centre or T Contact Centre with the parties to share the costs of supervision.
·The mother provide the child with a private room and appropriate device for Facetime calls pursuant to Order 5 of the final orders.
·The mother make an appointment for the child with his current General Practitioner in order to request a referral for the child to NSW Health Child and Adolescent Mental Health Services (CAMHS) as well as to a private clinical psychologist for the purpose of a Mental Health Assessment.
On 9 March 2023, X’s Facetime call with the father did not meaningfully occur as X hung up the phone on two occasions when the father called. X refused to speak to the father again on 16 and 30 March 2023.
On 23 March 2023, the father agreed for Dr C to undertake a mental health assessment of X.
X refused to speak to the father via Facetime again on 6 April and 27 April 2023. On the latter occasion, X said to the mother that:
I wish [Mr Beck] was dead. I wish [Mr Beck] would get shot in the head and die. I wish he would get shot into space so he couldn’t breathe, then he would die. I wish [Mr Beck] would fight in a war, then he would get shot and die.[17]
[17] Mother’s Affidavit, paragraph 160
Prior to X’s time commencing again with the father he continued to tell the mother that he did not want to see the father.
The parties were unable to agree as to where X’s supervised time with the father would occur for a period of two months and thus time did not occur. At a mention of the matter on 4 May 2023, the parties agreed by consent that X’s time with the father be each Tuesday from 4:00pm to 6:30 pm at McDonalds Suburb H with such time to be supervised by T Contact Centre.
Supervised Visit of 9 May 2023
X met with the supervisor prior to the first supervised session occurring. At this time the supervisor told him that she would call the mother if he wanted to leave.
The first supervised visit occurred on 9 May 2023. When the mother collected X from school that afternoon to take him to see the father she was told by X’s teacher that he had been very distracted in class and his behaviour was getting worse; he was unable to complete work quietly and being deliberately disruptive. X said to the mother: “What happens if I need to go to the toilet? I’m scared that stupid [Mr Beck] would be the one taking me and I don’t want to be alone with him.” He also noted that “I don’t want to go to see dumb stupid shut up. He will just be acting and pretending to be nice in front of the supervisor. No one will believe me after that.”[18]
[18] Mother’s Affidavit, paragraph 174.
It took 25 minutes to coax X out of the car and to go inside the McDonalds. At the conclusion of the time the mother was advised that X did not make eye contact with the father during this visit, and he stood primarily behind the supervisor while holding her hand. Upon arriving home X became angry and with a raised voice said:
I said again and again I want to go home and I wanted my mum, but she did nothing! She lied to me. She told me she would take me to mummy when I wanted to go but she didn’t. I didn’t want him to touch me and he picked me up. I hated it.[19]
[19] Mother’s Affidavit, paragraph 179.
In the period that time recommenced, albeit supervised, the mother’s evidence was unchallenged that she witnessed new behaviours in X, including him:
·sucking his index finger;
·wetting the bed on occasion (which he had not done for 12 months prior to March 2023);
·being increasingly irritable with the mother; and
·refusing to sleep in his own bed and demanding to sleep with the mother in her bed.
Supervised Visit of 16 May 2023
The mother and X were waiting when the supervisor arrived at 3:55pm at the next occasion of supervised time on 16 May 2023. The mother was standing outside her car. X had locked himself inside the car and would not get out. The mother advised the supervisor that X had a fever and had stayed home from school that day. When encouraged by the mother and the supervisor to get out of the car X called the supervisor a “liar” as “you didn’t let me leave last week and I asked and asked.”[20]
[20] Exhibit M2 – Contact Report of T Contact Centre dated 16 May 2023.
The supervisor explained to the mother and X that contact would end if X was distressed and unable to be comforted – the mother was “understanding of this and appeared fully accepting of the need to encourage children to stay.”[21] X shut his eyes and stuck out his tongue and stated he didn’t want to be at contact “today or any day.” X then began banging his head on the car seat repeatedly. When asked not to do so by the mother as he would hurt himself X screamed “no” and continued. When the mother opened the car door to encourage X to get out he slammed it shut, just missing the top side of the mother’s head. The mother told the supervisor that she was okay, the door had skimmed off her ear.
[21] Ibid.
The mother had the car keys in her hand and opened the car to put the window down. When putting her hand up near the window when checking on X he slapped it out of the way. The supervisor reminded X that it wasn’t his mother’s fault, that his father really wanted to see him and they could go to McDonalds for food or go to the park. X said he did not want to see the father, go to McDonalds or to the park; he wanted to go home with the mother. The contact supervisor recorded that X appeared angry with the mother also. The mother continuously told X how much she loved him and told him it is okay to feel the way he is feeling but to try and use his words so he could be understood and receive help. X remained in the car shouting and saying he wasn’t going until 4:45pm, a period of 45 minutes.[22] Time was consequently cancelled by the service. X stopped shouting and “presented as calm” when informed of the cancellation by the supervisor.
[22]Ibid.
On the way home in the car X said to the mother that: “It’s your fault I have to see him.” He was combative and defiant when asked to do things by the mother such as having a shower and eating his dinner.
Supervised Visit of 23 May 2023
The next supervised time with the father was to commence at 4:00 pm on 23 May 2024. X again locked himself in the car and refused to get out. Whilst the supervisor texted the father the mother continued to try and calm X down for the visit. The supervisor’s notes record that:
[X] was screaming “NO” and smacking mum on her hand every time she attempted to coax him out of the car. [X] called mum and I a “loser” every time we tried approaching him or try to talk to him about visiting dad. Mum said she would give him a minute to try and calm down and then try again. [X] was very firm in his refusal to attend the visit. He blew raspberries at mum and was spitting on her, he was yelling in her face, locking the car door and saying, “I hate you” and “you’re a liar”.[23]
[23] Exhibit M2 – Contact Report of T Contact Centre dated 23 may 2023.
It was suggested to X that the visit be shorter, even just ten minutes long, but X again screamed “no.” The mother told the supervisor that X had said she was a liar and she promised it would be a short visit the first time, but he had to stay for the whole visit. The mother appeared to be ill to the supervisor who recorded that she also appeared to be a little upset at some of the words that X was saying to her. At her request, the supervisor gave her a hug. The mother told the supervisor that X does not generally act in such a manner and that it was “hard to see him like that.” X began honking the car horn, pressing on various buttons in the car and repeatedly hitting the car seats whilst telling the mother and the supervisor that they were “losers” and to “shut up.” The supervisor offered to simply drive past the father and wave, but X said no.
The visit was cancelled after 50 minutes. X screamed “NO” when overhearing the supervisor tell the mother that she would advise the father that the visit was not going to happen as “he didn’t want me to tell him and that he wanted him to sleep there.”
The supervisor recorded that during this time, X got progressively angry at the mother and was highly unsettled and:
Was smacking mum, spitting at her, and using unkind language towards her. At one point, he stuck his rude finger up at her. [24]
[24] Exhibit M2
On 25 May 2023, the mother received a letter from the school outlining their concerns as to X’s behaviour. Though he had transitioned well into year one and “established a good rapport with his class teacher…adjusted quickly to new class routines and worked independently on individual tasks and collaboratively in group activities,” X’s teacher, Ms U, began noting changes in his behaviour “at the end of Term One” that year.[25] This period of time followed the recommencement of time between X and the father (pursuant to the interim orders) after a period of seven months of X spending no time with the father. Such recorded behaviour included:
·not listening to instructions;
·off-task behaviour including walking around the classroom and taking extended periods of time to follow basic instructions;
·increased distraction in group and individual activity; and
·discussing his relationship with his father with his peers and disclosing how his father had hurt him.
[25] Exhibit ICL3 – Letter of Recommendations O School dated 24 May 2023.
In term two, X’s calibre of behaviour worsened such that he:
·found it difficult to sit still;
·was unable to complete set tasks;
·distracted classmates from their work;
·began approaching Ms U to discuss time with his father both before school and during class time;
·withdrew himself from participating in class activities and sat alone in the reading corner; and
·became easily frustrated and angered with his peers, causing upset to his close friends.[26]
[26] Exhibit ICL3 – Letter dated 24 May 2023 from Ms V and Ms W, attached to referral to school counsellor.
On 2 June 2023, orders were made by consent in chambers that the father’s time with the child be suspended pending further order. It was noted that a mental health assessment of X was to be prepared by Dr C and the parties’ agreement that, at that time, it was not in X’s best interests to continue attending supervised time.
Further orders were made by consent on 7 June 2023. Such orders contained a notation that:
B. The parties acknowledge that three supervised visits occurred on 9, 16 and 23 May 2023. The last two visits were cancelled due to the Child exhibiting concerning behaviour and refusing to leave the car after arrival. The Child has also refused to speak to the Father on Facetime.
Thus, X has not spent face-to-face time with the father since 9 May 2023, bar briefly in the context of the Single Expert report interviews. He has not communicated with the father on Facetime since 3 May 2023.
On 13 June 2023, X commenced his first session with Dr C for the purposes of a mental health assessment. He partook in a second session for that purpose on 29 June 2023.
In mid-2023, the defended Apprehended Domestic Violence proceedings were heard and dismissed. X was required to undertake a pre-recorded interview for the hearing. The Mental Health Assessment prepared by Dr C was released to the parties on this same date.
In June/July 2023, X began calling his father “stupid [Mr Beck]” despite the mother telling him numerous times that it was not nice to call the father that.
The Single Expert mental health assessment of X authored by Dr C and dated 10 July 2023 was released to the parties on 19 July 2023. Dr C indicated that X did not fulfill any criteria for any mental health diagnosis; though she acknowledged X’s propensity for distress which will be discussed further later in these reasons. Dr C further opined that:-
·In the event it is found not to be in X’s best interests to spend time with the father at this time, a further two to three follow-up appointments would be beneficial for X to ensure his continued good mental health and periodic appointments for the mother to gain strategies to support X is recommended.
·In the event it is found that it is best that an attempt be made to reconcile the relationship between X and the father, it is anticipated that X will require appropriate therapeutic support, however X should not attend upon a mental health clinician without the knowledge and input of both parents.
Dr C recommended that X continue with some sessions monthly in order to maintain rapport until the release of the Family Report.
The parties attended upon Ms G for interviews on 29 August 2023 in preparation for the Single Expert Report. The mother’s interview was in person. The father’s interview was by audio-visual link at his request as he was working in Melbourne. The mother completed psychometric testing following her interview.
On 12 September 2023, Ms G conducted observations of X and the mother, as well as the maternal grandparents for 35 minutes. She then interviewed X alone for 35 minutes, which included 5 minutes of X interacting with his father. The maternal grandparents were then interviewed for 40 minutes whilst the father completed his psychometric assessment.
The day following the interview, the mother observed X “crying, screaming, hitting [her]” and being “very argumentative.”[27] He told her he was scared; that he did not want to see the father again.
[27] Mother’s Affidavit, paragraph 198.
X’s behaviour continued on a concerning trajectory. During August and September 2023, X:
·Said to the mother regarding the father: “I don't want to see or talk about him because it makes me think about stupid [Mr Beck] and all the bad things he did to me!”
·After finding a ring of the mother’s in the home, took the ring and put it in a bin saying to the mother “Stupid [Mr Beck] gave this to you so I'm putting it in the bin.”
·Found a photo of the mother, maternal family and the father at a monument in Country P and took it to the bin to throw out, saying “I don’t want to see or talk about him because it makes me think about stupid [Mr Beck] and all the bad things he did to me!”
·Refused to speak to another student at his school as his name was the same as the father’s.
·Told the mother that she made bad choices when she married the father.
·Said to the mother “I wish stupid [Mr Beck] would get shot in the head and die.”
·Told the mother that he hated Suburb H (Suburb H station being where the parties used to have changeovers at the commencement of X’s time with the father) as it gave him memories of “stupid [Mr Beck] and I don't want to think about him. I hate him!”
The Single Expert report of Ms G dated 10 October 2023 was released to the parties on 11 October 2023. She opined that therapeutic intervention was the primary vehicle through which the parties and X would be able to move forward, irrespective of the court’s determination of the existence of family violence. The parties agreed to engage in family therapy with Dr C.
X attended upon Dr C for further sessions on 19 October and 17 November 2023. Though occurring in the period following the release of the Single Expert report, it does not appear these appointments encompassed the family therapy that Ms G had recommended; they seem to be individual sessions organised in alignment with Dr C’s recommendations in her mental health assessment for monthly attendance to build rapport.
Despite his attendance upon Dr C in the preceding months, X’s defiance and unwillingness to be associated with the father ballooned:
·In December 2023, X’s school had an event called the “Fathering Project.” When the mother enquired about this with him given what would be obvious sensitivity, he said he felt “fine” as “I don’t have a Dad…I don’t choose him as my dad.”[28]
·He told the mother he did not want the father's surname.
[28] Mother’s Affidavit, paragraph 233.
In March 2024 family therapy with Dr C commenced. The father attended upon Dr C on 13 March 2024 via telehealth once more. The mother had her session with Dr C on 10 April 2024.
X had a further session with Dr C on 1 May 2024. It had been planned that the next session on 9 May 2024 occur with X and the father together. Dr C decided against the joint session occurring on this date and instead encouraged the father to write X a letter which she planned to read to him on 9 May instead. It is uncontested that when the mother advised X of this he said to her:
“I am going to show everyone what a liar [Mr Beck] is. I’m going to show police he lied in the letter that he is going to write. I’m going to get the police to take [Mr Beck] to jail because he lied to them about what he did to me.”[29]
[29] Mother’s Affidavit, paragraph 207.
X’s behaviour and apparent disdain for his father once more did not show any sign of improvement:
·On 6 May 2024, he refused to place the father's name onto a family tree for a school assignment and began crying when the mother suggested he include his father.
·On 3 June 2024, he said “I wish stupid [Mr Beck] died. I wish he was in a war and got shot in the head, then stabbed in the neck.”[30]
[30] Mother’s Affidavit, paragraph 236.
During X’s second session on 9 May 2024, Dr C introduced the idea of spending time with his father in the subsequent session, which X agreed to. Such an appointment with the father never actualised as the father left Australia to work overseas for two months, notwithstanding the looming trial date in July 2024. Therapeutic treatment as between the father and child thus never commenced. This is evidenced in email correspondence from Dr C’s offices to the parties via their solicitors indicating that they had contacted the father to:
…arrange the appointment for Thursday this week. The father has just advised us that he will be overseas for two months for a longstanding work commitment and therefore be unavailable. The father has said that he advised [Dr C] about this during his appointment with her on 13 March, however [Dr C] does not recall this conversation taking place.
The father deposes he informed Dr C he would be overseas May 2024 to July 2024. The father insisted during cross-examination that his financial position necessitated this overseas employment undertaking and denied being aware that his next therapy session would be joint with X. In circumstances where the purpose of the appointments were to assist the family in the lead up to the trial, Dr C’s offices indicated to the parties that Dr C did not see a path forward with the family and family therapy was accordingly halted. In an updating report dated 1 July 2024, Dr C noted that she was “unable to comment on the prognosis of further therapy sessions, as I don’t consider that meaningful treatment was conducted in this instance.”[31]
[31] Exhibit ICL 5 – Updated Report of Dr C dated 1 July 2024, paragraph 9.
It was put to Dr C during cross-examination that it could have been the case that the father informed her he was unavailable on those dates and she did not remember. She responded that:
… I mean it’s possible, but I have no notes of it – I have no recollection of it myself. I’m not sitting here saying that absolutely did not occur, but I would imagine my engagement in March was to see if I could try and get therapy going because the final hearing was scheduled in July. And – um – I think if there was two months taken out of that with an overseas trip – I think I would’ve recalled it…
The correspondence from Dr C’s practice manager of 13 May 2024 further records that she had spoken to Dr C who had advised her that she had no recollection of the father advising this in her appointment with him on 13 March 2024.
Irrespective of whether the father advised the Single Expert that he was intending to leave the country for a period of two months due to work commitments and whether the father was aware that the next session was to be a joint session between himself and X, the father left the country at what was clearly a crucial time in the development of his relationship with X. It was reasonably foreseeable that at some time in the near future – be it in one, two or three sessions – that a joint session would occur; that was the salient objective of the individual sessions. It was unable to occur solely because of the father’s actions. I am unaware as to the effect the father’s actions had on X in leaving the country at such a crucial juncture in the attempted repair of the relationship, or their effect on X’s views as to the father’s commitment to same. It appears that it had significant negative ramifications for the attempt at re-unification of the relationship.
The father returned to Australia in June 2024. Upon his return, the father’s solicitor emailed Dr C and asked whether further family therapy was possible by way of video conference. Dr C’s practice manager advised the parties that it was Dr C’s view that it would not be appropriate or beneficial to have the appointments via video-link, especially for X.
The matter was listed for final hearing on 22 July 2024 but was marked not reached and placed into the pool of matters awaiting the allocation of further hearing dates.
On 25 August 2024, the mother’s solicitor received correspondence from the father seeking the mother’s consent for reengagement with Dr C as soon as possible. The mother’s solicitor responded on 26 August 2024 requesting the father’s work details, including travel, for the next 12 months and proposed a joint letter be sent to Dr C seeking her availability and the potential viability of recommencing therapy in the circumstances. Such correspondence was sent to Dr C by consent on 5 September 2024. Though this correspondence is not in evidence, it was not the subject of any cross-examination.
Dr C’s offices advised the parties on 9 September 2024 that:
…in terms of recommencing family therapy, [Dr C] had advised that she holds the same views as her report dated 1 July 2024 in which she is “unable to comment on the prognosis of further therapy sessions, as I don’t consider that meaningful treatment was conducted in this instance.” If family therapy were to recommence, [Dr C] has advised that she is not in a position to facilitate this as her calender [sic] is booked for the remainder of the year.[32]
[32] Mother’s Affidavit, paragraph 220.
There is no evidence that either party sought to make enquiries as to the availability of any other family therapists in light of Dr C’s unavailability.
I asked the father during cross-examination whether my assumption that between June and December 2024 he did not take any steps to reengage family therapy was correct. The father responded that given he wasn’t sure of the “timeframe” of the aborted trial, he felt it would be better to wait for the outcome in order to progress further, if it was going to be a month or two. I did not understand such response, and asked why a final trial might be an impediment to therapy occurring. The father stated he believed it would give the parties some more finality and a “better framework.” I still do not understand how waiting for the date or outcome of a trial would impede upon the undertaking or progress of family therapy, particularly when the father views family therapy as the antidote to the chasm between himself and X.
In September 2024 X told the mother that he does not like to go to the McDonalds at Suburb H as it reminds him of the father. In September/October 2024 X asked the mother why she made him go to see the father.
On 11 November 2024, orders were made re-listing the matter for final hearing for four days commencing 3 February 2025 and the matter proceeded to a final hearing on those days.
On 20 November 2024, the father’s solicitor emailed Dr C, copying in the mother’s solicitor, to request her availability for family therapy in 2025. Dr C’s offices indicated Dr C would not be taking on any therapy clients in 2025.
The father’s written material did not advance any evidence as to enquiries made with any other therapeutic practitioner, though his Response to Final Orders seeks the parties engage with Family Therapist Mr Y for six months. The father indicated in cross-examination that he had made enquiries with Mr Y who is available and willing to take on the matter. The father conceded that Mr Y was not on affidavit, and when it was put to him that there was thus no evidence that he would be able to “commence this family therapy the way in which the court would otherwise conduct”, the father’s reply was simply that there had been “communications between solicitors conveying this.”
The mother deposes that since approximately May 2024 she has observed X to be more settled and generally happier with a marked decrease in emotional outbursts. He has transitioned back to sleeping in his own bed. She has been informed by X’s school teachers that he is more focused at school. Despite an overall improvement, there have remained some incidents which have caused the mother concern for X’s wellbeing including:
·In October 2024, X did a drawing at school – “it was a haunted house with ghosts and a grave at the front of it and it said RIP [Mr Beck].” He hid it in his desk as he was worried what his teachers and friends would say if they saw it. The mother and X’s teacher agreed this drawing should be taken home from school.[33]
·In November 2024, the mother and X drove through Suburb Z and X said “Why does it smell in here? Was stupid [Mr Beck] here? I feel like he was here.” He consistently repeated that he felt the father was around and that he was scared. When they went into an underground carpark, X said “Good, he can’t get us in here because he doesn’t have the keys.”[34]
·X told the mother he wished the father was dead, out of the blue, in late November 2024. He did not respond to the mother’s questions as to why he was asking this and what had made him feel that way.
[33] Mother’s Affidavit, paragraphs 241-242.
[34] Ibid, paragraph 243.
THE COMPETING POSITIONS
The mother is the uncontested resident parent. Whilst the assault allegations and asserted changes in X’s behaviour were the catalyst for the mother’s further application, the mother no longer seeks a finding that the father has perpetrated family violence. The mother submits that orders for family therapy and for X to spend time with the father as sought by the father and the Independent Children’s Lawyer will cause psychological harm to X who has been steadfast in his views of the father for almost four years, with two and a half of those years encompassing an adamant refusal to see the father, irrespective of the veracity of his allegations.
The father asserts that X’s negative feelings towards him could only have arisen from the mother and that harm will be caused to X if he continues to believe that the father has assaulted him.
The applicant mother seeks orders on a final basis in accordance with her Amended Application filed 21 June 2024 that, broadly:
·The final orders be discharged.
·The mother have sole decision-making responsibility, though be obliged to inform the father who may provide input for the mother to consider.
·The child live with the mother and have no physical time with the father unless agreed in writing.
·The father be able to communicate with the child by sending letters, photographs, cards and gifts, and should the father choose to do so, the mother shall facilitate the child to participate in a session with Dr C for the purposes of reading the letter or opening the gift with her support.
·The mother shall facilitate the child sending a letter to the father should he wish to do so.
·The father keep the mother informed via email of his telephone number, postal and email address at all times.
·The mother shall facilitate any requests of the child to spend time with or contact the father.
·The child continue in therapeutic sessions with Dr C with the mother to cover the costs of same.
·The child be permitted to travel outside the Commonwealth of Australia without consent of the father, on the proviso that the mother provide the itinerary and flight details to the father seven days prior to departure. The mother is to hold X’s passport and be at liberty to renew same without the father’s consent or execution.
·The parties liaise directly with the school and sporting bodies to obtain information about X; and
·Costs.
The respondent father broadly agreed with the orders sought by the Independent Children’s Lawyer by way of a Minute of Order tendered at the conclusion of the evidence that:-
Sole Parental responsibility with consultation
2. The mother shall have sole parental responsibility and decision making authority for the child [X] born [in] 2017 (‘the child’), AND THE COURT NOTES THAT:
2.1 The mother will keep the father advised of the child’s progress including but not limited to matters of the child’s well being, health, education or extra curricular activities;
2.2 The father may communicate with the mother any concerns or any suggestions the father wishes to make for the progress and well being of the child; and
2.3 The mother will give due regard to such matters as are raised by the father, but the mother shall be the person to make the final determination or decision and shall advise the father of any long term decision in writing as soon as is reasonably possible.
Live with
3. The child shall live with the mother.
Family Therapy
4. Both parents will do all things necessary to engage in family therapy to be facilitated as follows:
4.1 That the mother will propose to the father the names, contact details, curriculum vitae, availability and costs of three family therapists within 7 days of the date of these Orders; and then
4.2The father shall select one of the therapists and advise the mother of that selection in writing within a further 7 days;
4.3 One the family therapist is known to the parties the mother shall contact the family therapist in writing and copy the father to such correspondence seeking appointment dates at the first available opportunity for the child;
4.4 Thereafter the mother and father shall follow all reasonable directions of the family therapist for appointments for themselves;
4.5 Upon the first appointment being made for the child, the mother is to provide to the family therapist the following documents:
4.5.1 A copy of these Orders;
4.5.2A copy of the Single Expert Report of [Ms G] dated 10 October 2023;
4.5.3 A copy of the Mental Health Assessment for the child prepared by [Dr C] dated 10 July 2023.
4.6 The parents shall pay their own costs of appointments with the family therapist and shall pay the costs for the child’s appointments in turn, with the father to pay for the first appointment and each alternate appointment thereafter and the mother to pay for the second appointment each alternate appointment thereafter;
4.7 Family therapy is to continue for a period of no less than six months with both parents and the child to attend all appointments as recommended by the family therapist during that six month period;
4.8 After the six month period outlined in the above Order concludes, the parents are to request that the family therapist advise them in writing as to whether further therapy is required to continue and if so the parents are to do all things necessary to continue family therapy until the family therapist advises them in writing that family therapy is no longer required;
4.9 Should the selected family therapist not be able to continue with the family therapy for any reason, then Orders 4.1 shall again become operational with the parties to continue family therapy pursuant to these Orders thereafter;
Spend time with
5. Subject to the completion of a period of six months of family therapy occurring, the child shall spend time with the father as follows:
5.1 On ten occasions for no less than two hours each fortnight supervised by [AA Contact Centre] and to facilitate such Order:
5.1.1Both parents shall ensure that they attend to intake at [AA Contact Centre] at the first available opportunity after the making of these Orders and provide to [AA Contact Centre] a copy of these Orders;
5.1.2Both parents shall ensure that they advise [AA Contact Centre] two months prior to six months of family therapy occurring pursuant to Order 4 herein that the child is to commence spending time with the father;
5.1.3That both parents request that the time between the child and father occur on either Monday, Tuesday or Wednesday after school;
5.1.4That both parents shall do all things necessary to comply with all reasonable requests of [AA Contact Centre];
5.1.5 That the father is hereby responsible for all costs of the supervision.
5.2 That upon the completion of the child spending time with the father at [AA Contact Centre] as outlined in the above Order, the child shall spend time with the father on ten occasions as follows:
5.2.1 For no less than two hours each fortnight;
5.2.2 With changeover to occur at [AA Contact Centre];
5.2.3That both parents request that changeover occur so that time between the child and the father occur on either Monday, Tuesday or Wednesday after school;
5.2.4That both parents are to do all things necessary to ensure that the supervised changeover occur pursuant to these Orders.
5.3 That upon the completion of the child’s time with the father pursuant to the above Order for supervised changeover the father shall spend time with the child as follows:
5.3.1 During the school term each alternate Tuesday from after school to 7pm;
5.3.2During the school holiday periods each alternate week from 4pm Tuesday to 4pm Thursday;
5.3.3On Father’s Day from 10am to 4pm;
5.3.4On Boxing Day from 10am to 4pm;
5.3.5On the child’s birthday from after school or 4pm to 7pm;
5.3.6At any other times as agreed between the parents in writing; or
5.3.7At any other times in accordance with the child’s wishes;
5.3.8 That where changeover does not occur at school, then changeover shall occur by way of the mother delivering the child to the father’s residence at the commencement of the child’s time with the father and by way of the father delivering the child to the mother’s residence at the conclusion of the child’s time with the father and to facilitate changeover:-
5.3.8.1 Neither parent shall enter onto the property of the other parent with changeover to occur on the street outside each parent’s residence;
5.3.8.2 The parents shall not enter into communication that does not directly involve the changeover of the child from one parent to the other;
5.3.8.3 The parents shall behave in a child focussed manner.
6. That the father be at liberty to send the child cards and gifts in the week of the child’s birthday and the week leading up to Christmas to a postal address nominated by the mother to the father within 7 days of the date of these Orders and the mother is to do all things necessary to ensure that the child receives the cards and gifts as soon as is practical after receipt.
7. The child’s time with the father will be suspended on Christmas Day.
Communication
8. The parents shall communicate by way of the AppClose Parenting App with each parent to do all things necessary to download the AppClose Parenting App and ensure it is operational within 7 days of the date of these Orders and all communication required by these Orders is to be solely via the app.
General orders
9. Both parents shall keep the other advised at all times of their residential address and keep the other parent advised within 7 days prior to any change to that address.
10. Each parent shall be permitted to communicate directly with the child’s school and medical practitioners to obtain any necessary information and/or documents about the child’s progress and this Order shall constitute sufficient authority for such communication.
11. The father is entitled to attend any school events that parents are usually invited to upon the commencement of unsupervised time with the child pursuant to these Orders.
12. Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
13. Both parents shall keep the other advised of the names and contact details of all of the child’s treating medical practitioners, dentists and allied health professionals.
14. The child may communicate with the father by electronic means on a platform as agreed between the parents in writing and failing agreement via WhatsApp at any reasonable time in accordance with the child’s wishes and the mother shall do all things necessary to facilitate the child communicating with the father should the child express a wish to do so.
Restraints
15. The parents are each hereby restrained from questioning or interrogating the child about the time the child has spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child.
16. The parents are each hereby restrained from denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship, with the parent’s knowledge or in their presence;
17. Discussing any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
18. Permitting the child having access to any of the documents filed in these proceedings;
Passports and travel
19. That both parents shall do all things and sign all documents necessary within 7 days of the date of these Orders to ensure that a passport is obtained for the child and thereafter, both parents shall do all things and sign all documents necessary to ensure that the child’s passport is renewed no less than six (6) months prior to its expiration.
20. The cost of any renewal of the child’s passport pursuant to the previous Order shall be borne by the mother.
21. Pursuant to s65Y of the Family Law Act 1975 and subject to the following Order, the mother is permitted to remove the child from the Commonwealth of Australia for the purpose of a holiday subject to the following:
21.1That the mother provide to the father notice of the intended travel in writing no less than 30 days prior to the proposed travel with details as follows
21.1.1 Dates of departure from and return to Australia;
21.1.2A copy of an itinerary provided by a travel agent or airline including return airline tickets;
21.1.3That the travel shall not occur between 24 and 27 December once the child commences spending Boxing Day with the father pursuant to these Orders;
21.1.4 That the travel shall occur in the school holiday periods;
21.1.5That the mother shall ensure that the child spends time with the father missed by the child while the child was travelling internationally with the mother within the first three weeks after return.
22. The child's passport shall be held by the mother with the mother to provide a certified photocopy of the child’s current passport to the father at all times.
The father advised that as to the orders sought by the Independent Children’s Lawyer, he:
·Agreed to the orders sought by the Independent Children’s Lawyer as to the allocation of parental responsibility and decision making save and except as to the child’s name.
·Agreed to orders 1, 3 and 4.
·Agreed as to orders 5, save that the costs of supervision should be shared between the parties equally and X’s time with the father should be from 10 am – 7pm on Father’s Day and Boxing Day.
·Did not agree with having to solely bear the cost of supervision as outlined in 5.1.5; he submitted that the parties should share in the costs equally.
·Consented to order 21, save that the father should also be afforded the same opportunity to travel with X once he is 12 years of age.
The Independent Children’s Lawyer does not agree with the father having the reciprocal ability to travel with X once he attains the age of twelve years; if the parties could not agree between themselves as to reciprocal ability in the future, the Independent Children’s Lawyer curiously submitted that the father should approach the Court. I find this submission entirely antithetical to X’s best interests in circumstances where his parents have already been engaged in two tranches of sustained litigation. The circumstance as contained in such submission would do little to alleviate X’s exposure to conflict and provides a vehicle for further litigation between the parties.
The Independent Children’s Lawyer did not wish to be heard as to Father’s Day and Boxing Day as “time will tell whether time should progress.” I do not understand this submission in light of the orders sought by the Independent Children’s Lawyer. Such a submission appears to allude to the difficulties of the position of the Independent Children’s Lawyer and the father discussed later in these reasons.
THE LEGAL PRINCIPLES
The court is compelled to make such parenting orders that are considered proper. [35] When making parenting orders the court is to regard the best interests of the child as the paramount consideration.[36] A child’s best interests are ascertained by a mandatory consideration of six non-hierarchical criteria set out in section 60CC(2) of the Act.
[35] Section 65D of the Family Law Act 1975 (Cth) (“the Act”)
[36] Section 60CA of the Act. This is confirmed in s 65AA.
In contemplating the mandatory considerations the Court must consider any history of family violence, abuse or neglect involving a child or a person caring for a child, together with any family violence order that applies or has ever applied to a child or a member of the child’s family.[37] Unless it is in the child’s best interests to do so, the court must ensure that orders made are consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.[38]
[37] S60CC(2A)
[38] Section 60CG
Unless an order is made to change it, parental responsibility for a child is vested in their parents regardless of their relationship status.[39] When an order is made conferring parenting responsibility for a child to more than one person in relation to “major long term issues” the order may prescribe whether those persons have joint or sole decision making authority in relation to all or only specified issues. [40] “Major long-term issues” is defined to include issues such as the child’s education, religion, culture, health, name and changed living arrangements.[41]
CONSIDERATION AND DISPOSITION
[39] Section 61C(2), s61C(3) and s61D
[40] Section 61D(3)
[41] Section 4(1)
X
X lives with the mother, maternal grandparents and the maternal uncle in the maternal grandparent’s home. It is uncontested that the mother has always been and remains X’s primary carer. He has just recently commenced year three at O School and is said to be in good general health as well as academically progressing at a rate expected for his age.
X impressed upon the Single Expert as an articulate and assertive child who required little rapport building. This articulation of X echoed the initial view of the Child Impact Report writer, who described him as “shy and bashful, but simultaneously confident”; he “seemed amused and eager to talk.”[42] X’s classroom teacher reported to the Single Expert that he is doing well at school academically and has a good group of friends.
[42] Exhibit ICL4 – Child Impact Report, paragraph 15.
X’s Relationship with the Mother and Maternal Family
The mother is the uncontested resident parent. The Single Expert recorded that X was clearly comfortable with the mother and maternal grandparents and all maternal family members seemed interested and loving towards him. It is uncontested and I find that X has a close and loving relationship with the mother and maternal grandparents, is clearly connected to them and identifies them as meaningful people in his life.
X’s Relationship with the Father
X is undoubtedly estranged from the father.
He has been consistent in his account of not wanting to see the father since August 2022 when the current allegations were made. X has had extensive interactions with third parties since the final orders were made. He has:-
·Attended four sessions with Ms N.
·Attended on Dr C on two occasions for the sole purpose of the preparation of the mental health assessment, to whom he said that he was worried “dad might fight me again”. He was unable to tell her anything good about the father, called the father “stupid [Mr Beck]” and told her the father “fights him” by “hitting him.”[43]
[43] Exhibit ICL2 – Mental Health Assessment, paragraph 24-25.
·Undertaken four individual sessions with Dr C, for individual therapy and in preparation for integrated family therapy.
·Been interviewed by officers from the Department of Communities and Justice twice;
·Been interviewed by the Police once;
·Attended on multiple sessions with the school counsellor, to whom he said:
·He felt happy about not being allowed to go to the father’s house, followed by “they are going to try and make it so I never have to see my father again” which made him feel “good”.
·The father had been arrested.
·If he saw his dad at school he would “run very fast to [his] teacher and tell her.”
·Attended on the court child expert for the purposes of the preparation of the Child Impact Report, who also recorded his behaviour:
·X chose dolls to represent him and his family members and the “X” doll repeatedly hit and kicked the “Dad” doll, and explained it was because “he [the father] did it first”
·He said he was “not ever going to sleep at Dad’s again…because he’s rude… he pushed me off the bed.”[44]
·Attended on the Single Expert for the purposes of the Single Expert Report.
·Spoken to the Independent Children's Lawyer on two occasions.
[44] Exhibit ICL4 – Child Impact Report, paragraphs 15-16.
The Single Expert records that during her interview with X he called the father “stupid [Mr Beck]” but agreed to call the father “dad” whilst they spoke. He told the Single Expert that:-
·The father is a “liar” as the father denies punching him in the face and he did.
·He thinks the father loves him “in a bad way” and suggested that he would see the father when he is eight years old as the police told him this but he does not want to.
·His mother does not say anything about the father but the maternal grandparents say the father is ugly, as does he.
·He just wanted to hurt the father’s feelings because he is a bully and the father stole his friend’s car.
·He did not want to see the father when the Single Expert told him he could should he wish as the father was attending. He later told her to “shut up” and that he hates the father when she mentioned the father’s attendance on a second occasion.
When the Single Expert again provided X an opportunity to see the father, he did so through the clear glass at the bottom of the room where the father was sitting, then opened the door himself. He and the father spoke briefly and he remained in the father’s presence for no more than five minutes.
When asked for his thoughts about seeing his father, [X] told me that his father was “acting” because “that’s what he does”. He said that he does not want to see his father again, and he did not want to tell his mother that he had seen him. His mother and grandparents joined us again and I explained I needed a brief break then would interview the grandparents. When I returned to the playroom, [X] agreed that I could tell his mother that we had seen his father, and I did so. I later learned that [X] had told them when I was out of the room.[45]
[45] Exhibit ICL1 – Single Expert Report line 1230 -1236.
As recorded earlier in these reasons, the mother, maternal grandparents and X’s school teacher all report behavioural changes when X’s time with the father is to progress to the next stage, or when time has resumed. X’s behaviour at the supervised visits in May 2023 was clearly oppositional as opined by the Single Expert and “indicative of a high level of distress.” [46]
[46] Ibid, line 1449
The Causes of X’s Behaviour
The father agreed that irrespective of what happened between he and X, X has remained of the view for some time now that some wrongdoing was done by the father to him and he does not want to see the father. The question must be asked - why is X rejecting the father and behaving in such a manner?
After observing X in clinic over two sessions Dr C’s expert opinion was that X did not fulfill any criteria for any mental health diagnosis according to the Diagnostic Statistical Manual-5, however:
..he may exhibit increased distress, anxiety and agitation when placed into situations that trigger his fight-flight response. This appears situational around the conflict between his parents, and recent contact with his father. The causes of this are beyond the scope of this report.[47]
[47] Mental Health Assessment of Dr C dated10 July 2023, paragraph 35
I am satisfied and find on the unchallenged evidence of Dr C that X’s behaviour does not arise from living with a mental health illness.
Does the behaviour arise from trauma experience by X having been physically assaulted by the father as alleged by him? The mother was clear at the commencement of the final hearing that she did not seek factual findings that the father had perpetrated any acts as alleged by X; she simply does not know, as she was not there.
Both the parties agreed during the course of the hearing that X has at times fabricated accounts. The Single Expert opines that providing fictitious or exaggerated accounts is not particularly concerning given X’s age, however “the concern arises when all his statements are interpreted as truthful.” [48]
[48] Ibid, line 1399
The Single Expert’s opinion that X did not present as a child who has experienced trauma was not challenged:
[X]’s presentation to me, and to the Child Impact Report writer, was not of a child who has experienced trauma. This was particularly noticeable during the observation in the current assessment, in which [X] took the lead to see his father. If [X] had experienced trauma to the level alleged, it is unusual that he would (a) demonstrate no fear of his father, and/or (b) feel adequately reassured by my presence to see him, given that I am a stranger. Rather, [X]’s curiosity about his father suggests that either (a) he has not experienced physical abuse by his father or (b) if he did experience abuse, it was not at a level that has terrified him to the point of wanting absolutely no relationship with his father. Rather, consideration needs to be given to how to support [X]’s relationship with his father in either of these scenarios.
The evidence does not ground a finding that the father physically assaulted X, and in any event, it is not sought. Why then is X rejecting the father?
The Single Expert opines that if the father did not physically abuse X, his resistance to spending time with the father is likely a function of his exposure to the high level of conflict between the parties.[49]
[49] Single expert report, line 1454
X’s teacher recalled to the Single Expert the difficulties X experienced around the time he was having videocalls with the father and leading up to seeing the father early in 2023, stating that at that time he was calling his father names and stating that he did not want to see the father but “they’re making me.” [50] The teacher stated that X likes facts and is “black and white” but is in touch with his emotions. She perceives X to be a “complex kid” who has a “deeper understanding of emotions.” [51]
He is a “rule follower”, with [Ms U] noting that the only time he has demonstrated oppositional behaviour was when he was seeing his father, which was “a shock” to her as it was so out of character…..She perceives [X] to be a ‘complex kid’ who has ‘a deeper understanding of emotions.’ She noted that he expressed his emotions more than other children his age, and he has the capacity to articulate “how he’s feeling on the inside, how his body feels. I note that this contrasts with [Dr C]’s impression that [X] had difficulty articulating his emotions. [52]
[50] Single Expert report, line 1358
[51] Ibid, lines 1360-1370
[52] Ibid, line 1365
The Single Expert was unchallenged in her opinion that it is possible that X is:
… a child with a high level of verbal capacity, that presents as insight, but that he in fact struggles to articulate his true emotional experiences. This is to be expected given both of his parents’ tendency to avoidant coping. [The mother] presents with the higher skill in relation to emotional attunement to her son, although this is coloured by her own views of [the father], and it is possible that [X] has learned that he can connect with his mother through demonstrating distress in relation to his father. [The father’s] own childhood experiences mean that he likely has difficulty attuning to [X] emotionally, and [X] has likely detected this, and it is my view that this has negatively impacted the relationship between [X] and his father. If this hypothesis is correct, and if [the father] did not physically abuse [X], then [X]’s disclosures may be seen as a way of attempting to reduce the psychological distress associated with him trying to navigate the complex relationships with his parents by rejecting his father…[53]
[53] Ibid, lines 1470-1481
The Single Expert was further unchallenged on her opinion that it is possible that the mother’s overwhelmingly negative view of the father leads to her misinterpreting situations, with the parties’ poor communication and problem-solving capacities a further cause of this issue. I accept that this is a real possibility. In circumstances where I have not made a finding that the father abused X, I accept the Single Expert’s opinion that the mother “is either deliberately or unconsciously impacting X’s relationship with the father” as:
·The mother was not an impressive witness. She was nonresponsive and avoidant in her answers. Her answers to many questions was an immediate “I don’t know” or “I don’t remember” without any attempt to recall even recent events. She was particularly unhelpful. I formed the impression that the mother’s upset at questions asked of her was not genuine, but rather an attempt to avoid the process of cross-examination.
·The mother has not proactively encouraged and facilitated time between X and the father. The mother conceded during the course of cross-examination that the father made numerous requests for make-up time when it had not been able to occur, including when the father was unable to leave Queensland due to travel restrictions and the mother on numerous occasions either did not respond or said she was unavailable on other dates proposed. She further conceded that it was possible that she had only considered make-up time on one occasion. She did not facilitate time when there was the opportunity to do so; for example on the days that X was “transitioning to school” when this was not an impediment as it occurred online.
·The father’s evidence was unchallenged that the mother has historically exaggerated changeover, essentially feeding into X’s beliefs, by making a “fuss”; such as telling X he is “so brave” and consistently asking him if he is ready to go with the father, as well as standing in the way of the father and X and “block[ing] [the father] from [X’s] view…under the guise of giving him one last hug/kiss.” I accept this may have made X feel as though there was something to be concerned about by being with the father.
·The mother has undermined Facetime calls between X and the father by distracting him, including by speaking to him, giving him food and having the TV on in the background, or having X engaged in an activity at the time the call is occurring. The father deposes that the phone has been placed facing the ceiling in a high location during the calls so that X cannot reach the phone or see him.
·X’s negative view of the father has increased dramatically even though he has spent very little time with the father.
·The mother has unilaterally made appointments for X despite there existing an order that there be equal shared parental responsibility (as it then was known).
·The mother further agreed that X believes that the father has accused him of being a liar. The mother is unaware as to where this notion came from. He has held onto this notion quite strongly. The mother deposed that she has done nothing to dissuade X of this notion as “it is a difficult situation, balancing a difficult line of trying to hear him and validate his feelings.”
The father was not challenged on his evidence that X has made comments to him including:-
·in approximately November 2020: “You are not my real daddy, my real dad is “[grandpa]” (his grandfather);
·on 7 September 2021 saying to the father: “my mum said you don't look after me properly” and on this same day telling a child at the park that “when I was a little baby, my daddy was a bad guy all of the time”;
·on 5 October 2021 “my mom always tells me you are bad guy and show things all of the time”;
·on 9 October 2021: “my mom said you were a bad guy and threw clothes at her”; and
·on 11 January 2022: “my mom said you don't like it when I go to preschool.”
Despite this, the mother denied ever making disparaging remarks about the father. She asserted that she has never heard any members of her family make disparaging remarks about the father. None of these comments were explored with the Single Expert nor the family therapist. I cannot safely make a finding that such comments have come from the mother given that X has embellished or made-up stories about the father previously.
I have found that X’s behaviour and rejection of the father arises from the mother’s overwhelmingly negative views of the father and the parties’ poor communication and problem-solving capacities which, as adverted to by the Single Expert, X has attempted to navigate to his potential psychological detriment. What orders then are in X’s best interests moving forward in this incredibly complex parenting landscape?
What Orders as to time are in X’s best interests?
The risk of psychological and emotional harm is inherent in the proposals of both parties. In weighing the competing proposals, I must take the parties as I find them and not as they have the potential to be if they were always acting in X’s best interests.
The Independent Children’s Lawyer, the father and the Single Expert are all broadly in agreement that, in effect, there should be one further opportunity provided for X to establish a relationship with the father. This will be achieved through a period of family therapy prior to a graduated regime of time commencing. Given her opinion that X’s expressed views should be given little weight, the Single Expert ultimately opines that X remains curious about the father and steps should be taken to repair the relationship. It must be noted that the curiosity that X displayed relied upon by the Single Expert to ground this opinion occurred now over a year and a half ago.
The Single Expert broadly recommended that:
·X should live with the mother.
·Regardless of any finding as to the father’s perpetration of physical abuse upon X, therapeutic intervention is required for X and the parties. For X, this should focus on supporting him to make sense of his family circumstance, to increase his capacity for flexible thinking and improve his emotional insight. For the father, it is to process his past experiences of trauma, improve his capacity to attune to X’s emotional needs and communicate with the mother. For the mother, it is to improve her capacity to cope with difficult emotions and interpersonal situations, to gain insight into the importance of X having a relationship with the father and improve her capacity for communication with the father.
·Further treatment goals were recommended in the event I found that the father had abused X or X is at risk of harm in the father’s care, including X processing the harm the father has caused him and to explore his wishes for a future relationship with the father if this can safely be provided.
·Further treatment goals were recommended in the event I found that the father did not physically abuse X and that he is not at risk of harm in the father’s care including for X to work towards spending time with the father and for the father to find a way to repair the relationship with X and reassure him of his safety in his care. It would be required for the mother “to assist her to identify the way in which she is deliberately or unconsciously impacting [X’s] relationship with the father and the potential long term consequences this has for [X].”[54]z
·The clinician involved with treatment of the family should be at liberty to recommend whether the maternal grandparents should participate in the therapeutic process.
·If a finding is made that X is at risk of harm in the father’s care, then X should be able to choose the time that he spends with the father with provisions being made for his physical safety. The Single Expert however then opined that even if there is a finding that X is at risk of harm in the father’s care, this is not a case for no time, rather, that consideration needs to be given as to how X can safely have a relationship with the father.
·If X is not deemed at risk in the father’s care, then a return to the previous orders is recommended.
·The parents may benefit from the assistance of a parenting coordinator and if it is found that the father did not physically abuse X, consideration may be given to the mother funding this cost.
[54] Single Expert report, lines 1490-1495
Having read the updating material prior to the trial, the Single Expert Ms G affirmed in response to multiple questions that her recommendations as contained within the report remained live and relevant. Her view was unshaken that the potential benefits of reunification therapy as between the father and X outweighed any negative elements that may accompany such therapy in the short term.
I accept that if the process was successful, it would have a desired outcome of X coming to the realisation in a therapeutic setting that the father has not harmed him as opposed to the psychological harm that may eventuate by X continuing to believe that his own father has harmed him. It also decreases the risk that he will reject the mother later in life if he comes to this realisation himself, or by means of his own therapeutic assistance in adulthood.
The Single Expert’s opinion that X would experience both a separation from the mother and being forced to spend time with the father as “highly distressing” was unchallenged and I so find. Thus, X will require support if he is to do so. Importantly, the Single Expert clearly opines that “...the above process is unlikely to succeed without [the mother] actively engaging in the process.”[55] I accept this unchallenged opinion. What then, are the parties’ capacities to encourage this process including appropriately responding to and supporting X?
[55] Single expert report, line 1654
I have already found that the mother has to date not proactively encouraged X’s relationship with the father. The Single Expert’s view that the mother’s inability to support a relationship with the father “is of concern” is an understatement – it is a significant concern.
The mother is opposed to the proposed process. She submits that accompanying the psychological harm of forcing X into reunification against his wishes is the potential actualisation of what has already begun, at times, to befall the mother; that is, X blaming her for time proceeding with the father and “lashing out”, potentially causing a severance in X’s maternal relationship. The supervised contact reports of 2023, recorded above, observe X verbally and physically assailing the mother when she attempted to facilitate ordered time, including slamming the door in her face, calling her a “loser”, telling her he hated her and smacking away her hands. X’s behaviour in this regard is extremely concerning, especially as it originates in part from the mother’s own feelings and behaviours – whether deliberate or not. I accept and find that there is a possibility that X will reject the mother in the future if he continues to feel that she is forcing him to do something against his will and will “lash out” as he has done to date.
Of further concern and complication is the father’s own parental incapacities, including his limited capacity to meet X’s emotional needs given his own lack of emotional insight.
The Single Expert concedes that her proposal will require support for X in rebuilding the relationship with the father and the father will in turn require support to offer X a meaningful repair of the relationship.[56] To date the father has:
…struggled to meet [X]’s emotional needs, which are more complex than other children’s given his family circumstances, and... this has created emotional distance between the two of them…[57]
[56] Single expert report, lines 1518-1520
[57] Single expert report, lines 1530 - 1534
The father’s cross-examination revealed a polite but blatant lack of insight into X’s psychological and emotional needs, particularly when questions arose as to a way forward for the family outside the scope of litigation. He was unable to explain what he would do in the event that the progression of time was not going well for X, save for his response that he would continue to attend family therapy. It was clear to me that he had not considered any alternatives and that he viewed family therapy as what the mother submitted as a “magic wand” to allay the familial anguish:
HER HONOUR: First visit – you’ve had your six months of family therapy, [X] hasn’t been very positive during those sessions, but the orders that are made is six months is over and time is supposed to happen again. [X] refuses to go on the first occasion. He refuses to go on the second occasion. He refuses to go on the third occasion. No agreement can be reached between the two of you to extend that family therapy before you try again. So we’re back where we started effectively again today. What do you think is the next step that you would take if anything?
FATHER:It’s tricky *laughs*.
HER HONOUR: Have you thought about this before today? What you would do if the same thing keeps happening even if you have family therapy?
FATHER:Yeah well as I suggested I – I’m over – I feel like by that six months if he was going to be unwilling to have those visits, I feel like that would be quite apparent – um – at that juncture. And then I’d be hoping to extend the family therapy ‘till there was a juncture and he was feeling comfortable with the visits…
HER HONOUR: Ok so you both agree for example to extend the family therapy – how long do you go in family therapy and it doesn’t improve?
FATHER:Um – I’d largely be um basing it off the feedback from the therapist, just keep plugging away, really, until we get that breakthrough.
It is optimistic at best that family therapy continue for an indefinite period. In any event, I have genuine doubts as to the efficacy of family therapy given both the consistency of X’s expressed views to date and the mother’s unwillingness or inability to facilitate the relationship. The father cannot articulate any alternative to such therapy apart from potential “consent orders” made in this court which would inevitably require a cooperation between the parties that at present appears not to exist.
The unfortunate reality of the father’s limited capacity is reflected in Ms G’s report; she observes the father as having “poor emotional insight” and that the emotional avoidance he expresses is a restriction on his parenting capacity; he “lacks the capacity to attune to and meet X’s complex emotional needs.”[58]
[58] Single Expert Report of Ms G line 1563, 1564 page 46.
The father cancelling time on various occasions as recorded above would not have assisted in forming and maintaining a relationship with X.
In any event, family therapy commenced on 13 March 2024 when the father had his first individual session. Despite the recommendations from Dr C recorded above that such therapy move towards joint sessions in May 2024 following X’s individual sessions, the father left to work overseas. This was an incredibly pertinent time – the father had the opportunity to commence reunification with his child, whom he had not seen for over a year, and abandoned that opportunity in favour of a financial incentive. As submitted by the mother, the interim orders for family therapy were a hope; an experiment undertaken to get things “back on track.” Despite the gravity of the situation - what counsel for the mother described as “the most difficult parenting circumstances one could imagine”, the father did not avail himself of commencing therapy and I find this to be indicative of his limited capacity for cognisance both in relation to X’s needs and his own actions.
The father’s lack of commitment in the therapeutic sphere underscores his lack of insight into X’s needs on the whole; he has otherwise taken no further steps in attempting to reestablish the relationship or to participate in individual therapy as recommended to address his own trauma. I do not accept the father’s written evidence that he has “done everything possible as a father to have a close and meaningful relationship with X” in these circumstances.[59]
[59] Father’s Affidavit, paragraph 166.
For the father, it is clear that his view is that family therapy is a “magic wand” - the answer to everything. X does not want to attend upon ordered time? The answer is family therapy. Being forced to attend may cause X mental anguish? “He can have continuing therapy.” After conceding that it is possible that X will turn on the mother as she did not prevent time happening and there is potential that X is left with no relationship with the mother, the father’s response was that “I am not asking for him to have no relationship with his mother, but again, these are things that can be dealt with under a family therapy framework.” When questioned as to at what point his time with X would start, the father said:
…we’re suggesting six months at the moment. Obviously, our experts in the next couple of days will have a bit more of a framework to suggest what they think is an appropriate time and we’ll take that into consideration.
I am unsure as to what the father is suggesting.
The mother’s proposal will result in a severing of the opportunity for X and the father to try and re-establish a relationship. I am conscious of the serious consequences of such an order.
I agree with the submission of the Independent Children’s Lawyer that “if we can re-establish the relationship that would be the best outcome.” The Single Expert’s aim for therapy and a mending of the relationship is to be applauded. Her recommendations, however, are aspirational. The time for testing whether this was a viable solution to re-establish X’s relationship with the father was prior to the final hearing. It is too late, and orders I can make cannot undertake this experiment now without there being a significant possibility that these parties will be involved in further litigation in the foreseeable future. The time for undertaking such a course arose post the making of the interim orders. They did not succeed. The father, irrespective of his reasoning, left the country and did not fulsomely attempt to re-engage in the process until a month prior to the matter first being listed for a final hearing. Even after the adjournment, there is no evidence that the father actively sought to recommence therapy, even with an alternate practitioner. As noted above, there is no evidence as to the potential engagement with Mr Y.
Unfortunately, that time has now passed. The father’s perception that therapy will somehow fix everything in this sphere of complexity within six months is naïve and misconceived, especially in light of the constrained capacities of each of the parties as found above.
Arising from my findings and reasons recorded above, requiring these parties to attempt to engage in any further therapeutic intervention will most probably cause further litigation and entrench the current conflict. The father himself accepted that it is the view of the experts that he has spoken to that a lot of the issues that arise with X relate to the conflict between himself and the mother. It is ultimately my view that unfortunately, at this stage, it is in X’s best interests that this conflict be removed. It is in X’s interests that the potential for further litigation between the parties be mitigated given the length of time X has been involved in litigation in his short life.
The die had been cast well before the trial’s commencement by virtue of the mother’s actions (be they deliberate or not) and the father’s inaction. I am unable to, on the legislative instruments available to me, safely craft an order that will provide X with the benefit of dual experiences with each of his parents. The orders as sought by the father and the Independent Children’s Lawyer significantly increase the possibility that X will be the subject of further litigation. Weighing the competing risks, I accept that the mother’s proposal at this time is in the child’s best interests. Thus, no orders will be made for X to spend time with the father. It is an unfortunate set of circumstances.
Issues as to X’s Passport and Overseas Travel
The mother has been unable to apply for a passport for X despite numerous attempts at obtaining the father’s cooperation to do so.
On 30 May 2022, the mother placed the passport paperwork in X’s school bag for the father to sign, after informing him she wished to take X overseas at the end of the year. The father did not consent.
On 5 July 2022, the mother’s solicitors sent correspondence to the father requesting he sign the passport application. The father’s legal representative responded on 12 July 2022 indicating he would not do so until the “breaches” of the final orders were addressed. The father finally agreed to sign X’s passport application in March 2024 and the mother received same on 8 April 2024.
The mother’s solicitors informed the father’s solicitor via email on 23 May 2024 that the Passport Office was unable to reach the father, despite his consent being required for the application. Contact details for the Passport Office were contained in such correspondence. The mother was informed the father had twenty-one days to contact them as to confirm his consent.
On 3 June 2024, the mother’s solicitors wrote to the father’s solicitor again reminding him to call the Australian Passport Office to give consent as to X’s passport application. Such correspondence records that the mother received contact from the Passport Office indicating they had not heard from the father, despite the father giving consent for the application and signing it himself. The father was given the option by the mother of either contacting the passport office or signing consent orders permitting the mother to solely sign the passport.
The mother received a letter of refusal from the Passport Office on 23 July 2024 as a result of the father’s failure to provide consent in circumstances where the parties continue to hold shared parental responsibility.
Though the details of this difficulty were not explored during cross examination, the father broadly denied in his oral evidence that X does not have a passport because he has refused to allow him to get one. I am satisfied for the reasons recorded above that the mother shall have sole responsibility for X’s passport.
The father advised the Court during the course of final submissions that he agreed to an order that the mother be permitted to travel overseas with X, but wished for a reciprocal order once X turns 12 years of age. This will not occur as X will not be spending time with the father pursuant to these orders. Whilst no submissions were made on this specific issue, I am satisfied it is in X’s best interests that the father be appraised in a timely manner of any proposal that X travel overseas.
Long Term Decision Making
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61(C) provides that a child’s parents each has parental responsibility until the child attains the age of 18 years irrespective of whether they live together or are separated. When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements.
It is uncontested that these parties have not directly communicated with each other for a significant period of time. The father concedes that the parties’ underlying problems causing their inability to communicate continues to this day. The nomination of X’s school could not be agreed between the parties themselves and had to be negotiated through the parties’ legal representatives. The parties were unable to agree that X engage in therapy initially, with the mother unilaterally facilitating X’s attendance for example on Ms N and the father not consenting to such a course, and the court was required to determine the issue. The parties’ parenting relationship subsequent to the final orders is a contra-dicta to an order for joint decision making. The father appropriately concedes that the mother should have sole decision-making responsibility as sought by the mother save and except as to any change to X’s name.
The father and Independent Children’s Lawyer appear to seek Notations with respect to the mother’s exercise of such parental responsibility. The mother also seeks orders that the father be afforded the opportunity to provide input prior to her exercising her sole parental responsibility and decision making. No submissions were made by any of the parties including the Independent Children’s Lawyer as to the specific manner in which the mother’s decision-making responsibility is to be exercised.
As an order is to be made for X to spend no time with the father, I am satisfied that he should retain some link to the paternal family and retain his current name. The parents will share decision making responsibility as to his name. The Notations as sought by the Independent Children’s Lawyer are vague and unenforceable. It is plain that it is in X’s best interests that orders be made to decrease the likelihood of this matter being litigated again in the future. The orders sought by mother plainly regulate the manner in which the father will be afforded the opportunity to provide his input as to major long-term decisions to be made and will be made as sought.
Costs of The Independent Children’s Lawyer
The Independent Children’s Lawyer seeks an order that each party pay one half of her costs, being the sum of $9,226.50 each. The mother consents to this order. The father opposes such an order being made and submitted that such an order would cause him financial hardship in circumstances where he is currently $10,000 in arrears of child support and in substantial debt arising from the costs of these proceedings.
No application was made to adduce any evidence as to the father’s financial position save for his Costs Notice filed 2 February 2025 which records that the father’s legal costs to date are $31,226. In those circumstances I am unable to make a finding on the evidence before me as to the father’s financial circumstances. I can thus not be satisfied that the father would suffer financial hardship should an order be made that he contribute to the costs of the Independent Children’s Lawyer.
Neither party is legally aided and both parties have been privately funded throughout the course of these proceedings. Both parties sought parenting orders from the court and it is appropriate that both be responsible for the costs of the lawyer appointed to represent the best interests of X. I will afford both parties the opportunity to make an application to the Legal Aid Commission to waive such fees if the Commission were minded to do so having regard to their internal policies.
Ancillary Orders
It is uncontested that X will require therapeutic intervention into the future and the mother seeks that orders be made as to same. No submissions were made on this specific issue. The mother has sole decision-making responsibility. In those circumstances she may make such arrangements as she sees fit. I make no orders in this regard.
The other orders made which have not been individually explained are either generally consistent with the orders mutually proposed by the parties or do not permit rational objection.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 12 March 2025
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