BEGBIE & MAGRO

[2017] FCCA 2037

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGBIE & MAGRO [2017] FCCA 2037

Catchwords:
FAMILY LAW – Parenting – the Mother’s application that the parties’ 13 year old son live with her – the Father seeks that the child remain living primarily with him – where the child is of a mature age and is expressing strong wishes to remain living with the Father to his counsellor, his school, the family report writer and the Department of Health and Human Services – where the child expresses a contrary view only to the Mother.

HELD – Orders made for the child to live with the Father and to spend substantial time with the Mother.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238

Applicant: MS BEGBIE

Respondent: MR MAGRO

File Number: MLC 3706 of 2007

Judgment of: Judge Bender

Hearing date: 15 August 2017

Date of Last Submission: 16 August 2017

Delivered at: Bendigo

Delivered on: 18 August 2017

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Mr D.J. McLeod

Solicitors for the Respondent: HQ Law

Counsel for the Independent Children’s Lawyer: Ms Mansfield

Solicitors for the Independent Children’s Lawyer: Joliman Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The Mother and the Father have equal shared parental responsibility for the child [X] born (omitted) 2004 (“[X]”).

3. [X] live with the Father.

4. [X] spend time with the Mother as follows:

   (a)each alternate weekend from the conclusion of school (or 3:20pm) Friday until the commencement of school on Monday, or the commencement of school on Tuesday if Monday is a non-school day;

   (b)each alternate Wednesday from the conclusion of school until 7:00pm;

   (c)for half of the long summer holidays in week about blocks as agreed between the parties and failing agreement the time will commence from the last day of school term;

   (d)for half of all school term holidays as agreed between the parties and failing agreement the first half from after school on the last day of term until 5:00pm on the middle Saturday of the holidays;

   (e)on Christmas Day at times agreed and failing agreement:

   (i)from 3:00pm on 25 December until 3:00pm on 26 December in 2017 and each alternate odd year thereafter; and

   (ii)from 3:00pm on 24 December until 3:00pm on 25 December in 2018 and each alternate even year thereafter;

   (f)on [X]’s birthday and the Mother’s birthdays at times agreed and failing agreement:

   (i)from 3:30pm until 7:00pm if the birthday falls on a school day; and

   (ii)from 2:00pm until 7:00pm if the birthday falls on a non-school day;

   (g)on Mother’s Day from 10:00am until 5:00pm if the Mother is not ordinarily spending time with [X];

   (h)at Easter:

   (i)from midday on Easter Sunday until midday on Easter Tuesday in odd numbered years; and

   (ii)from midday on Good Friday until midday on Easter Sunday in even numbered years; and

   (i)as otherwise agreed between the parties in writing, including by text message.

5. The Mother be at liberty to communicate with [X] at all reasonable times via [X]’s mobile phone.

6. The Mother’s time with [X] pursuant to order (4) herein be suspended as follows:

   (a)on Christmas Day at times agreed and failing agreement:

   (i)from 3:00pm on 24 December until 3:00pm on 25 December in 2017 and each alternate odd year thereafter; and

   (ii)from 3:00pm on 25 December until 3:00pm on 26 December in 2018 and each alternate even year thereafter;

   (b)on [X]’s birthday and the Father’s birthday from 10:00am until 2:00pm if the birthday falls on a day when [X] would ordinarily be spending time with the Mother;

   (c)at Easter:

   (i)from midday on Easter Sunday until midday on Easter Tuesday in even numbered years; and

   (ii)from midday on Good Friday until midday on Easter Sunday in odd numbered years; and

   (d)from 10:00am until 5:00pm on Father’s Day.

7. Changeover which does not occur at school shall take place at Safeway in (omitted) unless otherwise agreed between the parties in writing, including text message.

8. Each party shall:

   (a)keep the other advised at all times of their current residential address and telephone numbers including mobile phone and notify the other party within 48 hours of any change;

   (b)advise the other party immediately in the event that [X] suffers any serious illness or injury;

   (c)authorise any medical practitioner or health professional upon which [X] may attend from time to time, to communicate with the other party in respect to [X]’s medical condition and/or facilitate all schools at which [X] may attend from time to time to:

   (d)provide the other party at the expense of the other party, copies of all school reports, notices and photograph applications in relation to [X]; and

   (e)communicate with the other party either by telephone, in writing or by personal attendance, in respect to [X]’s progress.

9. In the event [X] attends upon a medical practitioner, the party who has the care of [X] at the time is to forthwith provide details of the practitioner, treatment and prognosis to the other parent and authorise that medical practitioner to speak to the other parent about [X]’s condition, treatment and prognosis.

10. The Mother be at liberty to attend all school functions that is normal for parents to attend including but not limited to sports day, working bees, parent teacher interviews and the Mother’s Day functions.

11. The Mother be at liberty to attend all sporting events and extra-curricular activities that [X] participates in.

12. The Mother and the Father do all things required to ensure that [X] continues to attend counselling with Headspace or such other organisation recommended by them and the parents seek specialized input from a professional/service with expertise in sexualised behavior (such as CASA) if recommended by Headspace.

13. The Mother and the Father be at liberty to provide a copy of these orders to any one or more of the following:

    (a)any medical practitioner and/or allied health professional attending upon [X]; and

    (b)the principal or delegate of the principal of the school attended to from time to time by [X].

14. Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:

    (a)harassing or assaulting the other party;

    (b)denigrating, rebuking or belittling the other party to or in the presence or hearing of [X], and from allowing [X] to remain the presence of any other party who may be doing so;

    (c)discussing these proceedings and/or parenting issues to or with or in the presence or hearing of [X] and from permitting any other person to do so;

    (d)physically disciplining [X] or allowing anyone else to do so; and

    (e)exposing [X] to conflict or disagreements between the Mother and the Father or between any other person in the household.

15. The Father ensure [X] is fully supervised by a responsible adult when [X] has any contact with [C] born (omitted) 2006.

16. The Order appointing the Independent Children’s Lawyer be discharged.

17. The matter be removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Begbie & Magro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3706 of 2007

MS BEGBIE

Applicant

And

MR MAGRO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter relates to the living arrangements for the parties’ 13 year old son [X] born (omitted) 2004 (“[X]”). 

2. The Mother is seeking orders that [X] live with her and spend time with the Father each alternate weekend from after school Friday until before school Monday, each alternate Wednesday from after school until 7:00pm and for half holidays and special occasions.

3. The Father seeks orders that [X] live with him and spend time with the Mother each alternate weekend from after school Friday to before school Monday, alternate Wednesdays from after school until 7:00pm and half holidays and special occasions.

Background

1. The Mother was born on (omitted) 1981 and is aged 35 years.  She is employed as a (occupation omitted). The Mother has a daughter from a subsequent relationship, [D], born (omitted) 2008 (“[D]”).  She is not currently in a relationship.

2. The Father was born on (omitted) 1979 and is aged 37 years.  He is employed in a number of positions, including as a (occupation omitted) and a (occupation omitted). 

3. The Father has re-partnered with Ms C. He and Ms C have two children, [E] born (omitted) 2013, aged four, and [F] born (omitted) 2014, aged three. 

4. The Father also has a son from a previous partner,

   
   

   [C] born (omitted) 2006 (“[C]”). 

5. Ms C has four children from her previous relationships:

   
   

   [G] born (omitted) 2005 (“[G]”);

   
   

   [H] born (omitted) 2006 (“[H]”); [I] born (omitted) 2008 (“[I]”); and [J] born (omitted) 2010 (“[J]”). 

6. Currently, all the parties’ children except [C] live with the Father and Ms C, making seven children in their household.

7. The parties were only in a brief relationship in 2003. 

8. After [X] was born he remained in the Mother’s primary care. In 2007 the parties entered into consent orders which provided for [X] to live with the Mother and spend gradually increasing time with the Father over 12 months, concluding with [X] spending time with the Father each alternate weekend from Friday to Sunday, on alternate Monday evenings, half holidays and special occasions.

9. [X] has exhibited behavioural difficulties for many years. He has been diagnosed with ADHD, though it is unclear from the parties’ evidence when this diagnosis was made. [X] was under the care of paediatrician Dr E for many years and has now been under the care of Dr I since 2016. It is my understanding that Dr E saw [X] regularly for medication and ongoing assistance.

10. In 2010 and 2011 there were three reports received by the Department of Health and Human Services (“DHHS”) that [X] had displayed sexualised behaviour or had been exposed to same, which in part also included [X]’s half‑brother [C]. [X] was referred to the Centre Against Sexual Assault (“CASA”) on two occasions and engaged with their services.

11. In November 2013 [C] behaved sexually inappropriately towards his younger half‑sister [J]. The Father reported his behaviours to DHHS and [C] was removed from the Father’s home for a period of some months whilst he was assisted by CASA. The Father’s family were also linked to (omitted family welfare organistation) services at this time.

12. In February 2016 [C] again inappropriately sexually touched [J] whilst playing on the trampoline at the Father’s home. 

13. It is the Mother’s evidence that [X] told her that he and [G] saw [C] digitally penetrate [J], and that when they ran inside to tell the Father and Ms C what they saw, they were told to return outside.  It is the Mother’s evidence that [X] told her that he and [G] then hid under a towel so they did not have to watch what [C] was doing.

14. It is the Father’s evidence that only [C], [J] and [I] were playing on the trampoline and that it was [I] who ran inside to tell he and Ms C that [C] was inappropriately touching [J]. It is his evidence [X] was inside at this time playing in the lounge room on the PlayStation with [G] and [H]. It is his evidence he knows this to be the truth as he had just woken up after his Saturday night work, and that [X] came out of the lounge room to give him a good morning hug at the same time that [I] ran in to tell him what [C] was doing. 

15. Immediately upon the Father being advised of [C]’s behaviour, he took [C] to his mother’s home, where [C] has lived ever since.  [C] was again linked to support through CASA with whom he remains engaged.

16. At Easter 2016, [X] arrived at the Father’s home with a black eye and bruising under his arm pit which he told the Father was as a result of his mother assaulting him. The Father reported this to DHHS and to the police. [X] made a statement to the police in which he alleged the Mother had hit him. The police issued a safety notice on [X]’s behalf which directed the Mother not to commit violence. [X] was temporarily placed in the care of the maternal grandmother for two weeks. After this time, [X] returned to the Mother’s care.

17. On 5 May 2016 [X] ran away from school to the Father’s home. He had a knife in his possession and told the Father he wanted to hurt or stab his mother as he was very angry with her. DHHS spoke to both parents and a protection plan was put in place whereby [X] was to either stay with the Father or go to his maternal grandmother if he became angry, upset or felt unsafe at the Mother’s home. 

18. It is the Father’s evidence that in May 2016 the Mother contacted him to ask him to take [X] into his care as she could not control [X].

19. In June 2016 [X] jumped from the Mother’s car and went to the Father’s home, falsely alleging the Mother had hit him. [X] had hit the Mother in the car and made threats to further hurt her. 

20. Between 15 June and 17 June 2016 two separate reports were made to DHHS of inappropriate sexual behaviour between [X]’s step-siblings. CASA continued to be involved in the family. DHHS confirmed that the Father’s family required high level case management and Child FIRST were engaged to provide ongoing support to the family.

21. In July 2016 there was yet a further report to DHHS because of [X] not wanting to live with the Mother. [X] told DHHS the Mother was violent to him. [X] was again threatening to run away and was threatening to hurt the Mother. A referral was made for [X] to engage with Headspace at this time. 

22. On 22 August 2016 [X] was spending time with the Father. He refused to return to the Mother. 

23. In September 2016 [X] started seeing a counsellor, Ms A, at Headspace. When Ms A went on maternity leave, [X] started seeing his current counsellor Mr C.

24. On 21 September 2016 the Mother filed an Initiating Application in the Bendigo Magistrates’ Court seeking an urgent recovery order for [X] to be returned to her care.

25. On 23 September 2016 interim orders were made at the Bendigo Magistrates’ Court transferring the matter to the Federal Circuit Court and for the Father to authorise the Mother to speak to [X]’s Headspace counsellor. 

26. On 20 October 2016 the Mother filed an Amended Initiating Application seeking orders that [X] live with her and spend time with the Father as determined by the Court. On 24 October 2016 the Father filed a Response seeking that [X] live with him and spend time with the Mother as ordered by the Court.

27. On 25 October 2016 Judge Riethmuller made interim orders that provided:

    ·the 4 June 2007 orders be suspended;

    ·[X] live with the Father and spend time with the Mother each alternate weekend from after school Friday to before school Monday and each alternate Wednesday from after school until 7.30pm; and

    ·the matter be otherwise transferred to the Federal Circuit Court at Bendigo.

28. On 29 November 2016 orders were made for the appointment of an Independent Children's Lawyer, for the provision of a family report and for DHHS to provide information pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“the Act”). Orders were also made for holiday time between [X] and the Mother and that otherwise the

    
    

    25 October 2016 orders remain in place.

29. On 24 April 2017 the family report of Dr J was released to the parties. In her report, Dr J noted the difficulties in [X]’s relationship with the Mother and that [X] was expressing very strong views to remain living with the Father. Dr J recommended [X] continue to live with the Father and spend time with the Mother in accordance with the existing arrangements.

30. The matter was listed for final hearing in the May 2017 sitting of the Federal Circuit Court in Bendigo. The Mother raised concerns in relation to Dr J’s report. Dr J was spoken to by all parties and their legal representatives in chambers during that circuit. Having heard the Mother’s concerns, somewhat unusually, Dr J agreed to see the Mother and [X] only on a second occasion. 

31. In the orders made for the further report, Dr J was asked to specifically address the specific concerns raised by the Mother as follows:

    a)whether [X] continues to say he wishes to live with the Father and, if so, whether that wish is a reflection of [X]’s genuine wishes or because this is something he is being forced to say by the Father (as he is currently telling the Mother is the case); and

    b)whether [X] reports any current abuse by [C] in the Father’s household (as the Mother advises [X] recently returned from the Father’s home with a sore anus and penis and told her [C] abused him and is staying overnight in the Father’s home).

32. Dr J’s second report was released on 5 July 2017. In her report Dr J indicates that [X] continues to express a very strong wish to remain living with the Father and at paragraph 20 states that:

    “There was not one piece of information that led the writer to believe that he was coached in his responses … Furthermore, [X]’s forthright personality and outspoken views are unlikely to be easily influenced by any adult.”

33. Dr J also addressed the Mother’s concerns that [X] continued to be sexually abused by [C].  In paragraph 18 of her second report she stated as follows:

    “The writer has additional experience and expertise in working with adolescents who have been engaged in sexually abusive behaviour and also those who have been sexually abused. There was nothing in [X]’s verbal or non‑verbal behaviour that led the writer to believe that any sexual behaviour between the pair had occurred, with [X] denying any sexual abuse and clearly angered at his mother for its suggestion. If anything, [X] saw himself as a ‘protector’ of the young children, and was angry that the mother had alleged that, despite not having a positive view of [C]. He also saw himself as much physically superior than [C]. So, whilst the writer can not definitively say whether or not the sexual abuse has happened, there was no information to suggest such a thing had occurred.”

The Evidence

The Mother

1. The Mother relies on her affidavits filed in these current proceedings. The Mother was not required for cross‑examination. However, she was very eloquently self‑represented and placed before the Court her reasons and evidence for seeking the orders that she does.

2. It is the Mother’s evidence [X] has told her that the only reason he wishes to remain living with the Father is because he must protect the younger children from [C] as the Father and his partner are not vigilant in supervising [C] when he is in their home. It is her evidence [X] told Dr J that he and [G] have a “pact” that if they find [C] abusing any of the younger children, “they will kill him”.

3. It is the Mother’s evidence she believes that [X] will be much better off living in her primary care as she is better placed to provide [X] with a safe, secure and calm household. She believes she can provide him with the stability he needs and that in her home, he will not feel he needs to be on the alert to protect his younger siblings.

4. It is the Mother’s evidence that she and [X]’s relationship is “back on track”, which is evidenced by his staying with her for five days last week. It is her evidence that she and [X] have always been able to talk with each other and [X] is always able to tell her what he is feeling and that this necessary communication for [X] is unable to take place with the limited time [X] currently spends with her.

5. It is the Mother’s absolute belief that the deterioration in [X]’s behaviour and the violence he has exhibited since 2016 are as a direct result of his seeing [C]’s sexual abuse of [J] in February 2016. She also believes that the continuation of [X]’s disruptive and aggressive behaviour and acting out at school has been exacerbated by living in the Father’s chaotic home and by the disruption to his long‑term supports.

1. The Mother believes [X] remains at risk of abuse by [C] in the Father’s household because [C] is not properly supervised.

2. The Mother brings to the Court’s attention the ongoing and longstanding difficulties in the Father’s household, which do not seem to be improving despite many years of ongoing and intensive interventions by external agencies. 

3. It is the Mother’s evidence that [D] is grieving the loss of her big brother from her home and is genuinely distressed by his absence.

4. It is the Mother’s evidence that she honestly believes [X] does want to live with her, regardless of what he has told others, including Dr J, his school, DHHS, the police and his counsellor and that the only reason he wants to remain living in the Father’s home is because he feels he has to protect the other children in that home.

The Father

1. The Father relies on his affidavits filed in these proceedings.  He also gave viva voce evidence at the final hearing. 

2. It is the Father’s evidence that [X] continues to present with difficulties and that whilst he is improving with the ongoing help of his counsellor, he is still a very confused and troubled boy. 

3. It is the Father’s evidence that [X] does want to continue living with he and his partner and family, and that this is [X]’s decision and not one influenced by him in any way.

4. The Father was genuinely surprised by the Mother’s evidence that [X] felt he and [G] had to protect the younger children from [C]. The Father appeared keen to reassure [X] that that was not his role.  The Father’s family’s family support worker, Mr S, was in Court at the time this evidence was given. Mr S indicated that this is something he will discuss with [X] and [G] and that he would also raise it with [X]’s counsellor, Mr C.

5. The Father concedes that his home is chaotic and that he and his partner have required and do require assistance to better manage their home and parent their children. It is the Father’s evidence that in addition to Ms J from Comm Health who has been assisting the Father and his partner for some time, recently Mr S has become involved with the family.

6. The Father describes Mr S’s role as working not only with the parents to learn different ways of parenting, but also working directly with the children to give them a voice in how the household runs. It is the Father’s evidence Mr S attends their home weekly for up to two to three hours and does whatever the family needs. Mr S will continue to engage with the family for as long as he is needed.

7. It is the Father’s evidence that [C] visits his home regularly. [C] often comes for dinner after (omitted) on Thursday evening and he also visits on weekends. It is his evidence [C] will only stay overnight when [X] and Ms C’s four children are spending time with their other parent. It is the Father’s evidence that when [C] sleeps over, he sleeps alone in [H]’s vacant bedroom.

8. It is the Father’s evidence that on the weekend all children are present, [C] does not stay overnight. The Father indicated he and his partner try to be as vigilant as they can be whilst [C] is in their home. He conceded he and his partner do not always have [C] in their sight, but they always know where and who he is with. 

9. It is the Father’s evidence that he did change [X]’s paediatrician from Dr E to Dr I after [X] came into his care. It is his evidence the Mother was content with this change and attended [X]’s first appointment with his new doctor. It is the Father’s evidence that Dr I has altered [X]’s medication and that this change in medication is assisting [X]. The Father did however indicate a willingness to have [X] return to Dr E if that is what the Mother wishes to have happen.

10. It is the Father’s evidence he obtained a referral for [X] to Headspace in June/July 2016. There was a waiting list at that time of approximately three months. [X] started attending Headspace in September 2016. [X] initially saw Ms A and since Ms A went on maternity leave, [X] has been seeing Mr C. [X] attends counselling fortnightly. [X] has missed two appointments; one when he was sick and another when Ms C was ill. 

11. When asked if he had asked the Mother to take [X] to his appointment with Mr C when Ms C was ill, the Father said he had not asked her to do so because [X] told him he did not want the Mother to take him on that occasion.

12. [X] is due to start high school next year. The Father was asked what arrangements were in place for [X] to attend high school in 2018. It is the Father’s evidence that he is considering (omitted) College as it has small class sizes which would suit [X]’s needs. The difficulty with such a choice is it comes at a cost of $6,000 per annum. The Father indicated he had not discussed this, or any possible secondary schooling, with the Mother at this time. Most concernedly the Father confirmed that as at mid‑August 2017, [X] is not enrolled at any school for Year 7 next year.

13. It is the Father’s evidence that [X] has had behavioural and mental health issues for many years. Whilst issues with him being violent have become more apparent since 2016, he does not agree with the Mother’s belief that this stems from the February 2016 abuse by [C] of [J]. It is the Father’s evidence that [X]’s behaviour deteriorated at this time because of a lot of things that were happening in [X]’s life at that time.

Dr J

1. Dr J is a clinical psychologist and Regulation 7 family consultant with the Federal Circuit Court. As set out previously in this judgment, Dr J prepared two reports in this matter, the first dated 25 April 2017 and the second dated 3 July 2017. Dr J also gave brief viva voce evidence at the final hearing.

2. In Dr J’s first report, she details [X]’s behaviour when seen with the Mother.  She describes him as:

   “…clearly trying to send a message to the writer that he did not wish to live with the mother.” 

   Dr J observed [X] to speak derogatively of and to the Mother and of him hiding under the cushions on the couch and sticking his middle finger up at the Mother whilst saying very hurtful things to her.

3. In contrast, Dr J observed [X] and the Father to interact with warmth, affection and with comfort. Dr J noted the Father to appropriately discipline [X], including the way [X] had spoken to the Mother. 

4. Dr J also observed a loving bond between [D] and [X] and a positive relationship between [X] and Ms C.

5. In paragraphs 49 to 51 of her first report under the heading “Living and time spent arrangements”, Dr J states the following:

   “49. [X] was adamant that he wanted to remain living with his father.  [X] is also unlikely to remain in his mother’s care if he were to be returned.  And, as aforementioned, to place him back there comes with significant risk to both [X] and his mother.

   50. Regardless of the living arrangements adopted in the future, [X] will benefit from having both parents meaningfully involved in his care and upbringing. To support this, it is recommended that shared parental responsibilities be upheld, with both parents assessed as having appropriate capacity to manage such arrangements. To assist in this process, the parents are encouraged to seek support to find ways to move forward from their current anger/frustrations.

   51. The father certainly has his hands full, but appears to be supporting [X] in the necessary ways. He has sought tutoring, is implementing the safety plan regarding [C], and has engaged [X] with a counsellor and a paediatrician. There are major difficulties in the mother-child relationship, with a number of significant risks present. The mother’s desire to have [X] return to her care is understandable, however, her proposal presents as providing more disruption for [X] for little benefit to the quality of the relationship between the pair. There does not appear to be any clear benefit to [X] of making significant changes in the parenting arrangements, with a high level of risk involved.  As such, [X] should remain residing predominately with his father, and see his mother and her family regularly.  The exact amount, matters little.  What matters most, is the quality of the time spent.  If the mother is able to seek some support to repair the relationship, and become more attuned to [X] and his needs, then their relationship will repair and flourish.”

6. Under the heading “Recommendations” in her first report, Dr J sets out in paragraphs 52-56 the following:

   “52. Equal shared parental responsibilities (ESPR) are recommended.

   53. It is respectfully recommended [X] continue to reside with his father, and continue to spend time with his mother as per the current arrangements (every alternate weekend and every second Wednesday evening).  It is important that the mother allows (safe) contact between [X] and [D] on the weekends that [X] is with her.

   54. [X] should spend additional time with the mother during school holidays.

   55. It is vital that [X] continues to attend upon counselling, and the family should also seek specialist input from a professional/service with expertise in sexualised behaviour (such as CASA).

   56. Both parents should be able to communicate with the children via indirect means (e.g., telephone calls, skype, letters, cards etc) when they are with the other parent.

7. In Dr J’s second report, she notes she spent one and a half hours one-on-one with [X] “exploring the matters posed by Judge Bender from every possible angle”. She notes throughout the interview [X] was very clear in his wishes to remain living with his father. He told Dr J he has told his mother this. 

8. Dr J reports [X] telling her he made a concerted effort to get on better with his mother and that things were going well. He told

   
   

   Dr J he was concerned things would deteriorate again if he returned to live with her. 

9. In paragraph 7 of her second report, Dr J states the following:

   “7. [X] spoke with sadness about the previous fights that he would have with the mother, and expressed a high level of frustration at what he considered to be inappropriate boundaries/lack of freedom. He was asked if the mother had support to provide more age appropriate boundaries (and if the freedom was not an issue), whether his wishes would remain the same, and he stated clearly that they would. He was also asked if his siblings were not present at his fathers, would his wishes remain the same, and he stated clearly that they would. His reasons were that he gets along better with the father, and that he is happiest in his father’s home, and was worried that his relationship with his mother would deteriorate if he lived with her.”

10. In relation to [C], in her second report Dr J sets out the following in paragraph 8:

    “8. With regards to the complaints of a sore penis and bottom, [X] denied that it was his bottom that was sore, stating that it was his tail bone, and he reported that his penis was “itchy”. The writer explored the possibility of sexual abuse and/or sexual behaviour, and [X] showed nothing in his verbal or physical response that indicated that he had been abused, and also denied any sexual contact with [C]. He did report that on one occasion [C] had (in what could be described as a flirtatious and/or provocative manner), stroked his leg, and that had resulted in an altercation between the pair.  He also admitted that he and the other older children were responsible for ‘watching’ [C], and that his father and Ms C do not provide adequate supervision.  He clearly did not have a strong bond with [C], and expressed that he would rather that he were not there when he were home.”

11. For the purposes of the second report, Dr J spoke to [X]’s teacher who has taught him for three of the last four years. She also spoke to his counsellor Mr C.

12. [X]’s teacher told Dr J that [X] has always engaged in problematic behaviour, where at times he has been violent and aggressive. [X]’s teacher told Dr J that 2016 was a “really bad year” for [X]. Term 1, 2017 went well for [X] but he had a tumultuous few weeks at the beginning of term 2 resulting in suspension. [X]’s teacher stated that [X] had improved significantly in recent weeks. He reported that [X] averages one to two suspensions a year and there has been no observable change in [X]’s behaviour over time. Nor is his behaviour dependent upon which parent he is residing with. He reported [X] to consistently state he wants to stay with his father and that he has not mentioned wanting to return to his mother. 

13. [X]’s counsellor reported that he and [X] had engaged well and that [X] was making some gains. [X] told his counsellor he had

    
    

    re-engaged with his mother and was enjoying his time with her, but that he is happy with his current living situation and has never said he wanted to return to his mother’s care. 

14. Under the heading “In sum”, Dr J states at paragraphs 22 and 23 of her second report the following: 

    “22. The mother’s desire to have [X] return to her care is understandable, as is her disbelief or discontent with the original family report.  She clearly has [X]’s best intentions at heart, and she loves him dearly. It is unimaginable how hard it must be for the mother to read a report such as this, and to hear that her son does not wish to reside with her. No doubt, it is heartbreaking.  She should be commended in her commitment to his care and to his best interests over time.

    23. However, there is no information gained over the course of this update that has altered the previous recommendations. It is the writer’s opinion that [X] wishes to reside with his father, that his views are his own, and that he would likely continue to leave his mother’s if he was forced to live there.  As such, [X] should remain residing predominately with his father, and see his mother and her family regularly.” 

15. Dr J gave brief viva voce evidence at the final hearing.

16. Dr J had put to her the Mother’s evidence that [X] had told her the only reason he wants to live with the Father is to protect the younger children, and that he really wanted to live with her.

17. The Mother put to Dr J the conversation Dr J had with [X] about the pact he and [G] had to protect the younger children against [C] during the interview for the second report. Whilst Dr J could not remember [X] using the word “pact”, she recalled [X] had told her he felt he had to protect the younger children and noted that this was raised in her report. 

18. It is Dr J’s evidence however that she does not believe that this need to protect the younger children is the reason [X] wants to live with the Father. It is her evidence she believes [X] wants to live with the Father as he gets on better with the Father and is happier there. 

19. It is Dr J’s evidence that she believes [X] may be telling the Mother he wants to live with the Father to protect the younger children and wants to live with her as he loves her very much and does not want to hurt her by saying outright to her that he does not want to live with her. 

20. Dr J was of the belief that [X]’s wish to live with the Father as expressed to her is a genuine reflection of [X]’s true wishes.

The Law

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The Best Interests of the Child

1. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. When determining what is in the best interests of the children, the Court must consider the matters set out in Section 60CC(2) and

   
   

   Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.

Section 60CC(2)

1. Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the children’s best interests. They are as follows:

Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents

1. [X] has a meaningful relationship with both parents and both parties’ proposals will ensure he continues to do so.

Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. Whilst the Mother believes that [X] is at risk of being abused by [C] in the Father’s household, it is apparent from [X]’s discussions with Dr J that he would be able to protect himself from [C] if that need arose. 

2. It is also clear from Dr J’s evidence that [X] reports no recent abuse of him by [C].

3. The Mother is of the belief that because of the Father’s busy and chaotic household, [X]’s emotional, physical and psychological well-being will not be met and he will not be given the attention he needs.

4. The Mother’s evidence is that she thinks [X]’s behaviours have deteriorated since coming into the Father’s primary care. The evidence of [X]’s counsellor, his teacher, the Father, the Mother herself and [X] do not reflect the Mother’s belief in this regard. [X] has always been a young man with problematic behaviours and they pre-date [X] moving to his Father in mid-2016.

5. [X] is an adolescent boy with ADHD. At paragraph 15 of her second report, Dr J describes [X] as:

   “…a very vulnerable young man, who likely has a high level of internalising and externalising difficulties. That is, he engages in a high level of ‘acting out’ behaviours, but, underneath the displayed externalising behaviour, there are a number of internalising difficulties. On a positive note, he continues to be well-supported by professional agencies, and he also has many strengths – including his intelligence and forthright personality.”

6. The Father has ensured [X] is linked to the appropriate professional and educational supports. I am satisfied the Father and Ms C are also linked with the necessary supports to better parent and manage their large household. 

1. I am of the view neither party places [X] at a risk of harm. 

Section 60CC(3)

1. Section 60CC(3) of the Act sets out the additional considerations the Court must look at when determining what is in the child’s best interest. Each of the matters set out under that section must be considered in turn, where applicable in determining what is in the child’s best interests.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. [X] is strongly expressing a wish to live with the Father. He has told Dr J this twice as well as his teacher, his counsellor, DHHS, the police, the Independent Children’s Lawyer and the Father. He has told his mother he only wants to live with his father to protect the younger children from [C]. Dr J is of the view that he has said to his mother because he loves her and he does not want to hurt her. 

2. In paragraph 16 of 17 of her second report, Dr J states the following: 

   “16.  Despite the delays in [X]’s emotional competencies, he was assessed as possessing sufficient developmental maturity to form views and opinions regarding his living and time spent arrangements, and to have them taken into account with regards to future parenting arrangements.  In fact, [X] is so forthright, and determined in what he wants – it is the writer’s opinion that it matters little to [X] where he is Court Ordered to reside, and he is the type of teenager who will continually ‘vote with his feet’ when it comes to his living arrangements.  If he is not happy – he will likely leave and return to the other parents’ care.

   17.    [X] still expresses a clear desire to reside with his father, regardless of other potential influencing factors (e.g., siblings and issues of freedom).  There was not one piece of information during either the original family report, nor the updated family report, that made the writer question whether these wishes were his own.  Again, [X]’s forthright personality gives the writer further confidence that he is not a teen who would be easily swayed were he dissatisfied with something.”

3. I am of the view [X] wants to remain living with the father and that the Court should give considerable weight to his views given his age, his intelligence and his personality. 

Section 60CC(3)(b): the nature of the relationship of the child with:

(i)     each of the child’s parents; and

(ii)   other persons (including any grandparents or other relative of the child).

1. [X] loves both his parents, as they love him.

2. In 2016, [X]’s relationship with his mother became fractured. It is now repairing and returning to what it was previously. [X] is concerned, however, that if he were to return to live with his mother, their relationship could again deteriorate. 

3. [X], as an adolescent male, told Dr J he gets along better with his father and he is happiest in his home. 

4. [X] has a positive relationship with his stepmother and is very close to his stepbrother [G], except when they’re fighting, as is the want of most adolescent brothers.

5. [X] clearly adores his sister [D] and it would be unfortunate if the current arrangement continues whereby [D] is not in her mother’s home on the weekends that [X] is with her.

6. [X] is also close to his maternal and paternal grandparents and to all his extended family. 

7. [X] is a much loved young man. 

Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity :

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)   to spend time with the child; and

(iii)    to communicate with the child

1. Both parents are and have been actively involved in [X]’s life.

2. However, it is of real concern that [X]’s high school for next year has not been sorted. The Father and Mother must make it a priority to attend to this immediately. 

3. I would also make the comment at this time that whilst the parties are “civil” to each other, their communication is poor. This is only to [X]’s disadvantage. It is vitally important for [X] that both parties work harder at this so that decisions, like his schooling, are made in an appropriate and timely fashion. 

4. I hope with the cessation of this litigation, some of the heat will go out of the current level of conflict and the parties can focus more on what is best for [X].

Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

1. I am satisfied both parties meet their obligations to maintain [X]. 

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. [X]’s difficulties of last year in the relationship with the Mother are improving. The Mother describes their relationship as being “back on track”.  This is confirmed by [X] in his comments to Dr J and to his counsellor Mr C.  [X] is concerned that if he were to return to live with the Mother, their relationship could again deteriorate. 

Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs

1. Both parties are loving and, on the whole, capable parents.

2. The difficulties and challenges for the Father and Ms C in parenting eight children are well set out in this judgment. To their credit, they have engaged with all necessary supports to better manage their household and parent their children. I am satisfied they are genuine in their willingness and desire to make the necessary changes to their parenting and to their household.

Section 60CC (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

1. [X] has a long history of behavioural and learning difficulties. He is diagnosed with ADHD and, as described by Dr J, is a very vulnerable young man. 

2. However, both parents have ensured [X] has the necessary supports to support him in these difficulties and to allow him to develop to his fullest potential. 

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. I am of the view that both parents are, on the whole, responsible and committed parents.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. [C]’s inappropriate sexualised behaviour and [X]’s incidences of violence are well canvassed in this judgment. 

2. [C]’s inappropriate behaviours are being managed by the Father,

   
   

   Ms C, the paternal grandparents and through CASA.

3. It is clear, however, that [X] and [G] feel they have to protect the younger children in the Father’s household because the Father and Ms C are not doing so, at least in their eyes. This is inappropriate and it is not the role of these young men. Both the Father and Ms C must ensure that [X] and [G] are relieved of feeling this responsibility, not only in words but by the way they become more vigilant and responsible in how they supervise [C] when he is in their household. 

Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. [X] needs there to be no ongoing litigation about his living circumstances. He most definitely needs there to be a cessation of reports to DHHS and of him being taken to the police whenever there are issues in the other parent’s household, or issues with his relationship with each parent. 

2. Thus I again implore the parents to speak to each other as their first response to issues that arise with [X], rather than running off to the authorities.   

Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant

1. The Independent Children’s Lawyer supports orders being made in the terms sought by the Father. 

2. It is submitted on behalf of the Independent Children’s Lawyer that [X] has presented as a troubled young child for many years, and not just since the February 2016 [C]/[J] incident and being with the Father, as is the Mother’s evidence.

3. It is submitted on behalf of the Independent Children’s Lawyer that in this matter, [X], as a young male on the cusp of adolescence, has decided he wants or needs to live with his father. He has conveyed this to Dr J, his teacher, his counsellor and to the Independent Children’s Lawyer. Whatever he is telling his mother is most likely in an effort not to hurt her feelings. The Independent Children’s Lawyer is of the view that [X] does want to live with his father and the Court and his mother should respect [X]’s wishes in this regard. 

4. Counsel for the Independent Children’s Lawyer notes the significant difficulties in the Father’s household. It is her submission that the Father and Ms C must continue to work with the agencies that they are engaged with to improve and better manage their household. 

5. The Independent Children’s Lawyer submits that the Father and his partner must better supervise [C] when he is in their household. It is suggested by the Independent Children’s Lawyer that the Father should contemplate spending some time with [C] away from his home. 

6. The Father gave evidence that he and [X] have one-on-one time when [X] accompanies the Father on his Saturday midnight to 5.30am (occupation omitted). The Independent Children’s Lawyer is very clear that this is not appropriate and the Father should stop taking [X] out at this time and find a more appropriate time for he and [X] to have some one-on-one time together. 

Conclusion  

1. [X] is a 13 year old adolescent boy who has presented as a troubled child for many years. He has been under the care of a paediatrician and seen counsellors and therapists for many years to assist him to manage his behaviours and understand his emotions and anger and how they impact on him. 

2. 2016 was a particularly difficult year for [X]. His relationship with his mother deteriorated and he became defiant and, at times, violent and aggressive towards her and others. 

3. [X] expressed a strong wish to move to his father’s care and he did so in mid-2016 by voting with his feet. He ran away to the Father’s home on three occasions and finally refused to return to the Mother’s home. 

4. The Father and Ms C have eight children between them, seven of whom currently permanently live with them. Their home is described as chaotic and they have been linked to external agencies who are working closely with them and the children to reduce that chaos. The Father concedes that there is still some way to go in he and

   
   

   Ms C’s parenting, household management and properly meeting the needs of their large family. However, the Father impressed as being fully committed to doing his very best to make the changes necessary to ensure that this occurs. He and Ms C are to be commended for this. 

5. [X]’s half-brother, [C], sexually abused his younger stepsister [J] on two occasions. Prior to this, there were two instances of sexualised behaviour between [X] and [C] when they were three and five. After the second incident between [C] and [J] in February 2016, [C] moved to his paternal grandparents’ home where he now lives. He continues to receive ongoing assistance and therapy from CASA. I am satisfied [C] does not stay overnight in the Father’s home when [X] is there, though he visits during the day. 

6. [X] and [G] feel a responsibility to protect the younger children when [C] is in the Father’s household as they do not believe the Father and Ms C are properly supervising [C] when he is there. As set out earlier in this judgment, the Father and Ms C must ensure [X] and [G] understand that this is not their responsibility. This will only occur if the Father and Ms C step up and show [X] and [G] that they are ensuring all in their household are safe. 

7. [X] has been very clear in telling Dr J, not once but twice, he wishes to remain living in the Father’s primary care. [X] has also told his teacher, his counsellor at Headspace and the Independent Children’s Lawyer that this is what he wishes. 

8. The Mother does not believe that what [X] is telling these people truly reflects [X]’s wishes. It is her belief that [X] is saying this because he believes he needs to live with the Father to protect the younger children from [C], and were that not the case, he would choose to live with her. It is the Mother’s evidence that [X] has told her this. 

9. The Mother rejects the opinion of Dr J that [X] is saying this to her because he loves her very much and that he does not want to hurt her.

10. The Mother also believes that hers is a much better household for [X] to live in. It is safe, stable, calm and nurturing, and would give [X] a stability not available in the Father’s chaotic and dysfunctional household. 

11. Nothing I say in this judgment is going to sway the Mother’s beliefs as to [X]’s true wishes. However, I am of the very strong view that what [X] told Dr J, his teacher, his counsellor and the Independent Children’s Lawyer about where he wishes to live is how he genuinely feels. I am also of the view that those wishes should be respected by this Court. 

12. The difficulties in the Father’s household are many and the Father and Ms C must continue to fully engage with those helping them to improve their parenting and the management of their household. 

13. [X] will need to continue to engage with those currently assisting him. It is imperative both parents are fully engaged with those professionals as well. 

14. It is also vitally important that [X]’s schooling for next year is resolved before this month is out. Both parents must talk and cooperate in this, as they must about all important matters for [X] going forward. 

15. Accordingly, orders will be made in the terms proposed by the Father and the Independent Children’s Lawyer. I note that other than the question of where [X] is to primarily live, the parties are in agreement with the majority of those orders. 

16. I have, however, clarified that if [X] is with the Mother on a long weekend, time will continue to before school Tuesday. I have also removed the proposed order for therapeutic intervention between [X] and the Mother as I am satisfied this relationship is “back on track”. 

17. In closing, I want to say this to the Mother. I know you think I have got it wrong and will struggle to accept my decision. Your relationship with [X] is now back on track. I am really concerned that you are at risk of damaging that relationship if you continue to push [X] to return to your care. I would ask you to instead take on board the words of Dr J in her second report where she said:

    “[X] is so forthright and determined in what he wants.  It is the writer’s opinion that it matters little to [X] where he is Court-ordered to reside. He’s the type of teenager who will continually vote with his feet when it comes to his living arrangements. If he is not happy, he will leave and return to the other parent’s care. 

18. If [X] really wants to live with you, he will. From my observations of the Father if that is what [X] really wants, he will allow [X] to do so. 

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date:     18 August 2017