BELL and CREST - [2021] FCWA 113

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BELL and CREST [2021] FCWA 113
CORAM: SUTHERLAND CJ
HEARD: 11, 12, 15-18 FEBRUARY 2021
DELIVERED : 30 JUNE 2021
FILE NO/S: PTW 5793 of 2016
BETWEEN: MS BELL
Applicant
AND
MR CREST
Respondent

Catchwords:

CHILDREN - Best interests - Long-standing, relentless conflict between the parties - Ongoing family violence issues - Father has no compunction in ignoring court orders if they do not suit him - Mother to have sole parental responsibility for child and child to live with mother - Child to have no contact with father

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Everett
Respondent	:	Mr Pitcher
Independent Children's Lawyer	:	Ms Baily

Solicitors:

Applicant	:	WL & KJ Everett
Respondent	:	Wanneroo Legal
Independent Children's Lawyer	:	Baily Family Law

Case(s) referred to in decision(s):

Amador & Amador [2009] FamCAFC 196
Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bell and Crest has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

INTRODUCTION:

1[Ms Bell] (the “mother") and [Mr Crest] (the “father") were unable to reach final agreement about parenting issues concerning their young son, [Child A], who was aged five years old at the commencement of the trial.[1] Child A’s interests were represented by an Independent Children’s Lawyer (the “ICL”).
[1] The parties did reach agreement in relation to financial issues prior to trial, and I made final consent orders at the commencement of the trial, to the effect that each party retained their respective assets, liabilities, and superannuation entitlements.
2Child A has not spent time with the father since July 2020. Although the father sought to characterise this as the mother “withholding” Child A, I am satisfied the situation is of his own making.
3The conflict between the parties since their separation in 2016 has been relentless. I agree with the assessment of the single expert witness that each party has a very strong personality and they dislike each other intensely, to a degree rarely seen in the Family Court. The father subjected the mother to family violence, both during and after their relationship. The mother is fearful of, and intimidated by, the father (and some of his associates). As a consequence, she gives the appearance of being quite rigid, for example: her insistence on strict compliance with court orders. Although the father superficially appears engaging and reasonable, he is aggressive, rigid, and blinkered by his perceived rights as Child A’s father. He is consumed by his own narrative that the mother is totally to blame for the parties’ inability to co-parent Child A and communicate functionally with each other, such that he has little, if any, insight into his own inappropriate and destructive behaviours. A further feature of this case is that the father has no compunction about ignoring the Family Court orders if they do not suit him. Instead, the father regards himself as the sole arbiter of what is in Child A’s best interests.
4In light of these dynamics, I am satisfied that it is not possible to craft orders that would effectively facilitate a relationship between Child A and the father, without also placing Child A at an unacceptable risk of ongoing significant psychological harm from exposure to the conflict between his parents.
5For the reasons that follow, I have determined that it is in Child A’s best interests to live with the mother and spend no time with the father. I have also determined that the mother should have sole parental responsibility for Child A.

THE PARTIES’ PROPOSALS:

6The mother’s primary position[2] was that she have sole parental responsibility[3] for Child A, and that Child A live with her and spend no time with the father. In the event the court determined that Child A should spend time with the father, the mother proposed that such time occur from after school on Friday to the commencement of school on Monday each alternate weekend during school term, and specified time during school holidays and on special occasions.
[2] Mother’s Minute of Final Parenting Orders Sought filed 5 February 2021.
[3] On the second day of trial (12 February 2021), the mother handed up a Minute, seeking to further particularise the final orders sought by her with respect to parental responsibility. In summary, in the event that the Court ordered that Child A should spend no time with the father, then the mother sought an unconditional order for sole parental responsibility. However, if the court ordered that Child A spend time with the father, then the mother sought an order for sole parental responsibility with an attached obligation that she consult with the father prior to making any long-term decision for Child A, and otherwise notify the father of that decision when made. In closing submissions, the mother informed the court that she withdrew her alternative position, and simply sought an unconditional sole parental responsibility order.
7For his part, the father sought[4] parenting orders that the parties have equal shared parental responsibility for Child A, and that Child A live with the mother and spend time with the father for five nights each fortnight (being from after school on Thursday to before school on Tuesday each alternate week) during school term, and equal time during the school holidays periods. The father also sought specific orders in relation to special occasions.
[4] Father’s Minute of Final Parenting Orders Sought, as contained in the father’s Amended Papers for the Judicial Officer filed 8 February 2021.
8In the lead up to the trial, the ICL filed a Minute of Proposed Orders as part of her Papers for the Judicial Officer.[5] The ICL proposed that the parties have equal shared parental responsibility for Child A, that Child A live with the mother and spend four nights per fortnight with the father (from after school on Thursday to before school on Monday) each alternate weekend during school term, and for half the mid-term school holidays, and a two-week block in the long summer school holidays. Provision was also made for special occasions. However, the ICL explicitly reserved her right to amend her position following the close of evidence.
[5] ICL’s Papers for the Judicial Officer filed 5 February 2021.
9In the event the mother was successful in her “primary” case, she proposed that no further ancillary parenting orders be made in relation to Child A. However, in the event that she was unsuccessful, then the mother did seek a number of ancillary orders in relation to handover, communication, injunctions, travel and Child A’s health and education. The father and the ICL also sought a raft of ancillary orders in relation to these matters. During the trial, the mother and the father handed up annotated copies of the ICL’s Minute, noting areas of agreement and dispute about these issues.
10In closing submissions, the ICL informed the Court that her view had significantly changed, namely that: (1) the mother should have sole parental responsibility for Child A, without any obligation to confer with the father; (2) that it was difficult to formulate any spend-time-with arrangements that properly minimised the risk of Child A being exposed to the conflict between the parties; and (3) in the event the Court was to order no contact between Child A and the father, then: (a) there should be an injunction restraining the father from removing Child A from the mother’s care or his school; (b) the mother should be permitted to travel with Child A without the father’s consent; and (c) there should otherwise be no communication between the parties.

THE EVIDENCE:

11Since the proceedings commenced in 2016, the parties have had the benefit of legal representation, and have also spent significant periods of time as self-represented litigants. Both parties were represented by experienced counsel at trial. The mother relied on her trial affidavit,[6] two updating affidavits[7] and her sworn financial statement.[8] The mother also relied upon the witness affidavit of her partner, [Mr A].[9] The father relied on his trial affidavit,[10] two updating affidavits[11] and his sworn financial statement.[12] Although the father filed numerous witness affidavits in preparation for trial, including an affidavit of his former partner [Ms B], he ultimately only relied upon the following: the two witness affidavits of [Mr C][13] (the paternal grandfather); the two witness affidavits of [Mrs D][14] (the paternal grandmother); the witness affidavit of [Ms E][15] (the father’s sister); and the witness affidavit of [Mr F][16] (the father’s friend). To a greater or lesser extent, each party and the ICL also relied on the two affidavits of the single expert witness, [Dr G].[17] I observe that the trial affidavits of the two parties were voluminous, partly because a large selection of the parties’ written communications with each other since separation were annexed thereto.
[6] Mother’s trial affidavit filed 26 October 2018.
[7] Mother’s updating affidavit filed 1 April 2020; and mother’s further updating affidavit filed 2 February 2021.
[8] Mother’s Form 13 financial statement filed 3 April 2020.
[9] Affidavit of Mr A filed 2 February 2021.
[10] Father’s trial affidavit filed 21 November 2018.
[11] Father’s updating affidavit filed 31 March 2020; and father’s further updating affidavit filed 9 February 2021.
[12] Father’s Form 13 financial statement filed 2 April 2020.
[13] Affidavit of Mr C filed 21 November 2018; affidavit of Mr C filed 31 March 2020.
[14] Affidavit of Mrs D filed 21 November 2018; affidavit of Mrs D filed 31 March 2020.
[15] Affidavit of Ms E filed 21 November 2018.
[16] Affidavit of Mr F filed 22 November 2018.
[17] Affidavit of Dr G filed 3 August 2018; and affidavit of Dr G filed 8 April 2020.
12The parties and all the witnesses, with the exception of Mr F, were cross-examined by opposing counsel and the ICL.

CREDIT FINDINGS:

The father:

13In closing submissions, the mother’s counsel submitted that the father’s evidence lacked creditability and the ICL submitted that the Court should have significant concerns about the father’s veracity. I agree. In my view, the father was a very unimpressive witness and, at the end of the day, I am satisfied that I should be very circumspect in accepting his evidence, unless it was uncontroversial and/or largely unchallenged, or amounted to an admission against interest. I make this finding for the following reasons:
14 Firstly, I considered that under cross-examination the father presented as belligerent, aggressive and sarcastic. At times the father’s presentation raised significant concerns in my mind about his ability to regulate his behaviour, particularly in situations where he is being challenged. The father regularly failed to answer questions that were put to him, instead seeking to argue with counsel or go off on tangents. His evidence was also frequently inconsistent, which was due in part to his tendency to make broad, sweeping generalisations, and then being forced to walk back his position when confronted with evidence to the contrary.
15 Secondly, I am satisfied that the father consistently made assertions in his affidavit evidence and in his oral evidence that were simply not true, or were embellished or exaggerated, or were made carelessly and without concern as to whether they were true, in an attempt to cast himself in a positive light and to cast the mother in the worst possible light. By way of example:
a)I am satisfied that the father’s version of the events on Christmas Day 2012 (that the mother used foul language when talking to the paternal grandmother, including calling her a “fucking cunt”) was not true. The paternal grandmother contradicted the father’s evidence and instead, her evidence was generally consistent with the mother’s own evidence about their interaction that day.
b)I am satisfied that the father’s evidence about the mother sending an abusive email to the paternal grandmother (including writing: “fuck off, never fucking contact me again, you fucking cunt”) after the paternal grandmother wished the mother happy birthday in 2014 was simply not true. Again, the paternal grandmother contradicted the father’s evidence and denied ever receiving such an email.
c)The father’s evidence was that the mother was “deplorable” for not including his contact details in Child A’s enrolment form[18] with [Primary School A]. When the father was shown a copy of the enrolment form that listed his contact details, the father then explained that he had seen “something” at school, but had not bothered to obtain a copy.
d)The father was extremely critical of the mother’s and the maternal grandmother’s alleged behaviour towards him at handovers. When the father was challenged about this evidence, particularly insofar as it concerned the mother, he maintained that he had taken video recordings[19] of the handovers with the mother that were stored on the hard drive of his computer and that he would bring copies to the court the following day. He failed to do so and when challenged again, the father gave evidence that the recordings were instead stored on his phone, which had been smashed, and accordingly were inaccessible. The father’s evidence was also inconsistent with that of his parents’ evidence about the behaviour of the mother and the maternal grandmother at handovers.
e)In late July 2020, the father was charged with driving under the influence (“DUI”) and subsequently lost his licence for six months and was fined $550. I am satisfied that the father lied under cross-examination when he said that his parents paid his fine in January 2021 because he could not afford to. Both the paternal grandfather and the paternal grandmother contradicted the father’s evidence that they paid his fine. The father told the lie under a line of cross-examination exploring whether he could have continued to pay (a very modest) monthly subscription fee for a communication app the parties had been ordered to use, but which the father cancelled in April 2020. When it was suggested to the father that he could have continued to pay for the app if he could afford to pay his DUI fine, he lied and said his parents paid the fine on his behalf.
[18] Exhibit I7.
[19] The recordings had not been previously disclosed to the mother nor the ICL.

16 Finally, I am satisfied that the father was rarely, if ever, able to give his evidence in a balanced manner. Instead, he appeared to be consumed by his own narrative that he was blameless and that the mother was totally to blame for the parties’ ongoing conflict, communication difficulties and inability to co-parent Child A. By way of two examples:
a)The father was reluctant to concede that the mother had ever properly consulted him in relation to matters concerning Child A, notwithstanding that he was pointed to several examples of her doing just that: for example, the proposal that Child A attend surf babies, and arrangements for a dental appointment; and
b)The father blamed the mother for withholding Child A from him after July 2020, notwithstanding that it was the father’s decision to stop spending time. The father explained during his examination in chief that whilst he did consider the impact on Child A of ceasing time, he was “hoping” that the mother would “put [Child A] first” and change the care arrangements to those that he sought.

The mother:

17On the other hand, I considered that the mother was an impressive witness. She was honest, open and frank in giving her evidence, even though it was clear she found it distressing to recount the specific occasions when she was physically assaulted by the father during their relationship. The mother impressed as generally having a very good recollection of events, and she was clear and consistent in giving her evidence. I also considered that the mother was balanced in giving her evidence and, for example, readily made concessions against interests when appropriate, including that Child A and the father enjoy a close and loving relationship, as does Child A with the paternal grandparents (and notwithstanding that at the time of trial, Child A had not seen the father or the paternal grandparents for seven months).
18Although the mother admitted to lying to a magistrate in mid-2016 (by telling the magistrate that she was not under duress or being coerced with respect to her decision to withdraw the VRO proceedings then afoot against the father), I do not consider that such lie adversely impacts her credibility in these proceedings and consider that she was frank with this court about the issue.
19Unless I specify otherwise in these reasons, where the evidence of the mother and the father conflict, I prefer the mother’s evidence.

The lay witnesses:

20The mother’s partner, Mr A: I also considered that Mr A was an impressive witness: he was calm, measured, prepared to make appropriate concessions, including that despite being concerned about the father’s behaviour, the father had not personally, directly threatened him. Ultimately, Mr A was persuasive in giving his evidence.
21The father’s sister, Ms E: To her credit, Ms E was very supportive of the father and readily conceded that she was “here” to support him. However, I also formed the impression that Ms E’s desire to support her brother detrimentally impacted on the reliability of her evidence to some extent, particularly insofar as it concerned the mother. For example, I am not satisfied that Ms E’s evidence in relation to the events on Christmas Day 2012 was either accurate or reliable, noting that: (1) Ms E had difficulty recollecting any specifics of the alleged confrontation between the mother and the paternal grandmother; and (2) her evidence was contradicted by both the mother and the paternal grandmother. I am also not satisfied that Ms E’s general assertions about the mother regularly using foul and abusive language or getting drunk were true. Ms E conceded that she had little, if any, contact with the mother after she moved to [City A] in 2011 and that her understanding of the relationship between the parties was largely formed from her discussions with the father. However, it was clear that the father did not fully confide in Ms E. For example, she was unaware that the police were called to an incident between the father and his former partner, Ms B, in December 2019, or of his DUI conviction in 2020. I do accept Ms E’s evidence that she spoke with an officer from the Department of Communities (the “Department”) in June 2020, after the mother made a report that Child A had disclosed that Ms E’s young son Child B had attempted to engage Child A in some sexual activities during a sleepover. I also accept Ms E’s evidence that: (1) the Department’s officer recommended that she talk to Child B and start some sex education with him; and (2) she maintains “strict” settings on Child B’s iPad to stop him from being able to access inappropriate material online.[20]
[20] I observe that this evidence contradicted the father’s explanation for Child A’s disclosures in June 2020, namely that Child A and Child B were being “cheeky” little boys and were googling “naughty” words on the i‑pad, and that the mother’s decision to raise the concerns with the Department was a “demonstration” of her trying to erode the relationship.

22The paternal grandmother, Mrs D: I considered that Mrs D attempted to give her evidence honestly and as she saw it. She was also generally balanced in her evidence and, for example, was prepared to make appropriate concessions against interest (including conceding that she had heard the father denigrating the mother, albeit she could not recall if it had ever occurred in Child A’s presence or hearing). It was clear from Mrs D’s evidence that the father also does not fully confide in her. For example, Mrs D conceded that she was unaware of: (1) the father being subjected to a police order in December 2019 following the incident with Ms B; (2) the father’s DUI offence in July 2020; and (3) why the father ceased spending time with Child A after July 2020 (save that the father told her it was not reasonable to keep conducting handovers at police stations). Mrs D was clear in her evidence and I accept her evidence that: (1) the father never asked her for financial assistance to meet the small monthly cost of the ‘2houses’ communications app used by the parties; (2) she did not pay the father’s DUI fine; and (3) that prior to July 2020 she would exchange “hellos” with the mother at handovers and had no concerns about the mother’s behaviour at handovers.
23The paternal grandfather, Mr C: I considered that Mr C also generally attempted to give his evidence honestly and as he saw it, albeit he became noticeably cautious in his evidence about seeing the father driving his motor vehicle when he learnt that the father had lost his driver’s licence in 2020. He was also generally prepared to make concessions against interest, for example: (1) readily conceding that various matters deposed to in his affidavit were not based on his own observations, but rather from what the father had told him; and (2) conceding that he could not recall many specifics of the occasion/s that he, the father and some of the father’s associates attended at the former matrimonial home in the days after the parties’ separation in 2016. Mr C also conceded that he did not generally get involved in the father’s personal and business affairs. For example, Mr C’s evidence was that he was unaware of: (1) the reasons why the father and Ms B ended their relationship; (2) the father’s DUI conviction; and (3) why the father had not spent time with Child A since July 2020 (save that the father told him that he did not want Child A to have to attend handovers at police stations).
24Mr C was clear in his evidence and I accept his evidence that:
a)He had no worries about attending the handovers at police stations and it had never seemed to worry Child A either.
b)The mother or the maternal grandmother usually attended handovers that he attended. He had no problem with dealing with either the mother or the maternal grandmother and considered the maternal grandmother was “very nice”.

25Mr F: I accept Mr F’s evidence as contained in his 2018 affidavit as being unchallenged. However, I observe that Mr F’s evidence was confined to his observations of the father and Child A. He did not mention the mother in his affidavit and the mother confirmed in her evidence that so far as she could recall, she had never met Mr F.

The single expert witness: Dr G

26Dr G prepared two reports in relation to the family. The first was published on 1 August 2018,[21] and the second on 7 April 2020.[22] I considered that Dr G was professional and helpful in giving his evidence and I had no hesitation in accepting his evidence. I refer to Dr G’s evidence in detail later in these reasons.

BRIEF FACTUAL BACKGROUND:

[21] Affidavit of Dr G filed 3 August 2018, annexure “A”.

[22] Affidavit of Dr G filed 8 April 2020, annexure “A”.

27The mother was born [in] 1980 and was 40 years age at the time of trial. She is employed on a full-time basis [in a sales-related role]. The father was born on [in] 1983 and was 37 years of age at the time of trial. As from December 2020, he has been employed on a contract basis as [an analyst].
28The parties commenced living together in 2010 and married [in early] 2012. Child A was born [in mid] 2015. During the parties’ relationship, the mother worked in the [father’s business].
29The parties separated on a final basis on 29 April 2016 (noting that the father was forcibly removed from the home by the police in the early hours of the morning on 30 April 2016).
30Each party claimed that they were Child A’s primary carer following his birth. That dispute was sterile for the purposes of trial. I am satisfied, having regard to Dr G’s evidence, that Child A has a close and loving relationship with both parties, and is securely attached to them both. The identity of Child A’s primary carer following birth is of little, if any, relevance to the case as was presented at trial.

The parties’ separation, and subsequent events:

31In the early hours of the morning on 30 April 2016, the police were called to the family home. The police removed the father from the premises and served him with a police order.
32As soon as the police order expired, the father, the paternal grandfather and a small group of men attended the former matrimonial home where the mother was still living at the time with Child A, to collect the father’s belongings. The mother refused them entry to the home. The police were called and they eventually attended and supervised the father and his associates while they removed the father’s belongings. I accept the mother’s evidence that she found the experience intimidating. One of the men who attended the home that day was Mr H,[23] whom the father described under cross-examination as his business partner and close family friend.
[23] This was the father’s evidence, under cross-examination.
33On 11 May 2016, the mother obtained an interim violence restraining order (“VRO”) for her protection against the father. The father contacted the Department and raised child welfare concerns for Child A in the mother’s care. The Department subsequently concluded there were no child protection concerns.
34Towards the end of May 2016, the father’s company terminated the mother’s employment and left her without an income.
35The mother withdrew the VRO proceedings at a hearing in about August 2016.[24] I accept the mother’s evidence that the father agreed to pay her a sum of money in exchange for: (1) the mother withdrawing the VRO proceedings; and (2) the mother agreeing to the father’s desired care arrangements for Child A. The mother explained, and I accept, that she did not feel safe living in the former matrimonial home, and wished to reaccommodate herself, but did not have the means to do so without the father’s financial support.
[24] The mother was unable to recall the precise date of the VRO hearing.
36I accept the mother’s evidence that the following events occurred at the VRO hearing:
a)The mother attended the hearing. The father did not.
b)Outside the courtroom and prior to the hearing, a man whom the mother understood had been sent to the court by the father showed the mother, on a laptop computer he was carrying, that the father had transferred the agreed sum of money into the mother’s account.
c)The man then sat in the back of the courtroom, while the mother told the presiding magistrate that she wished to withdraw the VRO proceedings. I refer to my earlier credit findings in relation to the mother as to what the mother told the magistrate; namely that she was not under duress or being coerced to withdraw the proceedings.

37Under cross-examination, the father identified the man who attended the VRO hearing as Mr H. I do not accept the father’s evidence that Mr H attended the hearing because he was friendly with the mother. I do, however, accept the father’s evidence that he received a telephone call from Mr H after the hearing, to update the father as to the outcome. Overall and on balance, I am satisfied that the father arranged for Mr H to attend the VRO hearing, to ensure that the mother kept her word and withdrew the proceedings. I am satisfied that the father’s behaviour in this regard was coercive and controlling.

Child A’s time with the father, following separation:

38I accept the mother’s evidence that Child A did not spend time with the father for a number of weeks following separation.
39In July 2016, the parties trialled an arrangement for the following month in which Child A lived with each parent on a fortnightly basis, on an alternating 4 day / 3 day pattern. The father then proposed the parties trial a week-about arrangement,[25] which they did. Ultimately, the parties were unable to agree as to the arrangements that should remain in place for Child A.
[25] The mother’s evidence being that she only agreed to the week-about arrangement as it was tied to the father agreeing to provide her with money to reaccommodate herself.
40On 12 September 2016, the mother sought to reinstate the previous arrangements for shared care of Child A (that is, the 4 day / 3 day pattern). The mother delivered Child A to the father. On 14 September 2016, the father advised the mother he was not agreeable with her proposals and sought that Child A live with each parent on a different pattern of care each fortnight that still amounted to equal time.
41The mother did not agree with those arrangements and attempted to collect Child A on 16 September 2016. The father refused to hand Child A over to her. The mother again attempted to collect Child A on Sunday, 18 September 2016 without success. On Monday, 19 September 2016 the mother again sought to collect Child A and was again was unable to do so, despite that being in accordance with the father’s proposal as set out in the correspondence from his solicitors on 14 September 2016.
42The father instructed his solicitors to write to the mother on 19 September 2016 stating that, until such time as they had received an agreement or response, the father would be retaining Child A in his care. The mother then commenced parenting proceedings in this Court on an urgent basis on 19 September 2016.
43At the first return of the matter on 23 September 2016, orders were made by consent on an interim basis that the parents have equal shared parental responsibility for Child A. Orders were also made (among others) that the father would return Child A to the mother’s care that afternoon, and for Child A to spend time with the father for seven nights each fortnight (broken into two blocks of 4 nights and 3 nights).
44On 14 March 2017, Magistrate Tyson (as she then was) made interim parenting orders pursuant to judgment, including: (1) Child A live with the father each alternate weekend, each Wednesday from 7.30am until 5pm on Thursday, and at other times as agreed between the parties; and otherwise Child A live with the mother; and (2) detailed arrangements for handovers.
45Since March 2017, the parties have been engaged in multiple further interim parenting / enforcement / contravention proceedings concerning Child A. The Court has made a number of interim parenting and procedural orders. It is not necessary to set out in any detail the various orders that have been made along the way, save to note three matters. Firstly, on 25 October 2017, the Court made orders for the appointment of Dr G as the single expert witness. Secondly, on 15 March 2018, the Court made an interim order that the parties use the 2houses app to communicate about Child A with the costs of the app to be met by the father. Thirdly, on 11 May 2020, the Court made an order by consent that Child A spend time with the father, in summary, for five nights per fortnight.
46In 2017 and 2018 the father, together with some of his associates, were charged with various criminal offences, including in the case of the father: stalking with intent to intimidate, making a threat with intent to gain a benefit, and demanding property by oral threats. The alleged victims were former clients of the father’s [business]. The father and his co-accused, Mr H, were eventually found not guilty of the charges following a trial in [Jurisdiction A]. However, one of the father’s other associates was convicted of one or more offence.
47The father and his company were the subject of adverse findings in disciplinary proceedings taken by the [Board A] against the father / his company in the [Jurisdiction B], including that the father / his company had engaged in conduct that was harsh, unconscionable and oppressive pursuant to the [the relevant legislation] in connection with the engagement of persons to recover monies alleged to be owed [omitted], when the father / his company knew that the said persons (who were not licenced debt collectors) would behave, and in fact did behave, in a way that threatened, harassed and/or intimidated the father’s / his company’s clients.[26]
[26] The father asserted under cross-examination that he had appealed the SAT’s orders, consequent upon his acquittal in the District Court.
48I am satisfied that the mother’s awareness of the matters referred to the preceding two paragraphs contributed to the mother being frightened of, and intimidated by, the father and his associates. In this regard, I accept the mother’s evidence that at various times since separation she has received telephone calls from private numbers, and it is her belief these calls have been from the father’s associates.
49In June 2019 and following further interim family violence restraining order proceedings, the parties entered into a Final Conduct Agreement Order (the “FCAO”) pursuant to the Restraining Orders Act 1997 (WA) protecting the mother against the father. Pursuant to the terms of the FCAO the father was prohibited from communicating or attempting to communicate with the mother by any means whatsoever including SMS or text message or any other electronic means, except in accordance with a number of specified conditions set out in Part B of the FCAO, including as provided by any Family Court order.
50In December 2019, there was an incident between the father and his then partner, Ms B. The police incident report[27] that was tendered into evidence recorded as follows:
a)The father and Ms B had been at a pool party on 15 December 2019. The father had been drinking since 10am that day and was intoxicated. There was a verbal argument at the party, and the father left the party at 9.30pm in Ms B’s car, and took Ms B’s phone with him.
b)The father drove to Ms B’s home, and smashed a window to gain entry (the police notes recorded that the father “didn’t have keys or [was] too intoxicated to use them”). The father then went to bed.
c)Ms B returned home (with friends) at about 1am on 16 December 2019, found the smashed window, and went inside the home to get her phone. Ms B then contacted the police as she wanted to stay in her home that night. Ms B then attended the local police station to further report the matter, but left before the police organised a plan to attend Ms B’s property.
d)When the police arrived at the property, they heard arguing inside. Ms B let the police into the property and the father was found in the main bedroom in the rear of the house. The police notes record the father was intoxicated and verbally abusive towards police. The father’s verbal abuse of the police continued throughout the attendance.
e)The police issued a police order to the father. The father refused to take a copy of the order, and then threw it to the ground outside the address. The father was not cooperative in staying 50 metres away from the property, and was forced beyond the boundary by the police, until such time as an Uber collected him and took him away.
f)Ms B expressed her gratitude to police, and stated that “she would be packing [the father’s] belongings and calling his parents in the morning, stating the relationship was over”.
g)Ms B did not press a complaint against the father, and the police did not take the matter further.
[27] Exhibit S1.

51Under cross-examination by the ICL, the father admitted that he had been at a pool party. He also admitted to breaking the window to Ms B’s home, but said that he did so because he didn’t have a key. The father denied that he broke the window because of alcohol or anger. However, the father did concede (rather reluctantly) that he had been drinking that day.
52In April 2020, the father terminated his subscription to the 2houses app, thereby effectively frustrating the primary means by which he could lawfully have communications directly with the mother. Instead, the father generally adopted the course of emailing the ICL (and copying the mother into said emails). Although the father maintained he terminated his subscription because he could not afford the very modest monthly fee, I am not satisfied that this was the case and refer to my findings at paragraph [15(e)] above. Rather, I consider it more likely than not that this was a further example of father declining to follow and/or frustrating court orders that he did not agree with, and as a mechanism to exercise control over the mother by dictating the method of the parties’ communication, in circumstances where he was aware the mother would insist on strict compliance with the orders.
53In late June 2020, Child A returned from an overnight stay with the father. I accept the mother’s evidence that following disclosures that Child A made to her about his cousin Child B, the mother made a report to the Department, noting that the mother’s evidence in this regard was consistent with a memorandum provided by the Department to the Court on 15 February 2021. The Department quickly responded to the complaint, by a Departmental officer having the telephone discussion with Ms E referred to earlier in these reasons, and then closing its file.
54In or about early July 2020, the mother took over paying the subscription for the 2houses app, so that the parties could resume communications pursuant to the Family Court order. The mother emailed the father notifying him of her actions. She thereafter continued to communicate with the father via the app, but did not receive any response from him via the app. Instead, the father continued to periodically communicate with the mother by email. Although the father maintained in his cross-examination that he could not access the app and accordingly was forced to continue to use email communications, I am not persuaded that this was the case and note that: (1) the father made no contemporaneous efforts to inform either the mother or the ICL that he was having difficulty accessing the app; and (2) there was simply no evidence that the father made any proactive attempts to access his account, including by contacting the makers of the 2houses app to query his access problems. I am satisfied that the most plausible and cogent explanation for the father’s inability to access to the 2houses app was that he deleted or suspended his account in April 2020 at the same time as ceasing to pay the subscription, and thereafter took no proactive steps to re-create or resume his account. Again, I am satisfied that the father’s actions in this regard were an attempt by him to exert control over the method of the parties’ communication, notwithstanding the terms of the March 2018 court orders, and despite the mother’s repeated requests that he comply with the court orders and use the 2houses app.
55On 13 July 2020, the father emailed the mother, seeking to change the spend-time-with and handover arrangements for Child A. The mother responded by asking the father to use the 2houses app for communications and then via the app set out her concerns about the father’s proposal.[28] On 14 July 2020, the father emailed the mother asking what time handover would be the following day. The mother did not respond, given the father again sought to communicate with her outside of the 2houses app.

[28] The father only stopped using emails to communicate directly with the mother after she complained to the police in September 2020 that the father was breaching the FCAO by emailing her.
56On 15 July 2020, the father did not attend at handover. Later that day, the mother was copied into an email from the father to the ICL, giving notice that he would no longer spend time with Child A until matters were resolved (presumably, to his satisfaction). In his email, the father cited concerns about the recent allegations made about his nephew Child B and that he did not consider that the current interim parenting orders for handovers and Child A’s care arrangements were in the child’s best interests.
57Eventually, on 2 September 2020, the father emailed the mother, asking her to make him a proposal for him to recommence time with Child A. The mother did not respond. On Wednesday, 9 September 2020 (the same date that the father was convicted of the DUI offence, and his licence suspended for six months[29]) the father emailed the mother again and proposed that he collect Child A that day after school. The mother responded that she had already booked an appointment for Child A that day, and he would be leaving school at lunchtime. Instead, the mother offered for Child A to spend time with the father commencing after school that Friday, which would also afford the mother the opportunity to let Child A know he would be seeing the father. The father declined the mother’s proposal, saying that the parties would have to wait for a judicial decision at trial.
[29] The suspension was backdated to the date of the offence. The father’s evidence at trial was that he once again had his licence.
58The trial proceeded before me over six days, commencing on 11 February 2021.
59On 17 February 2021, after hearing the evidence of Dr G, his sister and his mother, the father left the courtroom and subsequently informed his counsel that he did not intend to return. The father’s reasons (as relayed to the court by his counsel) were that: (1) the father was distressed following comments I made to Dr G at the conclusion of Dr G’s cross-examination (a matter to which I return later in these reasons, at paragraph [88]); and (2) the father felt that I had already made up my mind about the matter. The father’s counsel informed the court that he held instructions to continue with the trial, notwithstanding his client’s absence.
60On the oral application of the mother’s counsel and due to concerns about the father’s state of mind, I made a number of interim orders on 17 February 2021 including that:
a)All previous orders in relation to the father having parental responsibility and/or spending time with Child A be suspended;
b)The mother have sole parental responsibility for Child A and the child live with her;
c)The father be restrained by injunction from removing Child A from the care and control of the mother and/or any educational facility attended by the child;
d)The maternal grandmother be permitted to collect the child from school that day; and
e)The manager of the Family Court Counselling and Consultancy Service be requested to urgently contact the Principal of Child A’s school regarding the orders made by me.

61The father did not return for the remainder of that day. Accordingly, he was not present to hear the oral evidence of the paternal grandfather. The father did return on the following (final) day to hear his counsel make closing submissions, but then left again prior to the mother’s counsel and the ICL making their closing submissions.

DR G’s EVIDENCE:

The first report (2018)

62In the preparation of his first report, Dr G met with the parties individually, and also met with Child A (who was then three years of age) briefly to create some familiarity. Dr G then observed each party with Child A in their respective homes. The salient parts of Dr G’s first report (which I accept, and noting that Dr G was not successfully challenged on his evidence under cross-examination) were as follows:
63Both parties described to Dr G that the early part of their relationship was “pretty good”, and that neither party felt that the initial problems in their relationship were significant enough to not go ahead with their marriage in 2012. However, both parties also described how the problems between them increased from the time of their marriage.
64Dr G observed that there were a number of aspects evident in the dynamics of the family after separation, including: (1) the difficulties in the co-parenting relationship;[30] (2) issues relating to the mother having a boyfriend, including the father’s demand to meet the boyfriend, and whether it is appropriate that he do so in light of the conflict between the parties;[31] and (3) the different parenting styles between the parties, with the father and Child A having a “fairly easy and liberal relationship”, whilst the mother imposed “a lot more routine, structure and [sending [Child A]] off to day care”.[32] It was in that context that Dr G opined that Child A (given his age) would show distress transitioning from one parent to the other.
[30] Affidavit of Dr G filed 3 August 2018, annexure “A”, [37].
[31] Affidavit of Dr G filed 3 August 2018, annexure “A”, [34] and [35].
[32] Affidavit of Dr G filed 3 August 2018, annexure “A”, [39] and [40].
65With respect to the mother, Dr G described her presentation as organised, rational and logical, although she became “a little teary” around certain issues. Dr G administered the PAI test to the mother. Dr G opined that the mother’s test results indicated that the mother was:
…someone who was likely to be self-assured, confident and dominant. Although the mother is not unfriendly, she is likely to be described by others as ambitious. She is likely to be comfortable in social settings but not likely to mix indiscriminately preferring to interact with others in situations where she can exercise some measure of control.
The father sees [the mother] as somebody who is quite rigid in her views and as a result fairly dictatorial. While there is some evidence to support this, the profile was suggestive that she is within the normal range of having strong views.[33]
[33] Affidavit of Dr G filed 3 August 2018, annexure “A”, [49] and [50].

66With respect to the father, Dr G observed that the father displayed “a degree of pedantic rigidity” in some of his dealings. The father presented as a “bright man with a quick mind”. Although the father’s expressed views sounded reasonable, Dr G considered that the father could feel “quite angry, punitive and reactive” when things did not go his way. Dr G opined that the father’s general presentation was that he is not someone who tolerates fools easily, and is quite competent in his own realm. Further, Dr G opined “there was an aspect of narcissistic presentation, specifically that [the father] likes to do things on his terms and can be quite disagreeable if it does not go that way” and that when he agrees with something “he will support it fully”.[34]
[34] Affidavit of Dr G filed 3 August 2018, annexure “A”, [51] and [52].
67Dr G also administered the PAI test to the father. In relation to the father’s test results, Dr G said:
The most notable element was a massive elevation on the Mania Grandiosity scale. There were other scales on the Mania profile suggesting he can be impulsive, overcommitted, and active. The grandiosity scale is associated with narcissistic personality traits. Alcohol and drug scales were elevated which indicates they may have been a problem in his life. Two of the Antisocial subscales were elevated suggesting he is likely to be egocentric and impulsive. The interpersonal scales were completed in [a] manner to indicated [sic] that he has very strong needs for attention and affiliation. He is likely to seek attention and while [h]is intentions may be to be helpful, others will see him as controlling.[35]
[35] Affidavit of Dr G filed 3 August 2018, annexure “A”, [55].

68Overall, Dr G opined that the father’s profile is suggestive of no mental health issues, but of strong personality characteristics that shape the father’s behaviour and interactions.[36]
[36] Affidavit of Dr G filed 3 August 2018, annexure “A”, [56].
69Dr G considered that both parties were intelligent and high functioning individuals.[37]
[37] Affidavit of Dr G filed 3 August 2018, annexure “A”, [1].
70As for Child A, he was three years old at the time of the first assessment. Given matters have moved on since that assessment, I simply note that at the time Dr G was “genuinely impressed by the warmth and relationship which both parents showed towards [Child A]”[38] and that Child A had a “strong attachment to both parents” and appeared to enjoy a “secure attachment with both parents”.[39] Dr G also opined, in light of the parties’ different parenting styles, that “slightly firmer boundaries [for Child A] would be more optimal”.[40] Dr G saw the conflict between the parties as “creating conflict” for Child A as he gets older, but also opined that “the dynamics were not so strong that I am concerned about a future alienation profile (that is a possibility but not an inevitable consequence of the dynamic).”[41] Dr G also noted that “the father’s personality profile is such that if he continues to be punitive and retaliatory in dealing with the mother there would be an argument for reduced care.”[42] Dr G recommended that the father continue to see his treating clinical psychologist no less than once per month on issues related to co-parenting.[43]
[38] Affidavit of Dr G filed 3 August 2018, annexure “A”, [63].
[39] Affidavit of Dr G filed 3 August 2018, annexure “A”, [68].
[40] Affidavit of Dr G filed 3 August 2018, annexure “A”, [63].
[41] Affidavit of Dr G filed 3 August 2018, annexure “A”, [64].
[42] Affidavit of Dr G filed 3 August 2018, annexure “A”, [81].
[43] Affidavit of Dr G filed 3 August 2018, annexure “A”, [85]. I observe that even if the father did follow Dr G’s recommendation in this regard, there was no discernible improvement in the father’s manner of dealing with the mother.
71With respect to the parties’ parenting capacity, Dr G opined that:
All the evidence indicated that the mother is very competent and capable and doing a good job with the child. As with the father, the issues are more around the ability to co-parent, however I am not sure what else the mother can do other than learning to package her ideas in a way that is more palatable to the father. Some of this can come through the Mums & Dads Forever program and perhaps consulting with someone who can assist in dealing with high conflict personalities.[44]

The second report (2020)

[44] Affidavit of Dr G filed 3 August 2018, annexure “A”, [74].

72In preparation for his second report, Dr G met with: the mother and father individually; with the parties’ respective partners;[45] and with Child A on two occasions (with Child A being brought to Dr G’s offices by a different parent on each occasion). Dr G also observed each party with Child A at a park.
[45] Noting that the father is no longer in a relationship with Ms B.
73The salient parts of Dr G’s second report (which I accept, and once again noting that Dr G was not successfully challenged on his evidence under cross-examination) were as follows:
74Dr G observed a disconnect between the father’s presentation on re‑assessment (being of a friendlier nature; expressing a desire to be more flexible; and in a psychologically happier place) and the documentary evidence, including the father’s affidavit material and the 2houses app communications between the parties. Dr G opined that the documents revealed “aspects of rigidity” and that there was seepage of underlying feelings evident in various negative and sarcastic comments authored by the father. Dr G also observed that there were plenty of examples of the father’s agreement being conditional on the mother agreeing to change Child A’s arrangements.[46]
[46] Affidavit of Dr G filed 8 April 2020, annexure “A”, [7].
75Dr G opined that the mother continued to present as “quite uptight around issues and continues to hold a negative view of [the father], which includes both fearfulness and rigidity”. Dr G noted that the mother does not appear to be reactive in her communications with the father, but rather she puts up a “brick wall” and sticks to the arrangements. Simply put, Dr G saw the mother as providing “no flexibility”.[47]
[47] Affidavit of Dr G filed 8 April 2020, annexure “A”, [8].
76Dr G found the mother’s partner, Mr A, to be a “fairly balanced and sensible person from what is reported to have been a stable background”. Although the father was less derogatory about Mr A during the face-to-face interview, Dr G was not convinced that the father’s underlying feelings about Mr A had changed.[48] Dr G provided some comment on the father’s then partner, Ms B. However, the father and Ms B were no longer in a relationship by the time of trial.
[48] Affidavit of Dr G filed 8 April 2020, annexure “A”, [9].
77Dr G noted that one area of common agreement between the parties was that they cannot co-parent.[49] Dr G opined that both parties are “exceptionally rigid in their dealings, the mother tending to brick-wall; the father tending to flip through various responses, from an occasional communication which is positive, such as apologising for his behaviour, many emails which are factual stating his position and, as stated earlier, some which have seepage of the underlying negativity which go to sarcasm and anger”.[50]
[49] Affidavit of Dr G filed 8 April 2020, annexure “A”, [12].
[50] Ibid.
78Dr G opined that neither party presented with a mental illness on reassessment. Dr G re-affirmed his view that both parties have strong personalities, and added that the parties have a dislike for each other that he had seen rarely seen, even in a family law context.[51]
[51] Affidavit of Dr G filed 8 April 2020, annexure “A”, [15].
79Child A was four years old at the time of the re-assessment (and several months shy of turning five). Dr G observed Child A to be a “delightful” and “energetic” child, who was “exceptionally verbal” and that his general behaviour is such that “one is confident that he is receiving parenting which sets some limits on behaviour, which reinforces positive interactions and so forth”.[52]
[52] Affidavit of Dr G filed 8 April 2020, annexure “A”, [16].
80Dr G opined that the single biggest threat to Child A’s wellbeing is the conflict between the parties. In this regard, Dr G observed that Child A showed some degree of negative influence during interview, by telling Dr G “because mum lies to dad” as an explanation for things. Dr G noted that Child A was unable to say what the lies were, just that the father says that the mother tells lies. Dr G opined that this type of behaviour on the father’s part is “psychologically destructive”, and if the Court accepts the mother’s evidence of other negative behaviour by the father designed to influence Child A, then it is suggestive of a significant amount of psychological pressure being placed on Child A. That said, Dr G did not identify extensive influence during the two short interviews with Child A.[53]
[53] Affidavit of Dr G filed 8 April 2020, annexure “A”, [18].
81Dr G opined that (given Child A’s age) the difficulties that Child A was having in separating from the father at handover was likely because the father is not dealing with handover “in a matter of fact enough position and is causing [Child A] to feel distressed at leaving.”[54]
[54] Affidavit of Dr G filed 8 April 2020, annexure “A”, [20].
82In observing Child A with both parents, Dr G opined that Child A continues to enjoy a good and comfortable relationship, and is secure with both. Dr G opined that the nature of the relationship between Child A and the father was more in the nature of a “mate” type relationship, whereas the mother and Child A had a more “parent-child relationship”.[55] Dr G opined that this was likely to result in the mother experiencing the higher proportion of behavioural problems, and that this simply reflected the difference in parenting styles.[56]
[55] Affidavit of Dr G filed 8 April 2020, annexure “A”, [21].
[56] Ibid.
83Dr G noted that Child A described feeling safe in both houses, and did not report any maltreatment. Dr G considered there was no evidence of either party having physically maltreated Child A.[57]
[57] Affidavit of Dr G filed 8 April 2020, annexure “A”, [17] and [22].
84In discussion, Dr G said this:
The level of animosity and the type of animosity between these parents is going to bear badly for [Child A] as he gets older. He will become more cognizant of the difference between the parents’ views, and ultimately, I see [Child A] as being in the position where, in his early to mid-teens, he will be sick of the conflict and will totally align with one parent against the other. There is nothing which can stop this unless the parents can get out of their animosity.
The Court does not need a trial to determine that these parents cannot co-parent. A Trial may help the Court make a finding as to where the cause of the problem lays, however, I do not see either parent likely to change.
The father proposes that because there is no communication, the situation should be simplified to a week-about arrangement and both parents involved. I do not see week-about where the parents have such high animosity, such a lack of communication and a lack of co‑parenting ability as likely to be improved by equal care. In fact, I see the opposite is the case. I believe that it is likely the situation will deteriorate in an equal care arrangement.
…
I am not satisfied that either parent would benefit from individual psychological therapy or courses. I see their presentations as largely too set to vary.[58]
[58] Affidavit of Dr G filed 8 April 2020, annexure “A”, [23] – [25], and [33].

85Dr G proposed three care scenarios that might be applied to the family: majority care with one parent; equal care; or no-contact with one parent. Dr G discounted an equal care arrangement in light of the parties’ inability to co-parent. Dr G opined that a majority care arrangement would “allow a predominant parenting style…but keep the other parent involved to a degree”. In relation to the no-contact scenario, Dr G said:
[In circumstances where] the animosity is exceptionally high, conflict ongoing, [and] there is no capacity to coparent [sic], [the end outcome] will be the child aligning with a parent, …the Court could consider a no contact arrangement with one or other parent. This would lower the short-term conflict and lower the psychological pressure on [Child A]. It would effectively cause the child to see one parent but not the other. Neither parent was wanting the other parent excluded from the child’s life despite the problems. Therefore, this would not necessarily make sense in this case.[59]
[59] Affidavit of Dr G filed 8 April 2020, annexure “A”, [26].

86As noted earlier, by the time of trial, the father had elected not to spend time with the child since July 2020, and the mother was pursuing the no-contact scenario.

Dr G’s cross-examination

87At the commencement of his oral evidence, Dr G was shown two documents – the father’s email of 15 July 2020, in which he provided his explanation for why he ceased spending time with Child A, and the Department’s memorandum concerning the sexual abuse allegation involving Child A and his cousin, Child B.
88At the conclusion of Dr G’s cross-examination, I provided him with my view of the lay evidence to that point and the dynamics between the parties for the purpose of providing Dr G’ with the opportunity to provide further, expert opinion evidence about the way in which the family could be managed (if at all) to avoid the outcome of a no-contact scenario. I then provided each party and the ICL with the opportunity to ask further questions arising from my questions of Dr G.

89The salient parts of Dr G’s evidence under cross-examination, which I accept, were as follows:
a)In relation to the father’s decision to stop contact with Child A in July 2020, Dr G opined that the reasons given by the father were probably viewed by him as being the mother’s fault, and therefore the father saw the cessation of time as the mother’s fault. In regards to the father’s complaint about handovers being at police stations, Dr G said there was no evidence during his re-assessment interviews with Child A that the police stations were a problem.
b)With respect to the father’s request in September 2020 to spend time with Child A, Dr G did not consider it was unreasonable for the mother to offer an alternative to the father’s proposal in the circumstances. Dr G opined that it was important for Child A to be given notice that he would once again be spending time with the father, and the short delay (of a few days) as proposed by the mother was reasonable. Dr G opined that a normal response from the father would have been to have “jumped” at the opportunity to get time going again. However, because time with Child A was not completely on his terms, it did not proceed. Although Dr G said it could be argued that the mother should have followed-up with the father, he opined that if he had been in the mother’s position (and based on the history of the matter) he would not have followed up either.
c)Dr G said that it was extremely rare for him to propose a no-contact scenario in his written report, but he did so in this case because it was on the “outer edge”, and he was unable to suggest any arrangements that would enable Child A to continue to spend time with the father and protect Child A from harm. Dr G explained that he is predicting that the level of animosity between the parties will bubble to a head in a few years’ time, and that Child A would be caught in the middle.
d)Dr G went on to explain that as Child A develops a sense of self and the capacity for abstract reasoning, he will be forced to take sides one way or the other. Dr G opined that when Child A reaches the age of 11 – 13, things will really come to a head in this regard. Dr G also opined that in dealing with the conflict, Child A would have less emotional resources to dedicate to his education [that evidence was given in the context of a question about the impact of conflict on Child A being gifted and talented]. The parties’ respective parenting capacities would also be impaired by the ongoing conflict.
e)When asked by the ICL about the considerations that should be taken into account when weighing up meaningful relationship versus psychological harm, Dr G opined that the intractability of the conflict was the tipping point. Dr G added that all cases in the Family Court involve conflict and disagreement, but it is the level of conflict in this case that is unusual. An important matter to take into account was whether the arrangements put in place by the Court would not work because the parties’ would not implement them. Dr G opined that the history of the parties’ behaviour in this case did not bode well for the future – he did not see any evidence of the situation getting better. The parties are not changing; they are not learning.
f)Whilst Dr G considered that ordering no contact was a very serious step, in this case Dr G considered the balancing act was between choosing the path that would cause the least amount of damage to Child A. Dr G opined that it would be less damaging for Child A if the decision to remove a parent from his life was made now, rather than Child A needing to decide that for himself at a later point in time. Dr G commented that the sad part of this case was that both parties have a great relationship with Child A individually. But the intense conflict between the parties will take its toll. Dr G noted that under the no-contact scenario, Child A would miss out on what his father has to offer, including the father’s interactivity and his skill with physical things, and that this was a serious factor to consider.
g)Dr G considered whether limiting the number of interactions between the parties in the context of ongoing spend-time-with arrangements could work. However, he explained that there are two broad types of cases: one is a transitional issue, and a couple of years down the track the parties settle down and get on with it; and the other type of cases is where there is a fundamental disconnect in the parties’ personalities, and it doesn’t work. This case falls into the latter category.
h)Dr G opined that the relationship between Child A and father would have weakened since contact ceased in July 2020, but that it was in the early stages of having an impact. Dr G was of the view that the pair would be able to quickly re‑establish their relationship if time were to recommence. If, however, the period of no-contact became prolonged (and Dr G put it in terms of two or more years), then the impact would grow. Dr G warned, however, against the prospect of Child A’s contact with the father resuming, only for it to stop again. Dr G considered that such an outcome would be cruel for Child A. When asked whether there was any explanation as to why Child A is not asking to see his father, Dr G opined that at the age of five he is still in concrete operational thinking and that abstract reasoning hasn’t kicked in yet. His ability to ask “why is this happening” has not yet developed. As the father is out of frame at the moment, Child A does not ask after him. Dr G also noted that where conflict is high, children engage in splitting: dad’s world and mum’s world; and they keep them separate.
i)Dr G considered the father’s behaviour in ignoring court orders was of fundamental concern. Dr G likened it to a “my way or the highway” type of approach. Dr G said that even adopting a scenario whereby Child A lives in the majority care the mother and spends four nights per fortnight with the father, there would still be issues around compliance with orders.
j)Dr G considered that the father’s position that the mother had to consult with him before taking any action in relation to Child A, including undertaking her own private research about education options, was bizarre. Dr G said that in his own practice, he encourages parents to undertake their own research before putting forward an option to the other parent. Dr G opined that the father’s intense views around what it means to share parental responsibility meant that there was no chance of it working. Dr G also opined that an order for sole parental responsibility in favour of the mother, with a requirement that she consult the father, would not work, and would simply create an opportunity for the matter to be brought back into court.

PARENTING PROCEEDINGS – APPLICABLE LAW:

90These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 60B sets out the objects and the principles underlying them. The Full Court in Goode & Goode made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[60] Section 61DA of the Act provides as follows:
[60] Goode & Goode (2006) FLC 93-286, [56].
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

91If I am satisfied that I should make an order for equal shared parental responsibility then I must also consider the obligations placed upon me by s 65DAA of the Act which requires me to then consider whether the child should spend equal time or substantial and significant time with each parent. In MRR v GR, the High Court of Australia considered the meaning of "reasonably practicable" in s 65DAA(1) and confirmed that the section "is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent…[The section] requires a practical assessment of whether equal time parenting is feasible".[61]
[61] MRR v GR (2010) 240 CLR 461, [15].
92In determining the outcome of parenting matters, I must, pursuant to s 60CA of the Act, consider the best interests of the child as the paramount consideration. In determining what is in the child’s best interests I must consider the matters set out in s 60CC of the Act. These proceedings commenced on or after 7 June 2012. Accordingly, s 60CC(2A) of the Act provides that in applying the primary considerations, I am to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The definitions of abuse and family violence have also been considerably widened.
93I now turn to a consideration of the relevant factors as required by the legislation.

PRIMARY CONSIDERATIONS:

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Child A’s exposure to family violence during the parties’ relationship:

94I am satisfied that during the parties’ relationship, the father subjected the mother to family violence, including as follows:
95 Firstly, I accept the mother’s evidence that in about September 2015 (when Child A was six weeks old), the father was drunk and took Child A (who was sleeping in his bassinet) from the parties’ bedroom into the spare room. When the mother went to retrieve Child A, the father repeatedly kicked her in the legs causing bruising severe enough that the mother felt it necessary to cancel a gynaecological appointment in order to hide her injuries. The father admitted under cross-examination to kicking the mother, but said he did so to get her nails out of him. The father then asked rhetorically: “where are the photos of the bruising?”, as if to suggest that his kicks caused no harm. For her part, the mother denied the father’s allegation that she stuck her nails in him.
96I do not accept the father’s evidence that he kicked the mother in self-defence, and prefer the mother’s evidence as to what transpired in September 2015. Although the mother deposed that, with the benefit of hindsight, she ought to have reported that incident to the police,[62] I bear in mind what the Full Court said in Amador & Amador [2009] FamCAFC 196, at [79]:
To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
[62] Mother’s trial affidavit filed 26 October 2018, [134].

97 Secondly, I accept the mother’s evidence that on 29 April 2016[63] the father had invited some friends over that night for drinks. The father became heavily intoxicated and was acting erratically. At some point that evening, Child A started crying, and the mother went to him. The father entered the room where the mother and Child A were, and punched the mother in the side of the head, which in turn caused the mother’s head to hit the wall. The mother was wearing glasses, and her ear was injured as a result of the punch. The mother then left the room, while the father was screaming at her.
[63] By viva voce evidence, during her examination in chief.
98The police were called in the early hours of 30 April 2016, and issued the father with an order to stay away from the home for a short period of time. The father refused to leave, and the police handcuffed him and removed him forcibly from the home. Under cross‑examination by the ICL, the father explained that he refused to leave the house because the police were there without his authority on false allegations. Although the father conceded that the events of that night did not set a good example for Child A on how to deal with authority figures, the father nevertheless maintained that he was a good role model for Child A, and that the specific incident occurred when Child A was eight months old.
99The ICL asked the father if incidents of a similar nature would continue to occur, and pointed to the incident in December 2019 in respect of the father’s (former) partner Ms B. The father responded that it was “two incidents” in “37 years” and that “we are all fallible”, and that the events recorded in the police incident reports concerning him have “nothing” to do with him being a “good father”. In re‑examination, the father was asked whether he had ever physically abused the mother. The father said that he had, but that it was in self‑defence and that he had not perpetrated family violence. I am satisfied that the father has little or no insight into his violent behaviour.
100Whilst Child A was exposed to the incidents that occurred in September 2015 and on 29 / 30 April 2016, there was no evidence to suggest that Child A retains any memory of the events or that he has suffering any lasting psychological harm therefrom.

Other incidents of family violence perpetrated by the father against the mother:

101I accept the mother’s evidence (under cross-examination by the ICL) that the father also perpetrated physical family violence against her by: (1) on one occasion putting her in a chokehold up against the wall in the kitchen; and (2) pouring water over her when she was in bed. I also accept the mother’s evidence that her experience of family violence at the hands of the father was often in the context of the father drinking alcohol to intoxication.
102I accept the mother’s unchallenged evidence that during the relationship the father isolated her from family and friends.[64]

The father’s allegations against the mother:

[64] Mother’s trial affidavit filed 26 October 2018, [135].

103I am not satisfied that the mother subjected the father and/or members of his family to family violence during their relationship, including but not limited to: (1) subjecting the paternal grandmother to foul language on Christmas Day 2012; (2) sending the extended paternal family members inappropriate and/or abusive emails and text messages; (3) denigrating the extended paternal family and their friends on social media; and (4) subjecting him and “cousin [Mr I]” to family violence in January 2015.

Other allegations in relation to father’s misuse of alcohol and illicit substances and lifestyle choices:

104Prior to trial, the ICL requested the father to undertake a hair strand test for illicit drugs and alcohol. The father refused. Under cross‑examination by the ICL, the father’s evidence was that: (1) he refused to do the test because it cost $750 and he had already submitted to drug testing during the proceedings;[65] (2) he would still refuse to do the test if asked, and even if someone else paid for it; (3) he found the request that he undergo drug testing “offensive to [his] personality”, and that “two incidents in the last 14 months”[66] don’t paint him to be an “alcoholic drug addict”; and (4) he would not take the test as a matter of principle, and he was not worried about the level of alcohol the test would show.
[65] The father’s oral evidence in examination and chief was that he last did a hair strand test in 2017, which he said he “passed”.
[66] The father was referring to: (1) the incident in December 2019 involving his then partner, Ms B, which required police attendance and intervention; and (2) the father’s DUI charge in July 2020 – the father’s evidence was that his Blood Alcohol Content was nearly two times over the legal limit.
105In light of the father’s refusal to undergo hair strand testing, I am satisfied on the balance of probabilities that the most likely explanation for such refusal is that such test would reveal that the father has consumed alcohol to excess in recent months. In drawing that inference, I have also had regard to: (1) Dr G’s evidence that the father’s 2018 PAI testing revealed that alcohol and drug scales were elevated, indicating they may have been a problem in his life; (2) the mother’s evidence of the father consuming alcohol to excess during their relationship; (3) the father’s evidence under cross-examination by the ICL that he drinks socially and that the “big parties” happen once per month or six weeks; and (4) that in more recent times, the father has been involved in two alcohol-related incidents involving the police: in December 2019 (the violent incident involving his former partner Ms B), and July 2020 (the father’s DUI charge).
106I consider that the father’s relationship with alcohol poses a risk to Child A because: (1) there is a correlation between the father’s use of alcohol and his perpetration of family violence against intimate partners, to which Child A may be exposed if he was to spend time with the father; and (2) there is no evidence that the father has taken any steps to address his problematic relationship with alcohol.
107Although the mother raised a number of other concerns that the father may pose a risk of harm to Child A due to his alleged lifestyle choices generally (including driving whilst his licence was suspended), I am not persuaded to the requisite standard that this is the case.

Psychological harm to Child A from ongoing conflict between the parties since separation:

108I am satisfied that since the parties’ separation in 2016, the conflict between the parties has been unrelenting. I am also satisfied that the mother is fearful of, and intimidated by, the father and copes, amongst other things, by rigidly following the court orders.
109I accept Dr G’s evidence that the single biggest threat to Child A’s wellbeing is the conflict between the parties. I am satisfied that Child A already exhibited some degree of negative influence, for example: telling Dr G “because mum lies to dad” as an explanation for things. Dr G noted that Child A was unable to say what the lies were, just that the father says that the mother tells lies. I also accept Dr G’s evidence that this type of behaviour on the father’s part is “psychologically destructive”, and if the Court accepts the mother’s evidence of other negative behaviour by the father designed to influence Child A, (which I do accept), then it is suggestive of a significant amount of psychological pressure being placed on Child A.

110Examples of the various aspects of the ongoing conflict between the parties since separation include the following:
111 Firstly, I am satisfied that the father has periodically subjected the mother to further instances of family violence since separation, including:
a)Coercing the mother into withdrawing the VRO proceedings in about August 2016.
b)Screaming and yelling abuse at the mother during some handovers that were conducted at the parties’ respective homes; and speaking aggressively to the mother at some handovers that occurred at police stations. These instances have often occurred in Child A’s presence and/or hearing.
c)Driving his car towards the mother’s car in an unsafe manner at some handovers conducted at the parties’ respective homes and at the Safe Balance agency. These instances have also often occurred in Child A’s presence and/or hearing.
d)Continually bullying, threatening, belittling and baiting the mother in his written communications with her;[67] and
e)Making threats to the mother, including to “send the boys around” to Mr A’s home.
[67] I observe that in his oral evidence in chief, the father acknowledged that some of his reactions to the mother were “punitive”, but justified his response on the basis that he was frustrated.

112 Secondly, I am satisfied that not only does the father use his written communications with the mother as a means to bully, threaten, belittle and bait her, but his “attempts” to confer with the mother regarding Child A are simply not genuine. This is because I am satisfied that the father has no interest in genuinely conferring with the mother, but rather (1) tells the mother what he wants and is not interested in her views or opinions; and (2) regularly gives his consent, but only subject to significant conditions, and then withdraws his consent if he cannot get his own way.
113The parties’ written communications which are annexed to their trial affidavits are replete with examples of the father’s bullying, threatening, belittling and baiting communication style, as well as his lack of preparedness to genuinely confer with the mother about parenting issues concerning Child A. This includes:
a)The communications in September 2018, regarding arrangements for the Christmas holidays;[68]
b)The communications in December 2018, regarding handovers;[69]
c)The communications in March 2019, regarding Child A’s possible enrolment at [School B];[70]
d)The communications in April 2019, regarding Child A’s swimming lessons;[71]
e)The communications in April 2019, regarding the father’s proposals to spend time with Child A that month;[72]
f)The communications regarding the father’s failure to return Child A to the mother in accordance with the court orders in April 2019;[73]
g)The communications in May 2019, regarding the mother’s proposal to take Child A to Bali for a holiday;[74]and
h)The communications in March 2020, regarding the COVID-19 pandemic and Child A’s continued attendance at school.[75]
[68] Mother’s updating trial affidavit filed 1 April 2020, annexure N.
[69] Mother’s updating trial affidavit filed 1 April 2020, annexure O.
[70] Mother’s updating trial affidavit filed 1 April 2020, annexure I.
[71] Mother’s updating trial affidavit filed 1 April 2020, annexure L.
[72] Mother’s updating trial affidavit filed 1 April 2020, annexure Q.
[73] Mother’s updating trial affidavit filed 1 April 2020, annexures R and S.
[74] Mother’s updating trial affidavit filed 1 April 2020, annexure P.
[75] Mother’s updating trial affidavit filed 1 April 2020, annexure X.

114 Thirdly, I am satisfied that the father has no compunction about ignoring court orders, if they get in the way of his wants and needs. During the trial, the father maintained that such breaches were only “technical breaches”, because he did not consider the orders were in Child A’s best interests. I agree with Dr G that the father’s behaviour in ignoring court orders was of fundamental concern. Under cross‑examination by the mother’s counsel, the father was asked repeatedly whether he would abide by the Court’s orders. Rather than answering that question directly, the father went off on tangents and gave evidence that: (1) he would appeal if he was not happy with the orders; (2) he would file contravention applications against the mother if she did not follow the orders; (3) he wasn’t saying that he wouldn’t follow the orders; and (4) if the orders are different to what the ICL proposed leading into trial but nevertheless similar, then he would accept them.
115Some examples of the father ignoring court orders include:
a)In February 2017, the father refused to return Child A to the mother unless she arranged for her boyfriend to also be present at the handover.
b)On Mother’s Day 2017, the father refused to attend the handover venue specified in the court orders, and instead insisted that the mother attend at his home, where he was hosting a party. The father justified his failure to comply with the orders under cross‑examination by maintaining that the mother insisted it had to be “her way” and so she missed out. In reality, it was Child A who missed out on seeing the mother on Mother’s Day.
c)On 14 April 2019 and again on 25 April 2019, the father refused to return Child A to the mother’s care, necessitating her to make urgent recovery order applications to the court.

116In closing, the father’s counsel submitted that the father would have greater deference for final parenting orders. Ultimately, if the father has not been able to comply with interim parenting orders whilst under the spotlight of family law proceedings, I have no confidence that he will comply with final orders once the proceedings are finalised.
117 Fourthly, I am satisfied that the father weaponized the concepts of “co-parenting” and “equal shared parental responsibility” to a level that I have rarely ever seen in Family Court matters, and that he insists that the mother obtain his consent to matters concerning Child A as a means of controlling the mother’s life. The prime example of this was the father’s view that the mother needed his prior consent to even undertake her own private research about future educational opportunities for Child A, including the mother needing his consent before she could attend a seminar about educational options for gifted and talented children. The father was also clear in cross-examination that he would use further court proceedings, including filing contravention applications, if the mother did not follow the orders. I am satisfied that if I make final parenting orders that provide for an ongoing interface between the parties, including Child A spending time with the father, then there is a real risk that the father will use future court proceedings as a means to harass and control the mother.
118 Fifthly, I am satisfied that the father has consistently denigrated the mother and Mr A to Child A. In particular, I accept the mother’s evidence that Child A told her on various occasions that the father had made comments to him (some of which, at handovers, were loud enough for the mother to also hear). Examples include the father:
a)Making loud sarcastic comments to Child A (which the mother could also hear) about her at handovers at the police stations;
b)On one occasion at a handover at a police station, telling Child A to call her “Captain Arsehole”;
c)Telling Child A that his mother lies,[76] is poor and is a gold digger;
d)Telling Child A that Mr A is a loser, a douche bag, is scared of the father, doesn’t have a backbone and is a five year old girl.
[76] I observe that during the father’s cross-examination by the ICL, the father readily acknowledged that he had told Child A that “mum lies to dad”.

119 Sixthly, I am satisfied that the father has also attempted to involve Child A in disputes between the parties. In particular, I accept the mother’s evidence that Child A has told her the father has made various comments to him, including:
a)“My daddy doesn’t want me to spend time with you mummy. He wants me to spend all the time with him, forever.”;
b)“Mummy I need to tell you something. Daddy gives me everything and you give me nothing. Isn’t that hilarious?”;
c)“Mummy it would be fun if daddy could drop me to your house, it’s not very fun going to the police station and it would be more fun if daddy could drop me to your house.”; and
d)“It’s ridiculous going to the police station, Mummy … My daddy says it”.

120I also accept Mr A’s evidence that on one occasion after Child A returned from spending time with the father, Child A handed Mr A a bundle of the father’s business cards, saying: “my dad told me to give you this and you’re too scared to meet my dad”.
121I accept Dr G’s evidence that the level of animosity and the type of animosity between the parties will bear badly for Child A as he gets older, until ultimately he will be forced to take sides and will totally align with one parent against the other. I also accept Dr G’s evidence that the history of the parties’ behaviour in this case did not bode well for the future. Dr G did not see any evidence of the situation getting better and nor do I.
122Not only Dr G, but also the parties and the ICL were unable to suggest any arrangements that would enable the father to continue to spend time with Child A and protect Child A from exposure to the parties’ conflict. Nor can I. Given the father’s longstanding behavioural patterns to date, I consider that in the future, it is highly likely that the father will: (1) continue to use any avenue for communications with the mother as a way of continuing to perpetrate family violence on her; (2) continue to ignore court orders, including for handover arrangements, if it suits him to do so; (3) use further court proceedings as a means of attempting to control the mother; and (4) continue to denigrate the mother and Mr A to Child A.
123I agree with Dr G that ordering no contact is a very serious step. Nevertheless, I also agree with Dr G that the balancing act is in choosing the path that would cause the least amount of damage, and that in this case, it would be less damaging for Child A if the decision to remove a parent from his life was made now, rather than Child A needing to decide that for himself at a later point in time.

The benefit to the child of having a meaningful relationship with both of the child’s parents.

124The Full Court in McCall & Clark approved of the decision of Brown J in Mazorski & Albright, wherein she concluded that “a meaningful relationship…is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.”[77] However, what the legislation aspires to promote is a meaningful relationship, not an optimal one.[78]
[77] McCall & Clark (2009) FLC 93-405, [115]; Mazorski & Albright (2007) 37 Fam LR 518, [26].
[78] Godfrey & Sanders (2007) 208 FLR 287, [36]; Moose & Moose (2008) FLC 93-375, [70].
125The Full Court in McCall & Clark went on to conclude that the preferred interpretation of s 60CC(2)(a) is that the court should consider and weigh the evidence at the date of hearing and determine, how, if it is in the child’s best interests, orders can be framed to ensure that child has a meaningful relationship with both parents (the prospective approach).[79] The Full Court concluded that the court is required to focus on the benefit to the child of having a significant relationship with both parents, rather than focussing on attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
[79] McCall & Clark (2009) FLC 93-405, [119] - [122].
126I am satisfied that Child A has a very close and loving relationship with the mother and that there is a positive benefit to Child A in having and maintaining a meaningful relationship with his mother.
127I am also satisfied that up until July 2020, Child A also had a very close and loving relationship with the father. Child A has not had any contact with the father since this time. I accept Dr G’s evidence that the relationship between Child A and the father would have weakened since contact ceased in July 2020, but that it was in the early stages of having an impact. They would be able to quickly re-establish their relationship if time were to recommence. If, however, the period of no‑contact became prolonged (and Dr G put it in terms of two or more years), then the impact would grow.
128If I was able to craft orders that would effectively facilitate a relationship between Child A and the father, without also placing Child A at an unacceptable risk of ongoing significant psychological harm from exposure to the conflict between his parents, then I consider that there may be a positive benefit to Child A in having and maintaining a meaningful relationship with the father. Unfortunately, having regard to my findings in these reasons, I am not satisfied that it is possible to craft such orders, particularly having regard to the father’s long established pattern of simply ignoring court orders that he does not agree with.

ADDITIONAL CONSIDERATIONS:

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 child’s views.

129Child A was only five years old at the time of the trial. I am satisfied that Child A is too young to express a mature, considered view regarding his future parenting arrangements.

The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).

130I have already considered this factor insofar as the parents are concerned in my assessment of the primary considerations.
131I am satisfied that Child A enjoyed good relationships with his extended paternal family members up until July 2020, particularly with his paternal grandparents. I am also satisfied that Child A enjoys good relationships with his extended maternal family members, including his maternal grandmother and Mr A, together with some other members of the extended paternal family who have remained friendly with the mother and who still have occasional contact with her and Child A.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child.

132I am satisfied that the mother has taken every opportunity to participate in making decisions about major long-term issues concerning Child A, and to spend time with and communicate with the child. The same cannot be said of the father. For example: (1) the father chose to cease subscribing to the 2houses app in April 2020 and then failed to re‑establish communications with the mother via this means when she re‑activated the account; (2) the father chose to cease spending time with Child A in July 2020; and (3) the father chose not to constructively respond to the mother’s solicitor’s correspondence in late 2020 in relation to Child A’s school enrolment for the 2021 academic year. This was despite the father conceding at the commencement of the trial that Child A should attend the school proposed by the mother, meaning that Child A needlessly missed out on commencing at his new school at the start of the academic year.
133I am satisfied that the parties simply cannot co-parent Child A, particularly given the nature of their parental relationship and communication difficulties with each other.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

134As at the time of the trial, the mother not only fully financially supported Child A, but she also paid child support to the father of approximately $85 per month. This was notwithstanding that: (1) the father ceased spending any time with Child A in July 2020; and (2) the father commenced full-time employment in December 2020 as a contractor (but had not yet told the Child Support Agency).[80] I accept the mother’s evidence that after July 2020, she did not tell the Child Support Agency that the father had ceased spending time with Child A, due to her fear of the father’s likely reaction.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living.

[80] The father conceded in cross-examination that although he commenced work in December 2020, under the terms of his contract, he was not due to receive his first payment until the Friday after the trial was scheduled to conclude.

135The orders proposed by the father will mean that he and the mother would have equal shared parental responsibility for Child A, and Child A would resume spending time with him; and the unrelenting conflict between the parties will continue. On the other hand, the orders proposed by the mother will mean a continuation of the arrangements that have effectively been in place since July 2020: that is, Child A will continue to live with her and have no contact with the father. I accept Dr G’s evidence that a no-contact arrangement means that Child A would miss out on what his father has to offer, including the father’s interactivity and his skill with physical things. However, I also accept Dr G’s evidence that: (1) while ordering no contact was a very serious step, in this case the balancing act was between choosing the path that would cause the least amount of damage to Child A; and (2) it would be less damaging for Child A if the decision to remove a parent from his life was made now, rather than Child A needing to decide that for himself at a later point in time.

The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

136The parties and the ICL did not identify any relevant factors under this consideration. I am not satisfied that there are any significant practical difficulties and expense of Child A spending time with and communicating with his parents.

The capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs.

137I am satisfied that the mother has demonstrated, to a very high degree, her competence and capacity to provide for Child A’s needs, including his emotional and intellectual needs. On the other hand, whilst I am satisfied that the father has demonstrated a basic capacity to provide for Child A’s physical needs, I am not satisfied that he is able to meet the child’s emotional and intellectual needs, particularly having regard to: (1) the father’s decision to cease contact with Child A in July 2020; and (2) the father’s lack of insight into his part in the ongoing conflict between the parties, and the detrimental impact such conflict has had on Child A, including Child A showing the signs of negative influence.
138The mother conceded under cross-examination that there were times when she did not know how to respond to Child A, for example when he said things like “Daddy’s not good to you”. In a similar vein, the mother was rather blunt in describing that, in future, she will tell Child A that his father “wasn’t very nice” when he is of an age to inquire as to why he is not spending time with the father. The mother also informed the Court that, since separation, she has not obtained counselling for the purpose of, among other things, learning to properly protect Child A from the conflict between the parties. In light of some of the important discussions that the mother will need to have with Child A about the outcome of these proceedings as he grows older, some type of counselling to assist the mother to know how to properly respond to Child A would, in my view, be worthwhile.

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.

139In recent months, Child A has been identified as being academically advanced for his age.

If the child is an Aboriginal or Torres Strait Islander the child’s right to enjoy his culture and the likely impact of any proposed parenting order will have on that right.

140Child A is not Aboriginal or a Torres Strait Islander.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents.

141Despite the mother’s understandable rigidity about compliance with court orders and lack of flexibility in changing those arrangements, I am satisfied that she has generally demonstrated a positive, child‑focussed attitude to Child A and to the responsibilities of parenthood. On the other hand, whilst I have no doubt that the father loves Child A very dearly, the father lacks insight into his own role in the ongoing conflict between the parties. Although the father regards himself as the sole arbiter of what is in Child A’s best interests, he regularly makes decisions based on his own wants and needs, rather than what is in Child A’s best interests.

Any family violence involving the child or a member of the child’s family.

142In relation to family violence as between the parties, I have already dealt with this consideration in my assessment of the primary considerations.
143I am satisfied that the incident between the father and Ms B in December 2019 that required police attendance is yet another example of the father’s problematic relationship with alcohol, and his inappropriate and aggressive behaviour while intoxicated.

Any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person.

144In June 2019, the parties entered into the FCAO for the protection of the mother against the father. The father entered into the FCAO on a without admission basis. At the time of the trial, the father had been charged with three counts of breaching the FCAO and was due to proceed to trial in March 2021.

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.

145Given the long-standing conflict between the parties since separation, I am satisfied that if orders are made in the terms sought by the father, then further court proceedings are highly likely. On the other hand, the orders proposed by the mother are less likely to lead to the institution of further proceedings in relation to Child A.
146The father’s counsel submitted in closing that an order that Child A spend no time with the father carried with it the risk that the paternal grandparents may commence proceedings to spend time with Child A. The paternal grandparents did not give evidence to that effect, and the submission was therefore merely speculative.

Any other fact or circumstance the court thinks is relevant.

147There are no other matters that I consider relevant.

CONCLUSIONS IN RELATION TO PARENTING ISSUES:

148The father seeks an order that the parties have equal shared parental responsibility for Child A. On the other hand, the mother and the ICL seek that the mother have sole parental responsibility for Child A. In this case, I am satisfied that the presumption does not apply as there are reasonable grounds to believe that the father has engaged in family violence against the mother. Even if that were not the case, I am satisfied it would not be in Child A’s best interests for his parents to have equal shared parental responsibility. This is because I am satisfied that the parties are unable to consult with each other about parenting issues as they arise and make a genuine effort to come to a joint decision about such issues, given the nature of their parenting relationship and communication issues.
149Having regard to my findings in these reasons, particularly those at [94] to [123] inclusive and [126] to [147] inclusive, I consider that it is in Child A’s best interests that orders be made for the mother to have sole parental responsibility and for Child A and the child continue to live with her. I also consider it to be in Child A’s best interests that he have no contact with the father, including not only “in person” contact, but also via written or electronic communications. Subject to the parties having liberty to make further submissions as to the format of the orders, I propose that the father be the subject of an injunction restraining him from having or attempting to have contact with Child A. I am also satisfied that the further orders sought by the ICL are appropriate, that is: (a) that there should be an injunction restraining the father from removing Child A from the mother’s care or his school; (b) the mother should be permitted to travel with Child A without the father’s consent; and (c) there should otherwise be no communication between the parties. Finally, subject to the parties having liberty to make further submissions, I am satisfied that the mother should also have permission to provide a copy of the court orders to any educational facility that Child A attends.

ORDERS:

150I propose to issue these reasons from chambers in order to give the parties an opportunity to consider them and my proposed orders. I propose to make the following orders:
1.All previous parenting orders in relation to the child [CHILD A] born [in 2015] (“the child”) be discharged.
2.The applicant [MS BELL] (“the mother”) have sole parental responsibility for the child.
3.The child live with the mother.
4.The child spend no time with [MR CREST] (“the father”).
5.The father be restrained by injunction and an injunction is hereby granted restraining the father from:
a)Removing or attempting to remove the child from the care and control of the mother and/or any educational facility attended by the child;
b)Contacting or attempting to contact the child, including in person or via electronic and/or written communications; and
c)Communicating or attempting to communicate with the mother.

6.The mother have liberty to remove the child from the Commonwealth of Australia for the purposes of holidays from time to time and to that end:
a)The necessity for the consent of the father to the issue of a passport to the child, or to the travel itself, be dispensed with; and
b)Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the child to enable him to leave the Commonwealth of Australia for the purpose of holidays.

7.The mother have liberty to provide a copy of these orders to any educational facility attended by the child.
8.The matter be removed from the Judge’s Defended List.
9.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
10.In relation to material tendered as an exhibit into evidence in these proceedings:
a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits;
c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

11.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 9 and 10 above do not apply.
12.All outstanding proceedings be and are hereby dismissed.

This version of the judgment has been amended in places to correct minor spelling, grammar and formatting errors, without affecting the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate
30 JUNE 2021