Bell and White
[2014] FamCA 258
FAMILY COURT OF AUSTRALIA
| BELL & WHITE | [2014] FamCA 258 |
| FAMILY LAW – CHILDREN – With whom the child lives – where the mother seeks that the child live with her – where the child has consistently expressed a strong view to live with the father – where the child says he wants to spend no time with the mother – where the child has previously absconded whilst in the mother’s care to return to the father – where the father did not participate in the proceedings beyond the first day of hearing – no orders made for the mother to spend time with the child – child to spend time with the mother in accordance with his wishes – parental responsibility considered – order made that the father have sole parental responsibility. |
Family Law Act 1975 (Cth)
| APPLICANT: | Ms Bell |
| RESPONDENT: | Mr White |
| INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
| FILE NUMBER: | MLC | 4841 | of | 2008 |
| DATE DELIVERED: | 17 April 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 28 – 30 January 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tesoriero In person |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service Victoria N/A |
| COUNSEL FOR THE RESPONDENT: | In person 28 January 2014 No appearance 29 & 30 January 2014 |
| SOLICITOR FOR THE RESPONDENT: | N/A |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Jenkinson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
Orders
IT IS ORDERED THAT
All previous parenting orders in relation to the child B born … 2001 be discharged.
The father have sole parental responsibility for the child.
The father shall advise the mother of any decision in respect of any major long-term issues he makes with respect to the care, welfare and development of the child as soon as practicable after making that decision.
The child live with the father.
The child spend time with the mother in accordance with his wishes.
The Independent Children’s Lawyer be authorised to make arrangements with C School or such other school as the child may attend for the child to attend such counselling as may be available and provided by the school and the father shall facilitate the child’s attendance at such counselling as may be recommended by the counsellor from time to time.
It is requested that as soon as practicable the Independent Children’s Lawyer and/or the Family Consultant or her nominee in Child Dispute Services in this Registry meet with the child and explain to him the effect of the orders made this day.
Subject to paragraphs 6 and 7 hereof, the order for the appointment of the Independent Children’s Lawyer be otherwise discharged.
All extant applications be otherwise dismissed and the matter removed from the list of pending cases.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bell & White has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4841 of 2008
| Ms Bell |
Applicant
And
| Mr White |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
B, who is now 12 years of age, has had a complicated life characterised by disruption in his relationships with each of his parents, the entrenched conflict between his parents, and the continuation of this litigation which has been on foot since 2007, first in what was the then Federal Magistrates Court and now in this Court.
B was reported by the family consultant, Ms D, to have said that he is “tired of talking to people about the same things”. This was also the view expressed by the father when he indicated at the conclusion of the first day of the hearing that he would not be appearing the following day or taking any further part in the proceedings.
Ms D said of the parties during cross-examination that it was “their own unresolved issues in their relationship as well as their entrenched conflict [that] takes precedence over their ability or willingness to focus on the child’s needs”.
Although I would have been assisted by the father’s participation in these proceedings for the purposes of my assessment of the serious allegations made against him by the mother, it was the mother’s relentless pursuit of what she described as “the right decision”, given the history of the matter and in the face of the child consistently indicating since late-2011 that he wants to live with his father, that was the most significant feature of the case. However I am also satisfied that, although the father may have found the ongoing conflict with the mother and the protracted litigation difficult, his decision to not participate further in the proceedings was almost certainly driven by his own needs rather than concern for the child.
The decision I must make, as is often the case, is between competing proposals which each have their limitations. Bearing that in mind, I must make the decision that is in the child’s best interests taking into account both the positive and negative aspects of the parties’ respective proposals.
Legal principles
The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) relating to children are set out in s 60B(1) of the Act as follows:
The objects of this Part are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2). They are that unless it would be contrary to the best interests of a child:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation
(s 60CC(4A)).The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives. The Act does not prescribe any particular order in which the various matters should be considered or ascribe any priority to a particular consideration.
The evidence
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The mother relied upon her affidavit filed 25 October 2013 and an outline of case document filed 23 January 2014. The mother said that the Women’s Legal Service Victoria had assisted her in the preparation of her affidavit and on 17 January 2014 a notice of address for service was filed naming the Legal Service as the mother’s contact address for the purposes of these proceedings. At the commencement of the hearing the mother was represented by Mr Tesoriero of counsel. The matter was twice stood down at Mr Tesoriero’s request to allow him to obtain further instructions from the mother. Just after midday on the first day of the hearing, however, I was advised by the mother that she wished to represent herself in the proceedings and I gave leave to Mr Tesoriero to withdraw.
The matter was first listed for hearing before me on the 2 October 2013. On that date, I ordered that the mother file and serve upon all other parties the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearing cannot be relied upon as evidence in chief) by 4.00 pm on 25 October 2013. I further ordered that by 4.00 pm on 15 November 2013 the father file and serve upon all other parties an amended response setting out with precision the orders he sought and his affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearing cannot be relied upon as evidence in chief).
The father filed a response to the proceedings initiated by the mother in what was then the Federal Magistrates Court of Australia on 1 March 2012. He did not file either an amended response or any affidavits of evidence in chief in this Court in accordance with my orders of 2 October 2013. The matter was listed for mention before me on 12 December 2013, however, on that date neither the father nor the mother appeared and no further orders were made with respect to the filing of affidavit material.
At the commencement of this hearing the father sought leave to rely upon his affidavit filed 1 March 2012. Neither the mother nor the Independent Children’s Lawyer objected to the father relying upon that affidavit and, accordingly, I gave him leave to do so.
As both the father and now the mother were representing themselves, I gave directions that counsel for the Independent Children’s Lawyer be the first to cross-examine the parties and the family consultant. As the father did not participate in the proceedings beyond the first day of the hearing, he did not cross-examine the mother nor did counsel for the Independent Children’s Lawyer and the mother have the opportunity to cross-examine the father.
Notwithstanding those limitations, I have read and considered all of the evidence of the parties. I have also read and considered the reports of the various family consultants and the other experts upon which the Independent Children’s Lawyer relied or which were put to the mother in cross-examination as follows:
·the family report prepared by Ms D dated 3 December 2013;
·the psychiatric assessments of the mother and father prepared by Prof E annexed to his affidavit filed 20 August 2012;
·the Department of Human Services reports prepared for Children’s Court proceedings dated 12 December 2011 and 14 January 2011; and
·the Confidential Court Report to the Family Law Court prepared by Ms F of the Department of Human Services dated 17 August 2012.
Ms D, in her report, referred to the memorandum prepared by Ms G dated 9 March 2012 and the earlier family report prepared by Ms H dated 22 June 2012. Both of these documents, as well as the transcript of evidence given by Ms G on 7 March 2012, were put to the mother in cross-examination.
Prof E was not required for cross-examination and his evidence is not the subject of any challenge.
Both the mother and the Independent Children’s Lawyer tendered documents which they obtained from Victoria Police and medical records produced pursuant to subpoenas issued by either the mother or the Independent Children’s Lawyer. It was my observation that much of the mother’s case was reconstructed from those subpoenaed documents.
I have had the significant benefit of hearing and observing the mother give her evidence. The mother presented somewhat unusually in the witness box. She was very dramatic and appeared from my observations of her evidence to be almost elated by the experience.
The mother appeared to be totally convinced of the truth of her version of events irrespective of any alternative explanation or contradictory evidence that was presented to her. My concern about her evidence was not that the mother was deliberately not telling the truth but that she was unable to conceive of or accept any other explanation or evidence that was not consistent with her own version of events or the way in which she put her case.
The mother sought to rely upon what she perceived to be irrefutable evidence which supported her case. That evidence was frequently based upon what appeared to be isolated incidents or incidents which the mother had taken out of context and did not support the conclusions she had drawn based upon that evidence. On some occasions the evidence upon which the mother relied actually contradicted the conclusions that she had drawn. Examples include, but are not limited to, the following:
·In her trial affidavit the mother deposed at paragraphs 55 and 56 as follows:
During this time I witnessed [the father] bully the child. I saw [the father] whack the child on the arm every time he walked past him, poke him in the stomach, and shove a dirty mop in his face. He verbally abused the child, calling him a “little shit”. He regularly speaks to the child in an aggressive and threatening manner.
[The father] is aggressive towards [B]. I attach … copies of Facebook messages between [the father] and the child. [The father] prides himself on being feared. I attach … copies of Facebook photos in which [the father] comments “swim or die”.
There are, amongst those annexed photographs, two photographs of the child in the water. Ms D reported that the mother said she had felt “worried and sick” when she found these pictures on Facebook and that she could detect the “fear and terror in his eyes”.
Firstly, and notwithstanding the father’s Facebook messages that accompany the photographs, it is impossible to form a concluded view as to what occurred and whether the child was in fact frightened in the absence of any other evidence that would put this incident in context or explain the circumstances in which the photographs were taken. Secondly, in any event it is not possible from the photographs alone or even from the father’s comments that accompany them to conclude that the child was in fact frightened; the photographs simply show the child swimming in water. Whilst the father’s comment “swim or die” might, as opined by Ms D, not be appropriate, as she observed “playful mucking around, throwing a child into water is not beyond the realms of playful, acceptable behaviour.” The photographs would not, in the absence of other evidence, lead to the conclusion the mother has drawn.
·The mother, in support of her assertion that the child is at risk because of the father’s alcohol abuse, sought to rely upon a photograph annexed to her affidavit that shows the father making a gesture that is commonly referred to as “the finger”. On the ground next him is an opened can of drink.
Even if, as asserted by the mother, the can does contain alcohol, it is not possible to conclude on the basis of that photograph alone that it was the father who was drinking it, the circumstances in which it was being consumed, the amount that had been consumed, and whether the consumption of that alcohol presented any risk to the child.
·In support of her allegations as to the father’s history of and propensity for violence, the mother relied upon what appeared to be a photograph of a bullet that the father purportedly posted on Facebook.
·Finally, the mother relied upon what she says was a video she took at the father’s home at approximately 11.00 pm on 16 December 2013. This was initially viewed on the mother’s phone. It was her case that this was evidence of the father being “drunk and out of it again” and the child being in danger. Whilst I do have some concerns about the child being awake and asking to watch television at 11.00 pm on what the mother asserted was a school night, this video recording does not support the mother’s case in relation to the father’s alleged alcohol abuse and is not particularly persuasive as evidence that the child is at risk in his father’s care.
The mother’s evidence about this incident also highlighted her almost singular focus on the dispute between the parties because, notwithstanding that she said this evidence supported her case that the child was at risk in the father’s care, she did not report the matter to the police, the Department of Human Services, the Independent Children’s Lawyer, or speak to either the father or the child about it. I am satisfied that she took the video for the sole purpose of gathering evidence for her case and not out of any immediate concern for the child’s welfare.
There were also a number of inconsistencies between the evidence contained in the mother’s earlier affidavits and her evidence filed for the purposes of the hearing before me. One such example was her evidence in relation to what is described as the Mother’s Day incident in 2012, where the child spent time with the mother in J Town and subsequently reported to Ms I that the mother had ‘abused the child physically and emotionally and held him against his will’ as a result of which the police attended.
In her affidavit filed 14 August 2012 the mother responding to the allegations made by the child to Ms I about the incident said at paragraph 19 as follows:
[B] had an enjoyable visit playing with my friend’s 13 year old son, however after a while their game became boisterous and I asked the child to mind his behaviour. At this very minor reprimand, the child became very angry and ran away from the property. My friend, her partner and I were looking for the child and shortly thereafter the Police arrived, advising that they had received a call from [the child]. [The child] only made himself visible when the Police had arrived. After speaking with me and my friend, [the] Police quickly determined that there was no cause for concern and in fact spoke to [the child] about the importance of obeying my instructions and behaving. Police breathalysed me because [the child] had reported that I had been drinking, however the results of the breathalyser confirmed my blood alcohol content was [zero] …
In her evidence before me, the mother said that the child had not run away from the property but was running around the back of the yard and also said that she had called the police and was informed by them that the child had also called 000.
The mother also had a tendency to focus on historical allegations and “cherry-picked” evidence from subpoenaed documents that she submitted supported her case. One example was the note in the father’s medical records in relation to him using the drug ICE. The only problem with this evidence was that the mother ignored the later reference, which was brought to my attention by both counsel for the Independent Children’s Lawyer and Ms D, to the father having told the doctor that he was no longer using ICE.
Whilst the mother’s evidence could not be described as balanced, in my view this says more about her perception of the evidence generally and her lack of insight into the child’s needs and her own behaviour and how that might impact upon the child than it did about the reality of the events or the history that is the subject of dispute.
Ms D was cross-examined by both the Independent Children’s Lawyer and the mother. Ms D’s evidence was both cogent and perceptive. I am satisfied on the basis of her evidence that she had considered the serious allegations in relation to the father’s capacity to care for the child, carefully weighing up all of the issues in the case for the purposes of making her recommendations. Ms D’s report and her evidence were of substantial assistance to me and I have placed significant weight upon that evidence.
Although, as has already been noted, the father did not give evidence I have read the affidavit upon which he sought to rely.
Background
For the purposes of these reasons, these statements of fact constitute findings of fact save and except where I have indicated to the contrary.
The father in this case is 40 years of age. The mother is 34 years of age. The father and the mother commenced living together in Country L in 2000 and were married in Australia in 2001. The parties lived separately and apart from the time the child was approximately 12 months old until he was five and a half, reconciling when the mother and the child returned to Australia from Country L where they had been living. The parties separated finally in about October 2007.
The mother alleged that after she and the father reconciled upon her return to Australia with the child, the father continued to use illicit drugs and prescription medication, regularly consumed alcohol to excess, was verbally abusive, and that he threatened to kill himself if she left him. She further alleged that the child was regularly exposed to the father’s inappropriate behaviour. The father concedes that following separation he spent time with the child on an inconsistent basis.
Final orders were made by O’Dwyer FM, as he then was, on 21 May 2009 which provided that the mother have sole parental responsibility for the child, that the child live with her and that he communicate with the father by letter. At this time, the father was incarcerated, having been convicted on charges of sexual penetration of a child under 16.
The father subsequently appealed against his conviction and there were a number of retrials which failed to produce a result. After the Office of Public Prosecutions decided not to pursue the matter further, due, as the father says, to a lack of credible evidence, the conviction was quashed and he was released from prison. A Nolle Prosequi was entered and all charges were expunged from the father’s record.
The father deposes that he and the mother reconciled for a short time after his release from prison and that, after they again separated, he commenced spending time with the child.
B was the subject of a number of notifications made to the Department of Human Services between 2001 and 2012.
In late 2010 the Department issued a protection application because of concerns for the child’s safety and wellbeing. The mother made allegations with respect to the father’s criminal charges, mental health and anger management issues and his misuse of alcohol. The father for his part alleged that the mother had physically abused and neglected the child. The Department as a result of its assessment concluded that the mother had been the child’s primary caregiver, that he had only had minimal contact with the father, and that disclosures made by the child about the mother did not indicate any significant or immediate risk to his safety in her care.
On 21 December 2010 that application was found to be proven on the grounds that the child was at risk of emotional abuse whilst in his father’s care and an Interim Accommodation Order was made in the Children’s Court at Melbourne which provided for the child to live with the mother and spend only supervised time with the father.
On 24 March 2011 that Interim Accommodation Order was varied to provide that the child spend time with the father each alternate weekend from after school on Friday until 4.00 pm on Sunday and in alternate weeks from the conclusion of school on Thursday until the commencement of school on Friday. The requirement that the child’s time with the father be supervised had been dispensed with in January 2011.
In late-2011 the child was described in the report prepared by the Department for the Children’s Court proceedings dated 12 December 2011 as having ‘[become] more and more adamant that he wanted to remain in his father’s care and on a number of occasions he ran away from school and from [the mother’s] care in order to go to his father’s house.’ This included an occasion when the father deposes he left the Children’s Court with the child notwithstanding orders to the contrary because he said the child was threatening to abscond and he was concerned that the child would place himself at risk in the event that he did so.
On 29 November 2011 the Department applied to breach the Interim Accommodation Order on the basis of the child’s refusal to return to the mother’s care, and the child was placed on an Interim Accommodation Order in the care of the father on the basis that he have contact with the mother three times a week.
On 23 February 2012 the Department withdrew its protection application indicating at that time that it did not have significant concerns about the child in the care of either of his parents.
On 10 September 2012 Connolly FM, as he then was, made orders that the child spend time with the mother each Sunday from 10.00 am until 5.00 pm except on the last Sunday of each month commencing on 16 September 2012. Pursuant to those orders the child’s time with the mother was to be supervised by Ms I upon Ms I providing an undertaking in the appropriate form to the court in relation to that supervision.
Although there is a significant dispute as to the exact times and, in particular, when the child last spent time with the mother, I am satisfied that the orders made by Connolly FM, as he then was, have not been implemented.
The father told Ms D, which was confirmed by the child, that the child had not spent any time with the mother since Mother’s Day 2012 following the incident, to which I have previously referred, that occurred on that date. This, however, is not consistent with the evidence of the recording of the child’s 000 call made on 15 June 2013 when he was in his mother’s care.
I am satisfied on the evidence before me that at least until June 2013 the child was spending some time, albeit not regular time, with the mother. This includes a period of approximately three weeks in January 2013 and a period spent at the father’s home of between, on the father’s evidence one night and on the mother’s evidence three nights, in May 2013. Given that the disagreement between the father and the mother appears to be how much time the mother has spent with the child rather than whether she has spent any time at all with him, I am of the view that the father’s insistence that the child had not spent time with the mother since May 2012, which the child confirms, was more likely to be a mistake rather than a deliberate attempt to mislead either Ms D or the Court.
The parties’ proposals
The mother proposes that she and the father have equal shared parental responsibility, that the child should live with her and that any time he spends with the father should be supervised albeit that she did not provide any details with respect to how that supervision might be arranged other than to refer generally to the availability of paid supervision. The mother did not make any proposal as to how either she or the father would meet the costs of that supervision.
The father at the opening of the proceedings proposed that he have sole parental responsibility for the child, that the child live with him and that the child spend time with the mother in accordance with his wishes.
The Independent Children’s Lawyer proposed at the commencement of the case that the parties have equal shared parental responsibility, that the child live with the father, that the mother spend time and communicate with the child as agreed between the parties but in consultation with the child, and that the Independent Children’s Lawyer be authorised to make arrangements through the child’s school for the child to attend regular counselling and that each of the parties comply with the recommendations made by that counsellor.
At the conclusion of the case the Independent Children’s Lawyer’s position had altered to the extent that counsel submitted that I should make no order for parental responsibility allowing both the mother and father to exercise parental responsibility for the child. Counsel also agreed that another possibility might be to make an order that the father have sole parental responsibility with exclusions in relation to specific issues that would require him to consult with the mother in relation to those issues albeit that she ultimately submitted that there would be practical difficulties in relation to that proposal. Counsel also submitted that I should make orders for the child to be brought to the Court to have the orders explained to him by either the Independent Children’s Lawyer and/or the family consultant, Ms D. The mother agreed that it would be appropriate for an independent person to explain the orders to the child.
Counsel for the Independent Children’s Lawyer further submitted I should not make orders for the child to spend specific time with the mother so as to give the child “some breathing space”.
The issues
In her report, the family consultant Ms D identified the following issues in this case:
·The parents have opposing applications for the child to live with them and spend time with the other parent.
·Alleged family violence perpetrated against the mother by the father and to which the child continues to be exposed. There [was an] intervention order in respect of the mother against the father which [expired] in March 2014.
·Alleged family violence perpetrated against the father by the mother; including threats to kill. These allegations are both historic and recent. There is a current Interim Intervention Order in respect of the father and the child against the mother, dated 24 October 2013.
·Allegations the mother has been physically, verbally and emotionally abusive to the child.
·Allegations the father actively seeks to alienate the child from his mother and is emotionally and psychologically abusive of the child in order to achieve this.
·Allegations the father consistently misuses illicit substances and prescribed medication and drinks alcohol to excess and this impacts on his capacity to [provide] effective parenting.
·Allegations the mother regularly drinks alcohol to excess when the child is in her care.
·Allegations the father’s mental health compromises his ability to provide adequate care for the child[.]
·The lack of an effective communication strategy between the parents focussing on the child and his needs. The impact on the child of the entrenched nature of the conflict between the parents.
·B’s expressed views and wishes.
The family consultant has accurately identified the issues that I must consider. It is convenient in this case to consider these issues in the context of the s 60CC considerations.
I will turn first to the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The Full Court in McCall & Clark (2009) FLC 93-405 having referred to a number of previous decisions and having analysed what it said were three possible interpretations of s 60CC(2)(a) said at paragraph 118 as follows:
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
The Full Court concluded at paragraphs 119 and 122 as follows:
[T]he preferred interpretation of benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
….
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
As a general proposition it is trite to say that a child will benefit from a meaningful relationship with each of his or her parents and there is some significance in the use of the word “meaningful” rather than “optimal”. However there are circumstances, based upon the best interests of the child the subject of the proceedings, when it cannot be said that it is possible for that child to have a meaningful relationship with each of his or her parents. This is, in my view, such a case, at least as matters currently stand between the child and his mother.
Ms D reported that she purposely did not ask the child direct questions about the father however she said that “in general conversation [the child] described what appears to be positive interaction between them.” Based upon her observations of the child and the father she said that “[t]heir interaction appeared to be light hearted; [the father] is clearly the parent and there was no blurring of roles or boundaries.” She also “noted that the child was compliant with all requests/directions from his father”. Ms D described the child as having had to learn to manage and maintain equilibrium in the face of his parents’ unrelenting conflict. Although Ms D said that the child “needs to be actively encouraged to spend time with his mother on a regular basis for short periods of time” she also said “that if there is not a nominated specified time it is unlikely to happen, and what concerns me is that [the child] would once again be in a position where he felt that he had to facilitate or negotiate spending time with his mother.” However Ms D also said, although it was with respect to the child’s expressed wish to live with the father, that the Court “also need[s] to be mindful of the child’s very strong views and I am particularly concerned about the child’s clearly expressed threats that he will continue to run away, that he wants to live with his father, and that he doesn’t wish to live with [the mother] at this stage.”
With respect to the child spending time with the mother, Ms D said as follows:
I think if [the child] was to experience that his views were considered and accorded sufficient weight and he no longer felt that he needed to “take sides” or choose or he no longer felt the pressure, I think the possibility of [the child] again considering spending time with his mother is quite high.
I am satisfied that the child currently does have a meaningful relationship with the father and that he is likely to benefit from the continuation of that relationship. The same cannot be said of the child’s relationship with the mother. Notwithstanding Ms D’s evidence that the child spend nominated and specified time with the mother to avoid the necessity of him having to negotiate with the mother, I am satisfied having regard to the history of this matter and Ms D’s evidence generally that it is not possible at this time to frame orders which would ensure that the child has a meaningful relationship with the mother or that it would be in the child’s best interests to do so.
I accept Ms D’s evidence that acknowledging the child’s wishes and removing the pressure on him to spend time with the mother contrary to his wishes might, with time, allow him to re-establish a relationship with the mother. I am also satisfied that to make an order for the child to spend time contrary to his wishes is likely to lead to further conflict and possibly further litigation, only adding to the pressure upon the child.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The father alleges that the mother has verbally, physically and emotionally abused the child. He also accuses the mother of drinking to excess when the child is in her care. Although there are references in the Department of Human Services reports to allegations in relation to the mother being alcohol affected and to the child having reported that he had been hit by his mother with the buckle of a belt, there are no recent allegations.
The mother, for her part, alleges that the father is verbally abusive and physically violent to both the child and herself. She also says that the father abuses illicit and prescription drugs and alcohol, which she deposes she has reported to the Department on a number of occasions and that the child is exposed to the father’s drug and alcohol abuse and is neglected.
Both the father and mother allege they are the victim of the other’s violent behaviour and I am satisfied that the child has almost certainly been exposed to family violence by either or both of his parents.
Whilst in assessing any current need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence, I cannot say that there is no risk and there are certainly some concerning aspects of the father’s behaviour, it is significant in my view that the Department determined when it concluded its lengthy involvement with the family that the child was ultimately not at risk in the care of either the father or the mother.
It is also, in my view, significant that no one at the child’s school has felt it necessary to report any concerns to the Department. To the contrary, the child’s school report suggests that he is making good progress.
Ms D also made what I consider to be the important point that the child, now 12 years of age, is resourceful and would be able to report any safety concerns that might arise in his father’s care and is well able to identify the appropriate person to whom he could report those concerns.
I turn now to consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
It is the mother’s case that the father has alienated the child from her and that the Court should not in those circumstances place any weight upon his wish to live with the father and not spend time with the mother.
This, however, does not accord with the evidence of Ms D. In her report, Ms D made the following observations:
·The child presented as a polite and well-mannered young person. He was quiet and reserved and was noted to be rather withdrawn in the court playroom whilst waiting to meet with the report writer.
·The child acknowledged that he is “tired of talking to people about the same things … it’s not like I’m going to change my mind or anything … I want to live with my dad … I am happy with him … I don’t want to live with my mum … I am not going to live with my mum… If the judge says I have to I will keep running away.
·The child has been interviewed a number of times throughout these proceedings. He has consistently indicated that he wishes to live with his father and although he has continued to spend time with his mother, albeit inconsistently, he is now clearly stating that he does not wish to spend time with or communicate with his mother and has described incidents which he alleged occurred and have contributed to his current position.
During her evidence Ms D also added that:
·she had no reason to believe that the child was not telling the truth;
·she did not believe that the child had been either “prepped” or coached by the father to say that he wanted to live with the father and did not want to see the mother;
·The child, notwithstanding his age and what he has been through, is able to “articulate his view and his feelings and to describe his experiences with each of his parents”; and
·The child is remarkably resilient and self-sufficient.
Ms D’s evidence was that if the child were ordered to live with the mother he would simply run away again and return to his father as he has done in the past. In her report she said the child told her that he had memorised the route from his mother’s home to his father’s home, memorising more of the route each time he made the journey, until he was able to make his own way back to the father’s home from the mother’s home. Ms D also noted that at least on one occasion the child had caught a bus from the mother’s home to at least part-way to the father’s home, after having researched the bus route. It was her evidence that the child’s actions were planned and considered and not simply a knee-jerk reaction.
It was Ms D’s opinion that the child had consistently expressed a clear wish to live with the father and for that matter not spend any time with the mother and that he was unlikely to alter those views in light of any orders being made to the contrary.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
I have already discussed various aspects of the child’s relationship with both of his parents. It is the mother’s case that the breakdown of her relationship with the child is as a result of the father’s active attempts to alienate him from her. Although Ms D’s opinion was that the child’s presentation was consistent with some of the characteristics of an ‘alienated’ child, she also concluded that it was likely that it was the actions of both the father and the mother as well as the child’s own vulnerabilities that had undermined his relationships with both of his parents, albeit with different consequences, and not the actions of the father alone as submitted by the mother. Ms D also added that it was likely that the significant disruptions in the child’s relationship with his father at a critical stage of his development had also contributed to him now needing and seeking his father’s affection and approval.
Ms D concluded in her report that “[i]n the context of entrenched conflict and hostility between the parents, the child has appeared to struggle to work out how he can effectively maintain a relationship with each of his parents, without having to choose or prioritise one above the other.”
Ms D said further in her report as follows:
If the child remains living in his father’s care it is unlikely that [the father] will actively and effectively support his relationship with his mother or assist the child to repair this relationship. However it would appear that if Court Orders were made for the child to live primarily with his mother he will continue to abscond, potentially placing himself at risk. It is likely that the conflict and hostility between the parents will continue, if not escalate with each parent blaming the other for the child’s behaviour. This does not augur well for the child’s relationship with either of his parents.
I am not satisfied that the child’s attitude to the mother is, as she submits, a result of the father deliberately alienating him from her.
B’s relationships with others
The father deposed that the paternal grandmother lives in M Town and that he also has other relatives living in Victoria. On 1 March 2012, when the father swore his affidavit, it was his evidence that he had not had a lot of contact with his family but that he hoped to rectify that situation. There is no evidence before me from which I could draw any conclusions in relation to the child’s relationship with his extended family on his father’s side.
The mother has no family living in Australia.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Although Ms D said in her report that it was unlikely that the father would support the child’s relationship with the mother, she also said during cross- examination that if the child wanted to see the mother, the father would facilitate him doing so and that if the child wanted to live with the mother the father would accept his wishes.
This is consistent with the evidence in relation to the time the child has spent with the mother since the orders were made by Connolly FM, as he then was, in September 2012. Notwithstanding that those orders required supervision, the parties made their own arrangements including the child spending a significant period with the mother in January 2013. It is also clear from the mother’s evidence that the child visited her on his own initiative and that he was not prevented from doing so by the father.
B told Ms D that “since she tried to kidnap me I have not wanted to see her … I have tried and tried but things always go wrong.” the child stopped spending time with the mother after the incident which involved him calling 000 for assistance when he said the mother, rather than taking him home as she said she would, began driving in the opposite direction.
When the recording of the child’s 000 call was played in Court, the mother gave a somewhat long and convoluted explanation as to what had happened. At the heart of that explanation seemed to be her suggestion that the child was adamant that he wanted to go home as soon as possible because he wanted to use her partner’s credit card to order computer games online, albeit that it was her evidence that it was not until later that she found out that “he had run up a bill for three to four hundred dollars”, ignoring the fact that, as Ms D said, the child sounded scared. That was also my impression upon listening to the recording of the 000 call.
I am satisfied that it was this incident which was the final straw for the child and which led to the breakdown of his relationship with the mother. I am also satisfied that if the child had wanted to continue spending time with the mother after that incident that he would have done so and the father would not have prevented him.
Notwithstanding the evidence of what the child has told Ms D, the mother takes no responsibility for any part that she has played in the breakdown of her relationship with the child, steadfastly insisting that it is the father who is alienating the child from her. Again, I am satisfied that if the child wanted to see the mother that the father would facilitate him doing so and would not object to the child making his own arrangements, which I am satisfied he is perfectly capable of doing, to see the mother either after school or at some other time.
I do however have some reservations about the mother’s capacity to facilitate the child’s relationship with the father. In the Department report dated 14 January 2011 it was reported that the mother had been advised that ‘there was no evidence to indicate that supervision is necessary’ to which the mother was reported to have said words to the effect that she did not care what the writer’s assessment was and that “unsupervised access would not be occurring.” The mother was also reported to have said that the father’s time with the child should be supervised for the rest of the child’s life.
Although this report is historical, the mother’s views about the father do not appear to have changed since that time. During the course of the proceedings the mother struggled to even consider any positives in the child’s relationship with the father. When asked if she thought the father loved the child the answer was that he probably did, but she then qualified that by saying “in his own way”. The mother was unable to concede that the child might enjoy his time with the father and said that, to the contrary, the child was miserable. The mother could not identify any positive aspect of the father’s parenting of the child.
I am satisfied that it is most unlikely in all of the circumstances of this case and based upon the evidence before me that the mother would be able to present the father in a positive light to the child let alone support and encourage him having a relationship with the father if I were to determine that the child should live with her.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
B has been living with the father since late-2011. He has not spent any time with the mother since July 2013. Although the separation from his mother is most unfortunate, the child’s circumstances will not change in the event that I accede to the father’s application, which is supported by the Independent Children’s Lawyer, and make orders that the child continue to live with the father.
There would, however, be significant changes in the child’s life if I were to accede to the mother’s application. In my view, those changes would not be positive for the child. I am further satisfied that if orders were made that the child live with the mother he would be likely to again abscond and return to his father’s care. In all of the circumstances of this case I am satisfied that such an outcome would not be in the child’s best interests.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
As noted by Ms D, the father and the mother live within bike riding distance of each other’s homes. There should, in those circumstances, be no practical difficulty or expense likely to affect the child’s ability to maintain a relationship with both his parents.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother says that she, unlike the father, can provide a stable, safe and age-appropriate home environment for the child. Her evidence in relation to this issue was not the subject of any real challenge and I am satisfied that the mother has the capacity to provide for the child’s physical needs.
The mother’s description of the father’s home and his physical care of the child, if accurate, is concerning. Although the father did not take the opportunity to cross-examine the mother I have, as I have already discussed, my own reservations about her evidence generally.
Notwithstanding my reservations about the mother’s evidence generally I have had regard to the allegations she makes and how they would, if true, impact upon the child. They include allegations of drug and alcohol abuse, possession of illegal firearms, and mental illness.
However I have also taken into account the conclusion reached by the Department of Human Services that there was no risk to the child in the care of either parent, that there have been no recent reports to the Department, the child’s school reports, Ms D’s more recent observations as set out in her report and her evidence in relation to the child’s capacity to report any concerns that he might have and seek help. This includes the child’s ability to make 000 calls as he has done in the past and the fact that the child has attended his treating doctor unaccompanied by the father. Whilst the fact that the child did attend the doctor alone does give rise to concerns about why the father would not have accompanied him, it also suggests that if he needs help he is resourceful enough to seek and obtain it. In any event, the father’s capacity to provide physical care is only one of many matters that I must consider when determining the child’s best interests in this case.
Based upon the child’s school report, I am satisfied that the father has the capacity to provide for the child’s intellectual needs. There is no evidence to suggest that the mother would also not have the capacity to do so if the child were to live with her.
What is of more concern in this case is the capacity of the father and the mother to provide for the child’s emotional needs and their attitudes to the responsibilities of parenthood generally. Although I have not had the opportunity to observe the father in the witness box, the evidence of the various experts and the way in which he has conducted himself in relation to these proceedings gives me some insight into his attitudes to parenting. Both the evidence of the father and the mother and the way in which they have conducted themselves as parents and in relation to this case are consistent with Ms D’s assessment of the parties.
In her report Ms D made the following observations of the parties:
·By their own accounts, the parents have always had a conflictual relationship which has continued post separation. They have been unable to develop any effective communication strategy in relation to the child and his needs and their hostility and lack of trust in the other has intensified. Not only has the conflict between them been prioritised, overshadowing the child’s needs, the responsibility for maintaining a relationship with each of his parents and managing the conflict between them has fallen on his shoulders. Each parent continues to perceive the other to be solely responsible for the serious deterioration of the child’s relationship with his mother and each make a number of allegations about the other’s conduct which they perceive places the child at risk of harm in the other parent’s care. the child has consistently been exposed to his parents’ entrenched negative beliefs about the other.
·Given the dynamics in this matter appear to be consistent with what the empirical literature on the topic of alienation of children terms a ‘Hybrid’ case, [the mother] and [the father] will each need to take responsibility for their own contributing behaviour, acknowledge and validate the child’s experiences as well as his views and wishes and be committed to supporting his relationships with each parent.
·The parents have to date demonstrated no capacity to communicate effectively about the child and his needs. They have also demonstrated a lack of capacity to make decisions together and it would appear that it is unlikely that this will change, given the entrenched nature of hostility and lack of trust between them.
I cannot say with absolute certainty, having not had the opportunity to hear evidence from the father or observe him in the witness box that this is an accurate description of the father’s current position.
I am however satisfied that the mother’s views have not changed and that notwithstanding Ms D’s observations and recommendations the mother has not been prepared to accept the child’s wishes and has persisted with her application that he should live with her and not with the father. The mother has demonstrated little insight into the effect of such a decision on the child or how the outcome she seeks might be practically achieved and implemented given the strength of the child’s views and his demonstrated capacity to give effect to those wishes contrary to any orders the Court might make.
Of even greater concern than my reservations about the inconsistencies in the mother’s evidence about the incident on Mother’s Day 2012 is the mother’s behaviour during the observation session she had with the child and Ms I on 22 May 2012. Ms I reported as follows:
… the session quickly turned into [the mother] arguing with the child about how Mother’s Day went. They both argued that the other was lying and in no time, the child walked out of the session. If the child had not walked out then I was going to stop the session and separate the child from [the mother].
When initially cross-examined about this session the mother appeared to have no appreciation of the inappropriateness of her behaviour and how it might have impacted on the child. She said as follows:
Well I think … if he’s doing the wrong thing I think he should be told that he’s doing the wrong thing … To have my son sit facing me and OK, he wasn’t to blame … for saying the stuff that he did … but I couldn’t believe whenever he actually started to tell the story … I was actually shocked whenever he started to say all these things.
When asked how she thought the child felt about the incident, the mother replied:
I’m not 100 per cent sure. Do you think I should have sat there and agreed and … said that that was true what he was saying? ... I think it would have been a very awful, awkward situation for him because, one, he was made to lie about it … and I’m there and I’m asking him why he is telling lies.
Finally, when the Independent Children’s Lawyer queried whether engaging the child in a debate about who is lying made the situation worse, the mother said:
This was the family report, so in one way I could have made the situation worse but in another way … I didn’t understand why he lied about it … what was I supposed to do? … I thought it was better that [the child] tell the truth … I believe in the truth … Why should I … continue to let [the child] and me be manipulated by the father? Why should I let [the child] be able to run wild with lies?
Although in re-examination the mother did say that she may not have handled this incident well and that it might have been a mistake to say to the child that he was lying, the mother still did not really appear to understand or appreciate the significance of her behaviour or accept any responsibility either for this incident or generally in relation to the breakdown of her relationship with the child.
I am left with the very strong impression that the mother is focused on her conflict with the father rather than on the child’s needs. Although, as reported by Ms D, the father is also bound up in the dispute with the mother he at least would appear to have some limited capacity to reflect upon and put the child’s needs before his own and I am satisfied that if the child were to decide that he wanted to live with the mother that the father would allow him to do so.
(h)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;
B is 12 years of age. As previously discussed, he would appear out of necessity to have developed a level of resourcefulness beyond his years. Whilst this may be both a positive and a negative for the child it, in any event, adds significant force to his wishes in this case.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant issue in this case.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
In this case there is a history of competing allegations of family violence both during the relationship and post-separation including as recently as late-2013.
The parties have at various times obtained intervention orders against each other including orders in respect of the child. Most recently the mother obtained a final order against the father which expired on 1 March 2014 and the father obtained an interim order in favour of the child and himself with a contested hearing that was scheduled to take place in March 2014.
I am satisfied that the child has been exposed to family violence and I cannot rule out, particularly as it would appear that the mother often attends at the father’s home without his consent, that there will not be further incidents. However, on the basis that the child is not currently spending time with the mother there should be no need for the father and the mother to come into contact with each other on a regular basis or at all, which should reduce the potential for the child being exposed to further incidents of family violence or conflict.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Given the length of and history of this matter and in particular that the child himself has said that he is “tired of talking to people about the same things”, I am satisfied that it would be preferable to make orders that would be the least likely to lead to the institution of further proceedings. That being said, I cannot exclude the possibility given what I perceive to be the mother’s relentless pursuit of what she says are the child’s best interests that she will not bring a further application at some time in the future to either spend time with the child or to have him live with her.
I am however hopeful that if, as suggested by Ms D, the child’s wishes are acknowledged and I do not make orders that he either live with or spend time with the mother that he will feel somewhat less pressure as a result of his parents’ conflict and he may, in the future, be able to re-establish his relationship with the mother. I am also hopeful that the mother will reflect upon the recommendations contained in Ms D’s report however it is ultimately a matter for the mother whether she abides by the child’s wishes.
Section 60CC(4) and (4A) the extent to which the parents have fulfilled or failed to fulfil his or her responsibilities as a parent including with regard to events and circumstances since separation.
I have in the course of considering the principle and additional considerations in s 60CC(2) and (3) of the Act considered and discussed in detail the extent to which the father and mother have fulfilled or failed to fulfil their responsibilities as parents as identified in s 60CC(4). I have also taken into consideration events and circumstances since the father and the mother separated in or about October 2007.
Equal shared parental responsibility
The final orders made by O’Dwyer FM, as he then was, on 21 May 2009 provided, amongst other things, that the mother have sole parental responsibility for the child. That order has not been discharged. Notwithstanding that order, it appears that the father has by default been exercising sole parental responsibility since the child has been living with him.
The father’s case is that as the child lives with him he should have sole parental responsibility, and that is notwithstanding that in his response filed 1 March 2012 he sought orders for equal shared parental responsibility.
The mother’s case was that parental responsibility “should be joint decision-making”. I took that to mean, in accordance with her application, that she was seeking orders for equal shared parental responsibility.
It was submitted on behalf of the Independent Children’s Lawyer that this may be a case where it is appropriate that I make no order with respect to parental responsibility, the result being that the father and mother would each have parental responsibility for the child. It would be possible to discharge the order for sole parental responsibility for the child made by O’Dwyer FM as he then was returning the father and mother to the position they were in prior to that order. However I am not satisfied that this would be a practical resolution in this case particularly as pursuant to my orders the child will be living with the father and there will be no orders for him to spend time with the mother.
I am satisfied that as a result of the history of family violence in this matter that the presumption of equal shared parental responsibility does not apply. Even if that were not the case I am also satisfied that it would not be in the child’s best interests for the father and mother to have equal shared parental responsibility.
I have little confidence that even if I made the order for equal shared parental responsibility sought by the mother that the father would comply with that order. There are also significant practical difficulties with the order proposed by the Independent Children’s Lawyer in circumstances where there is to be no order for the mother to spend time with the child. Not only are the parties unlikely to be able to communicate effectively in relation to the decisions with respect to the child’s welfare, the mother is unlikely to have spent any time with the child based upon which she could form her views about what might or might not be in his best interests.
As observed by Ms D, the father and the mother in this case have not demonstrated any capacity to communicate with each other or to parent cooperatively and I am satisfied that any attempt to do so is likely to lead to further conflict which is not in the child’s best interests.
I propose to discharge the previous orders and make an order that the father have sole parental responsibility for the child and I am satisfied that it is in the child’s best interest to do so.
Conclusion
Whilst the child’s life in either the father or the mother’s care may not be perfect, I must weigh up all the evidence and make a decision as to what I consider to be in his best interests.
Having considered all of the evidence and taken into account all of the relevant considerations in s 60CC I am satisfied that it is in the child’s best interests that he continue to live with the father.
B’s wishes are long held and clear and I am satisfied that in all of the circumstances they should be given significant weight. When he has been ordered to live with the mother the child has refused to return to the mother’s care after spending time with the father and on occasions has absconded from the mother’s care making his way back to the father’s care. Although I have had regard to the allegations of the mother as to the risks associated with the child living with the father, I must balance those risks against what I consider to be the significant risks that the child would be exposed to in the event that I made orders that he live with the mother in circumstances where I am satisfied he would almost certainly run away. I do not share the mother’s confidence that once removed from the father’s care he would be relieved of the pressure placed upon him by the father and would not attempt to run away or that counselling would prevent him from doing so.
The mother made the fairly obvious point that neither party has complied with orders with respect to the child spending time with the mother. On the father’s part, he did not insist upon supervision and, for the mother’s part, she has taken no steps to enforce the orders with respect to the child spending time with her each alternate weekend. It was on this basis that the mother proposed that the time the child spends with her should be, in effect, subject to his wishes.
I am satisfied that to avoid the child feeling responsible for the ramifications of any refusal on his part to spend time with the mother pursuant to orders I might make and the possibility of further litigation to ensure compliance with such orders, I should not make orders that the child spend any time with the mother. This course of action leaves it open to the child to spend time with his mother as he chooses, and I propose to make an order that he spend time with the mother in accordance with his wishes.
I will, as proposed by the Independent Children’s Lawyer, make orders with respect to the child attending counselling and further order that my orders be explained to him by the Independent Children’s Lawyer and/or Ms D on a date as soon as practicable to be arranged by them with the father. I note that the mother agreed to the making of orders in those terms.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 17 April 2014.
Associate:
Date: 16 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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