BHATNAGAR & RIJU

[2018] FCCA 283

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHATNAGAR & RIJU [2018] FCCA 283

Catchwords:
FAMILY LAW – Children’s issues – dispute as to where the child shall live – where the mother seeks sole parental responsibility – where the father seeks equal shared parental responsibility – order for mother and father to have equal shared parental responsibility – order for child to live with father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DA(2), 81, 90MT(1)(a)

Applicant: MS BHATNAGAR

Respondent: MR RIJU

File Number: BRC 11481 of 2015

Judgment of: Judge Egan

Hearing dates: 24 and 25 January 2018

Date of Last Submission: 25 January 2018

Delivered at: Brisbane

Delivered on: 25 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Dodd

Solicitors for the Applicant: Lewis & Trovas Lawyers

Counsel for the Respondent: Mr Bunning

Solicitors for the Respondent: Barry Nilsson Lawyers

ORDERS

BY WAY OF FINAL CONSENT, THE COURT ORDERS:

1. That within 28 days of the date of these orders, the husband will pay to the wife $10,000.00.

2. That, should and only if the husband be unable to comply with Order 1, the property located at Property A, Queensland (described as Lot (omitted) Registered Plan (omitted) Title Reference (omitted)) (hereinafter referred to as the ‘Property A’) be listed for sale by private treaty within 60 days of the date of these Orders:

   (a)with an agent as agreed between the parties but failing agreement as nominated by the CEO of the Real Estate Institute of Queensland (REIQ) or their nominee;

   (b)at a list price as agreed between the parties but failing agreement at a list price as recommended by the appointed real estate agent; and

   (c)for an advertising campaign as agreed between the parties or as recommended by the appointed real estate agent; and

   (d)the parties will attend to signing all documents to give effect to a sale if an offer is made from a prospective purchaser where the purchase price as at or above 2.5 per cent below the list price.

3. That in the event of a contract for sale not being entered into pursuant to Order 2 within 90 days of the date the Property A is listed for sale, then the Property A will be auctioned forthwith with and the following shall apply:

   (a)the auctioneer to be as agreed between the parties but failing agreement as nominated by the CEO of Real Estate Institute of Queensland (REIQ) or their nominee; and

   (b)the reserve price as agreed between the parties not less than seven days prior to the auction but failing agreement at a list price as recommended by the appointed real estate agent referred to in Order 2 (a); and

   (c)in the event that the bidding does not reach the reserve price, the parties may sell the Property A to the highest bidder if it is agreed between the parties.

4. That should the Property A not be disposed of at auction, the Property A is to be re-listed for sale by private treaty for a further period of 30 days with a further auction to be held forthwith at the expiration of the 30 day period. This auction is to be conducted in the same manner as specified in Order 3 (a) and Order 3 (b) The process specified in this Order (Order 4) will be repeated until such time as the Property A is sold or until such time as the parties agree to one party buying out the other party’s share at a price to be agreed.

5. The parties shall cooperate in every way with the agent for sale including:

   (a)making the key available for the agent; and

   (b)allowing inspection of the Property A at all reasonable times requested by the agent; and

   (c)doing and saying nothing to hinder or prevent sale being effected; and

   (d)ensuring the Property A, including the grounds, are in neat and clean condition at the time of the inspection by the agent and prospective purchasers; and

   (e)signing all documents requested by the agent in relation to the listing for the sale of the Property A. 

6. Upon the Property A being sold, the gross proceeds of the sale (including any deposit) are to be applied in the following order and manner:

   (a)any commission and selling cost including but not limited to real estate commission, auctioneers’ fees and advertising fees incurred in relation to the sale of the Property A;

   (b)legal (conveyancing) costs incurred in relation to the sale of the Property A;

   (c)any adjustments under any Contract of Sale for rates, land tax and other outgoings;

   (d)to discharge any mortgage or loan secured over the Property A;

   (e)$10,000 to be paid to the wife;

   (f)The balance to be paid to the husband.

Superannuation split

1. That the following Orders (a) – (d) bind the trustee of the (omitted) superannuation fund:

   (a)in accordance with 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to or on behalf of the husband from his interest in the (omitted) superannuation fund (account No. (omitted)), the trustee shall pay to the wife, or her legal personal representative an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $45,000, and that there be a corresponding reduction in the entitlement that the husband should have in the (omitted) superannuation fund but for these orders.

   (b)that having been afforded procedural fairness in relation to the making of this Order, this Order binds the trustee of the (omitted) superannuation fund.

   (c)the operative time for this Order is 4 business days after the date of service of these Orders on the trustee of the (omitted) superannuation fund.

   (d)that each party and the trustee of the (omitted) superannuation fund have liberty to apply in relation to the implementation of the paragraphs of these Orders affecting any superannuation interest.

Retention of property

1. That, except as otherwise provided for in this Order, the Husband is entitled to be the sole legal and beneficial owner of the following:

   (a)The property located at Property A;

   (b)Funds in any bank accounts in his name;

   (c)Furniture, furnishings and personal effects in his possession; and

   (d)Superannuation entitlements with (omitted), save for the superannuation split to the husband provided in this Order.

2. That, except as otherwise provided for in this Order, the wife is entitled to be the sole legal and beneficial owner of the following:

   (a)The Toyota (omitted) (registration no. (omitted)) motor vehicle;

   (b)Funds in any bank accounts in her name;

   (c)Furniture, furnishings and personal effects in her possession; and

   (d)Superannuation entitlements with (omitted).

3. That the husband retain the liability and indemnify the wife in relation to the following:

   (a)Any monies owing to the husband’s parents;

   (b)The husband’s personal tax liabilities, including Fridge Benefits Tax; and

   (c)Any other debts and liabilities in the sole name of the husband.

4. That the wife retain the liability and indemnify the husband in relation to the following:

   (a)The wife’s personal tax liabilities;

   (b)The wife’s car loan with (omitted); and

   (c)Any other debts and liabilities in the sole name of the wife.

Miscellaneous

1. That unless otherwise specified in these Orders, each party will retain as their own property absolutely, all other property or financial resource presently in their possession or under their control, to the exclusion of the other party including but not limited to motor vehicles, furniture, carpets, paintings, bank accounts, managed funds, jewellery, choses in action, interest in any business, superannuation entitlements, life insurance and any other property with a real or personal, wheresoever situate and of whatsoever kind.

2. Save as is otherwise ordered herein each party shall assume and bear liability for and attend to payment individually of all and any debts outstanding in his or her name and indemnify the other party with respect to any liability whatsoever attaching to such debts.

3. Both parties shall do acts and things and sign all documents necessary to give effect to these orders. 

4. In the event of any party refusing or neglecting to sign within 7 days of a written request to do so, any documents necessary to effect the terms and provisions of these Orders, a Registrar or a Deputy Registrar of the Family Court of Australia is hereby appointed, pursuant to the provisions of Section 106A of the Family Law Act 1975 to attribute all deeds and documents in the name of the defaulting party and to do all such acts and things necessary to give the legacy and operation to the provisions of these Orders. For the Registrar to comply with the powers provided in this Order, it shall be sufficient proof that there has been noncompliance, that the wife or husband provides to the Registrar an Affidavit deposing to noncompliance by the other party.

5. Within seven (7) days of the date of these Orders, the $9,000 held in the Barry Nilsson Trust Account (from the sale of the paternal grandmother’s car) be released to the paternal grandmother, Ms B and these Orders act as an Authority for that release.

6. Within fourteen (14) days of the date of these Orders, the husband and wife shall do all acts and things and execute all necessary documents to close any joint bank accounts and divide the proceeds (if any) equally.

7. That Order 1 of the Orders of Judge Baumann dated 9 June 2017 be discharged.

8. That Order 6 of the Orders of Judge Demack dated 15 August 2016 be discharged.

9. That the parties each bear their own costs for their respective applications.

10. That all outstanding applications before the court be dismissed.

IT IS FURTHER ORDERED:

Parenting

1. That all other parenting orders be discharged and replaced with the orders as outlined below.

Parental responsibility

1. That the mother and the father have equal shared parental responsibility for the care, welfare and development of the child X born (omitted) 2006 (“the child”).

2. That the parties are to consult with each other about decisions to be made in the exercise of their equal shared responsibility as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree; and

   (c)They shall make a genuine effort to come to a joint decision.

3. That notwithstanding the provision of Order 24 herein:

   (a)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

   (b)The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her.

Living arrangements

1. That the child live with the father

2. That the child shall spend time with the mother as agreed between the mother and the father, and failing agreement, as follows:

   (a)From 8:00am to 6:30pm each alternate Sunday, commencing 11 February 2018.

   (b)From 12:00pm on Christmas Day until 6:00pm Christmas Day;

   (c)On Mother’s Day, from 8:00am until 6:30pm; and

   (d)On the Mother’s birthday from 8:00am until 6:30pm if the birthday falls on a non-school day and from after school until 6:30pm if the birthday falls on a school day.

Special days

1. That in the event the child is due to be in the mother’s care on Father’s Day or the father’s birthday, the child will not spend time with the mother in accordance with Order 27 herein and remain in the father’s care.

2. That the child spend time with his mother from 12.00pm midday on Christmas Day until 6.00pm Christmas Day.

Telephone communication

1. The child shall be at liberty to communicate with either parent at all such times as the child expresses a wish to do so and the parent with whom the child is then spending time shall facilitate that communication and afford the child privacy during that communication.

Changeover

1. That unless otherwise agreed in writing by the parties, changeover shall occur as agreed between the mother and the father, and failing agreement, at Hungry Jacks, (omitted).

Airport watch list

1. That Order 3 of the Orders of this Court of 15 February 2016 placing the name of the child, X (a male), born (omitted) 2006 on the Family Law Watchlist is hereby discharged AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by forthwith removing the name of the said child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

Overseas travel

1. That the child be permitted to travel overseas in the company of the mother or father as agreed between them by written agreement by each of them.

2. That the mother and the father shall do all acts and things and sign and/or execute all documents required to obtain a passport for the child within one (1) month of the date of these Orders (if required) and shall renew that passport as required (but no later than six (6) months prior to its expiry date) from time to time, with each of the mother and the father paying one-half of the cost of obtaining or renewing the child’s passport on each occasion.

IT IS NOTED:

A.That by dismissal of Paragraphs 52 and 53 of the husband’s Case Outline, the parties consent that the husband is not estopped, in any way, in arguing the subject matter of those paragraphs, in any other jurisdiction.

B.That pursuant to Section 81 of the Family Law Act 1975 these Orders settle between the parties, as far as is practicable, all outstanding property and spousal maintenance issues between them.

C.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11481 of 2015

MS BHATNAGAR

Applicant

And

MR RIJU

Respondent

REASONS FOR JUDGMENT

1. I have before me a matter which involves parental responsibility and parenting issues.  The husband was born on (omitted) 1980 and is now 37 years of age.  The wife was born on (omitted) 1982 and is now 36 years of age.  The husband works as an (occupation omitted) and the wife is employed as a (occupation omitted).  They were married on (omitted) 2001 in (country omitted).  They came from the same district and married via an arranged marriage arrangement.

2. They have one child of their marriage, namely a child called X, who was born on (omitted) 2006.  He is currently 11 years and 10 months of age, nearly 12.  He is a child who presently attends year 7 at (omitted) School, having just started the school academic year this week.  The child lives with his father in a property situated at (omitted).  The child and the father live with the father’s parents, namely Mr Riju and Ms B.  Mr Riju, the husband’s father and grandfather to X, is a (occupation omitted).  Mrs Riju Senior records her occupation as home duties in her affidavit.  The child has lived in a residence with his father and his paternal grandparents all of his life.

3. The husband moved from (country omitted) to Australia in 2001 and the wife followed in (omitted) 2005 or thereabouts.  There was one short period of separation before a final separation which occurred on 20 November 2015.  That date is not without some significance due to the actions of the mother in having enabled the recording of her departure from the former family home on 20 November 2015, such recording having been made by her without the knowledge of the husband. 

4. There have been many occasions on which this matter has appeared in the Court lists.  I will deal with those orders in due course.  However, it cannot be overlooked that the date of final separation on 20 November 2015 occurred shortly after what is alleged by the father to have been the commission of a violent act by the mother upon the child on 18 November 2015. 

5. It is alleged that on that day, in the matrimonial home, the mother chased the child into a living area and then assaulted the child in front of the parental grandparents.  Evidence was given by those grandparents about what happened that day.  The gist of the allegations by them is that the mother caused sufficient force to be applied to the mouth area of the child so as to cause the child to bleed from his mouth.  It was said by both Mr Riju and his wife that a tooth (described by the father as a baby tooth) had been loosened as a result of such contact, and that they had taken the child to a bathroom to rinse away the blood that had been caused to flow as a result of the impact.

6. The mother denies that she ever assaulted the child, and the events surrounding such date have been the subject of much canvassing in the reports prepared by Ms M, Social Worker, and Mr M, also a social worker. 

7. There have been two reports prepared by Mr M, the first dated 20 May 2016.  In relation to the preparation of that report, it was recorded that on 31 March 2016 at (omitted), Brisbane, Mr M interviewed the husband, the wife and the child, as well as observing the child with each of his parents.  The second report of Mr M is dated 15 May 2017.  That report was prepared consequent upon an interview on 19 April 2017 with the husband, the wife, the child and the paternal grandmother.  Mr M gave evidence today, and he indicated that he had been provided with, and had read, the most recent report of one Ms M, who is a social worker.  Ms M prepared three reports, each of which have been exhibited to affidavits filed in these proceedings.  The first report is a report dated 28 November 2015 (Annexure MM-02 to the Ms M Affidavit filed on 20 November 2017), the second is a report dated 5 February 2016 (Annexure MM-03 of the Ms M Affidavit filed on 20 November 2017) and the third is a report dated 16 December 2017 (Annexure MM-01 to the Ms M Affidavit filed on 22 December 2017).

8. Relevantly, those reports were respectively prepared a short time after significant events, starting with the alleged assault of the child in November of 2015, and lastly in relation to a running away incident, which is acknowledged by all parties to have occurred on 13 December 2017.  I will get to each of those reports and their contents later.

9. What is significant, however, from a reading of such reports, as well as the reports of Mr M, is that the child has expressed a consistent view that he wants to spend as little time as possible with his mother.  All of the reports postdate the alleged assault on 18 November 2015.  Having closely read all of the reports, and having witnessed the respective demeanours of the husband and his parents, as well as the mother, I am of the firm view that the event of 18 November 2015, as alleged as having occurred by the father, did in fact occur. 

10. Having made that finding, it is then of significance to look at the respective reports which have been prepared. The contact between the child and Ms M outlined in her report of 5 February 2016 came about as a result of the father having arranged for the child to have counselling relating to issues concerning his “custody”.  It was recorded in that first report (paragraph 1 on page 1) that the child was fearful of seeing his mother since:

    …the day he recalls his mother locking him in the garage and the last time his mother broke his tooth.  X recalls being four or five when his mother locked him up in the garage, leaving him with fear, stress and trauma of being locked up by his mother.  X stated he doesn’t want to have access with his mother. 

1. Ms M then recorded how the child was fearful of being further abused by his mother.  It was recorded that the child stated that on one occasion his mother had locked him in a cupboard in the garage and that he had asked her to get him out of it and that since such time he felt he could not trust or feel safe with his mother (paragraph 1 on page 1). 

2. When discussing the fact that his mother had in November 2015 moved out of home (a fact conceded as having occurred on 20 November 2015 by all parties) the child stated to Ms M that he was happy that his mother no longer lived with him.  It was recorded that, though the child recognised the importance of having a good relationship with his parents, he was strongly of the view that he would like to live with his father and not his mother.  The child was afraid of being forced to see his mother.  The child agreed to have phone contact with his mother, but he didn’t want to spend time with her alone or go and visit her. 

3. It was recorded by Ms M that the child presented as initially well composed and articulate, and as a well-spoken young child, connected, who quickly moved to tears when speaking about his fears and relationship with his mother.  Ms M stated that she had to work hard in trying to calm him down enough to be able to conduct counselling.  It is not surprising that the reaction of the child, as referred to by Ms M, would be so recorded had there in fact been an assault on 18 November 2015, as alleged by the Father. 

4. The first report of Mr M dated 20 May 2016 recorded, in paragraph 24, as follows:

   Ms Bhatnagar expresses her view that it is important for X to have both parents as part of his life.  Although she has, in her material, proposed that she has full care of him, she adds, “But I know I don’t want Mr Riju (the husband) not to be part and so if it is equal custody,” she would be satisfied with that.  She said, “To be honest, I want my son back, but I know that it is not right, so it has to be.”

5. The report goes on to record facts and circumstances elicited from the father.  What is revealed is that each parent has a different view of issues of conflict between each of them which occurred during the marriage when they were together, as well as different parenting styles.  Paragraphs 63 and 64 of the May 2016 report relate to the different parenting styles in relation to the question of the child being able to write properly.  The wife’s approach was more rigid to that of the father’s and, having seen the wife and the husband give evidence today, that view to me has been entrenched. 

6. Mr M recorded the fact that the child had been allegedly subject to physical abuse at the hands of the mother in November 2015, yet curiously, Mr M recommended that the child, notwithstanding the child having expressed to Mr M his concerns about having renewed contact with the mother, recommended that the child live with her. 

7. What is evident from a perusal of the file is that the father has shown a willingness to engender further contact between the child and his mother, notwithstanding strong views expressed to the contrary by the child.  On 15 February 2016 a consent order was made by Judge Demack.  At that time Ms Hewitt, Solicitor, appeared on behalf of the applicant and Ms Downes of counsel appeared on behalf of the respondent.  The consent order made at that time was, firstly, that the mother and father have equal shared parental responsibility for the care, welfare and development of the child.  A watchlist order was made and an injunction was made restraining anyone from taking the child out of Australia.

8. On 10 June 2016, another consent order was made before Judge Demack whereby the child was to spend time with the mother at therapeutic contact sessions at (omitted).  On 15 August 2016, a consent order was made by Judge Demack whereby specific times were laid down between 21 August 2016 and 2 October 2016 where the wife was to have contact with the child.  On 3 November  2016, Judge Demack made further consent orders that the child spend time with his mother.  The time ordered to be spent was gradually increasing in extent.

9. The actions of the father in conceding to that time, and his evidence given today to the effect that he recognised that the child should have a meaningful relationship with both himself and his mother, is not supportive of the argument advanced on behalf of the mother to the effect that the father has, from day 1, presumably the day of separation in November 2015, manipulated or coached the child for the purpose of ensuring that the child would be disengaged from any further contact with her.  Indeed, I was impressed with the father as a witness of credit, as I was with the evidence given by Mr Riju and the paternal grandmother. 

10. The second report of Mr M historically records the fact that X had increased contact with his mother, but, again of significance, is the fact that the child did not deviate from his earlier expressed opinions about his mother and the undesirability of him having contact with her. 

11. It was said by Mr M that the general demeanour of the child during his interview for the second report was happy, boisterous and affectionate when in the company of his mother, and Mr M, by implication, must have formed the view that there had been the manipulation or coaching as suggested by the mother because of the unusual vehemence with which the child had expressed his views concerning his not wanting to spend time with his mother.  Mr M identified the child as having views synonymous with those of the father and, again by implication, seems to have attributed that attitude on the part of the child to some active intervention on the part of the father.

12. In that regard, I find that Mr M did not pay enough attention to what I have found to have been a serious assault having occurred on 18 November 2015.  When asked in cross‑examination whether the fact of that assault, if so found, would alter his view, Mr M admitted that if there was no finding of coaching or manipulation and, in fact, a finding that the assault incident in November 2015 had occurred, then that would explain X’s reticence about seeing his mother or living with her and his being scared of his mother.

13. Mr M admitted in cross‑examination that the child was anxious about living with his mother and that he could have been wrong about the father adversely coaching the child or manipulating the child to his own viewpoint.  Mr M also agreed that the paternal grandmother had been the predominant caregiver for the child for the first five years of his life and that it would be “difficult for the child” if there was a change in living arrangements.  He readily conceded in cross‑examination by counsel for the father that if a change of living arrangements was ordered and imposed upon the child that the child “could run away again”.

14. That brings me to the issue of the child having run away from the mother during a period of time with his mother on 13 December 2017.  On that occasion the child was in the care of his mother, but took a bus to the city from her home at (omitted) and thereafter caught another bus to his family home at (omitted).  The catching of a bus was said by his father not to have been commonplace, certainly not on his own, before that event.

15. Shortly after the event on 16 December 2017, and on the recommendation of one Dr K from the (omitted) Medical Centre, the child X presented for counselling before Ms M.  It was recorded that the child, on that occasion, was quite upset and that he had been staying at his mother’s home as forced upon him by the Court.  The child stated that he was distressed and felt unsafe at his mother’s house.  It was recorded that he picked up the throwaway blanket that covered the couch and wrapped himself in it before continuing his conversation with Ms M concerning why he ran away from his mother’s home.

16. The child described his mother as having used a razor to shave skin off his thumb and the hairs on his arm, something which Ms M recorded as having created even more fearful thoughts and anger by the child towards his mother.  As described by the child, it was commented that that was a matter of concern for the child’s safety.

17. It transpires that, after returning to his family home on 13 December 2017, and after negotiations between the respective lawyers for the husband and wife, the child returned to the mother on 14 December 2017.  Notwithstanding the fact that the child had been subjected to a good deal of anxiety associated with not only the events leading up to his running away, but the events during the course of his running away, the mother then took him to a police station.

18. The child said to Ms M that he thought he was going to be arrested by the police and his fears grew to such an extent that he said that he again thought of running away.  At the time of presentation before Ms M, the child presented as being quite distressed and stated that he was feeling sad, overwhelmed and scared.  The child stated that he was happy living with his father, but was fearful of the prospect of seeing and visiting his mother alone and he would like any visits to be supervised.  He stated that he didn’t want to have access with his mother.  He also stated that he originally thought he was going to see his mother for a short time, but not four to six days at a time. 

19. It was observed by Ms M that that had created anxiety in the child.  It was recorded that the child had stated that he would run away again, saying that that was out of his control and was based on fear and an overwhelming feeling of being forced to be with the mother, as well as memories of being mentally abused by the mother.

20. He said to Ms M that there had been no emotional connection or feelings of safety when he was with his mother.  He also stated that he lost trust in his mother and was not able to feel that he could get that trust back due to the way she spoke to him and treated him.  He did say that as time passed he would be more willing to forgive her as long as he didn’t have to live with her.  He stated that he understood the importance of having a relationship with his parents, but remained strong in the view that he would like to live with his father and not with his mother.

21. During a counselling session the child had stated that he was disappointed about his mother having placed a restriction on him travelling overseas for a school excursion, something which Ms M said in her observation had adversely impacted on the child’s education and which had seemed to have compounded the situation.  It was also recorded by Ms M that the child stated that he wished to visit his mother during specified hours, namely, 7.00am to 7.00pm.

22. It is the mother’s case that she wants sole parental responsibility for the future welfare and wellbeing of the child, X.  It is the husband’s proposal that there be joint parental responsibility.  The difference in attitude between the husband and the wife in relation to parental responsibility, in my opinion, is borne out in the general attitude and lack of insight by the mother as to the real wishes and potential adverse effects upon the child relating to his spending time with her.  She seems not to appreciate that the child simply does not trust her, and in the light of my finding against her on the issue of credibility relating to the events alleged to have occurred on 18 November 2015, it is no wonder that the child does not want to spend time with her.

23. In addition to the running away incident, there is also evidence relating to the child having complained about the mother having shaved hairs from his arm at or about the time of such running away.  The father’s evidence was to the effect of such event having occurred on 14 December 2017, but I am not unmindful of the prospect that such haircutting occurred before the child ran away, rather than afterwards.

24. The recording of that event by Ms M would seem to suggest that the haircutting and the running away was contemporaneous, though the father suggests that it might have been later.  In any event, the shaving of the arm incident must be seen in the context of what was exposed during the cross‑examination of the father as being a way of cultural admonishment or admonition of the child by the mother where the child was not living up to the expectations of the mother.

25. The father gave evidence that, culturally, that form of admonition prevails in (country omitted) in the district where he and the wife grew up.  It is a way of publicly outing someone for their bad behaviour.  It is not dissimilar to the shaving of a woman’s head after World War II as an admonition for a woman having collaborated with the German armed forces who might have occupied their country during World War II.  That common retaliation for collaboration during WWII was akin to the hair shaving which I find did occur on or about 13 or 14 December 2017.

26. Mr M, in cross‑examination, when having had that put to him, conceded that any arm hair shaving as a form of admonition would be inappropriate behaviour on the part of the mother, and I so find that the hair shaving did occur and that it was inappropriate.  In doing so, I find that that is another example of how the mother lacks insight, not only as to appropriate modes of admonishment, but also lacks insight as to the character and feelings and emotions of her child.

27. Section 61DA of the Family Law Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that is in the best interests of the child for the child’s parents to have equal shared responsibility for such child. I do not consider that such a presumption ought not to apply in the circumstances of the present case.

28. The child is enrolled at (omitted) School, a well-known secondary school in Brisbane.  Each of the parents are supportive of such an enrolment and, thus, a major issue of difference between them does not arise.  I believe that each of the mother and father are together capable of making long-term decisions for the welfare and benefit of the child in his best interests.

    ORDERS DELIVERED

29. Turning to section 60CC considerations under the Family Law Act, I note that when considering the appropriate parenting order to make in the child’s best interests, the Court must consider the primary considerations as being the benefit to the child of having a meaningful relationship with both of the child’s parents, as well as the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. When considering those matters, the factors referred to in section 60CC(3) must relevantly be taken into account.

30. In terms of those considerations, I make the following comments by reference to the subparagraphs in such subsection:

    a)It is clear that the child has, on multiple occasions, in many different circumstances over a period of more than two years expressed the view that he wants to spend little time with his mother.  There are examples in the respective reports that have been prepared of how the child has variously criticised his mother’s car, his mother’s living arrangements and his mother’s general demeanour.  The child’s views, in that regard, support a parenting order in favour of the father.

    b)The child has a very good relationship with his father and with his paternal grandparents.  He has lived with his father and his paternal grandparents all of his life.  Mr M conceded that it would be difficult for the child to have those living arrangements altered and I agree with him.  Mr M described the mother as having “fragile authority” when it comes to dealing with the child and it was said by Mr M that the child would need support should there be a change because it would be “very difficult for him”. 

    c)His father is in full-time employment and his paternal grandparents are supportive and loving.  That relationship, on the one side, is to be compared with an uncertain and fraught relationship with the child’s mother and again, is supportive of the proposition that there be a parenting order in favour of the father.

    d)I have dealt with the likely effect of any change in the child’s circumstances in a general way. 

    e)More specifically though, I am fearful for the child’s emotional wellbeing should he be thrust into a situation where, totally against his wishes, he has to undergo a forced regime which he has already identified and rebelled against when court ordered. 

    f)I glean from the reports and from the evidence filed on behalf of the father that the child feels very uncomfortable in a social context when his mother is near him in circumstances where his peer group might be present. 

    g)The child seems to be advanced in his assessment of his feelings and emotions concerning his interaction with his mother.  He has a history of having performed well in debating, an activity which lends itself to advanced thought processes. 

    h)I am satisfied that the child has sufficient insight to have his views accepted as being the mature views of a young adolescent and those wishes and desires should accordingly be respected.

    i)The child has been critical of his mother’s parenting of him, as recorded in the reports already referred to, and it shows some understanding and insight on the part of a 12-year-old child which should be respected.

    j)There is a protection order in place requiring the father to be of good behaviour.  Such protection order is annexed to the wife’s affidavit, filed 21 December, filed 7 November 2017 and appears as an exhibit at page 76 thereof.  The husband is recorded as being the respondent and the wife is recorded as being the aggrieved party.  It was ordered, in the Magistrate’s Court at Richlands on the first day of April 2016, that the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.  Whether this protection order is a standard form order or not, I do not know.  Neither do I know the basis on which any such protection order was made. 

    k)No application for the protection order was exhibited to any affidavit filed on behalf of the mother.  Having conducted a detailed hearing into matters relating to the welfare of the child, I find it inconsistent that there should remain in place a protection order when there is no evidence, in my view, justifying its maintenance.  It was to remain in force until April this year, and though I find no good reason why it should be, Counsel for the Father is content for it to so remain.  Further, in relation to that protection order, I might say that no reasons were annexed to the material that was filed on behalf of the mother, and, with respect, the exhibiting of the reasons of Judge Devereaux in the District Court on appeal from the making of that protection order does not assist me when assessing the circumstances in which any such order was made.

    l)If I was to make an order that the child was to live with the mother, I find that there is an almost certain likelihood that the child would run away from the mother, that the mother, through her lack of insight as to why the child might have run away, would seek a recovery order against the father, and that the parties would be back in court again.  I consider that that would be the least desirable outcome and would only ensure that further proceedings in this Court would be instituted.  There have already been 12 orders made by judges of this Court relating to this matter;  I consider that far too many.

31. During the course of the hearing, evidence was given about what was recorded in the report of Mr M concerning the allegation by the child that he, the child, had overheard a conversation between his mother and someone else where the mother had suggested that she was going to sell him back to his father for as much money as she could get.  He also, when speaking to Mr M, said that his father had assured him, after a family conference with the paternal grandparents, that he was not to worry and that his father had said, “I will get something ready in case it happens, a plan or something”.  The father denies that he ever had a round table conference with his paternal grandparents where that matter was discussed and likewise, the grandparents in their evidence denied that any such dinner table conversation had occurred. 

1. The father had, in his evidence, conceded that he might have said something to tone down the concerns of the child when the child had said those things to him but I do not consider that, in doing so, the father was trying to do anything other than downplay very serious allegations in circumstances where the substance of those allegations were shocking, and where he, as a father, was not prepared or experienced enough to deal adequately with them.  I also do not consider that the mother actually was overheard by the child.  The more likely scenario, in my view, is that the mother never said anything of the sort, but that the child was trying to, in a simplistic way, convey to Mr M another basis on which Mr M might support his remaining with his father.  So, to the extent that that allegation is recorded as having been made by the child as recorded in the reports, I do not accept that the mother said anything of the sort.

2. Mr M has said that it was a good thing that the father had agreed to counselling of the child on an ongoing basis with Ms S, who is a well-respected psychologist.  That counselling was agreed by the parties to be conducted on a non-reportable basis and it was conceded by counsel that, should Ms S recommend that the parents be involved in such future counselling, then it was within her ambit of authority to ask that they be so involved. 

3. The father has filed a case outline which comprehends equal shared parental responsibility and that the child live with the father.  It is proposed in the amended case outline, filed on 17 January 2018, that the child spend time with his mother as agreed between the mother and the father and, failing agreement, each alternate weekend from after school on Friday until before school on Monday.  I am not convinced that such arrangement should be instituted at this point in time.  The running away incident in December 2017 was a stark reminder of the anxiety caused to the child as a result of his being with his mother, a situation which he referred to as being “court imposed”.

4. He has expressed the view to Ms M that his visits with his mother ought be on a strict time-specified basis and in the report of Ms M, as mentioned earlier, that was referred to as being from 7 am to 7 pm.  The child is soon to commence playing sport on Saturdays for his school, his having been enrolled into the (hobby omitted) program.  Both parents should be supportive of that arrangement and hurdles should not be put in the way to his enjoying such activity.  I am fearful that if the Friday to Monday arrangement was to occur early on, then there will be not only anxiety on the part of the child as a result of staying with his mother overnight, but also an anxiety which would adversely affect his enjoyment of sporting activities with his peers.

5. As time goes by, the child will no doubt be in a position of expressing his wishes as to whether he would enjoy spending further time with his mother or not.  The regular contact which I have ordered will facilitate that possibility, but I am not of the view that there should be overnight time with the mother yet.  I am mindful of the fact that these are final orders and that I have made no provision for overnight time with the mother at all into the future, nor in relation to holiday periods, but such is the high level of anxiety on the part of the child, as recorded in the reports, and as physically evidenced by his having run away on 13 December 2017 that I think the risks of imposing such a regime upon the child are too great at this point in time. 

6. As to overseas travel, the mother opposes the discharging of the watchlist order made by this Court on 15 February 2016.  At this point in time, no concrete arrangement has been placed before me whereby it is planned that the child travel overseas to any location.  As was pointed out during submissions, (country omitted), where each of the mother and father were born, is not a Hague Convention country.  I am of the view, however, that the watchlist order should be discharged.  If the child wishes to go overseas for any reason – be it a school excursion or a holiday – the mother is unlikely to repair her relationship with her son if she fails to agree to him going overseas if reasonable concerns concerning his safety and his return to Australia have been appropriately addressed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 6 March 2018