Bolan and Bolan

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOLAN & BOLAN

[2018] FCCA 289

Catchwords:
FAMILY LAW – Parenting – mother seeks a no time and no contact order due to her fears of harm to the child from the father – assessment of risk – risk to child from other’s intransigence in following appropriate medical advice for child’s significant sleeping and behavioural issues – finding that mother is a risk of harm to child – importance of child having father in his life outweighs any risk of harm if mothers parenting diminishes due to time with orders – orders for time and equal shared parental responsibility made.

Legislation:

Family Law Act 1975, s.60CC (2) and (3)

Applicant:

MS BOLAN

Respondent:

MR BOLAN

File Number:

PAC 4710 of 2015

Judgment of:

Judge Henderson

Hearing dates:

27, 28 and 29 November 2017

Date of Last Submission:

29 November 2017

Delivered at:

Sydney

Delivered on:

15 February 2018

REPRESENTATION

Counsel for the Applicant:

Ms Spain

Solicitors for the Applicant:

Vizzone Ruggero Twigg Lawyers

Counsel for the Respondent:

Mr Jackson

Counsel for the Independent Children's Lawyer:

Mr Nasti

Solicitors for the Independent Children's Lawyer:

S P Nasti & Co Solicitors

ORDERS

The parties have equal shared parental responsibility for the child X born (omitted) 2013.
The child to live with the mother.
The father spend time with the child as follows:
(a)For the first 3 months following these Orders being made every Sunday from 9am until 5pm;
(b)Thereafter, for a further period of six weeks, each alternate weekend from Saturday at 4pm until Sunday at 11am;
(c)Thereafter, each alternate weekend from Saturday at 9am until Sunday at 6pm;
(d)From the first weekend the father is to spend time with the child in October 2018 from 5pm Friday until Sunday at 6pm;
(e)In even numbered years from 12 noon Christmas Eve to 4pm Christmas Day commencing 2018.
(f)Upon the child commencing school in 2019 the father to spend time with the child as follows:
(i)In the first school term each alternate week commencing the first week that school resumes from Friday after school to Sunday 6pm;
(ii)In the even the father moves to a location that is 30 minutes travel from the child’s school the father’s time in order 3(f)(i) shall extend to Monday morning before school.
(g)For term school holidays in 2019 the father’s weekend time will continue and will extend to 5pm Tuesday in Easter school holiday, 5pm Thursday in the June/July holidays and 5pm Saturday in the October holiday.
(h)In 2019 and in odd numbered years commencing from 12 noon Christmas Day until 4pm on Boxing Day and for 2 separate weeks in January 2020 as agreed and failing agreement the 1^st and 3^rd weeks.
(i)In 2020 and in even numbered years from 12 noon Christmas eve to 12 noon Christmas day.
(j)In 2020, the child will spend one half of all school holidays with his father being the second half in even numbered years and the first half in odd numbered years and the father’s weekend time is suspended in all school holidays .
The child to spend time with his father on Father’s Day and his mother on Mother’s Day from 10am until 5pm.
School holidays to be defined as commencing at 3:30pm on the last day of school and concluding at 6pm on the Friday before school resumes.
Changeover shall occur at the child’s school on all school days, and on non-school days changeover shall take place at a mid-point location as agreed, and failing agreement at (omitted) McDonalds.
The father to facilitate telephone calls made by the mother to the child each evening the child is in the father’s care between 6pm and 7pm.
The mother to facilitate telephone calls made by the father to the child each evening the child is in the mother’s care between 6pm and 7pm.
The parties use a communication book which book shall travel between the parties via the child for the purposes of exchanging information pertaining to the child, including details of medical treatment and activities which concern the child.
Each parent refrain from making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child.
Whilst the child is in each party’s respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other properly informed of any required treatment or medication required in relation to the child and the parties shall ensure the proper administration of such medications and treatments is performed by them.
In the event that either party wishes to take the child interstate they shall provide to the other party in writing at least two (2) weeks in advance of the same the itinerary in respect of the same, including details of flights as applicable, accommodation at which the child will be staying whilst interstate and telephone details at which the child can be contacted.
The parties keep each other advised of their current residential address and current telephone numbers and that each party provide to the other details of any proposed change to either their address or their telephone number in writing at least one (1) week in advance of same.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 4710 of 2015

MS BOLAN

Applicant

And

MR BOLAN

Respondent

REASONS FOR JUDGMENT

The matter of Bolan was proceedings for the parenting arrangements for the parties’ son, X, born (omitted) 2013, who will be four years of age at the date of this judgement.
The child lives with his mother. There is no challenge to the child continuing to live primarily with his mother. The issue before the court is the child’s time with the father and parental responsibility. The father currently spends each Sunday with his son at the home of his parents and the grandfather monitors the time.
The mother seeks the child be immediately cut off from time with his father due to, she says, the risk of physical harm from his father whilst in his care; emotional harm from his father’s conduct, behaviour and attitude towards X and the mother. The mother further alleges that it is not in X’s best interests to have a relationship with, or even any knowledge of his father.
The mother’s position when the proceedings commenced in 2015 was that X spend time with his father on a gradually increasing basis. Her position has changed and she now seeks there be no time between the child and his father.
Ms Spain of Counsel acted for the applicant mother, Mr Jackson of counsel for the respondent father and Mr Nasti solicitor represented X.
The evidence I read for the parents was as follows:
a)For the mother:
i)The mother’s trial affidavit of 8 November 2017;
ii)The affidavit of her partner, Mr R, filed 9 November 2017.
iii)Both Mr R and the mother were cross-examined. There were no exhibits tendered by the mother.
b)For the father:
i)His trial affidavit filed 5 May 2017;
ii)The affidavit of the paternal grandfather, Mr G, filed 30 March 2017.
iii)Both the father and grandfather were cross-examined.
The exhibits tendered to the Court are as follows:
a)Father’s exhibit 1, the communication book for a short period of time between, 21 August 2016 to 29 January 2017;
b)Father’s exhibit 2, minute of orders sought by the father;
c)Father’s exhibit 3, photographs of the knob of a gate the father alleges the child hit his eye on whilst in his care at his parents’ home;
d)Father’s exhibit 4, a series of photographs showing the father and the son engaged in many happy activities;
e)Court exhibit 1, the family report prepared by Ms A, who came to court to give evidence on the last day of the trial;
f)A joint tender bundle of documents from the police; (omitted) Medical Centre; Mr D psychologist, Dr P; (omitted) Family Services; Ms M and various COPS entries.
The Independent Children's Lawyer does not support the mother’s position and is of the view, as was Ms A, that X should spend time with his father and that parental responsibility be shared. Ms A in her report and oral evidence was quick to point out that her recommendation was based upon the Court finding that the child was not at risk of harm in the father’s care.
There is of course a difference between a child being at risk of harm in a parents care and being at a risk of harm as a consequence of spending time with parent. The mother says X is at risk at both levels.

SHORT CHRONOLGY

The father as born on (omitted) 1977 and the mother on (omitted) 1984.
Parties commenced a relationship in (omitted) 2008.
X was born on (omitted) 2013.
Counselling with Ms M commences in 13 October 2014.
The parties separated on 26 December 2014.
June/July 2015 the mother commences counselling with (omitted) Community health Domestic Violence Service.
8 December 2015 orders are made for X to spend time with his father for 4 hours on a Sunday.
(omitted) 2016 the mother and Mr R commence a relationship.
1 June 2016 X alleged to have told the mother his father hit him on the head and said the same to a Barista at a café.
20 June 2016 X repeats this allegation to his mother.
26 June 2016 X repeats this allegation and that his father said not to tell mummy.
3 July 2016 the mother suspends time.
1 August 2016 matter is before the Court and time resumes with grandfather to be present.
6 February 2017 child’s says father hit him in the eye and he fell over.
Mother suspends time.
11 February 2017 the mother takes child to police to report the eye hitting incident. Child mother and Mr R interviewed. No action taken.
11 June 2017 X disclosed his father hits him in the face and called him a fucking baby when he cried.

MOTHER’S FUNCTIONING

There was no recent report of any psychologist who had seen the mother to diagnose her asserted anxiety, terror and fearfulness of the father. There are four reports of a patchy nature from psychologists the mother has seen over the years, but there was no medical evidence of any cogent basis in relation to the mother’s current functioning, given these people have been now been separated for some three years.
The most updated report on the mother’s functioning was from a psychologist Ms S of the (omitted) Local Health District, dated 26 October 2017. The report was only attached to the mother’s affidavit and Ms S was not called to give evidence. Ms S stated the report was prepared for “The Family Law Court”:
She has been accessing counselling since 20 July 2015. I assist women to recover from the psychological and physiological effects of trauma experience. I am employed as a domestic violence counsellor. Women can present with symptoms which are: anxiety, depression, hypervigilance, panic attacks, little or no self-esteem or confidence; eating disorders; poor visible health; impaired ability to make decisions and solve problems; interrupted and sometimes destroyed relationship with children, family and friends.
The mother has reported feeling threatened and harassed by Mr Bolan; that during the relationship, he called her names, threatened her, sold her property and isolated her from others. She experienced emotional, financial and physical intimidation, throwing and hitting things. That he has used the times of contact since separation – handover to exert control over her. If she arrives five or 10 minutes early, Mr Bolan would not open the door for her to drop X off until exactly the time of handover.
He served X dinner at the exact time she was meant to pick him up, so she would have to wait till he finished dinner. She feels intimidated by Mr Bolan and that he has continued to be emotionally abusive to her since separation by badgering her, criticising her and putting her down. She is still fearful, unsafe around Mr Bolan.
This report was merely the mother reporting her symptoms to a psychologist for the purposes of this hearing and is of little forensic value or assistance to the Court.
Ms M psychologist prepared a report in 2015. The parties went to see her together in 2014 for the significant problems in their marriage. The father went twice. The mother attended eight occasions. The parties were still together at that stage and their relationship was very poor indeed.
After separation the mother was reporting to Ms M in 2015 that she had concerns about the safety of X in his father’s care from the father’s unpredictable anger responses, that he may harm their son; that there had been alleged threats from him that he will report that she was mentally unstable. These behaviours were not seen by Ms M.
These parties cannot communicate directly but they do communicate via email, text message and they do so respectfully and politely. I accept the mother finds the father’s tone and number of emails he sends, harassing and badgering and he would be well advised to look at his responses and texts. However, they do have a capacity to communicate.
The mother reported to her medical practitioner, Dr L, in 2016 who had been X's GP for five months that:
He had been brought in by his mother for behavioural issues. This included being extremely violent to his mother, punching her, choking her. She has issues with her ex-husband. He has been violent to her in the past. In the last three weeks, when X has not had visits with his father, his behaviour has been much better; less violent and better communication.
The GP noticed X was friendly and less violent than usual. Clearly X has played up and behaved very poorly in the doctor’s surgery.
Dr L took it upon herself to ask the child this question:
I asked X if daddy hits him, and X nodded and said yes, and pointed to his head.
That was totally inappropriate and merely reinforces what I will refer to later as the mother’s reinforcing, perhaps unconsciously, in this boy that his father has harmed him. It is clear from the mother’s own affidavit that this is what she has done. Perhaps X was less anxious at this time because his mother was not anxious about him spending time with his father and he was picking on her being calmer.
On February 8, 2016 Dr L noted he was very poorly behaved and reports the mother told:
His behaviour is always disruptive. Separated from the father 12 months ago. Going through a custody battle and stressed. He was throwing objects about the room, not listening.
The mother complained to the doctor in February 2016 that his father does not give him medication as is appropriate. There is simply no cogent evidence of that.
The doctor reports that X disclosed to her that the child had told his mum that his daddy hit him on the head and:
Daddy told me not to tell mummy.
On 27 June 2016, it is reported by Dr L that he has told his mother his father hit him on the head, told him not to tell his mother. That his behaviour had been normal.
Dr L referred X to Dr P due to his violent behaviours.
Dr P reported in his report of 5 April 2016:
It’s unclear to what extent X’s behaviours are due to genetic factors, sub-optimal parenting strategies in response to his behaviour, or witnessed violence. I’d be concerned if X has learned these behaviours from witnessing violence, as many of the actions which X described are not typical of toddlers, even when they’re frustrated.
X was 12 months of age when the parties separated. He has spent regular time with his father, with breaks. I do not accept that X would be aware of his father’s throwing objects around the house at the age of 12 months, if his father did behave in this fashion.
Dr P’s report of 5 April 2016 states that the mother reported as follows:
a)The child had become very violent with his mother in the previous eight weeks. He has head-butted her in the face and cut her lip, he throws objects at the back of her head, he has slapped her with an open hand;
b)The mother and father separated when he was 12 months;
c)That the father was uninvolved in raising X;
d)That he has had unsupervised time with his father since December 2015 and then supervised time with the paternal grandfather being generally around;
e)He was still being breastfed as at 5 April 2016;
f)That this is contraindicated and the mother was told to wean him;
g)He is difficult to get to sleep and wakes up frequently. That the child should primarily drink water at bed time to ensure he does not have a sleep-onset association disorder; and
h)The child has always been active, with a short attention span.
Dr P thought he had poor articulation and needed some speech therapy. The mother attended speech pathology and was told that this was not an issue and he now speaks well. Dr P says:
We’ve discussed the importance of firm boundaries and assertiveness in managing X’s behaviour and it is important that a professional is involved to give advice to X around parenting strategies and that these are also consistently applied when X is with other caregivers. Can be done through a psychologist.
There is no evidence from the mother that she has taken on board this advice on how to manage this child’s concerning behaviour.

FATHER’S EVIDENCE IN RELATION TO THE CHILD AND MOTHER

One of the complaints made by the father is that X was a very difficult child to settle from birth; that the mother believed in an attachment style of parenting and that X was with her at all times. The father agreed that X never slept through the night and that the child disturbing their sleep and the child’s own disturbed sleep was a significant factor in their marriage.
The father describes not even being able to change a nappy as the mother simply would not let him. The child would not sit in a high chair and screamed for his mother. They could not put him in a car seat to go on a trip; he screamed for his mother. The only time he was quiet was when he was with his mother, and the father says he found that style of parenting extremely difficult for him to co-parent the child or be an involved parent when he was at home.
The father said they were referred to Tresillian when X was about six to eight weeks of age, but the mother refused to attend. The mother agrees she did not go to Tresillian as she believed they use the cry out method, a method she did not agree with that and that she was following strategies that other professionals said were acceptable.
Yet at the family report interview when X was 2.5 years old, the mother reported that he was still not sleeping through the night and thus her strategies had not worked at that time.
The mother missed a second opportunity to attend Tresillian after the family report when Ms A, who was concerned about the child’s poor sleeping habits, encouraged the mother to attend Tresillian and gave her their phone number. As X was not yet 3 there was still time to enrol at Tresillian.
The mother’s reason for not taking up Ms A’s advice was that she had spoken to some friends who said it was the worst experience of their life and she had strategies in place.
Thus X has missed two opportunities to overcome his sleeping issues. He currently aged 4 and does not sleep through the night.
His waking is so intrusive that, although the mother lives with Mr R, she sleeps in a separate room from Mr R, on a mattress on the floor in her son’s bedroom.
Mr R’s evidence was that they do this because X wakes up in the night and they hear him. If in sleeping in a separate room X still wakes Mr R up, I question why not let X wail and give him a chance to learn to sleep independently and through the night?

What is most concerning is that even after Ms A gave the mother advice about ceasing breast feeding and the contact details for Tresillian, the mother did not take up this advice nor Dr P’s advice to cease breast feeding in 2016 and has only done so recently.
Ms A opined being breastfed before he goes to bed undermines his ability to spend overnight time with anybody. This was of concern to Ms A as the mother had raised concerns that his inability to sleep through the night was an issue for him spending overnight time with anyone including his father.
Ms A was forthright in her report that these were matters the mother needed to forthwith address. I find that the mother chose to ignore this advice as the advice did not confirm her views. It is the mother who does not carry through with expert advice on issues for her son and not as she stated the father.
The mother not the father has a pathological stubbornness about treatments for her son that she does not agree with. It is clear on the evidence, she will only follow or listen to treatments she believes are appropriate for example the mother followed through with speech therapy for X.
The father was dismayed when the mother told him a paediatrician who diagnosed the child with ADHD. The mother is very critical of the father and says he does not accept this diagnosis. It is grossly unfair of the mother to do that. The child has not been diagnosed with ADHD but the potential for such a diagnosis has been raised and the father was correct to dispute what the mother told him.
I do not accept the mother’s evidence that the father will not administer medications for the child. It is the mother who has failed to follow up absolutely crucial therapeutic intervention for her son to allow him to sleep independently from her and through the night. It is concerning that after four years of sleep deprivation, constantly being woken, not being able to leave this child alone with anybody, the mother refuses to follow advice on this concerning issue and tells the Court:
Everyone I spoke to said I was putting in place the correct strategies.
The mother has not put in place the correct strategies to address the sleep issue or the child’s, at times out of control, behaviour.
Ms A said the mother was not doing enough in relation to his out of control behaviour and had failed to take up Ms A’s cogent, proper advice to get his sleep issues sorted out. That window is gone. It may now be exceedingly difficult for the issue of sleep to be addressed. In light of these findings I may form the view that it is the father who is X’s best opportunity to teach him how to sleep through the night, and behave properly and not his mother.
The mother’s tears, anxiety and fear of the father and inability to focus on questions, which I accept was genuine, did not satisfy me as an appropriate reason for not taking on board professional advice.
I have formed the view that if the mother does not agree it will not happen. That intransience, stubbornness or whatever it is called in the mother is a risk of harm to X for as Ms A said, when you know there is an issue with your child and you do not take up advice to address it that is a form of abuse of a child.

MOTHER’S ALLEGATIONS OF RISK OF HARM

The mother’s allegations of risk of harm to the child directly from his father are very serious. The mother alleges that from about age two and a half, X has reported on no less than five occasions that his father has physically hit him. The mother describes in paragraph 16 of her affidavit:
X has disclosed to me he’s been assaulted by Mr Bolan: 1 June 2016, 20 June 2016, 26 June 2016, 6 February 2017 and 11 June 2017.
At paragraph 22 that:
X’s behaviour has drastically changed since visitation began in December 2015.
The mother attests that X swears at her upon his return from his father. That he has been violent with A, her partner’s daughter, as well as violent to her partner and to her.
That when X did not see his father for about five weeks in September 2017 his behaviour improved drastically.
The mother alleges that the father is resistant to therapies for X and his concerning behavioural issues. That the father is resistant to a potential diagnosis of ADHD made by his paediatrician, Dr P.
At paragraph 79 on 1 June 2016, the child says to his mother:
That’s okay, mummy. Hit me.
The mother says:
I’d never hit you. Why would you say that?---Daddy hit me.
Where did he hit you?---Right here ….. on the head.
Did he hit you by accident?---No.
Were you being naughty?---Yes.
What did he hit you with?---His hand.
The child is 2.5 years and the and clearly the mother believes every word this clearly troubled child has said to her.
The mother repeated the word “hit” 4 times when speaking of the father to the child clearly affirming to this young troubled child that his father hits him.
20 June 2016, the child says to the mother and the mother responds:
Bubba and Pa hit bum.
Did Bubba and Pa hit you?
Where? Did it hurt?”
“He hit you again?”
Again, reinforcing that his father, and now his grandfather have hit him.
26 June 2016:
Don’t tell mummy. Don’t tell mummy.
The child then says:
Bubba, Pa – Daddy hit me. He hit me in head.
Who?---Daddy.
I said, “Where?---Here. Here –”
pointing to both sides of his head –
“two times.”
Was it an accident?---No.
Were you being naughty?---Yes, naughty.
Was it today?---Yes. Don’t tell mummy. Don’t tell. Bubba, Pa say I don’t tell mummy.
The mother says she was very angry that she had let her child be injured by the father as she was injured by him. The mother believes without filter every word her child says.
There was no evidence of any injury nor did the mother look for injury.
28 June 2016:
X told B that his daddy hit him in the head.
The mother withheld the child. The matter came before Judge Harman and time was resumed again.
The mother said that during those 5 to 6 between 28 June and 7 August:
His behaviour improved; he was more loving, listened to instruction and ceased any violent behaviour with me and with others. When he returned on 7 August, he was a different child. He said, “Hate B. Hate B.” He was restless and could not go to sleep.
14 August 2016:
In the car, returning from visitation, “Daddy say hate mum, hate B. Daddy say hit mum, hit B and grandma too.”
The mother records every conversation when the child is returned to her care by having her phone on.
The evidence of her partner, Mr R, a gentle and very considerate man, confirmed the mother’s evidence that X happily goes to his father for his six hours; happily returns to the mother’s care. There is no issue. They sit him in the car and, instantly, he blurts out words such as, “Hate B. Hate mummy. Hate A.” They could offer no explanation. The explanation may well be that X is trying to get a rise from her and get some attention. It does not only mean that is what happened, or that that is what the father has told the child to say.
The child is worried about his father coming to his day care in October 2017. Why would a child be worried about this unless his mother had put some fear into him about his father’s behaviour?
There are issues of the child reporting that his father cut his nails; that he punched his father in the arm when his dad tried to cut his nails. His father denied ever trying to do this.
The child told the mother his father “hit me in the eye” and he fell over. His mother firmly believes this is what the father did to his then three year old child on 6 February 2017, namely hit him in the eye.
7 February 2017:
Daddy hit me and I fall down. I punch daddy.
The mother had reported on 15 January 2017 in the communication book:
Bump on forehead from running into the door when playing with his friend Thursday.
On 22 January 2017 and in the communication book the father reports:
He was a little tired this afternoon. He bumped his eye on the doorknob. We had dinner.
The mother has turned this incident into the father assaulting their son. The mother will not accept any evidence that the child ran into a doorknob on the outside gate despite pictures in father’s exhibit 3 of the gate that leads from the front yard to the entrance of the father’s parents’ home. The grandmother is in a wheelchair and there are ramps and the like and the usual distance from the ground to door knob is therefore much less due to the ramps.
The mother says she does not accept the knob is at the child’s head height, that she believes her son, the inconsistency in the father’s story to the Court and the police, of whether it was the back door, the front door, what doorknob it was is further cause for concern.
The mother said in the communication book:
I do not believe X is tall enough to be hit by a doorknob.
The mother went to the police about this incident, so concerned she was, believing that the father had hit his three year old child in the eye.
The Police express doubt about the mother’s conclusions. Reading from the COPS entry, page 3 of 14:
In order to check the victim’s height against door handle, the victim was asked to stand next to the door of a closed door. When he did so, he pointed to the door handle and then to himself and said, “Bop,” indicating the child may have been hit in the face by a door handle. The witness confirmed that the vic uses the word “bop” to refer to being hit – hitting something. The victim is almost exactly the same height as the door handle. If on tippitoes, his eyes would be the same height as the door handle, making the story of the child hitting his own eye on the door handle feasible. Indicated any evidence gained from the victim will be classified as unreliable due to his age. And all the child said was, “Daddy bopped me.” No visible injury was sighted. No medical treatment sought.
The mother would do well to read that COPS report again. Yet it may be that consistent with her attitude to her son’s need to address his sleep issues and poor behaviours if she does not agree with the opinion proffered she will not accept it.
Unfortunately the mother cannot, is unable or unwilling to accept anything that does not fit in with her perhaps real or at minimum now believed experiences of the father as a violent, aggressive man who had nothing to do with his son and who is a risk to him at every level.
The mother questions her son on 11 June 2017:
Daddy say I hate mummy and I said no.
The mother could have responded to her 3.5 year old “Don’t be silly. Daddy wouldn’t say that. I don’t need to hear that,” and get on to another topic of conversation. The mother feeds the child comments:
What else did daddy say about me today?---And I say no.
And do you get into trouble when you say no?---He just hit me.
He hits you?---Yeah. When I say no, he just hits me.
He hits you because you say no?---Yeah.
Where does he hit you?--- …..
His right eye, touching his forehead:
So daddy says he hates mummy and you say no and he hits you?---Yeah.
The mother has perhaps unwittingly led the child to a position that his father hits him. The mother has perhaps unwittingly perpetrated abuse on her child by this behaviour. The mother should have raised her concerns with the father not continue to question the child.
The mother continues:
Where were you when you were hit by daddy? Where you there when he hit you, buddy? Did he hit you today, buddy? Did he hit you on the face because you said no when he says he hates mummy.
Did you cry?---Yeah.
What did you do when you cried?---He hit me again. I runned away from him.
Dad was too fast. But when he hits you, does he say not to tell me?---Yeah.
Was anyone else there when he hit you?---No.
The mother has re-enforced in the child that his father has hit him and is a danger to him. Her belief of this being true is so strong that she has dealt with this in a very inexpert fashion
Mr R described incidents where he would be playing with the child and suddenly he would bite him on the leg. He is playing with his daughter and then suddenly he hits her.
The mother’s belief as to the father’s violence and aggression has some foundation. The father admits the angry, aggressive arguments they had. That he said to the mother, “This is my house. I’ll do what I like,” He says the context, was, he was not able to turn the TV, or a light in case he disturbed the child’s sleep on to disturb his child’s sleep. The mother took the phrase to mean he was in control, would throw her out when he wanted and this only increased her anxiety.
The mother says he was not involved in the care of his child. He could not settle the child; that the child would scream if he tried to settle him. The father says that this is correct and that in context that is because the mother would not let him in. He describes their home life thus:
I recall when we brought X home from hospital, the mother said, “I’m going to follow attachment parenting. I read on this on the net. It’s how people in Africa raise their children.” As a result, X was always in close proximity to X by being carried, and in constant contact with her. He would never be allowed to cry at all, be unattended to for more than a minute or two.
He would not sleep; sit in the chair, car seat or pram, as X would always hold him. He could not be away from X for any long period of time. If I tried to assist in his care, she would say to me, “He’s not used to other people looking after him.” As a result, to help her, I would try to help out as much as possible around the house by cleaning and the like. Given Ms Bolan breastfed X and cared for X under an attachment parenting model, I felt I needed to take a step back to allow X to focus on our child.
That, if it be the case was a disaster. There is no doubt that mother practiced the attachment style of parenting. The mother says she parented in this manner, kept the child close to her, and that the father had nothing to do with the child because he was disinterested. There is however another way of looking at this matter namely the father’s take that he simply could not get between the mother and child .
The attitude of the mother to only accept advice and act upon that with which she agrees is in relation to X’s issues is also apparent in her belief of the father’s conduct towards her and the child and re-enforcement of that conduct in the child.
The mother has attended domestic violence counsellors who believe what victims tell them. However this type of counselling is a significant reinforcement in the mother’s mind that she was subjected to the most extreme coercive, controlling behaviour from the father during the relationship when her belief may not accord with the reality.
Due to the mother’s patchy psychological assessment, not seeing someone constantly and not seeing a professional expert in assisting one to recover from a perceived or actual trauma such as with CBT therapy, the counselling she has had may have reinforced she was in a violent domestic relationship.
After the mother had separated from the father she was attending the (omitted) Area Health Service in relation to domestic violence. X was 16 months old. She was recommended to attend domestic violence counselling: The report says:
She is hesitant to have anybody else look after X, other than herself, at this stage.
This confirms the father’s case of the inability of anyone including him to care for their son. The mother was then only able to have telephone counselling for eight or nine sessions.
The mother has had prior counselling for anxiety, due to a difficult youth and an event that occurred which caused her much distress. The mother was already a vulnerable person when she met the father. Their relationship was not supportive. It was not fulfilling for either of them.
The father had a violent relationship with a prior girlfriend in 2004 and I am satisfied that there was domestic violence in that relationship. The father did not admit this but I am satisfied he hit that girl in the face on one occasion from reading the police notes. The police were called on at least four occasions to their home.
The mother describes how she and the father “fight dirty”. She described this to Ms M. Ms M gave them homework to do, which to try and have a good time together. They reported to her in July 2014, that they had completed homework tasks. Mr Bolan had spent time with X. X began to work towards independence for X, but found very difficult because of his wakefulness. They spent family time together but they were still fighting dirty, as the mother described it to Ms M.
The father wanted a clean home. This was difficult for the mother. He complained that when the child was feeding himself, she gave him food such as couscous, food that can be thrown around a house easily, as opposed to something more solid.
These parents have a very different approach to life, on how they want their home to be, what their priorities are and, clearly, to parenting. I have no doubt the father caused the mother anxiety and stress by what she regarded as his demanding and overbearing manner. The mother described that he would put his face up to her, yell in a loud voice had expectations of things to be done that she could not do. The father did call her an incompetent parent. He did tell her that she could do nothing around the house. He did complain about the state of the home. I accept that the father treated the mother in this fashion.
I accept that he said to her “All you do is sit on your far arse and watch Days of Our Lives.” That he banged a shoe really hard against a wall when she was downstairs in a fit of anger pushed a vacuum cleaner away in anger when she was close by. He was so angry he pushed his mobile phone and damaged a wall. That he was frustrated and angry on many occasions prior to X’s birth and after his birth. I accept the mother found his behaviour frightening and unsupportive and that the father has perpetrated family violence towards the mother within the meaning of the Act.[1]
[1] Family Law Act 1975.
The mother said, he never has physically struck her and she told Ms A he had never hit the child.
The mother told Ms A that X had extreme difficulties being separated from her and cared by other people. He would make himself sick and could not even be settled by members of her own family, such as his grandmother. She tried to transition to day care at two and a half; it failed. He is transitioning now. Sometimes he is good; sometimes he is not good. Ms A noted that he had no trouble transitioning to Ms A or the child care worker at the court. The mother attributed this to her excellent skills. She told Ms A that as he was still sleeping with her he could not possibly spend overnight time with anyone because he had to be with her 24/7.
Paragraph 25:
Ms Bolan said Mr Bolan had never physically harmed X when they were in a relationship and he had never physically harmed her; however, he was verbally aggressive towards X and intolerant of typical behaviours exhibited by babies.
I accept that the father was frustrated and did not handle his frustration well. The father has grudgingly accepted that that may be true.
The father talks in his affidavit about the sleep deprivation, the baby not sleeping, the mother constantly sleep deprived, his having to work and that the mother would not follow advice and obtain help.
In relation to Tresillian the father reported that the mother said to him, “I don’t want to go ahead with it,” and the mother confirmed that was correct.
Ms A’s evidence was very insightful. She indicated that a child who happily goes to a parent’s home and leaves that parent’s home to return to their primary carer is contraindicated to a child who has been subjected to actual physical violence at the hands of the other parent.
Ms A opined that the fact the father sought to end the relationship and asked the mother to leave is contraindicated to a coercive, controlling relationship, as the mother alleged the father perpetrated upon her, because in asking her to leave he is letting go of control.
That the mother’s actions in not addressing her son’s significant sleep difficulties could amount to child abuse, as this problem has been apparent since he was four months old and the mother has merely followed her plan, a plan which has not worked.

That the mother’s response to X’s out of control behaviour is to get down on her knees and quietly speak to the child about his behaviour. This behaviour is him biting her, hitting her, biting other people, slapping her so hard he caused her lip to split,. The mothers’ strategy is not sufficient or enough in these circumstances, yet the mother tells me of no other strategies she has in place to deal with this anti-social behaviour. The mother says:
I believe X acts out because of things Mr Bolan has told X or asked him to do. I do not believe it is in X’s best interests to spend time with Mr Bolan. It will undermine my ability to parent X and it affects his behaviour. I fear X may suffer the same abuse I suffered from Mr Bolan as he grows older, and that he will negatively mould X into the future. Previous incidents in our marital home and on visitation establish fears and concerns in me at each subsequent visit for the safety of X, both physically and emotionally. That the father has a propensity for violence; that is his record and that is what he is doing to his son.
It is difficult to understand the mother’s belief that 5 hours of time once a week monitored, with his father is the root cause of his poor behaviour when he is in his mother’s care every other waking moment.
Ms A recommended the parties attend Circle of Security and Parenting After Separation. The mother has done one parenting course but not Circle of Security. The father has completed four or five courses and will complete an anger management course. The mother continues to be resistant to follow professional advice even when her description of her son’s behaviour is cause for concern.
The issue for me in light of this evidence and the mother’s beliefs is to assess the risk of harm to this child in either parents care.
I find that the mother is a caring parent who is able to provide for the child’s physical needs at a high level. The mother has been unable to provide for the totality of his medical needs, as she is resistant to accepting advice from health professionals and other professionals, such as Ms A, in relation to addressing the child’s behavioural issues and his sleeping issues, and she has lost a window of opportunity to address his significant sleeping issues.
I find the mother is a potential risk of emotional harm to the child, as she believes the father cannot provide one positive for this child and appears unable to set boundaries for her son. The mother believes that the father has physically harmed the child a belief she has reinforced in X again and again, by her questioning of him in the absence of any physical evidence of any harm.
The mother sees no benefit for the child in having a relationship with his father, despite the consequences Ms A told us for such children. Children lose their identity. They can idolise the parent they do not see. They can become angry and aggressive. They can move away from the parent that they live with; when they think they are the one who has stopped them seeing their natural biological parents. They can suffer from depression, difficulties in behaviour, and with a child such as X, who already has such significant difficulties that must be a real concern to the Court.
If the mother’s orders were made, it is a distinct possibility that X would experience the whole range of potential risks outlined by Ms A due to not spending time with his father.
What are the risks in the father’s household? I have formed the view that father has never hit the child, nor would he ever hit the child. It is inconsistent with his presentation. He has strengthened his capacity to provide for the needs of his child by the work he has undertaken with the completion of various courses and is open and accepting of professional advice.
The mother’s case is that due to the father’s verbal abuse of her, which I accept occurred, his at times, emotional and insensitive treatment of her when she was sleep deprived and parenting a difficult child; his attempts to coerce her to be the homemaker, parent and mother he wanted her to be, I should now accept the words of a troubled 4 year old child who has said his father is hitting him and has done so from the age of age of 2.5 years.
I do not see that I can draw those connections in absence of any physical evidence whatsoever of the father physically harming his child coupled with the mother’s leading of the child’s evidence and re-enforcing that his father is a danger to him.
I accept that when X returns from time with his father, he does act up with his mother. It may be because he wants to spend more time with his father. It may be because he has missed his mother and he wants to punish her. It maybe because he receives attention from this behaviour.
I accept X does behave badly for his mother at times, however the mother’s reaction to X’s behaviour has been inappropriate. The mother has re-enforced his father is a risk to him; given the child attention for the wrong behaviour and has not taken charge of the situation. There is no example in the mother’s affidavit, or orally of any boundaries she places around this child. Dr P was clear in his report, this is essential.
I find it is the father who, in Dr P’s words, can set boundaries for his son. The father said he can be naughty. On one occasion, he was hitting his father in the face with his feet and his father said, “Stop that. That’s not how you behave,” The father said there was no problem and the child behaved. The grandfather said he has been naughty on an occasion and his grandfather has said, “Stop that. That’s not how you behave.” There was no difficulty. It is clear to me that the father and the paternal grandfather have a capacity to provide boundaries which this child will accept. That is not evident in the mother’s household.
Having found that the father is not a risk of physical harm to the child, I am most concerned that if he is excised from his child’s life, X has the potential to become an uncontrollable child. I make this finding at this stage as the mother has shown scant ability to control his behaviour, or access therapies and interventions which abound in our society, to assist her to deal with his behaviour.
Her evidence was virtually silent on this. The mother gave me no encouragement, no faith in her ability in the future to address these matters. Unless she believes in the therapy, it will not happen is what I have taken from the mother.
X’s father has a very different approach; it is proactive. He is clearly a starter-finisher and will follow things through. He has completed many courses, more than he needed to, and is to complete an anger management course. X’s best and, as I see the evidence only opportunity at this time to improve his behaviour, to behave in a socially acceptable manner, is if his father is involved in this life, his treatments and therapies. I am not all confident that the mother will carry through therapies if she does not agree with them. I am confident that the father will do so. That then may mean that the father must be involved in his son’s life.

The Act[2]

[2] Above, note 1.

The issue of equal shared parental responsibility. These parents do not communicate face to face. They can communicate very respectfully in email. The father can overdo it and, from the mother’s point of view, bombard her with emails; such is his need to know what is happening with his son.
The mother’s view that the father only brought this litigation to get at her and continue to control her is both sad and incorrect.
The father has fought tooth and nail for every hour of time he has with his child and for the mother to continue with a belief that when he spends this time he hurts his son is not borne out on the evidence.
With respect to the mother it is X, and not she who is important to the father. I saw no evidence of an ongoing need to control the mother if he ever did her and the father has moved on. The father is desperate to be a part of his son’s life and the mother only sees this as the father wanting to control her and hurt their child.
It maybe that the father is pressing this need too ardently. That this is likely the case is evident from his evidence when he in describing his marriage says, “I wasn’t able to be a father to my son because of this method of parenting our child that the mother employed. I have not been able to be involved in my son’s life because of supervised time, the breaks in time, the mother’s belief I’ve harmed the child. I now want to be able to do that and have an independent relationship with him.” This is X’s right.
It is crucial X becomes independent from his mother and has his own life, his own relationships, needs and wants. That cannot be achieved if his father is excised from his life. He will be enmeshed in his mother’s view of the father as the mother has not received appropriate treatment to assist her to recover from what she regarded – and I accept is genuinely held by her – an abusive, controlling, coercive relationship. I do not find that that was the nature of the relationship.
The father’s treatment of her has had a significant impact on the mother, perhaps due to her prior frailties. Although I found the father yelling at her and belittling her was family violence under the Act[3] it does not fall into the category of serious emotional, psychological, physical coercion and control as the mother asserts nor warrant the child having no relationship with his father.
[3] Above, note 1.
There was poor behaviour. There was anger. There was shouting. There were comments made, as the mother describes and nasty fights, but that falls far short of what the mother now genuinely believes, and the mother needs assistance to excise the victim mentality she portrayed in Court.
I have formed a view that although the parties cannot communicate face to face and that the mother becomes anxious at the prospect of communicating with the father unless the father is involved, in the treatment of his son and his behavioural issues the child’s behaviour may worsen. If X is to achieve a regular life, enjoy positive relationships, excel at school, and maximise his potential it is imperative his father be involved in the decisions to be made. For that reason, I have formed the view consistent with the Independent Children’s Lawyer and the father that parental responsibility must be shared, despite the evident difficulties in parental communication.
The child benefits from a meaningful relationship with each of his parents. He has been subjected to abuse in his parent’s household due to their fights, which he would have heard. That ceased when he was aged 12 months ago. Since that time, apart from, perhaps, an odd occasion at changeover, I have formed the view this child has not been subjected to abuse, neglect or violence in either parent’s household.
His mother has neglected his problems with sleeping and failed to follow through on two occasions with appropriate treatment, which is now lost forever to X. The mother has failed to assist herself to overcome what was for her, a traumatic relationship by obtaining counselling that would assist her. The mother has failed to put in place any strategies, boundaries, or parenting practices to deal with this very difficult child.
Although the mother attends a paediatrician, I see no evidence that she has put in place the plan he set forth other than the taking of medication to get the child to sleep which is working and attending speech therapy. If either parent has neglected or been neglectful of the child, it has been his mother, not his father and this will be hard for the mother to accept.
The child’s wishes are irrelevant.
Both parents can provide for the child’s educational, psychological and emotional needs; however, I find his father has the best capacity to provide for X’s needs as being separate to, and different from, his parent’s needs. The mother’s needs and behaviours have overlayed the child’s needs. X is becoming enmeshed in her world of a dangerous and unsafe father and this is unhealthy and not in the child’s best interests.
X has his closest emotional attachment to this mother; however, despite fractures and difficulties he has a strong solid bond with his father, which even when aged 18 months was noted as comfortable. X knows who his dad is and to cut him out of his life now would be to perpetrate a great harm upon X.
X’s right to a meaningful relationship with his father is as important as his right to such a relationship with his mother given I have found he is not at risk of direct harm in his father’s care.
What are the other risks of harm to X of his father to be a part of X’s life?
The mother may dissemble and her anxieties may well overwhelm her at the prospect of X spending overnight and holiday time with his father. I was satisfied in the witness box she was genuinely tearful, fearful and afraid. I accept her fears, on a subjective basis however they are not borne out in reality. There is no risk of physical harm, emotional or psychological harm to her son neither directly from his father nor to her. The mother must accept that and deal with this and may need to undergo some appropriate therapies to allow her to accept that position and deal with it.
If the mother dissembles her parenting of the child will be very much compromised and X may suffer psychological harm. On the other hand I have significant concerns about the mother’s capacity to provide for her son’s a medical, emotional and psychological needs if the therapies suggested do not meet with her approval.
Even on the limited time the father spends with the child, I have formed the view he may be the parent best to deal with this child’s behaviour and not the mother. I find the risk of compromising the mother’s parenting of the child by making orders for time including overnight time is a lesser risk to X than not having his father in his life.
If his father lived closer, I would make orders for X to spend significant and substantial time with his father into the future and to ensure his father was involved in all aspects of his son’s life.
I must be mindful of the distance between the parent’s homes at this time and craft my orders accordingly. Time must increase slowly to allow X and his mother to adjust to the new regime of time.
X will commence time with his father daily unsupervised.
His time will extend to alternate weekends slowly and increasing to Friday 5 pm to Sunday 5 pm each alternate weekend.
In the event the father moves to a residence that is no more than 30 minutes travel from the child’s school, his time in the second term of the 2019 school year time shall extend to Monday morning.
From June 2019 when X commences school, the father’s weekend time will continue and will extend to 5 pm Tuesday in Easter school holiday, 5 pm Thursday in the June/July holidays and 5 pm Saturday in the October holiday.
In 2020, the child will spend one half of each school mid-term holidays with his father being the first half in even numbered years and the second half in odd numbered years.
Thereafter, the child to spend half of all school holidays with each parent being the first half with the mother in even numbered years and the first half with the father in odd numbered years.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 15 February 2018

[2018] FCCA 289

15 February 2018

Key Legal Topics

Areas of Law

Family Law