Bond and Bond

FAMILY COURT OF AUSTRALIA

BOND & BOND

[2008] FamCA 708

FAMILY LAW – CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bond

RESPONDENT:

Mr Bond

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYF

2986

1999

DATE DELIVERED:

22 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

11-15 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cumming

Orders

All previous parenting orders in relation to the child … (hereinafter referred to as “the child”), born on … March 1994, are hereby discharged.
The child is to live with the mother.
The mother is to have the sole parental responsibility for the child.
The father is permitted to forward to the child letters, gifts and cards by registered post and the mother shall ensure that such letters, gifts and cards come into the child’s possession unopened, and that the child be permitted to open such letters, gifts and cards in privacy.
The father and the child are permitted to communicate by email and by web cam.
The father is permitted to provide to the child by post a mobile telephone and the father is to be responsible for all costs, fees and charges in relation to that phone.
The father and the child communicate by way of such mobile phone in accordance with the child’s wishes and the mother is to ensure that the child has privacy during such times as he wishes to communicate with his father by such mobile phone.
Each of the parties is restrained by injunction from saying anything or permitting anything to be said to the child which either expressly or by inference denigrates the other.
The father not spend face to face time with the child.
The mother do all such acts and things as may be necessary to bring the child to the offices of the Independent Children’s Lawyer within 7 days of the date of these orders so that the nature and effect of these orders might be explained to him.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2986 of 1999

MS BOND

Applicant

And

MR BOND

Respondent

REASONS FOR JUDGMENT

Introduction

Tossed on the angry seas of parental conflict in an apparently unending storm, a child seeks only that that conflict be ended and the people he loves allow him to peacefully express that love.
The evidentiary forecast predicts that the tempest of hate will not abate and the only thing available to the court is to pluck the child from the sea until he has sufficient maturity and strength to find his own shore.
The only holding harbour available to him is with his mother, since his father says he has not the means, nor the capacity, to offer that facility at this time to the child. That harbour is not without its problems since the mother has informed the Court and the child that if he sees his father she will push him out to sea again and away from her until he reaches his majority.

Background Facts

The father was born in March 1960 and the mother was born in March 1953. The parties were married and commenced cohabitation in October 1993 and separated on 1 January 1999. A Decree Nisi dissolving the marriage was made absolute on 17 March 2000.
There is one child the subject of the dispute, namely a son, born in March 1994 aged 14 years. The Child lives with his mother.
On 14 January 1999, the following interim parenting orders were made at Manly Local Court by consent:
“1.That the child, […,] born […] March 1994, live with the Wife.
2.That the Husband have defined interim contact with the child as follows:
(a)Each alternate weekend between the hours of 1.00 pm Saturday to 4.00 pm on Sunday, to commence on Saturday 16 January 1999.
(b)Any other contact as agreed to by the parties.
3.The child to be collected and returned to [W] McDonalds.
Notations:
(a)It is noted that the Wife will encourage the child to contact the Husband by telephone and allow such contact to occur when the child requests to contact the Husband;
(b)The Husband will not perform any personal training work during contact and will personally supervise the child.”
On 5 May 1999 Final Orders made by consent in the Family Court at Sydney as follows:
“1.That the child […] shall live with the Respondent Mother and she shall have responsibility for the day to day care, welfare and development of the child.
2.The Applicant Father have contact with the child […] as follows:
(a)each Monday and Wednesday afternoon from 3pm to 5pm save and except during school holiday periods.
(b)each alternate weekend from 3pm Friday to 8pm Friday and from 3pm Saturday until 9am the following Monday save and except during school holiday periods.
(c)For one half of all New South Wales Public School holidays by agreement and failing agreement between the parties for the second part of such holiday periods.
(d)At other times as agreed between the parties.
3.On the proviso that the father personally supervise the child and not be engaged in paid employment.”
On 17 September 1999 interim Orders were made by consent:
“1.That subject to Order 4 the father have contact with the child
[…] as follows:-
1.1each alternate weekend from 3.00 pm on Friday to 9.00 am on Monday;
1.2the first half of all school holidays;
1.3from 3.00 pm 24 December 1999 until 3.00 pm 25 December 1999 alternating between the parties;
1.4from 3.00 pm – 6.00 pm on [the child’s] birthday and the Father’s birthday.
2.That at commencement of each period of contact referred to in Orders 1.1, 1.2 and 1.4 that the father collect [the child] from school and at the conclusion of the period of contact referred to in Order 1.1 that the father return [the child] to school.
3.That at the commencement of each period of contact referred to in 1.3 that the father collect [the child] from McDonalds at [W] and at the conclusion of the periods of contact referred to in 1.2, 1.3 and 1.4 that he return [the child] to the mother at McDonalds at [W].
4.That in the event the father is having contact with [the child] on the mother’s birthday, that the mother will have [the child] from 3.00 pm – 6.00 pm.
5.For the purposes of implementation of these Orders all changeovers on non-school days are to occur at [W] McDonalds.”
Interim Orders were made not by consent on 17 September 1999:
“1.That the father shall have contact with the child namely,
[…], born […] March 1994, from 9 am until 5 pm on Sunday 19 October 1999, unless a medical certificate is supplied by the mother.
2.That the father shall collect the child from the mother at McDonalds at [W] at the commencement of contact and shall return the child to the mother at McDonalds at [W] at the conclusion of contact, for the purposes of contact referred to in Orders herein.
3.On each Tuesday and Thursday between 5 pm and 6 pm, the father shall have telephone contact with the child, to be facilitated by the mother ensuring the child telephones the father.
4.That contact arrangements as outlined in 1.1 of the interim consent orders of 17 September 1999 shall commence on 24 September 1999.
5.That the orders of 5 May 1999 be vacated.”
On 18 October 2000 orders were made by Justice O’Ryan in the following terms:
“1.That all previous contact orders between the Father and the child of the marriage namely […] born […] March 1994 be discharged.
2.That the father have contact with the child defined as follows:
a.Each alternate weekend from after school on Friday until the commencement of school on Monday morning.
b.For the first half of each school holiday period, subject to Order 2(c) and Order 9 of these Orders.
c.From 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with such contact to commence on Christmas Eve 2001 and to alternate thereafter.
d.In the event that the child’s birthday does not fall during a contact period, contact to occur on that day from 3.30 pm until 6.00 pm.
e.In the event that the father’s birthday does not fall during a contact period, contact to occur on that day from 3.30 pm until 8.30 am the following day.
f.In the event that Father’s Day does not fall during a contact period, from 9 am on that day until the commencement of school on the following Monday morning.
g.Telephone contact between 7.00 pm and 8.00 pm each Tuesday and Thursday with the father to telephone the child on the mobile phone of the mother.
h.That the Father be entitled to enrol the child in Rugby Union football training to take place on one afternoon each week, and in the event that such enrolment occurs, then the Father to have contact from after school on the day of the said training until such training ends, and the child to be collected by the mother at the place of training at the end of the training period.
3.That in the event that Mother’s Day falls during a contact weekend pursuant to Order 2 such contact conclude at 9.00 am on Mother’s Day.
4.That in the event the mother’s birthday falls during a contact period pursuant to Order 2 such contact be suspended between 3.30 pm on that day and 8.30 am the following day with the mother to have contact with the child between those hours.
5.That for the purpose of implementing contact pursuant to Order 2(a) of these orders the father collect the child from school at the commencement of contact on Friday afternoon and deliver the child to school at the conclusion of contact on Monday morning.
6.That at all other times contact changeover take place at McDonalds at [W].
7.That the Mother have telephone contact with the child between 7.00 pm and 8.00 pm on Tuesdays and Thursdays should such days fall during a contact period pursuant to order 2 of these orders.
8.That each party facilitate and encourage telephone contact between the child and the other party on the request of the child in addition to the telephone contact provided for in these orders.
9.That during the year 2000/2001 summer school holiday period contact between the father and the child be further defined as follows:
From 3.30 pm on Tuesday 19 December 2000 until 6.00 pm on Monday 8 January 2001, with the child to live with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas day 2000 in accordance with order 2(c) of these orders.
10.That each party be restrained from removing the child from Australia without the prior written consent of the other party.
11.That each party be entitled to remove the child from New South Wales during any school holiday period, provided that such party give the other party written notice of the address or addresses at which the child is to reside during such holiday period including a telephone contact number of such address or addresses and such information to be provided not less than 7 days prior to the removal of the child from New South Wales.
12.That the mother do all acts and things and give all instructions necessary to ensure that the father is provided with copies of all school reports of the child and notice of any school functions in which the child may be involved.
13.That each party keep the other advised as to their respective residential address and telephone number.”
On 14 November 2003 final Orders were made by Justice Rose in the following terms:
“IT IS ORDERED:
1.That all prior parenting orders and injunctions in relation to [the child] born […] March 1994 are hereby discharged.
2.That the child reside with the mother AND that the parties shall note the obligations created by this Order and the contact Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
3.That the child have contact with the father defined as follows:
(a)During school term:
(i)each alternate Monday from the conclusion of school on Monday to the commencement of school on the following day such sequence recommencing on the Monday of week three in each school term (“Monday night contact”) and the first occasion of Monday night contact shall occur on 1 December 2003;
(ii)each alternate weekend from the conclusion of school on the Friday to the commencement of school on the following Monday such sequence re-commencing on the Friday of week one in each school term (“weekend contact”) and the first occasion of weekend contact shall take place on 21 November 2003.
(b)During school holiday periods for half of each school holiday period following the completion of each school term as follows:
(i)for the first half of such holiday periods in each even numbered year commencing at 9.00 am on the first day and concluding at 6.00 pm on the last day of such contact;
(ii)for the second half of school holiday periods in each odd numbered year commencing at 9.00 am on the first day and concluding at 6.00 pm on the last Friday prior to the commencement of the new school term notwithstanding that the period of such contact is not precisely half of the relevant school holiday period.
4.That for the purpose of contact change-over for contact during school terms, contact shall commence by the father or by the child’s paternal grandmother collecting the child from his school at the conclusion of the school day AND either the father or the paternal grandmother shall return the child to his school at the commencement of the next school day PROVIDED that the father is not prevented by an order of a Court from entering or approaching the school.
5.That for the purpose of contact during school holiday period contact change-over shall take place at the [W] McDonalds Restaurant between the mother and the child’s paternal grandmother or if she is unavailable due to illness or any other reason then between the mother and any other person other than the father agreed upon between the parties prior to the relevant change-over.
6.That the father is restrained from coming within one kilometre of the [W] McDonalds Restaurant at such time as contact change-over is due to take place.
7.That each of the parties have reasonable telephone contact with the child whilst the child is in the care of the other party which shall take place at least once every two days in the evening between 6.00 pm and 8.00 pm unless otherwise agreed between the parties and each of them shall encourage the child to telephone the other at any time that the child so wishes.
8.That the father shall have contact with the child on Father’s Day from 9.00 am until the expiration of the time at which contact would otherwise cease or if on a non-contact weekend then it shall cease at 6.00 pm.
9.That the mother shall have the child in her care on Mother’s Day from 9.00 am until the commencement of the next scheduled contact day.
10.That the mother have the sole parental responsibility for decisions relating to the child’s education and health unless there is an emergency in relation to the child’s health whilst he is in the care of the father.
11.That subject to Order 10 each of the parties have the responsibility for the daily care and development of the child whilst he is in his or her care.
12.That the mother have the long-term responsibility in relation to the child’s care, welfare and development.
13.That each party shall keep the other promptly informed by way of written notice to the current residential address of the other party of:
(a)his or her current residential address; and
(b)his or her current home landline or mobile telephone number.
14.That in the event of the child becoming seriously ill or injured the party in whose care the child is at that time shall forthwith inform the other party of the name, address and telephone number of the relevant medical practitioner or hospital.
15.That the mother shall forthwith authorise and direct the Principal of all schools attended by the child to furnish the father at his expense with copies of all school reports, notices and correspondence in relation to the child’s academic progress, sport and extra-curricular activities.
16.That each party be restrained from approaching the child or a place which the child might reasonably be expected to be in attendance at that time (including a school, hospital or sporting venue) during periods when the child is pursuant to these Orders in the care of the other party except with the prior written consent of the other party.
17.That the mother shall inform the father in writing of all and any medication that the child may be required to take and ensure that the child has with him the relevant medication on occasions of contact and the father shall ensure that the child takes such medication so directed on the label of its container and has such unconsumed medication returned with him at the conclusion of contact.
18.That the mother shall ensure that the child has all appropriate clothing cleaned and packed for each occasion of contact and the father shall ensure that such clothing is returned with the child in a clean condition and packed at the conclusion of contact.
19.That neither of the parties shall denigrate the other or any of his or her family members or friends to or in the presence or hearing of the child and shall use his or her best endeavours to ensure that no other person behaves in such a fashion.
20.That neither party shall discuss or make comment upon the evidence or any other aspect of these proceedings with the exception of the Orders made this day with the child or in his presence or hearing and shall use his or her best endeavours to ensure that no other person behaves in such a fashion.
21.That each of the parties may furnish a copy of these Orders to any school staff member, government employee or health professional concerned with the education, health or welfare of the child.
22.That the order for the appointment of a child representative be and is discharged after the expiration of one calendar month from the date of these Orders.
23.That each of the parties has liberty to apply in relation to discharging, suspending or varying all or any of the orders made this day upon seven days’ written notice being given.
24.That all documents produced on subpoena may be returned to the person who produced the same.
25.That the proceedings be removed from the Active Pending Cases List.”
On 6 February 2006 a Recovery Order was made on application of the mother.
On 6 March 2006 the Mother filed an Application for Final Orders seeking that orders as to the child spending time with father be discharged.
On 12 June 2007 the Father files a Response seeking that the child lives with him and spends time with mother each alternate weekend, for half of each school holiday period and special days.
On 24 July 2007 Judicial Registrar Loughnan suspends orders of 14 November 2003 to the extent that they provide for the child to spend time with the father, except in relation to arrangements fixed by agreement between the parties and the Independent Children’s Lawyer, in writing.

Since the making of the recovery order and save for the time spent by the father with the child in the process of the preparation of the Family Report, and some brief encounter at the school, the father has not seen the child.
On the hearing of the application the father seeks orders in lieu thereof in the following terms:
“1.I wish and hope to receive half of all school holiday’s visitation and provide for and pay for my sons [sic] airfares to and from my home at my expense.
2.I wish to provide a mobile phone to my son [the child], to be able to be a part of his life as I have missed so much over the eight years.
3.I wish to be allowed to contact my son [the child] by email on his private computer, b) by post c) and by mob phone 7 days a week with no interference from the mother.
4.I wish to be allowed to send via mail, gifts and presents, cards, letter’s without the mother touching, opening or hiding or throwing away!
5.I also hope to be allowed to chat via videolink on his computer if possible and to send and receive private father and son fun emails, without the mother checking them or reading my or [the child’s] private mail ever!
6.That I be allowed to attend any special life event that my son wishes to invite me to such as his High School graduation or something that is important to him!?”

The Issues

Should the mother have sole parental responsibility.
Should the child spend time face to face with the father, as sought by him, for one half of each school holiday period.
If the child was not to have face to face contact with the father what, if any, contact should he have with him.

Credit

The evidence of both the father and the mother at times was, I felt, unreliable. The mother gave answers from time to time which although strictly probably correct, gave the impression that there was much more to know. The father gave answers which he passionately and probably incorrectly in most cases, believed in. Often, despite warning, his answers were not responsive to the question asked. He pursued his own desires to put material which could be thought in some way to be pejorative of the mother or supportive of his position before the Court. In general I prefer, in the case of conflict, the evidence of the mother.

The Father

The father was a large man as would be appropriate for one in his occupation. He has produced evidence that in the past he has held a number of responsible positions in the security industry among others. He apparently had also been a personal fitness trainer. He has held representative positions in sporting teams. He has produced a number of testimonials by different persons attesting to his effectiveness, honesty and integrity.
Three persons gave evidence to this effect. One of them described him as an embellisher of fact. His evidence bespoke of the truth of that assertion.
He has a remarkable capacity, in my view, to convince himself of a position and cling tenaciously to that belief. I don’t think he lies in the ordinary sense of the word because his internal systems simply create a world in which his conduct is explained in a way which justifies things he might do and which will not brook of criticism or gainsaying. That world is one in which he passionately and I think truly believes. His belief and his truth is however something which would not appeal to a disinterested observer of events as accurate or even likely.
A classic example is found in the events leading to the removal of the child to Perth. This was an event which, I am sure for at least during its duration, the boy enjoyed, but the basis of it taking place at all was founded in a created “truth” of the father.
Prior to the taking by the father, the father had communicated with the mother and proposed that they come to an agreement in relation to the child, taking into account the child’s wishes. She had asked that he put any proposal in writing and in the event none had been submitted by him.
The father, allegedly two days prior to the taking, had been told by the child, (whom it is reported is torn between his parents and of whom the Family Consultant, during cross-examination by the Independent Children’s Lawyer, says “he has a great desire to please both his parents”) that he wanted to live with his father and go to Perth with him. The child had said that he had told his mother that.
The mother, on arrival to pick up the child from that period of contact with the father, was told that the child would not be going with her. She, on the father’s evidence, was furious. The father said words to the effect “Let’s do what [the child] wants”, “Let’s not have lawyers and courts let us just do what he wants”. Though, as the father describes it, the mother said through gritted teeth turning on her heel and striding to her car “Put it in writing” and drove off in a fury, the father read her conduct and language as a consent to him taking the child permanently and living with the child in Perth. The father also based his conclusion on the comment he made as the mother was striding away in a temper and after her comment “I will put it in writing when I get to Perth.”
A day later police attended on his premises to check that the child was all right and he said the child spoke to them and told them that he was going to Perth with his father and they took no further action.
From these events the Court is asked to find that the mother consented to the child being removed to Perth. The Court does not so find. What the court finds is that the father, desperately wanting to believe that he had consent, constructed in his own mind a scenario that consent had been given, when clearly it had not. Even today notwithstanding all the evidence to the contrary he clings with a passion to that belief.
One of the difficulties facing the father was an absence of legal representation and in the circumstances the Court has a far greater opportunity for observing him, and in argument and debate much is revealed as to how he sees the world and the mother.
He launched against the mother a barrage of vituperative condemnation and insulting invective without any apparent capacity to control himself. A call to order from the bench was often attempted, to be ignored, so engrossed was he in sneering something to the mother’s detriment.
He has a hatred for the mother expressed in a number or ways including:
(a)You forced me into marriage
(b)She forced me into marriage saying she was on the pill when she wasn’t
(c)“I hate her guts” (when asked what his attitude to the mother was)
(d)She tried to poison [the child] with laxettes (an assertion frequently made by the father but not proved to the satisfaction of the Court. The mother denies that she gave the child any medication which was not prescribed)
(e)You are not worthy […] to carry my family name (and after a warning from the Bench that we were referring to the mother as “Ms Bond”, a repetition from time to time of the same name for the mother was made and usually spat out with a completely undisguised sarcasm, sneer or hatred)
(f)He made with a sneering and sarcastic tone comments referring to her alleged “affairs” with “corrupt police” and others including his suggestion that if she went out to dinner with a policeman they would not be playing (a board game) afterwards
(g)His behaviour in Court was such that he was rude, interrupting and shouted at the mother whilst she was being asked questions by other counsel. So bad was his behaviour in this regard that I had to exclude him from the proceedings for a time.
(h)She got corrupt coppers to fit me up. It was the father’s assertion that all police involved with the wife in the AVO proceedings were somehow corrupt and either did her bidding for that reason of because they were in some “boyfriend” relationship with her. There was no independent evidence of that .
(i)She did what that lesbian at the […] Refuge told her to do and she fixed me up with an AVO (Apprehended Violence Order).
(j)She is a coon. She is an aborigine. (I do not consider this latter description of the mother as pejorative but it was meant to be and probably was in the father’s world)
(k)She arranged for me to be fixed up by the Federal Police when they jumped me at Court and kicked me and the matter was taken over by her mates at Dee Why police even though they have no jurisdiction in the matter and behaved illegally.
The Family Consultant and author of the Family Report in evidence observes of the father:
“[The father] tried very hard to express his views calmly. He was, however, unable to maintain his composure when he felt that the Family Consultant was not in agreeance (sic) with him and when he felt under threat………This anti-social, threatening and immature behaviour does not provide a good role model for [the child]. It is not in [the child’s] best interests that the option of him living with his father is supported because of [the child’s] anti- social behaviour.”
At that time, the father was seeking an order that the child live with him, whereas at the hearing the order he sought was only that the child live with him during part of the school holiday periods.
In cross examination of the Family Consultant she conceded that the father had behaved as a good role model in teaching the child sports and, when in Perth, placing the child in school and being involved in his education. The principal of the C Primary School who gave evidence said of him that he was a good role model during the short time he knew him (about three weeks).

Matters, Criminal Convictions and Orders Made in Other Courts

The father also has the following history in other courts, namely:
a)In October 1985, the father was convicted of assault occasioning actual bodily harm.
b)In October 1985, the father was convicted of common assault.
c)In February 1986, the father was convicted of unlawfully being on premises.
d)In May 1990, the father was convicted of offensive language.
e)On 18 February 1999, the mother was granted an interim Apprehended Violence Order against the father at the Manly Local Court.
f)On 4 March 1999, the mother was granted an Apprehended Violence Order against the father for a period of 2 years by the Manly Local Court.
g)On 4 March 1999, the father was convicted of stalking and inappropriate uses of telecommunication service.
h)On 25 February 2000, the father was convicted of three breaches of an Apprehended Violence Order at Manly Local Court.
i)On 2 March 2001, an Interim Apprehended Violence Order was made against the father at Manly Local Court.
j)On 10 May 2001, an Apprehended Violence Order was made against the father for a period of two years at the Manly Local Court.
k)On 3 June 2002, the father was convicted of a breach of the Apprehended Violence Order.
l)On 2 July 2003, bail was granted to the father on a charge in relation to alleged harassment and intimidation of a staff member at a school attended by the child.
m)On 15 July 2003, a further Interim Apprehended Violence order was made against the father.
n)On 26 November 2003, the offence of intimidation was found proved and the father is required to enter into a two year good behaviour bond.
o)On 11 October 2007, the mother was granted an Apprehended Violence order at the Manly Local Court against the father for a period of two years.

The Mother

Certainly the mother did not give voice in the same way to her feelings about the father. She gave every appearance of being tired beyond further endurance. She appeared in Court via television screen, it being her assertion that she was intimidated and frightened by the physical presence of the father in the same room.
Whilst the father gave evidence that she had no basis for this concern and once again it was simply (like the AVO orders) an attempt by the mother to show him up as bad in the eyes of the Court, one could have forgiven her for feeling that way. Even though not in the room, the father shouted at her, scorned her, spoke sarcastically to her not once, but continually. He sneered and leered and was unable in her presence to other than show that he hated and despised her and held contempt for her.
The mother, in evidence which I accept, denied that she had consented to the father taking the child to Perth.
The mother gave evidence which suggested that she was suffering battle fatigue. The father said that he had been at Court in excess of 60 times (presumably for procedural hearings and interviews as well) in the history of the litigation between the parties in this Court, and related matters such as AVO applications in the Manly Local Court. No doubt for most of them the mother would also have had to be there. Since on some of the occasions when AVO’s were granted the father did not appear, perhaps the mother’s attendance was more frequent than that of the father. Whatever the final number of appearances the number asserted is extraordinary and denotes a level of conflict almost unsurpassed in my experience. Proceedings between or about these parties have been ongoing from time to time since February 1999, over nine years in total.
The father could not think of anything good to say about the mother, other than that she had given birth to his child.
The mother was at least prepared to say of the father that the child loves him and enjoys his time with him. The evidence of the mother was given in a quieter and more responsive fashion than that of the father but there was no evidence which one could point to which suggested that she had much to say that was positive of the father, except that he was good at teaching sport to his son and that the son loved him and enjoyed his time with him.
In the upshot, the mother said in effect that in its progression, the dispute with and her experience of the father had come to a Rubicon which, if crossed, left her only with the alternative of cutting off any relationship with the child until he was an adult.
The father (and the Family Consultant) called this statement to the child psychological abuse and I described it as appalling if true.
In her report the Family Consultant says:
“She has a simplistic understanding of the impact of her telling her son that he would not be able to see her if he chose to live with his father when she had been [the child’s] primary source of security for his whole life.”
Notwithstanding those critical comments of the statement to the child, the mothers counsel put firmly and quietly in her closing address that her client’s instruction was the same, that she could endure no more. She would, it was said, do what she threatened and have nothing to do with the child until his majority, if face to face contact with the father occurred. That it was put would mean an end to a nine year conflict she could no longer endure. It was not artifice, just a way of securing her position which had become untenable in light of the history of the matter.

Other Evidence

Part of the Court record is a certificate of the father’s doctor, Dr H, who provided the following certificate to the father to use in an application for an adjournment in April 2008 which said in part:
“Above patient has been suffering from depression and R lower leg chronic venous insufficiency. At present he is not stable and he was unable to prepare evidence in his favour for custody of his son. He has been referred to the Acute Mental Health Team today to address his psychiatric & psychol. problems & needs.”
The evidence of the father was that he had not consulted a psychiatrist or psychologist as none were available but had instead continued to consult with his General Practitioner on a regular basis.
There was produced in evidence a report from Dr H. In that report the Doctor said that the father had been his patient since about 2002. He was described by the Doctor as having a long history of depression/anxiety associated with excessive alcohol intake. These episodes he said were triggered by external stressors and his poor coping skills. He also suffers from recurrent right lower leg DVT’S which have caused marked post thrombotic changes in his lower leg. Currently he is managed on Lexapro 20mg daily with good effect. He also continues Clexane bd S/C for DVT prophylaxis. He goes on to say that he appears mentally stable and non depressed while compliant with his current medications. His right lower leg changes are chronic but do not interfere with his functional capacity.
The father conceded that his coping skills were not good all the time.
Dr H’s records were subpoenaed and put into evidence, in part. They show references to the father’s depression in 2003, with suicidal ideation.
In July 2005, the father was described by his doctor as having depressed motivation and depressed concentration and avoidancy (sic) behaviour
In June 2007 the father describes himself to the Doctor as “angry with the world” and is described as depressed with anxiety. In an interview in January the father describes to the doctor that he is “drinking excessively at the moment.” And the Doctor also notes that he is depressed.
The father’s Doctor has provided him with a certificate that he cannot work for the period June 2008 until September 2008 because of depressed mood and anger and sleep disturbance and his right lower leg swelling and pain.
It is noted that the father in evidence said that he did not drink to excess because it caused his leg to swell up and become painful.
Also subpoenaed to Court were files in relation to the child’s education. These are redolent with “incidents” which seem to suggest that the father is careless, vulgar and crude and more importantly perhaps threatening with his language. He is recorded by a teacher in 2003 as saying that he was delighted with John Howard’s new plan to recognise fathers and that it was time that women had their arses screwed to the wall. In the same conversation, he tells the principal on the phone that from now on if he had something to say he would come to the principals office cut his arm and then write what he had to say in blood. He also said that if the child committed suicide he would hold everyone who had failed him personally responsible and he would come after them and kill them and then kill himself.
The Family Consultant gave evidence in a report and was subjected to cross examination. Her report was prepared in June 2007.
Her recommendations were:
a)that the wife have sole parental responsibility for decision about the child
b)that the mother be required to send all school reports and yearly school photographs to the father and that he be informed of any hospital admissions by the child.
c)that the child remain living with his mother
d)that the child spend no time with his father and that there be no communication between them.
Those recommendations of course were made in the context of the father’s then application for residence and there is no issue it seems with recommendations (b) and (c), and I intend that they form part of my orders. So far as the child residing with him, the father no longer seeks that order.
I am of the view, having regard to the matters hereinafter set out, that the mother should have sole parental responsibility.
The matter that concerns me is recommendation (d), and in the event I do not intend to put that recommendation fully into effect. It is clear that this child who is aged 14 and a half years expresses love for his father. That love appears to be genuine affection on the evidence and the mother so concedes.
Although I have concerns, I believe that a programme can be devised which will allow communication between the child and the father which does not require the mother to be actively involved in that communication. In this way I hope that some ties between the child and his father can be preserved until the child achieves his majority, or otherwise demonstrates that maturity which enables him to make his own decisions as to if and when he would wish to see his father. I can see however in the circumstances of this case the need to limit the contact so that the mother also has some respite from the conflict.

When the report was done the child was 13 years of age. He is now a year and half older.
The Family Consultant says, in part:
“[The child] has suffered from severe emotional abuse as a result of the extreme level of conflict between his parents and the individual psychological functioning of his parents. His current, seemingly adequate, level of coping may be as a result of living for the past 15 months in a window of respite, in the care of his mother without any communication or time with his father……..if he is thrust into a situation of once gain moving between his parents in some pattern or other, his coping mechanism may disassemble.”
The Family Consultant says:
“Any Parenting Order that includes [the child] spending time with both parents is likely to lead to further proceedings in the form of Contravention or Recovery Orders. It is likely that, if [the child] were once gain to move between his parents, he would suffer further emotional abuse, even though he is now 13 and more capable of ‘thinking with his feet’. [The child] may have seemed more emotionally resilient at the time of these interviews because he had not seen his father for a substantial period except for stolen moments through a school fence. [The child’s] coping mechanism is such that he is susceptible to manipulation and pressure from both parents because of his desire to please them.”

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975

(“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

This child who loves both his parents would benefit from a meaningful relationship with each of them, but in the circumstances of this case it is not presently possible to engineer anything approaching an ideal relationship with each of the child’s parents. As the child grows to maturity and is able to cope with the total antipathy of his father for his mother and vice versa it may be that he can engineer something for himself which will give effect to this aim. In the meantime the harm which might occur to this child from continuing conflict between the parents, or the mother’s reaction if the father were to have face to face contact with him, is such that that form of expression of a relationship is not open to the Court to permit.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In my view, neither parent is likely to cause the child physical harm. However, the father and the mother each have, in the conduct of their conflict and with the feelings between them, caused this child to suffer from psychological harm and have caused him to feel as though he is being pulled between the two people he loves. He is described as having divided loyalties.
The Family Consultant, as set out above, describes the child as having suffered from severe emotional abuse as a result of the extreme level of conflict between his parents and their individual psychological functions. His current level of coping may be as a result of living for the past 15 months (a period when the father did not have contact with the child) in a window or respite in the care of his mother, with no communication with the father. It was the view of the Family Consultant that the coping mechanism of the child could well disassemble in the event that he was again required to pass between his father and his mother.
The father points to the number of absences the child has had from school whilst in his mother’s care, some of which have been with explanation and some without.
It turns out that some of those absences of which he complained were occasioned at the time he removed the child to Western Australia and therefore could not be reasonably the subject of his complaint by him.
There were, however, other absences from school and perhaps more than one would hope for the child. The mother has explained that the child if not well does not go to school. I think that the mother may be a little over protective, but in any event I do not draw any inference of neglect in the conduct of the mother. In any event, the child seems to have suffered no significant harm socially or academically.

Additional considerations

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

The child has expressed the view to the Family Consultant that he would like to live with his father but he also said he wants to be with both parents. The Family Consultant’s conclusion is that his views should not be given much weight since they are a product in part of the extreme emotional abuse he has suffered as a result of his parent’s conflict and of the enormity of the possible impact upon him of his father’s strong personality.
The Independent Children’s Lawyer, who has been involved in the proceedings for a number of years, said that currently the child above all (perhaps echoing his mothers battle fatigue) wanted an end to conflict (presumably whatever that involved.)
I think that this latter view of the child probably resonates with a combination of longing ,experience and perhaps a perspective that an ideal world does not exist for him, because of the level of the parental conflict.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child loves the father. This the mother concedes.
The child loves the mother.
The child has some past relationships with members of the father’s family but they do not presently loom large in the child’s life.
The mother has been the child’s primary carer since birth.
The child has a relationship with the father in which he, as conceded by the mother, enjoys his time with the father.
The mother has indicated her willingness for the child’s godfather (who is a friend of the father’s) to see the child.
The child has, it seems, a good relationship with many of his peers at school and also with his teachers.
The order I propose to make will, with some exceptions, confirm the situation which has been in existence for about 29 months, 15 at the time of the writing of the Family Report and which was described as a period of respite.
It will, therefore, restrict in a practical sense this child’s association with the father and the father’s family.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There is no such ability or willingness.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I do not think there will be any adverse effect on the child since no significant change is being effected to his current living situation although some outlet will be provided to him to express and receive affection for and from his father.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father in his evidence said that he intended to take up residence somewhere in the northern New South Wales area.
In order for the contact he seeks to take place there would be a necessity for the father to provide a return air fare on each occasion of contact and the mother would be obliged to drive the child to and from the airport.
The mother says that this would involve her in loss of income unless managed on a Saturday.
I do not think that there is an inordinate expense attendant on the child spending time with the father during holidays.
I am however required in this case to balance the child’s loss of his right to have direct and personal contact with the father against the detriments which could occur for the child if the mother were to carry out her threat to withdraw from the child, and the problems that a continuation of the conflict might engender for the child. I have decided to err on the side of caution and place the highest priority on the child enjoying a peaceful existence and a continuity of his present care. It is noted that in that care there have been no recurrences apparently of his bowel problems formerly experienced.
The father has undertaken to meet the costs of communications otherwise between himself and the child and whilst that will place a financial burden on him it is one which he says he is prepared to accept and is able to meet.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Neither of these parents can adequately provide, in my view, for the child’s emotional needs. The father cannot comprehend the effect of his conduct on the child. He says he does not speak ill of the mother in the child’s presence. In the Court he could not control his almost incandescent enthusiasm for speaking ill of her. It would be beyond belief that an intelligent boy as this child is described would not know that his father, to use his words, “hated his mother’s guts”. He would be able to discern the father’s attitude to the mother no matter what effort the father put into cloaking or dissembling that attitude. In any event, he says he always “says it like it is”, and given his view of the truth as it relates to the child’s mother that element of self control in the father is not to be found in the conduct of his case by him before me.
The father has demonstrated a capacity to school his son in sports and has done well in that regard. He also says that he has taught his son the manners and morals which he said were taught to him. They may be, he says, old fashioned but he says they are valuable. The child is described as a:
“gentle, endearing and unassuming adolescent who was quick to use humour and self-depreciation. [The child] had good communication skills using eye contact and language at an appropriate level for a 13 year old.”
I think that the child is a product of the efforts of both his parents but it cannot be denied that of more recent times his mother has, in the circumstances, been somewhat more of an influence on the child. The father was prepared to give her no allowance for that she might have been a positive in the child’s development.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not Applicable
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Although the father said the mother was Aboriginal there is no evidence before me to that effect and the mother has given evidence that she has never identified as Aboriginal. The child has never identified as Aboriginal.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I believe that the father loves his child with a devotion and a passion that is real and strong but is unable to see the effect of what he does and the attitudes he takes on his son. He, for example, has bought the child presents which seem appropriate but refused him permission to take them home and then heaps scorn on the mother for providing the like present for use by the child at home. I think that he genuinely wants to father his son but is incapable of not falling over his hatred for the boy’s mother. He has paid child support for the child in accordance with the legislation. He has been in receipt of sickness benefit and so the obligation to support the child has been unevenly placed on the mother. The father’s suggestion that things might change if the mother withdrew her opposition to his application does give rise to a concern that perhaps he has not been meeting the obligation that he could if pressed fulfil, but there is no satisfactory evidence to that effect. The mother has as I have said born the heat and burden of the cost of raising the child it seems since separation and that is to her credit.
(j)any family violence involving the child or a member of the child’s family
The father has a number of criminal convictions dating back to prior to the parties’ marriage, as set out above. He has been placed on a good behaviour bond in respect to an alleged threat to the principal of the child’s former school. The assertion was that he threatened to kill the principal and he denies this.
His view in relation to his history is “different”.
He says, and he firmly believes, that his early convictions were not really criminal convictions but simply work related trials which one in his employment in the security industry must accept as a necessary incident of the job.
He says he never harmed anyone except in self defence and that the convictions for assault were simply that he went a bit to far down that track.
His view of the Apprehended Violence Orders and their breach is that they are not in any event really criminal convictions and he says that he never raised a hand to anyone involved and they were just “telephone arguments” which led to him being “fixed up” by the wife in association with corrupt police, including it seems members of the Police force stationed in inner Sydney stations. He says the wife had “affairs” or at least an improper relationship with those corrupt police.
One of those police was apparently found later to be corrupt as a result of an investigation. That corruption did not relate to the wife or these proceedings.
There is no evidence before the Court which corroborates the father’s assertions so far as the wife is concerned and so that is where they remain, generalised assertions without evidence which would enable the court to come to any conclusion about them other than that they are not demonstrable.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There have been orders made for the protection of the mother and the child, the making of some of which have been contested and some not. The last such order was made in October 2007 and remains in force and will do so until 2009.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
When this matter was before my learned brother Justice Rose he passed comment to the effect that he feared it would not be the last time this matter was before the Court. Given the history of the matter his prescience was unremarkable.
The Family Consultant predicts the same gloomy future if there were contact between the child and his father.
There has clearly been too much conflict and too many proceedings between these parties. The very toxic character of the relationship between them, and in particular the father’s hatred of the mother, engenders them. I have almost as little confidence as my brother in crafting a result which will end the matter. My only hope is that the father might see the wisdom of waiting until his son has that measure of independence of thought and that strength of will and character to craft a solution for his life which perhaps includes his father and his mother.
For my part I am making an order which I think is least likely to lead to he institution of proceedings with respect to the child.

Section 60CC(4) & (4A)

I refer to my earlier observations. These parties have not and there is only evidence to suggest that they will not fulfil those responsibilities set out in section 60CC (4) in any acceptable way.
Neither given their level of communication and their hostilities have they, nor will they, co-operate in facilitating the other parent fulfilling those responsibilities.
In coming to those conclusions I have had regard to the history of their conduct and of the matter and particularly the history of the proceedings in this and the Manly Local Court.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

Unless the court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that until a child turns 18 years each of the child’s parents has parental responsibility for the child.

“Parental Responsibility” means all the duties powers and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan entered into by the parties.
The presumption that parties should exercise joint parental responsibility is displaced if it is in the opinion of the Court a consideration of promoting the best interest of the child rebut the presumption, or the person with whom the child has lived has engaged in abuse of the child. Although I find in this case that the mother and the father have been guilty of abusive conduct I am left with no alternative but to place the child with the mother. The father offers no alternative and the mother says that if the child is placed for any time with the father she will abandon him until his majority.
Were each of them to share parental responsibility, a need would arise for them to communicate and consult each with the other to effectively exercise it, and that is not possible in this case. In addition to the lack of ability of the mother to communicate effectively with the father, the father has no ability to communicate with the mother it seems without incurring sanction under the domestic violence laws.

Any communication between them seems to give rise to conflict. The interests of this child lie with his removal from that conflict. Accordingly it is my intention that there be an order that the mother have sole parental responsibility for the child.
I find the presumption is rebutted, having regard to my findings.

Section 65DAA / Section 65DAA(5)

Given that the wife will have sole parental responsibility I do not have to consider the concept of equal time nor is it sought in these proceedings. The father does not seek such an order.
The father seeks an order for holiday contact. Given the totality of the evidence and findings above I find that such holiday contact is not in the best interest of this child.
I do, however, because of the child’s progress toward adulthood, find that he should have some contact with the father in a way which does not involve the mother in facilitating it to any degree. It is my intention that she should have some respite from the conflict. It is also however my intention that the child have the opportunity, at his father’s expense, of maintaining a form of communication with him until that time arrives when he can have the strength to resist unreasonable pressure and to decided adultly and for himself how he wishes to order his life and his relationships.
I propose that the parties and the Independent Children’s Lawyer have liberty to relist the matter by arrangement with my Associate within 21 days from the date of this order for argument on costs, subject to the submissions and evidence required being filed.
In the event that no such applications are made there will be no order as to costs.
I otherwise make the orders set forth above, which I am satisfied is in the child’s best interests.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 22 August 2008

[2008] FamCA 708

22 August 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies