BONNEY & BOONE
[2019] FCCA 135
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BONNEY & BOONE | [2019] FCCA 135 |
| Catchwords: FAMILY LAW – Parenting – dispute as to future parenting arrangements for 10 year old child – where child currently living with father and spending no time with mother – whether mother poses unacceptable risk to child due to emotional/psychological harm – Held mother poses unacceptable risk to child – child to live with father with father to have sole parental responsibility – child to spend supervised time with mother but if mother does not complete intake or spend consecutive time with child then time to cease. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, pt.VII |
| Cases cited: Betros & Betros [2017] FamCAFC 90 Briginshaw v. Briginshaw (1938) 60 CLR 336 Doyle & Doyle (1992) FLC 92-286 G & C [2006] FamCA 994 Godfrey & Sanders (2007) 208 FLR 287 H v W (1995) FLC 92-598 Johnson & Johnson (2000) 201 CLR 488 Johnson & Page [2007] FamCA 1235 Mazorski & Albright (2008) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Moose & Moose [2008] FamCACF 108 R & C [1993] FamCA 62 R & R: Childrens’ Wishes [2000] FamCA 43 Re F Litigants In Person Guidelines [2001] FamCA 348 |
| Applicant: | MR BONNEY |
| Respondent: | MS BOONE |
| File Number: | BRC 4082 of 2013 |
| Judgment of: | Judge L. Turner |
Hearing dates: | 10 July 2017, 11 July 2017, 27 September 2018 and 28 September 2018 |
| Date of Last Submission: | 28 September 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Murphy |
| Solicitors for the Independent Children's Lawyer: | Cng Law - Springwood Office |
FINAL PARENTING ORDERS
All previous parenting orders and parenting plans be discharged.
The child [X] born …2008 live with the father.
The father have sole parental responsibility for the child and notify the mother within 48 hours in writing as to any major long-term decision made by the father for the child.
The mother spend supervised time with the child as agreed upon between the parties but failing which, for two hours every two months at the Contact Centre Suburb A (or such other contact centre as nominated by the father) (contact centre), at such dates and times as available at the centre and as organised by the mother, with the mother to provide the father with 28 days written notice as to the dates and times.
The costs of the contact centre be shared equally between the parties.
Within 14 days from the date of the orders, the parties take whatever steps are necessary and sign whatever documents are required to commence the intake process with the contact centre.
In the event the mother does not complete the intake process for the contact centre in accordance with Order (6) within 6 months from the date of the orders, then Order (4) is hereby discharged and the mother shall not spend time with or communicate with the child.
In the event that the mother commences spending supervised time with the child but misses three consecutive visits with the child, then Order (4) is hereby discharged and the mother shall not spend time or communicate with the child.
The father at the conclusion of each school year send via mail to the mother a copy of the child’s school report for that year.
The mother within 14 days of the date hereof provide to the father details as to a postal address for the mother and inform the father within 24 hours as to any change in the postal address.
The father arrange for counselling for the child through …Counselling with such counselling to continue for as long as considered necessary by …Counselling.
The independent children’s lawyer provide to any contact centre as used by the parties for the mother’s time with the child a copy of the family reports of Ms L released in 2017 and 2018.
The independent children’s lawyer is hereby discharged.
The application in a case filed by the maternal grandparents on 18 February 2018 seeking time with the child is hereby dismissed, but this dismissal does not affect the maternal grandparents’ ability to file any initiating applications regarding time with the child.
Otherwise all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bonney & Boone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4082 of 2013
| MR BONNEY |
Applicant
And
| MS BOONE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of [X] aged 10.
Issues
The primary issue for determination is whether the mother poses an unacceptable risk to the child and if not, the future parenting arrangements for the child.
Evidence
In considering this issue regard has been had to:-
a)The material as marked on the court file.
b)Notices of Risk.
c)The exhibits.
d)The transcripts.
e)The oral evidence of parties and witnesses.
f)The oral and written submissions of the parties.
g)The family reports released in 2016 (Mr M), 2017 (Ms L) and 2018 (Ms L).
h)Part VII Family Law Act 1975.
i)Relevant authorities.
When the final hearing commenced in July 2017 the mother was legally represented and the father was self-represented.
However for the last day of the final hearing both parties were self represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and the case of Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was explained to the parties and every attempt was made to ensure that there was fair process to the parties during the final hearing.
The court has the benefit of an independent children’s lawyer (ICL).
For the father the following witnesses were called and cross-examined:-
a)The father:
i)I find the father to be a credible witness.
b)Ms N, the father’s former partner (Ms N)
i)At the commencement of the final hearing in July 2017, the father and Ms N were in a de facto relationship.
ii)The relationship ended in May 2018.
iii)As Ms N is no longer in a relationship with the father, then limited weight has been given to Ms N’s evidence obtained in July 2017, based on relevance.
iv)Since separation from the father in May 2018, Ms N has engaged in conversations and written exchanges with the mother, which the mother claims supports her case.
v)Ms N has not filed an affidavit since July 2017 and was not available for cross-examination for the final hearing in September 2018.
vi)I therefore give no weight to what may have been said or written by Ms N about the father to the mother since July 2017.
For the mother the following witnesses were called and cross-examined:-
a)The mother:
i)I do not find the mother to be a credible witness, as the mother has not been truthful to the court or to the court experts (as illustrated later in the judgment).
The father is seeking to rely on information provided by Mr O, the mother’s previous partner.
As Mr O did not file an affidavit and as Mr O was not available for cross-examination for the final hearing September 2018, then no weight has been given to what Mr O has said to or written about the mother to the father.
The first family report writer, Mr M, was not called to be cross-examined.
I give weight to the 2016 family report prepared by Mr M, accepting its limitations due to the change in the child’s circumstances in July 2017 when [X], by consent of the parties, went to live with the father.
The second family report writer, Ms L was cross-examined by the mother and the ICL.
I give significant weight to the 2017 and 2018 family reports prepared by Ms L together with her oral evidence.
After the final hearing, the parties filed further affidavits in November 2018.
The affidavits have not been read and will not be taken into account in determining the issues.
Further, the mother filed an application in a case.
As this judgment results in final parenting orders, all outstanding applications are dismissed.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Agreed orders
The parties were unable to reach an agreement on any orders.
Proposals
Father and ICL
The father and the ICL agree as to proposed orders, which are as follows:-
a)The child live with the father.
b)The father have sole parental responsibility for the child with the father to provide to the mother notification of any major long term decisions within 14 days of such decision being made.
c)The child spend supervised time with the mother for 4 hours every two months at a contact centre in Brisbane, but that such time cease if the mother does not complete intake or is not consecutive in her visits with the child.
d)The child attend counselling.
e)The mother keep the father informed as to a postal address.
f)The father provide the mother a copy of the child’s yearly school report.
Mother
The mother is seeking orders whereby:-
a)The child live with the mother in South Australia.
b)The parties have equal shared parental responsibility for the child.
c)The child spend time with the father during South Australian school holidays 5 times a year with the father to pay for flights from South Australia to Queensland and the mother to pay for the flights from Queensland to South Australia.
d)The father have telephone communication with the child through the child’s own mobile phone, with the parties to share the cost of credit.
e)The parties not denigrate each other.
f)The child not be exposed to excessive alcohol use or illicit drug use.
In the event that the child remains living with the father the mother seeks orders whereby:-
a)The mother have telephone communication two to three nights a week.
b)The mother spend time with the child for half the school holidays.
Relevant history
Before considering the issue, it is useful to capture the relevant history.
The relevant history of the parties leading up to the final hearing on 4 December 2014 is comprehensively captured in the Reasons for Judgment delivered on 14 January 2015 and therefore has not been fully repeated in this judgment.
The relevant history in considering this issue is as follows:
a)The father is aged 29 and is a tradesman.
b)The mother is aged 26 and is a stay at home mother.
c)In 2008 the parties commenced cohabitation.
d)In 2009 [X] was born.
e)In 2009 the parties separated when [X] was a few months old.
f)In 2009 the father spent occasional time with [X] in the presence of the mother or family members.
g)In 2010 the parties ceased speaking, communicating through email and text messages only.
h)From 2010 to 2013 the father spent little time with the child due to ongoing difficulties in organising time.
i)In 2011 the mother and Mr O commenced cohabitation.
j)In late 2013/early 2014, after interim court orders, the father commenced spending supervised time with the child.
k)In … 2014 the child [A] was born to the mother and Mr O.
l)In December 2014 the final hearing occurred and judgment was reserved.
m)Just after the final hearing and before the orders were made and judgment was delivered the mother and Mr O relocated to Darwin with the children, [X] and [A] without the court or the father’s prior knowledge or consent.
n)On 14 January 2015 final orders were made for:-
i)The child to live with the mother.
ii)The child to relocate to Darwin with the mother.
iii)The mother to have sole parental responsibility for the child.
iv)The mother to provide a landline and mobile telephone number to the father and to set up a skype type program.
o)On 14 January 2015 interim orders were made for the father:-
i)To have skype type time every Wednesday night, on child’s birthday, on Father’s Day and on Christmas Day.
ii)To complete an anger management course.
iii)Once the anger management course is completed to spend supervised time with the child at a contact centre:-
· At least four times a year in Darwin upon provision of notice to the mother.
· Once a year either in Darwin or Brisbane with the mother to pay the airfare for the child or the father.
· For at least one visit per year should the mother be in Brisbane.
iv)To attend upon a qualified health professional for treatment of his mental health issues.
v)Upon provision of a report from the father’s health professional supporting unsupervised time with child, relist the matter for mention, in order for consideration to be given to the father spending unsupervised time with the child.
p)On 14 January 2015 interim orders were made for the mother to obtain counselling for her issues regarding the father.
q)Upon moving to Darwin there was considerable delay in the mother providing the father with a landline or mobile number and setting up a skype type program.
r)In February 2015 the father obtained a mental health plan.
s)In February 2015 the father commenced sessions with Dr P, psychologist.
t)In April 2015 the father filed a contravention application as skype type time was not occurring.
u)In May 2015 the father’s contravention application was discontinued.
v)During the first half of 2015 the mother attended a domestic Violence Counselling service in Darwin.
w)In mid-2015, whilst still with Mr O, the mother commenced a relationship with Mr Q.
x)In July 2015 the father completed a 13 week program “Living Without Violence Program for Men” with Anglicare and provided evidence of completion to the mother.
y)In July 2015 Dr P completed her sessions and issued a report stating “I have not observed anything during my sessions with Mr Bonney to indicate that he would be at risk to his child if they are allowed unsupervised contact”, a copy of which was provided to the mother.
z)In July 2015 the mother failed to complete intake with Catholic Care in a timely manner causing delays in the father organising his first supervised visit with the child.
aa)On 20 August 2015, on the day before the father’s first scheduled supervised visit with [X] at Catholic Care Darwin, the mother cancelled the visit causing the father a loss of over $1,000 for airfares and accommodation.
bb)On 20 August 2015 the mother filed an application seeking that the orders for the father to spend physical time with [X] be suspended.
cc)In October 2015 the mother was ordered to provide to the father a mobile/landline number for the father and to ensure that a Skype type program was available.
dd)In November 2015 the father spent supervised time with the child at Contact Centre in Brisbane.
ee)In December 2015 the father was ordered in the interim to:-
i)Have telephone and FaceTime communication with the child on Wednesday nights.
ii)Spend supervised time with [X] at Catholic Care Darwin on:-
· 30 and 31 January 2016;
· 27 and 28 March 2016;
· 21 and 22 May 2016; and
· 16 and 17 July 2016.
ff)During 2015 the father had only one or two skype type communications with the child due to the mother not answering or disconnecting the phone and not informing the father as to the new mobile phone number.
gg)On 30 and 31 January 2016 the father spent supervised time with the child at Catholic Care Darwin.
hh)On 19 and 20 March 2016 the father spent supervised time with the child at Catholic Care Darwin.
ii)On 21 and 22 May 2016 the father spent supervised time with the child at Catholic Care Darwin.
jj)On 15 and 17 July 2016 the father spent supervised time with the child at Catholic Care Darwin.
kk)In or around October 2016 the mother and Mr O separated, after which time the mother moved in with Mr Q.
ll)On 23 October 2016 the father spent supervised time with the child at Contact Centre Brisbane, prior to the family report interviews.
mm)In October 2016 the family report was released which recommended:-
i)[X] live with the mother.
ii)The father spend at least one week each school holiday period with the child.
nn)In November 2016 the father was ordered in the interim to:-
i)Spend supervised time with [X] on 17 and 18 December 2016 at Catholic Care Darwin.
ii)Spend supervised time with [X] on 21 and 22 January 2017 at Catholic Care Darwin.
iii)Spend time with [X] for the day on the 24 and 25 February 2017 with only the first and last thirty minutes of time supervised through Contact Centre Brisbane.
oo)On 17 and 18 December 2016 the father spent supervised time with the child at Catholic Care Darwin.
pp)During 2016 the father had one or two skype type communications with the child.
qq)In January 2017 the mother obtained an ex parte temporary DVO against the father in Darwin.
rr)In January 2017 there was an altercation between the mother and Mr O.
ss)On 21 January 2017 the mother had the father served with the temporary DVO at Catholic Care Darwin.
tt)On 21 and 22 January 2017 the father spent supervised time with the child at Catholic Care Darwin.
uu)In February 2017 there was an investigation by Northern Territory Department of Children and Family (NT Families) against the mother.
vv)On the 24 and 25 February 2017 the mother failed to make the child available for time with the father at Contact Centre in Brisbane.
ww)In March 2017 the father filed a contravention application against the mother due to her failure to comply with the November 2016 court orders.
xx)In April 2017 a child inclusive conference took place with the family consultant (Mr M) which noted:
i)“[X] would benefit from having a relationship with his father”
ii)“If it is determined that the mother’s allegations against the father are invalid and inaccurate and if the court concludes she has adopted a fixed and restrictive attitude to co-parenting with the father then I would be inclined to think that [X] should live with the father as this would probably be the best option in terms of allowing [X] the opportunity to maintain a connection with both of his parents”.
yy)In April 2017 the father was ordered in the interim to:-
i)Spend supervised time with [X] for two hours on Easter Sunday and Easter Monday 2017 at Contact Centre Brisbane.
ii)Spend supervised time as could be organised at Contact Centre Brisbane with the mother to pay for airfares for the child for:-
· 20 May 2017 and 21 May 2017.
· 24 June 2017 and 25 June 2017.
iii)Have telephone time each Tuesday night with the child.
zz)In May 2017 the father filed an initiating application seeking orders for the child to live with the father.
aaa)On 20 and 21 May 2017 the father spent time with the child at Contact Centre in Brisbane.
bbb)On 24 and 25 June 2017 the father spent time with the child at Contact Centre in Brisbane.
ccc)In June 2017 the family report was released which recommended:
i)If the court finds in favour of the father:
· [X] live with the father.
· The father have sole parental responsibility for the child.
· The child not see the mother for three months then half the school holidays and up to ten weekends a year.
· [X] attend counselling.
ii)If the court finds in favour of the mother:
· [X] live with the mother.
· The mother have sole parental responsibility for the child.
· [X] have no contact or communication with the father.
· The mother keep the father informed as to the child’s progress through monthly written updates.
ddd)In June 2017 the father’s contravention application was dismissed and time was ordered between the father and the child for the day on the 8 and 9 July with the first and last thirty minutes of time supervised through Contact Centre Brisbane.
eee)On 8 and 9 July 2017 the father spent unsupervised time with the child.
fff)On 10 and 11 July 2017 the final hearing commenced and the father, Ms N and the mother were cross-examined.
ggg)On 11 July 2017 interim orders were made by consent whereby the child live with the father and spend no time or communicate with the mother, with the child to attend counselling and the mother to attend a psychiatric assessment, with the matter to proceed part heard.
hhh)In July 2017 the child moved to Brisbane to live with the father.
iii)Later in July 2017 interim orders were made for the mother to remove all Facebook posts regarding the father, the child and the court proceedings and prevent further posts being made.
jjj)In July 2017 the child commenced schooling at School 1.
kkk)In August 2017 [X] commenced counselling with Contact Centre Consultancy.
lll)In August 2017 the mother failed to attend the psychiatric assessment appointment organised by the ICL with Dr R.
mmm)In September 2017 the mother was ordered to pay monies to Dr R for her missed appointment in August 2017.
nnn)In November 2017 the mother and Mr O reached interim consent orders whereby:
i)[A] live with the mother.
ii)The parents have equal shared parental responsibility for the child.
iii)The mother be permitted to relocate with [A] to South Australia.
iv)Mr O spend time with [A] in Brisbane with such time to coincide with the father’s time with [X].
ooo)In late 2017 the mother moved to South Australia with Mr Q and [A].
ppp)In late 2017 Mr O moved to Brisbane.
qqq)In …2018 a daughter [B] was born to the mother and Mr Q.
rrr)In January 2018 the mother filed an application seeking for the removal of the ICL.
sss)In May 2018 the mother’s application for the ICL to be removed was dismissed.
ttt)In May 2018 the father and Ms N separated.
uuu)In July 2018 the family report was released which recommended:
i)The child live with the father.
ii)The father have sole parental responsibility for the child.
iii)The mother spend supervised time with the child for up to six times a year.
iv)No telephone contact with the mother.
v)The child attend counselling.
vvv)On 27 and 28 September 2018 the part heard final hearing concluded.
As at the time of the final hearing:
a)There are no existing DVO’s between the parties.
b)The father and [X] are living with the father’s sister and her family with plans for all of them to move to a bigger property in the new year.
c)The child is attending School 1 State School.
d)The father is not under the care of any health professional.
e)The mother is living with Mr Q, [A] and [B] in South Australia.
f)The mother (apart from 2018 interview) has not spent time with the child or spoken to the child since July 2017.
g)Mr O is living in Brisbane.
h)Mr O spends time with [A] in Brisbane during school holidays.
Before considering and applying the law, I need to make findings on some major aspects of the matter in respect to the parties that will assist in determining the issues.
Father
Anger, family violence and mental health
The Reasons for Judgment delivered in January 2015 raised the following concerns as to the father:-
a)“The father needs to address his propensity for violent outbursts and violent behaviour so as to minimise the risk of exposing [X] to behaviours which may reinforce in [X]’s mind the fear which he voices (although at this point does not react to) in respect to his father” ([300])
b)“Once the father has completed a course (anger management)…then the father can commence supervised visits with [X]” ([301])
c)“As to relisting the matter to consider when unsupervised time is to occur, then this is to take place once the father has undergone professional help for mental health issues, as it is a concern that the father has, in the past, suffered depression, self-harmed and contemplated suicide and not received any treatment” ([307]).
In his 2018 cross-examination, the father said upon reading the Reasons for Judgment “it was probably the biggest shock in my life that I had… ever received. I think that was worse than my father passing away was to read that I could be so blind to my emotions, the damage that I can cause and that could cause…And then even though I had already had in place that I was going to psychology and was already enrolled into the Living Without Violence program and all of that, it was just – that was my – probably the biggest, rudest awakening I think I’ve ever got in my life”
By mid-2015 the father had completed an anger management course and obtained a clean bill for his mental health.
In the 2018 cross-examination the father said “I was able to turn around and I can look back down and say that it’s three years ago – or four years ago – however long it was – reading that and then standing here today – it’s two very different people, and I think I’ve done my fair share of proving that I’m not that same person”
As to the how the father has changed since receiving treatment is captured as follows:
a)Anger and family violence
i)The father says, “I’ve matured significantly. I’ve worked very hard on myself” ([8] 2016 family report).
ii)After the 2016 interview, the family report writer records the fathers “presentation on the day would support his claims. He was emotionally contained and he displayed capacity for reflective functioning and good insight” ([8] 2016 family report).
iii)The anger management course has “‘changed my life’, advising that since completing this program he has found new ways to regulate his emotions” and “he had not engaged in family violence or other violent behaviours since completing the anger management program” ([42] 2017 family report).
iv)The father “denied any recent offending, reporting that his most recent criminal offence was reflective of him breaching the conditions of a Protection Order in January 2015. He reported that he currently lives a pro-social lifestyle, he has a stable relationship and he is gainfully employed, advising that he perceives these protective factors in place reduce his risk of recidivism” ([45] 2017 family report).
v)After the 2017 interview, the family report writer records “positively it is indicated that” the father “has taken active steps to addressing his inability to regulate his emotions by way of engaging in professional intervention; and that since January 2015 there are no independent reports that suggest” the father “has relapsed in this area” ([96] 2017 family report)
b)Mental health
i)The father “reported that ‘since early 2015’ he had been emotional stable, advising that he is not currently accessing mental health treatment” ([44] 2017 family report).
ii)The father states, “I do not believe I am a danger to [X] physically, mentally and or emotionally directly or no directly. I have supplied evidence for the substantial amount of assistance I have sought in relation to my mental health and anger issues I was once experiencing and am confident that I have upskilled and continue to implement such upskill in my daily life” (father’s December 2015 affidavit).
iii)During cross-examination, when asked, “how is your mental health currently” the father responded, “I’m fine… I check in with myself every day, make sure I’m not falling into the same patterns. So that’s a daily thing for me. That’s just a comfort thing I do of a night time. Just assess where I am, where I’m headed. I’m a lot more relaxed around the things that are out of my control. I don’t feel the need of, like, as far as where I was – mentally unstable, I guess you would put it. Nowhere near that person I was a few years ago”.
The mother does not accept that the father has changed and believes that his bad behaviours are continuing as evidenced by the following:
a)In 2015 the mother during her DV counselling in Darwin indicated that there was no significant evidence of the father’s attitudinal change.
b)In 2016:
i)The mother wrote “I cannot accept” the father “has made changes to his life”…I continue to be concerned” the father “is controlling, manipulative and abusive” ([19] and [20] mother’s October 2016 affidavit).
ii)The mother informed the family report writer “I just want him to have a happy childhood. When Mr Bonney’s involved it’s constant lies, violence, harassment” ([19] October 2016 family report).
c)In 2017 the mother wrote that the father’s “behaviour towards me has not changed. I will admit there has been no violence however that is because of the court’s presence” ([66] mother’s June 2017 affidavit).
d)At the 2017 interview, the mother told the family report writer:-
i)As to the father wanting to spend time with [X] “‘I just wish he would stop, I just want him to leave us alone’, advising that she has formed a view that [X] would be negatively influenced ‘to become a criminal just like Mr Bonney’ in the event he spends regular time in the father’s care” ([55] 2017 family report).
ii)“She remains concerned that [X] would be exposed to family violence whilst spending time” with the father ([58] 2017 family report).
iii)“She perceived” the father “would speak to [X] in a derogatory manner, advising that her own mother had overheard Mr Bonney to swear/curse at [X] prior to separation in 2008/2009” ([58] 2017 family report).
e)At the 2018 interview “she verily believes” the father “continued to perpetrate family violence within his intimate partner relationship and she perceives that [X] is at risk of exposure to family violence whilst in the father’s care, reporting that she perceives Ms N seeks to protect” the father “by not reporting the violence that had allegedly occurred” ([30] 2018 family report).
The family report writer notes the mother “has identified to the Court multiple risk factors that, if substantiated, place [X] at risk of harm whilst in” the fathers “care. Many of these allegations appear to be historical in nature. However” the mother “continues to report instances of family violence occurring in” the fathers “home” ([161] 2018 family report).
The father is aware of and denies the mother’s allegation that family violence continued after 2015 and that family violence was the reason behind the separation from Ms N.
The father explains:-
a)“He separated from Ms N without family violence occurring” ([168] 20187 family report).
b)The “pressures associated with the changing dynamics within their family unit, combined with his desire to protect [X], formed the antecedents of the separation, reporting that upon reflection, he perceives Ms N became jealous of [X] and the time he spent with him” ([25] 2018 family report).
c)On the day the parties’ relationship ended, “[X] was sick throughout that day. He was running fevers. He had vomited while we were on the couch. We were just sitting there, just watching TV. All three of us, so [X], myself and [C], were watching cartoons, and then [X] sat up and he just threw up out of nowhere. He was running fevers all day. Come about 9 o’clock, he was still running fevers and I turned to Ms N and said ‘You know, I think he should stay home tomorrow. He’s actually not really well’. And she turned around to me and said that, well, I may as well stay at home with him because, ‘I’ve got effing things to do and I’m not putting off anything that I want to do for your child’. That was her last words and I said, ‘Right, we’re done’. That was the final straw” (2018 cross-examination).
d)When they physically separated “I was very careful to ensure that there was no miscommunication as far as domestic violence as I was actually packing a bag that night. I said to her, ‘I wish you all the best,’ and she turned around and said, ‘I effing don’t,’ so, you know, as far as which term of any sort of abuse sort of come about, I made sure I kept my head down and stayed very clear out of that way because given the track record of everything, the last thing I need is to be contained by a past, so all I wanted to do was move forward. So as far as violence or threats made or anything like that, none of that occurred on my behalf” (2018 cross-examination)
[X] recalls the break up starting on the day of separation “Ms N and Dad yelled really loud” which “made me and [C] scared” but he did not witness the father and Ms N using “physical violence upon one another as alleged by” the mother ([136] 2018 family report).
After the 2018 interview, the family report writer states ““[X] provided no information to suggest he had been exposed to family violence whilst in” the fathers “primary care” ([168] 2018 family report).
In addition to the historical issues, the mother raises concerns as to the father now living with his sister as there were drug concerns in the past about the sister and the sister and the father did not always get on.
None of these concerns were substantiated by independent evidence.
After the 2018 interview, the family report writer records:-
a)The father “reports to have sourced alternate accommodation and support to enable him to continue his employment whilst parenting [X] and he attests that his sibling is a prosocial person who loves and supports [X]” ([169] 2018 family report).
b)“No new risk considerations are identified with respect to” the fathers “parenting proposal” ([177] 2018 family report).
Conclusion as to anger, family violence and mental health
I find, based on the evidence:-
a)The father has completed successfully all that was required of him to satisfy the court that anger, family violence and mental health are no longer issues that concern the court as posing a possible risk to the child.
b)The mother has failed to establish that these previous concerns are ongoing or pose a risk to the child.
c)The mother has failed to establish that the father poses any other risk to the child.
I therefore find that the father does not pose a risk to the child either now or into the future.
Relationship with child
Prior to the child being placed in the father’s care, the relationship between father and child was restricted due to the supervision and long periods between interactions.
When observed by the family report writer in the 2016 interview, [X], although reserved, engaged with the father and was affectionate and comfortable ([26] to [29] 2016 family report).
In the 2017 interview, the family report writer made similar observations stating, that despite the negative things [X] had said about the father, the child showed no fear, was relaxed, confident, demonstrative and engaged with the father ([77], [78], [86] and [89] 2017 family report).
After the 2018 interview, the family report writer concluded “impressions made of the father were that of a quietly confident and warm man who is demonstrative and nurturing in his approach towards [X]” ([52] 2018 family report)
At the 2018 interview, after [X] had been in the father’s care for nearly a year, the family report writer observed:
a)“[X]’s relationship with” the father “was observed to be warm, familiar and relaxed. They were observed to converse together without restraint and [X] was observed to laugh, and joke with the father throughout” ([156] 2018 family report).
b)“[X] was observed to be demonstrative with” the father “who was attentive and nurturing in his approach towards him” ([156] 2018 family report).
After the 2018 interview, the family report writer concluded:
a)“[X]’s relationship with” the father “is now observed to be markedly different. Consistent with counsellor, Ms S’s observations” the father “is observed to be a child focused father who demonstrates knowledge and understanding of [X]’s cognitive and emotional needs. The relationship between [X] and “the father “is observed to be loving, demonstrative and respectful and the future of their relationship appears to be positive. It is uncertain if” the mother “will ever accept that” the father “can demonstrate a positive and value adding approach towards [X]’s wellbeing. However, in my professional opinion, when observing the father/child relationship, positive features are found” ([166] 2018 family report).
b)“A significant and positive change in the relationship between” the father “and [X] is observed, which offers support to the father’s proposal for parenting” ([175] 2018 family report).
c)The father “is observed to have demonstrated over the twelve (12) month period that [X] has been in his primary care, that he has an ability to adopt a child focused approach towards parenting, and his relationship with him is observed to be demonstrative, nurturing and loving” ([175] 2018 family report).
Conclusion as to relationship with father
I find, having regard to the evidence, that the father and child have a strong loving relationship.
I make this finding based on the following:-
a)The father has throughout the proceedings been determined to establish, maintain and nurture a relationship with [X].
b)Despite all obstacles, the father, prior to [X] coming into his care, persevered with supervised time with [X], ensuring that the time was all about [X].
c)Since [X] has been in the father’s care, the father has been child focussed in developing a healthy, loving and fun relationship with [X] based on trust, routine and appropriate boundaries.
Ability to parent the child as father is no longer in a relationship
The mother believes the care [X] has received since July 2017 has only been possible due to the father’s relationship with Ms N and that now they have separated, the father will not be able to meet the child’s needs.
At the 2018 interview, the mother said, “[X]’s safety and wellbeing is compromised whilst living in” the father’s “care as the father ‘has bitten off more than he can chew’ advising that she perceives” the father “is unable to parent [X] without high levels of support” ([87] 2018 family report).
This is denied by the father who writes, “parenting [X] has not been an issue since separation of Ms N and I have ensured [X] has structure in his daily routine also” ([18] father’s September 2018 affidavit).
As to his schooling, the father in the 2018 cross-examination explained:-
a)“He is still at School 1 State School which was the school he was enrolled to once the .... change of care”
b)“His lunchbox is always full. I always pack his lunch over night time”
c)“His uniform is washed daily and he has literally about 14 or 15 school shirts to choose from that are in his – he has got one drawer, literally, just for school clothes, and it is chockas full. That’s just shorts and shirts, jumpers, things like that…. he is always sent with clean uniform”
d)“I speak to the school on a daily basis to make sure that [X] is sticking to his class programs. So whatever the teacher is trying to teach to make sure that there’s no up and downs, or he’s not sort of veering too far away from where he should be at as far as in year 4 and things like that. So if he’s falling behind, if he doesn’t do some of his work at school that day, the – his teacher Ms T will generally send it home with him and I will sit down with him for as long as it takes to get him through that day so he doesn’t fall behind”
e)As to [X]’s homework “I sit there with him and do it on a daily basis”
At the 2018 interview, [X] confirmed this explaining to the family report writer that “he really likes his school… he has many friends” and “his teacher is supportive ‘and really nice’” ([132] 2018 family report). He “really likes attending tennis” but “he has to finish my homework before tennis starts” ([131] 2018 family report).
The family report writer concluded:-
a)“Ms N is not assessed to be a protective factor in” the father’s “parenting, giving due regard to the limited relationship she has had with [X] to date. As such, it is my professional opinion that” the father’s “separation does not increase the risk of [X]’s exposure to harm, questioning” the mother’s “apparent focus on the separation as a risk feature of” the fathers “parenting” ([169] 2018 family report).
b)The father “presents with an ability to promote [X]’s best interests by way of prioritising his wellbeing above all else. The father’s devotion to parenting [X] appears to have undermined his relationship with his former partner, highlighting” the father’s “willingness to ensure that [X]’s needs are placed ahead of his own…” the father “is observed to demonstrate an understanding of child focused boundaries and rules, which increases [X]’s opportunities for learning and enjoyment whilst in” the father’s “care, noting the significance of maintaining this now established relationship bond” ([176] 2018 family report).
c)“The available information indicates that [X] has maintained a stable approach towards his education and whilst it is noted that his academic results may have slightly deteriorated, within the context of his circumstances, combined with [X]’s well-documented difficulties in learning, it is determined that” the father “had demonstrated his willingness to provide the support required”([175] 2018 family report)
d)“I think [X] is incredibly confident that his father can provide care for him” (2018 cross-examination).
Conclusion as to ability to parent
I find, having regard to the evidence, that the father has the capacity, skill and commitment to parent the child and meet [X]’s needs.
I make this finding based on the following:
a)Since the child has been in the father’s care, the father has been actively involved in the care of the child.
b)After separation with Ms N, the father has continued to care for the child.
c)The child raises no concerns as to his care from the father.
d)There is no evidence to support that the father’s care of the child has been inadequate since separating from Ms N.
Ability to facilitate a relationship with mother
The mother is doubtful that the father will be able to facilitate a relationship between the mother and [X] if the child remains living with the father.
At the 2016 interview the father informed the family report writer, “he is genuinely committed to having a relationship with [X] and he sees no use in criticising the mother” ([9] 2016 family report).
At the 2017 interview the father informed the family report writer, “he would be willing to maintain [X]’s relationship with” the mother “in the event he lived in his care” ([39] 2017 family report).
During the 2018 cross-examination the father said:-
a)“I will promote any relationship that [X] wishes to pursue providing that it’s positive”
b)“[X] obviously wants to pursue a relationship with his mother… I know he loves his mother. There’s no doubt about it. It’s unquestionable”’
Conclusion as to ability to facilitate a relationship with mother
I find, having regard to the evidence that the father will facilitate such time and communication as court ordered between the mother and the child.
I make this finding based on the following:
a)The father acknowledges and accepts the child’s attachment to the mother and will follow through if time or communication with the mother is determined to be in the child’s best interests.
b)The father has always abided with court orders.
c)The indications are that the father will continue to abide with court orders into the future.
Ability to facilitate a relationship with [A]
One of the many casualties of these proceedings has been the breakdown of [X]’s relationship with his brother [A] (aged 4) who lives with the mother, his sister [B] and Mr Q in South Australia.
Prior to [X] living with the father, [X] and [A] had a strong bond.
The mother writes that since their separation, [A] has not been coping with not seeing [X] and is seeing a psychologist ([46] mother’s September 2018 affidavit).
The mother submits, “it would be in [X]’s best interest to ensure that his relationship with his brother continues and flourishes, so that both boy’s mental health is positively affected by having each other in their lives on a regular basis”.
[A]’s father, Mr O is now living in Brisbane and spends time with [A] during school holidays.
In the 2018 cross-examination, the family report writer identified two ways [X] could re-establish his relationship with [A] if [X] remained living with the father, firstly by the father organising time between the boys when [A] is with Mr O in Brisbane and secondly the mother bringing [A] with her when she is spending time with [X].
The father has spoken to Mr O and indicated in cross-examination that into the future he would be prepared to contact Mr O and “facilitate…for both boys to be able to spend time together”.
As to whether the mother is prepared to bring [A] to Brisbane is unclear.
At the 2018 interview, when [X] asked the mother “the next time when you come here can you bring [A]” the mother replied “your brother misses you so much, but your brother didn’t take you not living at home very well, it was nothing that you have done, it’s not your fault, but it isn’t good for him to come and see you right now” ([49] 2018 family report).
Conclusion as to ability to facilitate a relationship with [A]
I find, having regard to the evidence that the father will facilitate time between [X] and [A], should orders be made for [X] to remain living with the father as the father will be proactive in organising time when [A] is spending time with Mr O in Brisbane.
Mother
Mental health
In the January 2015 parenting orders the mother was ordered to attend counselling “for her issues with the father, and, in particular, her fear of the father and the impact of their relationship on the mother” (Order (14)).
The Reasons for Judgment identified “it is clear from the evidence that the mother needs to address her fear of the father because, should the father commit himself and unsupervised time commence, then the mother must ensure that her fear and concerns do not impact in any way on [X]’s ability to develop and maintain a relationship with the father” ([308]).
The mother’s journey as to seeking professional assistance for her fears was not easy to glean from the evidence but it appears the following has occurred:-
a)From April 2015 to May 2015, the mother attended at the Domestic Violence Counselling Service in Darwin.
b)In the “To Whom It May Concern” letter dated 25 May 2015 Ms U from the Domestic Violence Counselling Service writes:-
i)“Throughout the eight sessions of counselling undertaken so far” the mother “has exhibited high stress anxiety and agitation”.
ii)“It appears that” the father “having been in a relationship with” the mother “albeit several years ago, is aware of her likely reactions and promotes behaviour which appears to ‘trap’” the mother “into what could be seen as ‘not coping well’”.
iii)The mother “does not… have the capacity to cope with being psychologically and emotionally battered on a regular basis, with a person who does not appear to understand his son’s distress”.
iv)“Sadly, with the psychological and emotional abuse occurring now, and the reported effect that is having on [X], it would seem that” the mother “will not be able to fully protect her son from the violence of his biological father”
c)Although there is no evidence in support before the court, the mother states that she attended a clinical psychologist, Dr V between late 2015 and mid-2016 to address “the struggle she was having in co-parenting with” the father as well as “helping her understand that the abuse in Queensland had not been her fault” (Dr W’s September 2017 report).
d)Orders were made in July 2017 for the mother to attend upon a psychiatric assessment by Dr R as organised by the ICL.
e)An appointment was made in August 2017, which the mother failed to attend.
f)Without consultation with the ICL and on the premise that the mother “reported she had concerns in relation to the psychiatrist nominated by the Independent Children’s lawyer and wanted to source an independent psychiatrist” the mother attended a psychiatric assessment appointment with Dr W in September 2017, as organised solely by the mother.
g)Dr W, after interviewing the mother and reading the family reports prepared in 2013, 2016 and 2017 (but not engaging with the ICL) states in her report dated 15 September 2017:-
i)The mother’s “presentation is consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood”.
ii)“Her hypervigilance, heightened emotional arousal and continued rumination with the past trauma could be consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD). If they are ultimately shown to be accurate, then what may appear to be excessive emotional and behavioural responses, suspicionness, and heightened anxiety would be congruent and fully explainable in the context of her previous experiences with” the father .
iii)The mother “presents with some Obsessive-Compulsive personality traits – with high preoccupation with details, rules, organisation and control and a relative inflexibility about her views of morality, ethics and values. In keeping with this, she may have tendencies to struggle to work collaboratively with others unless they are able to align with her way of doing things”.
iv)“It is important to note that any personality traits are magnified and more prominent under stressful situations. The current litigation and Court processes would have reduced” the mother’s “sense of autonomy and control over decisions regarding [X]. The result of this is an extremely heightened sense of arousal and anxiety. This is likely to manifest in stressful situations as outbursts of what may appear to be highly agitated, irrational and aggressive behaviour”
v)“Any psychological stress or mental illness can potentially impact on parenting capacity. A high level of distress and anxiety is extremely common in all parties engaged in Family Court disputes. The presence of an adjustment disorder, anxiety or depression does not necessarily preclude or prevent good parenting. In my opinion, I do not believe that Ms Boone’s current mental state prevents her from actively engaging in or fulfilling her role as a parent”
vi)“I am unable to objectively confirm the validity of” the mother’s “beliefs surrounding the allegations towards” the father “… it would seem imperative to the outcome of these proceedings to investigate and determine the validity of the evidence surrounding” the mother’s “allegations against” the father”.
h)Dr W did not engage the mother in personality testing.
i)Dr W recommended that the mother “continue to engage with ongoing psychological support….to assist” the mother “in managing her emotions within her relationships with both her current children and in ensuring that she can build these skills into her relationship with her future children”.
j)In 2018 cross-examination the mother said that after receiving Dr W’s report “ I went and saw a counsellor…or a psychology in regard to it and I kept up with it because, to be honest, from where I’m sitting now to where I was last year – it was rock bottom for me last year and I’ve had to rebuild myself back up”
k)Although there is no evidence in support before the court as to the nature or the content of the sessions, the mother states that in October/November 2017 the mother attended four sessions with Ms X at …Psychology Services.
l)At the 2018 interview the mother informed the family report writer:-
i)“She perceives the antecedents of her PTSD includes her alleged exposure to family violence, reportedly perpetrated by” the father “advising that she perceives she experiences ongoing issues relating to her mental health as an outcome of the physical and emotional abuse she allegedly experienced during the relationship” ([43] 2018 family report).
ii)“She maintains ongoing contact with a psychologist and has undertaken four (4) sessions with a new provider since relocating to South Australia, advising that her psychologist assists her to challenge her irrational thoughts with a view to promoting her capacity for co-parenting” ([44] 2018 family report).
m)During the 2018 cross-examination, the mother spoke of being in good mental health:-
i)“I learnt to channel my emotions… I have gotten a lot of the negativity out of my life. To be honest, my life is probably boring and I love it. I don’t go out and do stuff, but I have really loved no drama… I don’t have an emotionally rollercoaster life. It’s so calm, and I have support”
ii)“I wasn’t in control of my emotions back then either. I suffered anxiety and I didn’t know how to regulate…and I think I’ve come quite…a long way… I’ve worked through the anxiety and I have worked through my PTSD as well”
n)During the 2018 cross-examination the mother spoke of no longer fearing the father:
i)“I’m not afraid of him and I’ve worked through my fear”
ii)“I no longer have the fear there. There’s no fear there. I’ve worked through that”
o)Details as to her treating health professional in South Australia or a report from her treating health professional as to how the mother was progressing was not provided to the court.
The mother in her written submissions states:-
a)“I have changed and will facilitate a positive, healthy relationship between [X] and Mr Bonney”
b)“I have matured since the 2017 court order and have had significant physiological counselling to help address the risk factors that were present in 2017”
c)“I understand the importance of [X]’s need to have both parents in his life”
Conclusion as to mental health
As to the only health professional report produced by the mother as to her mental health, I find the report of Dr W must be given little weight as:-
a)It was not a report sanctioned by the court.
b)It was not a report organised by the ICL.
c)Dr W did not have all the relevant material before her in preparing the report.
d)Dr W did not understand the full context behind why the report was required.
e)Dr W did not conduct the necessary testing required to make a full psychiatric assessment of the mother.
It is a shame that the mother has not been more forthcoming about her counselling and therapy and even a greater shame that the court does not have the benefit of any other reports including, more recently, information from or reports by the mother’s treating health professionals in South Australia.
I find based on the evidence:-
a)The mother has mental health issues, although the nature and extent of these issues is unknown.
b)The mother has not properly addressed the mental health issues.
c)The mental health issues have not been properly treated.
d)The mental health issues have affected the mother’s ability to address her issues regarding the father.
e)In the absence of evidence to the contrary, the mental health issues are likely to continue to interfere with the mother’s ability to address her issues regarding the father.
Misleading the court
The mother has repeatedly misled the court and court experts through the course of the proceedings as illustrated by the following:-
a)At the 2017 interview :
i)As to the relationship breakdown with Mr O, the mother denied, “her relationship with Mr O was characterised by family violence, reporting that her allegations of violence are contained to her relationship” to the father ([64] 2017 family report).
ii)As to Mr Q, the mother spoke of sharing “her home with a male person who is not a romantic interest, advising that the other occupant of the home has no involvement in parenting [X] or her son [A]” ([50] 2017 family report).
b)At the 2018 interview, the mother:
i)Informed the family report writer “that she had fallen pregnant in …2017, and that Mr Q … was the father of her child, advising that she had ‘lied’ during interviews” in 2017 “as she had been in a relationship with” Mr Q “at that time and they were allegedly cohabitating” ([14] 2018 family report).
ii)Explained that she had lied “as she sought for her partner to support her ‘from behind the scenes’” only at that time” ([79] 2018 family report).
c)During the final hearing in July 2017:
i)The mother was not truthful as to the true situation with Mr O regarding their break up such as the mother withholding [A], the family violence, the involvement of police and the involvement of NT Families.
ii)The mother did not inform the court as to her having a new partner or being pregnant to Mr Q.
iii)The mother did not disclose to the court her intention to move to South Australia.
d)At the 2018 interview:
i)The mother downplayed the family violence incident with Mr O in January 2017 claiming “the allegations made to the Police were embellished at the time”, Mr O was “the instigator of the abuse” and the mother was not “intoxicated at the that time” ([28] and [29] 2018 family report), despite the police report contradicting the mother’s comments.
ii)The mother failing to disclose the involvement of NT Families to the family report writer ([35] to [38] 2018 family report).
e)At the 2018 final hearing the mother states “I have shown in the matter between myself and Mr O that I am able to… facilitate a positive relationship between father and son and can do so for [X] and Mr Bonney if given a chance”
f)The court file for the mother and Mr O paints a very different picture where there were cross allegation of family violence and mental health issues before the parties reached final orders by consent in November 2017.
g)Further the subpoenaed material supports:-
i)In January 2017, there was a family violence incident where the mother physically attacked Mr O, which resulted in a DVO being granted against the mother in favour of the father.
ii)The mother withheld [A] from Mr O for some months after the January 2017 incident.
iii)Throughout the first half of 2017, Mr O raised concerns with NT Families as to the mother’s mental health.
iv)In June 2017, the mother accused Mr O of “kidnapping” [A] when Mr O had taken [A] from daycare to spend time with him, with the mother then withdrawing her consent to time.
In addition to misleading the court the mother has and continues to make unsubstantiated allegations about the father such as:-
a)The father planted a “spy” toy in her home.
b)The father asked [X] during supervised time where the mother lived.
c)The father hacked the mother’s Facebook accounts.
d)The father stalked the mother on Facebook.
e)The father and Ms N’s relationship broke down due to family violence.
f)The father lives in accommodation known to police for methamphetamine drug use.
g)The father has ongoing mental health issues.
h)The father has formed an alliance with Mr O.
Lastly, the mother has exaggerated issues regarding the father as illustrated by the following:
a)In her Facebook posting in July 2017 entitled “Ms Boone’s Story of Bravery” (which was sent to numerous news outlets) the mother implied she was the victim of a court ordered order for the child to live with the father (when the mother had consented to the order) and made the following misleading comments:-
i)“Her son [X] 8 years removed from her and placed with the man that raped and tortured her from the age of 18”
ii)“The father Mr Bonney …..committed a number of domestic violence against women, constantly broke the law, charged for a number of offences and in recent years has tried to commit suicide”
iii)“[X] was ordered to live with Mr Bonney a man he only knows on supervised visits and does not recognise as a parent”
b)In the 2018 interview, the mother informed the family report writer that it was the court that placed [X] into the care of the father ([76] 2018 family report).
Conclusion as to misleading the court
I find the evidence supports that the mother has misled the court on numerous occasions, changing her story to suit her situation.
Further, the mother has exaggerated or fabricated information about the father to make her stories more plausible.
Whether this is an aspect of her mental health issues is an unknown.
Therefore, I find that it is likely that the mother will continue to mislead the court and make up things about the father and that any commitments the mother may make to the future parenting arrangements for [X] must be closely scrutinised.
Ability to facilitate a relationship between father and child
Mothers non-compliance with court orders
Up until July 2017, the mother repeatedly ignored both final and interim court orders by:-
a)Not organising promptly for a mobile phone and skype type program when the mother first moved to Darwin.
b)Turning off the phone restricting the father’s access to skype.
c)Disconnecting the phone and not informing the father as to a new contact number.
d)Not facilitating skype type time.
e)Not promptly attending to the intake at the contact centre.
f)Not keeping up to date with the fees at the contact centre and therefore putting into jeopardy the father’s time with the child.
g)Cancelling the father’s first organised supervised visit with [X] in August 2015 resulting in the father incurring unnecessary costs in arranging travel to Darwin.
h)At the intake process for Contact Centre in later 2015, the mother stated:-
i)Her “lack of support for [X] spending time” with the father.
ii)“She has no capacity to manage her own negative emotional responses to [X] spending time with” the father.
iii)“She was unwilling to support [X] to be able to do this on the day of contact”
i)Not accommodating the first supervised visit at Contact Centre Brisbane until November 2015.
j)Not accommodating the first supervised visit in Darwin until January 2016.
k)Rescheduling the father’s time with the child at the contact centre without first consulting the father.
l)Not making the child available at the contact centre in Darwin for scheduled visits.
m)Not making the child available at the contact centre in Brisbane for scheduled visits.
At the 2017 interview, the mother indicated future possible breaches of court orders informing the family report writer:
a)“That she simply ‘cannot afford to fly [X] to Brisbane, even if it was Ordered’” ([56] 2017 family report).
b)The mother has developed a proposal for [X] to spend time with the father “into the future. However, she acknowledged that she is not committed to such” ([55] 2017 family report).
c)That “[X] currently plays AFL in Darwin, reporting that during the sporting season he is otherwise occupied with sport and unavailable to travel to Brisbane. She reported her unwillingness for [X] to miss games or training in order to spend time with Mr Bonney, advising that she perceives [X] should not be disadvantaged in this area” ([84] 2017 family report).
At the 2016 interview, the father expressed no confidence in the mother following through on any final court orders for the father to spend time with the child if because “if she’s not willing to follow the orders while the court’s monitoring then she definitely won’t after court’s finished” ([9] 2016 family report).
After the 2017 interview, the family report writer agrees “it is my professional opinion that the mother will not comply with Orders made by the Court in this regard and that ongoing risk regarding [X]’s exposure to parental conflict will ensue” ([99] 2017 family report).
Conclusion on non-compliance
I find, having regard to the evidence that it is unlikely the mother will abide by court orders that require her to do anything that she does not want to do.
I further find that this will certainly be the case if the child was living with the mother and spending time with the father as time and communication will occur only when the mother sees fit or within and under the watch of the court system.
I lastly find that if the child was living with the father and spending time with the mother, that the mother may not abide by orders to spend time with [X].
I base this on:-
a)At the 2017 interview, the mother said, “in the event the Court determined [X] should live” with the father “she would opt to ‘never see [X] again’. She advised that she ‘would find it too hard to see him, like on school holidays’, reporting ‘I would just pray for him that he made it out the other end ok”. The mother’s “comments were questioned at interview and she was probed in this area. However, she remained emphatic in her stance, stating emotionally ‘if the Court give him to Mr Bonney I want nothing to do with him ([X]), it will just be too hard’” ([57] 2017 family report).
b)After the 2017 interview, the family report writer concluded, “concern is noted in her comments that she would exclude [X] from her life in the event the Court determined [X] should live with” the father. The mother’s “comments may be emotive and occur as an outcome of her negative feelings toward the proceedings. However, her comments provide insight into the depth of her resentment toward” the father “and her fixed views relating to future contact with” the father “even if that meant losing all contact with her son” ([100] 2017 family report).
The mother stated during the 2018 final hearing that this was no longer her position and that she would spend time with [X] if the child lived with the father.
I find however that caution must be taken in accepting the mother’s position, especially as the mother was not certain that she would include the child’s sibling, [A], in such time and is not certain whether she would tell [X] about his sister [B].
Mother misleading child into thinking Mr O was his father
The mother misled [X] into believing that Mr O was his real father as illustrated by the following:-
a)The mother indicated on the School 2 Darwin enrolment form for the child that Mr O was [X]’s father.
b)The mother referred to the child as “[X]” and not by his birth name “[X]” and refused to comply with numerous requests of the school to produce a birth certificate for the child.
c)The mother informed the school secretary at School 2, after the father attempted to obtain schooling information as to the child, that the father was not [X]’s biological father as “it was not true and … he had no claims to [X]”.
d)[X] openly referred to Mr O as “Dad” when Mr O delivered and collected the child from Catholic Care at Darwin.
e)At the first supervised visit for the father with the child in Darwin on 30 January 2016, [X] told the worker “he’s not my dad, he’s just my friend”.
f)At the supervised visit in Darwin on 31 January 2016, [X] said to the father “you know you’re not my dad hey”.
g)At the supervised visit in Darwin on 20 March 2016, [X] told the father “I am not your son, I’m mums friends son” and “I like mum the best anyway”.
h)At the supervised visit in Darwin on 21 May 2016, the father and [X] started playing a game. [X] says “cool hey, cool isn’t it Dad” and quickly said “um Mr Bonney”.
i)At the 2017 interview, the mother informed the family report writer:
i)“[X] identifies Mr O as his father” ([53] 2017 family report).
ii)“[X] has a dad (Mr O), he doesn’t need another one” ([54] 2017 family report).
j)After the 2017 interview the family report writer concluded:
i)“When considering the relationship between” the father and “[X] it was evident that [X] does not identify” the father “in a parental role” ([88] 2017 family report).
ii)“[X] was observed to refer to” the father “as ‘Mr Bonney’ or ‘Mr Bonney’ throughout the day and he was observed to appear confused when the writer had referred to” the father “as ‘his dad’ during interviews” ([88] 2017 family report).
iii)“It became evident through observing [X] that he refers to and identifies” the mother’s “former partner Mr O as ‘Dad’, highlighting [X]’s confusion as an outcome of receiving the implicit and explicit messages of the mother over time” ([88] 2017 family report).
k)When [X] commenced living with the father, the father explained, “[X] required his support to integrate into his family unit and that it took some time ‘to convince him I was really his father’. He reported that [X] was fixed in his belief that Mr O was his biological father, and that his name was [X], advising that [X] had informed him ‘I wasn’t his Dad, and Mr O was’” ([55] 2018 family report).
The mother blames Mr O stating, “[X]’s confusion regarding his parenting roles occurred as an outcome of Mr O’s influence” ([86] 2018 family report).
Conclusion on misleading child
I find the evidence supports that the mother deliberately and repeatedly misled [X] into believing that Mr O was his father, not attempting to dispel the notion, even after the child was spending time with the father.
Mother instilling her negative views about father onto child
The mother instilled in [X] her own negative views about the father as illustrated by the following:
a)After the first supervised visit in Brisbane in November 2015, it was noted in the Contact Centre assessment report:-
i)“[X]’s disclosure during his time with” the father “that ‘mum said you hit her’ indicates that” the mother “has directly informed him about adult matters and alleged that” the father “has been violent to her”
ii)“[X] appears to be acutely aware of” the mother’s “negative views about” the father “as well as her negative attitude about them spending time together”.
b)At the first supervised visit in Darwin on 30 January 2016, [X] asked the father “why do you want to hurt my mum?”
c)At the supervised visit in Darwin on 20 March 2016, [X] said to the father “I don’t want you to take me away from my Mum and dad” to which the father assured [X] that he wasn’t going to take him away with [X] responding “you’re lying. Mum said you would”.
d)At the supervised visit in Darwin on 20 March 2016, [X] “looked at the worker and circled his finger by his head and pointed to Mr Bonney, which the worker interpreted to mean ‘crazy’” and “then used that finger and swept it a few times in front of his neck as if to mimic cutting his throat”.
e)At the 2016 interview [X] told the family report writer :
i)The father is “a really mean person who tries to hurt my mum and he just lies” ([21] 2016 family report).
ii)“I feel like he’s going to try to take me away from mummy and I won’t see her” ([22] 2016 family report).
iii)“My mum told me he even beats policeman up and because he tried to get a gun and shoot people and I don’t want that to happen” ([22] 2016 family report).
iv)“He tries to kill my mum and hurt her” ([22] 2016 family report).
v)As to supervised time, “I don’t like doing that. Mr Bonney scares me” ([24] 2016 family report).
f)At the 2016 interview, the father “reported his ongoing concern regarding [X]’s emotional stability, advising that he has formed a view that” the mother “had overly exposed [X] to her personal views and to proceedings. He advised ‘[X] keeps saying things like, the Orders say…. and he has asked me ‘are you going to cut my mum’s head off’, reporting that he had observed [X] to be highly anxious and at the commencement and conclusion of his contact times” ([40] 2016 family report).
g)After the 2016 interview the family report writer concluded:
i)“In my opinion, the types of comments and remarks [X] has made to and about his father to the different supervisors and me are unlikely to have emanated from his thinking about his father. In other words I do not think they are his original thoughts” ([36] 2016 family report).
ii)“In my opinion, there are no indications” the mother’s “ability to contain her very strong negative emotional and feelings towards the father has improved. Furthermore, and because of this, I think the mother is still exposing [X] to her negative thoughts and feelings about the father. In my opinion this is more likely the explanation for [X]’s resistance to spending time with his father” (38) 2016 family report).
h)At the 2017 interview, [X] told the family report writer :
i)The father is “a harmful man” who “is mean to my family” ([76] 2017 family report).
ii)“Mr Bonney is harmful” ([78] 2017 family report).
iii)“I can’t be with Mr Bonney without you supervising…it’s like you have to stay with me all the time and never leave me alone with Mr Bonney …and you have to write things that Mr Bonney is doing down on your computer and look at me every 10 seconds so he doesn’t run away with me” ([78] 2017 family report).
iv)The father “is a mean man who is mean to my mum” ([79] 2017 family report).
i)After the 2017 interview the family report writer concluded:
i)“[X] appeared to have a vocabulary not reflective of his age when discussing his involvement with” the father “using words such as ‘harmful’ and ‘I wouldn’t feel comfortable’” ([79] 2017 family report).
ii)“[X]’s individual experiences of harm do not appear to be reflective of the circumstances” the mother “describes, suggesting that [X]’s thoughts and beliefs may not necessarily be reflective of his personal exposure to the father” ([95] 2017 family report).
Conclusion on instilling negative views
I find the evidence supports that the mother instilled her negative views as to the father onto the child.
Mother not wanting child to enjoy time with father
The mother did not want [X] to enjoy spending time with the father as illustrated by the following:
a)At the intake in November 2015 the Contact Centre records note:-
i)“[X]’s disclosures indicate” the mother “had promised gifts in return for him behaving poorly and acting out upon” the father’s “arrival”.
ii)“Discussions between the Manager and [X] …identified that [X] did not feel sad about seeing Mr Bonney and that his plan to have a ‘huge’ tantrum was with the promise of his mother buying him Lego”
b)After the first supervised visit in Brisbane in November 2015, it was noted in the Contact Centre assessment report “[X]’s anxiety around being able to take gifts home is highly suggestive of him being aware that” the mother “does not welcome such gifts”.
c)At the first supervised visit in Darwin on 30 January 2016, [X] asked the worker “can you please not tell my mum that I was playing video games with him….miss please don’t tell my mum that I was playing games with [X]”.
d)At the supervised visit in Darwin on 31 January 2016, [X] asked the worker not to tell his mother that he had eaten food when with the father.
e)At the supervised visit in Darwin on 19 March 2016, [X] told his father that he was concerned his mother would get mad because the father had bought him clothes, toys and chocolate. [X] became upset about the gifts and asked the father if “he (the father) could take them with him when he leaves”.
f)At the 2016 interview the father said that [X] “ also seems as if he’s worried about getting into trouble from his mother if he eats any food I bring him or takes presents I give him or if he has fun with me” ([10] 2016 family report).
Conclusion on child enjoying time with father
I find the evidence supports that the mother has deliberately tried to interfere in the child’s enjoyment of his time with the father.
Overall conclusion as to mother’s ability to facilitate a relationship
At the 2017 interview, the father said that if “[X] remained living in the mother’s care ‘I’ll never have a proper relationship with my son’” ([39] 2017 family report).
The mother maintains that she is now able to facilitate a relationship between the father and [X] should the child be returned to her care stating “I have no intentions to keep” the father “out of [X]’s life” ([41] mother’s September 2018 affidavit).
At the 2018 interview, the mother explained :
a)“She has ‘no intentions’ of ‘keeping [X] away from Mr Bonney. She reported that she perceives she ‘didn’t handle it well’ previously and that she perceives she has “gotten better”, advising that whilst she remains insistent upon having no verbal communication with the father, she proposes to communicate with him via email into the future and for [X] to spend school holiday time in the father’s care, providing” the father “contributes to half of the expenses of air travel” ([84] 2018 family report).
b)“She was unduly influenced to reject Mr Bonney by her former partner, Mr O. She advised that she perceived Mr O felt undermined by Mr Bonney in his role as [X]’s father, reporting that she felt pressured to exclude Mr Bonney in order to “keep Mr O happy” ([85] 2018 family report).
c)“She has changed her approach to her children’s step parent relationships since separating from Mr O, advising that [A] ‘doesn’t call Mr Q Dad’, which was something Mr O allegedly insisted upon” ([86] 2018 family report).
At the 2018 interview, the father “perceives the mother’s capacity to change is questionable, highlighting that over a ‘nearly 10 year’ period” the mother “had been unwilling to accept him in [X]’s life” ([67] 2018 family report)
The family report writer agrees with the father.
After the 2017 interview, the family report writer concluded:-
a)“When considering all of the available information there is a clearly established discourse that identifies the need for [X] to experience a relationship with both parents. However, it is my professional opinion that despite extensive professional advice; and the support of the Court over a four (4) year period, minimal evidence of progress in this matter can be found” ([92] 2017 family report).
b)The mother “is defiant in her belief that” the father “is a risk to [X]’s safety and that she remains unwilling/unable to shift from her position, despite being offered professional advice that her approach to” the father’s “role as [X]’s father is harmful to [X]’s long term emotional stability” ([97] 2017 family report).
c)The mother “demonstrates limited insight into her own behaviour and that she remains fixed in her views regarding her willingness to change” ([98] 2017 family report).
After the 2018 interview, the family report writer concluded:
a)“Consistent themes highlighted in each family report undertaken to date has been” the mother’s “inability to accept and foster [X]’s relationship with” the father. “Documented in the reports of three (3) separate family consultants are concerns regarding” the mother’s “approach towards co-parenting, which until July 2017, impacted [X]’s relationship with” the father ([164] 2018 family report).
b)The mother “attests that she has developed greater insight into the need accept” the father’s “role as [X]’s father. However, limited observation of this change was found during the assessment period, highlighting the comments within the mother’s affidavit material presented to the Court and at interview” ([164] 2018 family report).
c)“Ongoing concern is identified with respect to the personality features of” the mother “that impact her ability to co-operate in co-parenting. It is understood that the mother was unwilling to attend upon Dr R for the purpose of a psychiatric and personality assessment, highlighting that at the present time, limited information regarding” the mother’s “mental health can be considered in this evaluation. However, when considering all of the information made available to the Court, combined with the reported and observed behaviour of the mother, ongoing concern is held regarding” the mother’s “ability to understand or accept that her approach towards co-parenting is detrimental to [X]’s wellbeing” ([170] 2018 family report).
I find that the evidence supports:-
a)In the past, the mother has not been able to facilitate a relationship between the father and the child.
b)If the child was to return to live with the mother, that the mother would not, into the future, be able to facilitate a relationship between the father and the child.
Relationship with child
At the 2017 interview:
a)“[X] was observed to have a warm and demonstrative relationship with” the mother “which was reflected in the relaxed manner in which they interacted with one another” ([90] 2017 family reports)
b)“[X] was observed to experience a familiar relationship with the mother and he was observed to defer to her throughout the day for direction” ([91] 2017 family report).
At the 2018 interview:
a)“[X] was observed to be emotional when reunified with” the mother. “The mother and child were observed to embrace emotionally, whilst both wept, during which time [X] was observed to cling to” the mother “in a warm embrace” ([140] 2018 family report).
b)“Within a relatively short period [X] was observed to settle and commence communication with” the mother “which was characterised by him asking her many questions” ([140] 2018 family report).
Conclusion as to relationship with child
I find the evidence supports the mother has a loving relationship with the child.
Ability to provide stability for [X]
[X] (aged 10) in his short life has experienced many changes including:-
a)The parties separating.
b)Believing Mr O was his father.
c)Moving from Brisbane to Darwin and having little time with the father.
d)Being confused about spending time with the father.
e)[A] being born.
f)The mother and Mr O separating and [X] having little time with Mr O.
g)The mother re-partnering with Mr Q.
h)[X] moving to Brisbane and having no time with the mother or [A].
i)[X] having a stepmother (Ms N) and step sibling ([C]) in Brisbane.
j)The father and Ms N separating and [X]’s time with Ms N and [C] ceasing.
k)The mother moving to South Australia and not knowing about his sibling [B].
In 2018 the mother gave birth to [B], a child from her union with Mr Q.
[X] is unaware that he has a sister with the mother explaining “I do not wish to disclose to [X] that he has another sibling…if [X] was to find out he had another sibling that he could not meet or see, would be again even more traumatising to him” ([47] mother’s September 2018 affidavit).
The father is concerned “[X] … is unaware of his new baby sister and could possible feel replaced as [X] has disclosed to me previously he holds concerns that his mother would replace him” ([20] father’s September 2018 affidavit).
As to Mr Q and [B], and [X] returning to be part of the mother’s household the family report writer comments:-
a)“The strength of this relationship (with Mr Q) is largely untested at the present time, highlighting that at the time of the initial family report, [X] did not mention” Mr Q “who reportedly lived” with the mother ([173] 2018 family report).
b)How [X] was to react if he found out he had a sister “can’t predict to be… it would be anticipated at knowing about a sibling would have… a myriad of different reactions. Number 1 would be about curiosity, about wanting to, you know… and have an understanding about this particular child. The other might be a reaction, maybe, about jealousy…the role the sibling takes now in the family unit, some level of uncertainty about how [X] may or may not have a relationship with this particular child, and then how he will fit, then, also not only with the child in the family home, but then the newly established relationship with the mother’s partner now as a father in that family home to a child” (2018 cross-examination).
c)“[X] had not experienced, is my understanding, Mr Q to be living in the family home in the role of a parent. And so we not only have the role of a sibling, but we have the sibling’s father, then, that also [X] would need to, then, find some way, or make meaning of with respect to his role in that family”
The mother believes the father had influenced [X] in what he has said to the family report writer ([25] mother’s September 2018 affidavit).
Conclusion as to views about living with father
The leading authority on children’s wishes, (now referred to as views) is R & R : Childrens’ Wishes [2000] FamCA 43 where after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286 the Full Court states at [44]:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so”
As to the weight to be given to such wishes the Full Court at [54] says:
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”
I find there is no evidence to support that the father has in any way influenced [X] in his views.
I find having regard to the evidence, that even though [X] is only 10 years old, that weight must be given to the child’s views of not wanting to move away from the father.
I make this finding based on the following:-
a)[X] is aware of what is happening around him.
b)[X] has had the benefit of counselling to understand his circumstances.
c)[X] has a safe and loving relationship with the father and wants that to continue.
d)[X] has certainty in his relationship with the father, as he does not know, nor like Mr Q and is unaware that he has a sister, [B].
e)[X] wants a relationship with the mother but wants that to happen only if he can stay with the father.
Child’s view about mother
At the 2018 interview, [X] shared the following with the family report writer:
a)If [X] was to live with the mother, “my Mum hates my Dad so much she will never let me see him” ([134] 2018 family report)
b)“He accepts being separated from” the mother “but feels anger and confusion ‘that she lied to me so many times and never told me the truth’, reporting that he had been convinced that Mr O was his father and not” the father ([134] 2018 family report).
c)“He reported that Mr O had previously informed him that ‘my Dad was nice, but Mum didn’t believe it’, advising that he remains feeling ‘I have been lied to a lot by Mum and that makes me sad and angry at her’” ([138] 2018 family report).
Conclusion as to view about mother
I find the evidence supports that [X] does not trust the mother and is hurt by her lies about the father.
Experts opinions
This is a complex matter and after due consideration of all the nuances in this matter, the following opinions were reached by the family report writers as to the following issues.
Mother misleading the court
“Significantly, despite being questioned extensively regarding her relationship with Mr O and her involvement in family violence in June 2017” the mother “failed to report this information during the initial family report, highlighting ongoing risk regarding the seemingly persistent manner in which the mother attempts to mislead the Court” ([162] 2018 family report).
Importance of father having a relationship with child
“It remains my professional opinion that [X] should be afforded the opportunity to develop and maintain a meaningful relationship with” the father “to promote his sense of identity, emotional security and long term emotional stability” ([106] 2017 family report).
“If the Court accepts” the father’s “position, namely that he wishes to promote [X]’s best interests by way of assuming a parental role, it is my professional opinion that this can only occur if [X] lives with him” ([102] 2017 family report).
Mother’s negative perception of the father
“On the basis of the information I have obtained over the time I have been involved with this matter and noting the mother has been engaged with health professionals, I hold a very guarded outlook in so far as” the mother “being able to change the way she perceives” the father ([42] October 2016 family report).
Mother’s ability to facilitate a relationship for father with child
“I am very pessimistic about the mother’s willingness and ability to facilitate and encourage a relationship between [X] and the father” ([47] 2016 family report).
“Echoing the comments of family consultant Mr M in 2014, I share a view that should [X] continue to live in Darwin his relationship” the father “is compromised” ([99] 2017 family report).
“In the event [X] lived with” the mother “his opportunity and or ability to maintain a relationship with” the father “would be compromised. It is not understood if” the mother “understands or accepts the implied messages she continues to send to [X] with respect to” the father “and the quality of care he provides, highlighting ongoing concern that [X] would be exposed to negative comments of the father, and [X]’s time with” the father “would be consistently disrupted by the practical and fiscal implications of travel between the mother’s proposed interstate location and Brisbane” ([174] 2018 family report).
The mother’s “approach towards” the father “over an almost nine (9) year period seemingly remains unchanged, highlighting the mothers entrenched beliefs and her ongoing inability/unwillingness to separate her views of” the father “from [X], highlighting my professional opinion that” the mother’s “capacity and insight for change is limited” ([183] 2018 family report).
Risk to child due to mother’s negative views of father
“Without significant change in the mother’s behaviour, it is my professional opinion that [X] is persistently subject to harm whilst attempts are made for this” (the father’s relationship with the child) “to occur” ([106] 2017 family report).
“Giving due consideration to the harm that [X] is exposed to whilst attempting to develop a relationship with” the father “there is increased support for structural changes to [X]’s living arrangements, inviting discussion regarding [X] living in the residence of” the father “and not that of the mother” ([101] 2017 family report).
Risk to child due to exposure to family violence by mother
As to the family violence between the mother and Mr O that “with respect to the mother, multiple risk factors are also identified for the Court’s consideration that relate to” the mother’s “forensic presentation, that if substantiated, place [X] at risk of harm whilst in the mother’s care” ([162] 2018 family report).
Loss of relationship with [A] as opposed to risk for child
“It is acknowledged that [X] has spent the majority of his time in” the mother’s “care prior to July 2017, and that an established relationship with both the mother and his sibling [A] has ensued. However, when giving due regard to [X]’s experiences, including him being allegedly influenced to reject” the father “long term risk regarding [X]’s exposure to cumulative harm is found” ([182] 2018 family report)
How the risk is to be managed
“It is my professional opinion that unsupervised time in the mother’s care increases [X]’s risk of exposure to emotional harm, including the undermining of his relationship with” the father “and as such, it will form a recommendation of this assessment that the mother’s time with [X] remains supervised ongoingly” ([178] 2018 family report).
“So my opinion with respect to supervised time relates to experiences of cumulative harm. You will see in my recommendations that I have formed a professional opinion that I don’t perceive that the mother, number (1), understands the impact of the negative messages that are said for [X] and, number (2), then the information that then is provided….when we consider the impact of cumulative harm, the – the messages that are consistently said to [X] are not only about the father. They actually demoralise, then, his level of care and – and – and his experiences also. So if we were to look at a process of denigration that was to say, you know, for an example, ‘You know, your father did that’ or ‘The father did this bad’, that – that would be something, then, that Mr Bonney could reinforce that, you know, through positive experiences that that wasn’t the case. However, if I look to the observation period and – and witnessing the statements of the mother immediately upon being reunified with [X], the – the comments are – are underhanded and, from an adult’s perspective, I understand to be demoralising, then, of that relationship. From my professional opinion, I believe there’s a high risk of cumulative harm with respect to, then, [X] being , you know, emotionally impacted, then, by this ongoing rhetoric of, you know, his father’s capacity to provide him with a level of care… so in the absence of the mother being able to understand the impact of those messages that are sent, and the – the tone and – and antecedents of – of what she discusses, no, I don’t believe that unsupervised time could be mitigated by Mr Bonney” (2018 cross-examination of family report writer).
When asked whether one weekend a month unsupervised with the mother could occur the family report writer opines and “that during that time that he has spent with the mother, he would be exposed to cumulative harm” and that the three intervening weeks would be insufficient time to undo that harm (2018 cross-examination of family report writer).
Father’s ability to facilitate relationship for mother with child
“With respect to the father’s capacity to be able to… support [X]’s post-contact with the mother, yes, I have a high level of confidence that he does” (2018 cross-examination).
Conclusion as to expert opinions
I give significant weight to the opinion of the family report writers and adopt their concerns, opinions and recommendations.
I now turn to the law.
The law
In determining the future parenting arrangements for [X] the best interests of a child is of paramount consideration.
As discussed by the Full Court in Moose & Moose [2008] FamCACF 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3) guided in…consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2)”
The objects of Part VII Family Law Act 1975 and the principles underlying the objects are set out in section 60B.
The factors to consider in determining the best interest of the child are contained in the primary and additional considerations as set out in section 60CC.
As to the primary considerations the leading authority is Brown J in Mazorski & Albright (2008) 37 Fam LR 518 which refers to such considerations as the “twin pillars” where:-
a)The first pillar is the importance of a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
I now turn to the issues, and will deal firstly with the issue of whether the mother poses a risk to the child.
Does the mother pose a risk to the child?
Because of the serious concerns raised by the father and the ICL as to the mother posing a risk to the child and of the findings that have been made, I will take the unusual step of addressing the second primary consideration first.
This consideration, according to section 60CC(2A) Family Law Act 1975 is to be given greater weight than all other considerations.
Need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Mother
The father, as supported by the ICL, fears that [X] is at risk of harm from the mother.
The potential risks includes the mother:
a)Lying, exaggerating and manipulating in order to get her own way.
b)Embroiling [X] in the lies, exaggerations and manipulations.
c)Not being child focussed and putting the mother’s needs first.
d)Exposing the child to family violence perpetrated by the mother.
e)Not recognising the important role the father plays in [X]’s life and his significance as a father.
f)Denigrating the father to the child.
g)Not facilitating or promoting a relationship between the father and the child.
h)Interfering in the quality of the relationship between the father and the child.
Conclusion as to risk of harm posed by mother
I find, having regard to the evidence and the findings made that the mother poses a risk of psychological harm to [X] based on the following:-
a)The mother’s involvement of [X] in her web of deceit and lies.
b)The mothers’ ongoing and ingrained negative opinion of the father, which was repeatedly inflicted on the child prior to 2017.
c)The mother instilling fear and doubt in [X] about his relationship with the father.
d)The undermining of [X]’s relationship with the father.
e)The inability of the mother to facilitate or promote a relationship between the father and [X] prior to 2017.
f)The mother’s life choices that have resulted in [X]’s needs not being given priority.
g)The inability of the mother to put [X]’s needs before her own.
h)The lack of trust [X] has in the mother.
i)The mother’s mental health issues that have not been fully identified or addressed.
j)The existence of family violence perpetrated by the mother, which occurred in the presence of [X].
Now that a finding has been made that the mother poses a risk to the child, the question then arises as to whether that risk is unacceptable.
Does the mother pose an unacceptable risk to child?
The standard of proof in determining whether unacceptable risk exists is the civil standard based on the balance of probabilities.
The factors to be considered in applying the civil standard were addressed by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362:-
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inference.”
As to what amounts to unacceptable risk was the subject of much discussion by the Full Court in Johnson & Page [2007] FamCA 1235.
In conclusion, the Full Court adopted the seven principal points to be applied in determining acceptable risk as set out by Hon. John Fogarty A.M. in his paper ‘Unacceptable risk – A return to basics’ published in Australian Journal of Family Law.
In summary the seven points are as follows:-
a)The best interest of the child will always be the decisive issue.
b)Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
c)Where past abuse is alleged, the court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies.
d)A failure to prove past abuse in accordance with the Briginshaw test does not prevent the court from considering the circumstances in determining whether unacceptable risk exits.
e)Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child.
f)The applicable onus of proof in reaching any conclusion as to unacceptable risk is the ordinary civil standard.
g)The individual components in reaching that conclusion need not be proven on the balance of probabilities. The court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard. The Full Court however expressed a word of caution in making a finding of unacceptable risk where none of the components are proven on the balance of probabilities.
In addition to determining the risk to a child, the court must also consider the impact on the primary parent.
As stated by Full Court in R & C [1993] FamCA 62 “in upholding children’s rights to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary care giver concerning the child’s exposer to potential harm where such anxiety is likely to impact on that parent’s caregiving ability.”
Application of the Briginshaw test
I will now apply the seven summary points to determine whether the risk posed by the mother for [X] is unacceptable.
1) The decisive issue is the best interests of the child
A determination has been made that the mother poses a risk to the child as supported by the following findings:
a)The mother’s mental health issues remain an unknown.
b)The mother has not adequately addressed her negativity towards the father.
c)The mother will continue to impose her negativity about the father onto the child.
d)The mother lacks insight and understanding as to the impact of her actions on [X].
e)The mother will continue to undermine and interfere with the child’s relationship with the father.
f)The mother is not always honest with the child and embroils the child in her deceptions.
g)The mother is not child focussed and does not prioritise the child’s needs over her own.
Conclusion
A finding has been made that the child is at risk in the mother’s care.
It is therefore in the child’s best interest to ensure that risk is minimised.
I find, given the nature of the circumstances that this point supports a finding that the risk posed by the mother is an unacceptable risk.
Therefore time between the mother and [X] must proceed with caution to minimise that risk.
2) “Unacceptable risk” is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
The findings support:-
a)The nature of the risk is multifaceted and includes:
i)The mother’s inability to accept the role the father plays and his significance in the child’s life.
ii)The mother’s inability to speak positively of the father.
iii)The mother’s need to share her negativity with the child and to create mistruths, fear and uncertainty in child about the father.
iv)The mother’s inability to prioritise the child’s needs over her own.
v)The mother failing to address her mental health issues.
vi)The mothers continued lack of insight such as exposing the child to family violence.
b)The degree of risk is high with the mother failing to adequately address her attitude and behaviours, which give rise to the risk of psychological harm of the child.
c)Because the risk is multifaceted and the risk is high, safeguards will need to be imposed on any time between the mother and the child.
I accept and adopt the recommendation of the family report writer that supervised time is the appropriate safe guard as unsupervised time between the mother and the child will result in a “high risk of cumulative harm” to the child, which cannot be “mitigated” by the father.
Conclusion
I find that the risks are of such a nature and of such a degree that the risks are unacceptable and that the appropriate safeguard to minimise such risks is for time between the mother and child to be supervised.
3) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
“Abuse” is defined in section 4 of Family Law Act 1975 :
“in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
Conclusion
I find, whilst the child has been exposed to risk, that the child has not been the subject of abuse.
4)The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
Whilst abuse of [X] by the mother has not occurred, I find on the balance of probabilities and having regard to the evidence and the findings made that the mother has engaged with [X] in such circumstances as to cause the child risk.
I make this finding based on the following:-
a)The mother has lied to [X] about who his father was.
b)The mother has lied to [X] about the father.
c)The mother has imposed her negative views about the father onto [X].
d)The mother has manipulated [X] into saying things and doing things to undermine his relationship with the father.
e)The mother instilled fear and uncertainty in [X] about the father.
f)The mother has demonstrated a lack of insight as to how her actions and behaviours have negatively affected [X].
I further find that this risk has in the past caused psychological harm as:-
a)Initially the child was confused and concerned about seeing the father.
b)The child was emotionally torn about why he was seeing the father and worried about the mother’s reaction to his doing things and receiving things from the father.
c)The child found himself in a position where he was saying one thing to the family report writers (enforcing the mother’s imposed rhetoric) but acting out very differently and positively with the father.
d)The child was apprehensive about the father and it took time for the child to establish trust in the father.
e)Although the child transitioned well into the father’s care, this was only achievable because of a highly attentive, understanding and patient father coupled with counselling.
f)The child is confused and hurt by the mother’s behaviour.
The mother had every opportunity to explain herself to [X] and address her behaviours with the child during the 2018 interview but failed to do so.
I find that exposure to the mother in the absence of any safeguards will expose the child to risk and will result in further angst and confusion for [X].
Conclusion
I find that even in the absence of abuse, that the child is still at risk of harm if placed in the unsupervised care of the mother and that this makes the risk unacceptable.
5) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
I find that there is unacceptable risk to the child and therefore it would be in the best interests of the child to spend unsupervised time with the father.
6) The onus of proof in reaching that conclusion is the ordinary civil standard
The standard applied in reaching these findings is on the balance of probabilities.
7) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
The circumstances of this matter are such that the findings made on the balance of probabilities accumulatively support findings that:-
a)The mother poses an unacceptable risk to the child.
b)The only appropriate safeguard to the unacceptable risk is for the mother’s time with the child to be supervised.
Conclusion as to unacceptable risk
I find having applied the Briginshaw test, that the mother poses an unacceptable risk to the child and that the mother spending supervised time with the child will safeguard this risk.
The other primary and additional considerations
As findings have been made as to unacceptable risk and that, the time between the mother and [X] is to be supervised then it is unnecessary to explore the remaining considerations contained in section 60CC.
What time should the mother spend with child?
As succinctly put by the Full Court in Moose at [79] now that a finding has been made as to unacceptable risk is it “possible or appropriate to make orders to promote a meaningful relationship for the children with the father both in the shorter and more significantly the longer term.”
What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski, with the Full Court in Moose stating at paragraph [68] that “Her Honour’s discussion was helpful and her conclusions about section 60CC(2)(a) are cogent.”
At [26], Brown J concluded:
“What these definitions convey is that ‘meaningful’, when used in the context of a meaningful relationship, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’… A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective and not a strictly quantitative one.”
Kay J in Godfrey & Sanders (2007) 208 FLR 287, spoke of the legislation promoting a “meaningful relationship, not an optimal relationship”.
The Full Court in McCall & Clark (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a perspective one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
Conclusion as to mother’s time with child
[X] loves his mother and his mother loves [X].
[X] wants to see his mother and spend time with the mother.
However, in order for [X] not to be drawn into the mother’s negative attitude about the father, time between [X] and the mother must be supervised.
The Full Court is not supportive of long-term supervision orders as discussed in Betros & Betros [2017] FamCAFC 90 at [13]:
“It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
I find that this is a matter where a long-term supervision order is warranted, as this is the only safe way for [X] to re-establish, maintain and nurture a relationship with the mother, where such relationship will not compromise the meaningful relationship [X] has with the father.
Should the mother seek professional treatment for her mental health issues and for her negative attitude to the father and gain the insights as to the impact of her actions and behaviours on [X], then it is always open to the mother to commence fresh proceedings and meet the Rice and Asplund threshold test.
Orders therefore have been made for the mother to spend supervised time six times a year with the mother at a contact centre as nominated by the father.
Orders have not been made for telephone contact as the ability to monitor the mother’s behaviours is difficult for the child to navigate and I find that this would place [X] under unnecessary stress.
Whilst orders have been made for supervised time, orders have also been made for the mother’s time with the child to cease if the mother fails to complete intake or fail to spend regular time with [X].
I find that this further safeguard is required, as the mother has previously expressed a view that if [X] remained with the father, then she would not spend time with [X], even if court ordered.
Should [X] remain living with father?
As the mother poses an unacceptable risk for the child, then it is not in [X]’s best interest to live with the mother.
I find based on the evidence and the made findings that it is in the best interest of the child to remain living with the father.
I make this finding based on the following:-
a)[X] has been living with the father for some 18 months.
b)[X] has a strong loving bond with the father and trusts that his father will make the right decisions for him.
c)The father has demonstrated that he meets all of [X]’s needs and provides [X] with appropriate support.
d)[X] wants to stay living with the father.
e)[X] has adjusted well to living with the father and enjoys his current lifestyle and schooling.
f)The father is prepared to arrange for time between [A] and [X] when [A] is spending time with Mr O.
g)The father has demonstrated willingness to promote and facilitate a relationship between the mother and [X].
Conclusion as to [X] remaining living with father
I therefore order the child to remain living with the father.
Parental responsibility
The father is seeking sole parental responsibility, which reflects the parental responsibility he had held for the child since [X] commenced living with the father in 2017.
The mother is seeking equal shared parental responsibility.
Conclusion as to parental responsibility
I find that the presumption of equal shared parental responsibility as provided in section 61DA Family Law Act 1975 is rebutted because of the finding of unacceptable risk as it would not be in the best interest of the child for parental responsibility to be shared (section 61DA(4)).
I therefore order for the father to have sole parental responsibility but to keep the mother informed as to any major long-term decisions.
Maternal grandparents’ application
In February 2018 the maternal grandparents filed an application seeking time with the child.
The application in a case has been dismissed for the following reasons:-
a)The application in a case should never been filed, as the maternal grandparents are not a party to the proceedings.
b)The application in a case did not seek orders for the maternal grandparents to be joined to the proceedings.
c)In any event to join a party at that stage of the proceedings where the matter was part heard was not appropriate and would have caused delays in the matter.
Although the application in a case has been dismissed, there is nothing preventing the maternal grandparents from filing an initiating application to spend time with the child.
Should such an application be filed, then consideration will be given to the information and recommendations contained in the 2018 family report as to the maternal grandparents time with the child.
I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 1 February 2019
Key Legal Topics
Areas of Law
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Family Law
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