Boyer and Boyer and Anor

FAMILY COURT OF AUSTRALIA

BOYER & BOYER AND ANOR

[2010] FamCA 1140

FAMILY LAW – CHILDREN – Best Interests – Should the father spend time with the child and if so how often

Family Law Act 1975 (Cth)

APPLICANT:

Mr Boyer

RESPONDENT:

Ms Boyer

SECOND RESPONDENT:

Mr Odene

INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring

FILE NUMBER:

SYC

8678

2007

DATE DELIVERED:

29 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

25 November 2010

REPRESENTATION

THE APPLICANT IN PERSON:

Mr Boyer

SOLICITOR FOR THE RESPONDENT:

Mr Cohen

THE SECOND RESPONDENT IN PERSON:

Mr Odene

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Ms Bedford

Orders

All prior parenting orders relating to T born … February 1996 (“the child”) are discharged.
The child is to live with Ms Boyer (“the mother”).
The child is to spend time with Mr Boyer (“the father”) as follows:
(a)For approximately one hour (Mr L to determine the precise time) on Tuesday 30 November 2010 commencing at 4.00 p.m. with supervision by Mr L, Family Consultant. The mother is to deliver the child to Mr L at the Family Court of Australia building in Goulburn Street, Sydney at 3.30 pm on that day in compliance with order 8 hereof and she is to then leave the building and return again to collect him from Mr L at 4.55 p.m.
(b)Commencing on Friday 3 December 2010 and thereafter each alternate Friday until 5 March 2011, from the conclusion of school (or 3.30 p.m. if it occurs during school holiday time) for a period of two hours.
(c)Commencing on Saturday 12 March 2011 and thereafter each alternate Saturday until 3 June 2011, from 10 a.m. until 2 p.m.
(d)Commencing on Saturday 4 June 2011 and thereafter each alternate Saturday until 2 December 2011 each alternate Saturday from 9 a.m. to 6.30 p.m.
(e)Commencing on 3 December 2011 and thereafter such time as the child and the father may agree upon.
The time the child is to spend with his father is to commence with the father collecting him from his school, should it occur on a school day, or from the maternal grandparents’ residence should it occur on a non school day. At the conclusion of such time the father is to deliver the child to the residence of the maternal grandparents.
If on any occasion the father is spending time with the child on a weekend and at that time the child has a school sporting commitment the father is to take him to that sporting event.
The compliance with these parenting orders is to be supervised for a period of 12 months by the family consultant, Mr L, pursuant to section 65L of the Family Law Act. Such supervision is to include the provision by Mr L of such assistance as is reasonable where a request for assistance is made by one or more of the parties. It is also to include Mr L maintaining contact with the child’s school authorities in order to monitor the impact of the orders of the Court on the child’s school attendance and performance.
The mother and the maternal grandfather are to facilitate telephone contact or communication between the child and the father by email, Skype and mail. To this end the mother is to provide to the father within 14 days a telephone number and email address for contact with the child. The father is not to telephone the child or contact him by other means until he has concluded his time with the child on 31 December 2010.
The mother is to deliver the child to the Family Court of Australia building in Goulburn Street, Sydney, to the office of Mr L at 3.30 p.m. on Tuesday 30 November 2010 in order that he may attend upon a meeting with the Independent Children's Lawyer, Mr L and Justice Le Poer Trench for the purpose of explaining the Court orders to him.
The appointment of the Independent Children's Lawyer is continued for a period of 12 months from the date hereof.
In the event of the Independent Children's Lawyer making any application to the Court during the currency of her appointment then that application is to be listed at short notice before me, Justice Le Poer Trench should I be available.
Each of the mother and the maternal grandfather are to do all acts and things to support and encourage the child to develop his relationship with his father.
Each of the parties is restrained from denigrating any other party or relative or partner of any party or permitting any other person to do so in the presence or hearing of the child.
The father is restrained from physically disciplining the child.
The father is restrained from consuming alcohol on any day the child will be in his care until he ceases to be in his care on that day or subsequent days should the child be with him for consecutive days.
Neither party is to remove the child T born … February 1996 (a male) from the Commonwealth of Australia without further order of the Court.
The Court requests that until further order the Australian Federal Police place the name of T born … February 1996 (a male) on the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia for the purpose of preventing removal of the child from the Commonwealth of Australia in breach of these orders.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories of Australia are requested and authorised to give effect to these orders
That the Registry manager cause sealed copies of these orders to be served upon the Commissioner of the Australian Federal Police.
Should the mother need to communicate with the father she may use one of the following methods: Mail, e-mail, text message, telephone or via her father. She is not to communicate through the child and she is not to require the child to carry correspondence for her to the father.
Should the father need to communicate with the mother he is to do so by delivering a letter by mail or personally to the mother’s father. Unless the mother invites him to communicate with her by any other method he is not to attempt to communicate with her directly
I note that the proceedings are now concluded in this Court.
All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION

A.The Court notes that orders 13 and 14 hereof are made with the consent of the father and without a finding requiring the necessity for such order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8678 of 2007

MR BOYER

Applicant

And

MS BOYER

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are competing applications between the mother Ms Boyer and the father Mr Boyer. The mother’s father, Mr Odene was made a party to the proceedings this year for the purpose of assisting the mother and the Court.
The Court has been greatly assisted in this most difficult case by the Independent Children's Lawyer, Ms Bedford and the Family Consultant, Mr L. Mr L has provided his services to this family in a manner I have not experienced before and the orders which are to be made today owe significant credit to his work.
The proceedings commenced in December 2007 when the father filed an application for final orders. That application sought parenting and property orders. The parenting orders sought by the father were principally for the child to spend time with him. In 2010 the father amended the application to seek residence orders for the child. The property application was determined by me earlier this year.
On 1 February 2010 the Case Management Judge made a series of orders necessary to list the matter for hearing before me on 18 February 2010.
On 18 February 2010 the matter was before me. On that day there were some extraordinary events that took place. The father had decided to withdraw his application to spend time with the child and pressed to proceed with property matters which he said needed to be determined expeditiously. I was told that he had not spent time with the child since 2007.
Each of the parties was self represented. The Independent Children's Lawyer appeared on that day. As I explored with the parties why the child was not seeing his father I ascertained that the child was not attending school. It transpired that his school had refused to allow him to attend until he underwent psychological testing. Further enquiry revealed a very troubled and unhappy 14 year old boy. It also suggested the mother was not coping with parenting the child and much of his parenting fell to her parents.
The mother’s presentation in Court was also troubling. She was clearly nervous. She appeared apprehensive and distressed. She had difficulty maintaining her thoughts so she could conclude what she had to say on any particular topic.
Mr L, the Family Consultant was able to assist the Court on that day. The parenting proceedings was adjourned to enable the Independent Children's Lawyer to make inquiries with the child’s school.
The mother was clearly incapable at that stage of adequately representing herself. I directed she make an application for Legal Aid. I requested the Director of the Legal Aid NSW to urgently consider the mother’s application for aid. Subsequently that application was granted and the mother was then represented by Mr Cohen. I express my appreciation of the work he has performed on behalf of the mother in this case.
The matter was before me again on 24 February 2010. On that day Mr Odene, the mother’s father, agreed to be joined as a party to the proceeding at the request of the Independent Children's Lawyer. I requested the Director General of the Department of Human Services, NSW to intervene in the proceeding as more information was placed before the Court about the circumstances surrounding the child.
On 24 February 2010 the mother told me that she was willing to consent to orders that the child live with his father. This was supported by the maternal grandfather who told me that it was time for the father to take responsibility for his son. He suggested that the father had not done that in the past and that he had taken on a father role for the child. In the circumstances this was an extraordinary move by the mother. The Family Consultant remarks in his report that the mother was on that day demonstrating behaviour which may be indicative of mental illness.
On 24 February 2010 it became clear that the mother needed medical attention. With her consent I ordered that she obtain that treatment and that she authorise her doctor and psychologist to provide information about her health to Mr L. I also ordered that the mother immediately arrange for the child to undertake the psychological assessment sought by the headmaster of his school and that otherwise she do all things necessary to have him enrolled in school as soon as possible. The Independent Children's Lawyer was to assist the mother in those tasks. I also ordered that the child was to reside with the maternal grandfather and his wife in their residence until further order. This was simply a regularising of the circumstance which then existed.
In March 2010 things progressed quickly. The mother saw her doctor and obtained anti-depressant medication. She attended to see her psychologist. The child was accepted back at school having completed his psychological testing. Arrangements were made for the child to see a psychologist for personal counselling. A family report was ordered. I proceeded to press the parties to ready their property proceeding for hearing. I noted the Director General of the Department of Human Services declined to intervene. The mother was legally represented at least in relation to the parenting proceedings.
On 20 May 2010 I heard the parties’ property proceeding and delivered judgment on 24 May 2010.
On 27 September 2010 I heard an application by the father to have the Registrar sign transfer documents necessary to enable him to comply with the Courts orders relating to property. I made the orders sought and the Registrar signed the documents the subject of the Court order made that day.
On about 1 June 2010 Mr L signed the family report. That document was subsequently released to the parties. The parenting matter was before me again on 1 November 2010. The Family Consultant was present on that day. At the request of the Independent Children's Lawyer I ordered all the parties and the child to attend upon a further “Child Inclusive Conference” with Mr L. I ordered that a report be provided on 25 November 2010 when I listed the minute of order filed by the Independent Children's Lawyer for hearing. The minute of order sought that the child spend time with his father. The application closely followed the recommendation of the Family Consultant as contained in his report. Orders were made in relation to the evidence each party was to provide at the hearing.
The hearing proceeded on 25 November 2010. The mother gave her evidence by affidavit. The father and the maternal grandfather gave oral evidence only. The Family Consultant gave oral evidence and his report was adopted as an exhibit in the proceeding.

The Issues

The issues between the parties appear to be the following:
(i)Is the child at an unacceptable risk if he spends time with his father? (This is said to be danger of physical violence, exposure to inappropriate language and exposure to the father’s excessive alcohol use.)
(ii)Was the father violent to the mother and the child in the way she alleges?
(iii)What weight should be given to the child’s clear stated preference not to spend time with his father?
(iv)If the child is to spend time with his father how should that be structured?
(v)Should the Court make final or interim orders?

Background Facts

The facts of this case are largely found in the family report and the mother’s affidavit. The relevant facts are as follows:
The father was born in 1970 in Australia.
The mother was born in the Philippines in 1970. The parties met at school and commenced their relationship when 16 years of age.
The parties met again in 1990 and commenced cohabitation in that year. They were married in 1994.
The parties’ only child T was born in February 1996.
The parents separated in 2007.
At about the date of separation the mother initiated AVO proceedings against the father. An Apprehended Violence Order (“AVO”) was granted to protect the mother and the child.
In 2001 the child commenced at C School in W. From that time he commenced staying overnight with the maternal Grandparents who also lived in that suburb. Following the separation the mother and the child have spent considerable periods of time living with the maternal grandparents.
Because of the mother’s attitude towards the paternal grandmother there was little contact between the child and that Grandmother until he was about 10. There has been little contact since the parties’ separation.
In 2008 the child commenced school at S School close to W.
In the first term of 2010 the headmaster refused to allow the child to attend school without a psychological assessment. This request is said to have resulted from aggressive behaviour by the child at school.

THE PARTIES’ PROPOSALS

The mother seeks orders that the child live with her and spend time with the father as determined by the Court. She will not consent to the child spending time with his father and believes he is not safe in his father’s care. She also emphasises the child’s stated wish not to spend time with the father.
The maternal grandfather supports the child spending time with his father if the Court considers that is in his best interests.
The father seeks orders as recommended by the Family Consultant. The orders which were ultimately proposed by the Independent Children's Lawyer were also supported by the father.

THE EVIDENCE OF THE FAMILY CONSULTANT

In the family report the Family Consultant set out information provided by the father.
The father lives with his mother, the paternal grandmother, and his partner, Ms E. Ms E was born in the Philippines.
The father is an only child and was brought up by his mother. He has never met nor does he know anything about his father.
The father holds a tertiary degree. He works as in the gaming industry. He is also, to some extent a professional poker player.
The father complained of disharmony in the marriage arising as a result of the mother restricting access to the child by the paternal grandmother. The father believed the mother’s mental health deteriorated following the birth of the child.
The father described heated arguments with the mother about money and property entitlements. He told the Family Consultant he has been drinking on a daily basis for about 9 years. He tries to limit it to 2 glasses of wine a night.
In the interview the father acknowledged he had engaged in extra-marital sexual activities.
The father denied violence to the mother. He denied the child had seen him being violent to the mother. He described the mother as argumentative. He described the event which ended the marriage. He said he had left the former matrimonial home to reside with his mother and thereby separate from the mother. The mother came to that residence where the father was. She entered the residence and refused to leave. The father attempted to push her out of the house. She resisted. He desisted and rang the police. The father acknowledges the child would have witnessed many arguments between the parents before the separation. He also acknowledged slapping the child a few times. He alleged they were appropriate occasions such as when he chewed on a live electric flex.
The father professed having a good relationship with the child prior to the separation.
The mother provided the Family Consultant with her version of the marital history.
On meeting the mother presented to the Family Consultant as “more focussed and less anxious” than at the first day of hearing in the case. She described how she is now taking anti-depressant medication and is seeing her psychologist regularly.
The mother reported the child is now happy at school. He is playing the viola in the school ensemble group.
The mother specified three occasions of the father being violent to her. She considers it highly likely the child witnessed at least one of these occasions. The occasions were about the time of the separation. She said the child had seen bruises on her. She said she was “mostly frightened because he used to yell at me.” She described verbal abuse and denigration such as being called “stupid”, “crazy”, “bimbo” and “whore”. (I note the father denies calling her a whore.)
The mother alleged the father prioritised his poker gaming to spending time with the family. She alleged he would drink two bottles of wine a night.
The mother described the paternal grandmother as very interfering however denied she had banned her from access to the child.
The mother asserted the child is frightened of the father. This was because the father yelled at him. She claimed the child remembered the father hit or slapped him.
The Family Consultant interviewed the maternal grandfather. He is 60 years of age. He presented as “intensely angry” with the father. He believes the father neglected his duties and responsibilities as a father. He also complains he acted in a disrespectful way towards the maternal grandfather.
The maternal grandfather believes the father “psychologically damaged” the child.

The maternal grandmother was seen by the Family Consultant. She reiterated much of what her husband had said. She is convinced the child is afraid of his father. The Family Consultant reports the maternal grandmother said to him “He can see him” (i.e. be allowed to spend time with the father) but the added “in some cases the child is killed by the father”. In the circumstances of this case that was an extraordinary and quite outrageous thing to allege against the father. It is however illustrative of the emotional environment the child has been exposed to since the separation of his parents in 2007.
The Family Consultant saw the paternal grandmother. She described her relationship with the child in his infancy and then again when he was at school. She considered she had a good relationship with the child. She described how the family had lived at her flat with her at one time when the child was little.
The paternal grandmother told the Family Consultant she was shocked by the current persona of the child. She said he was “skinny and lively” when he was young.
The father’s partner Ms E (aged 46) was seen by the Family Consultant. She displayed appropriate empathy towards the child and the mother.
The Family Consultant interviewed the child. The child told the Family Consultant he thought the Court case was about whether he lived with his mother or his father. He stated his preferred option was to live with his mother and not see his father. He said his father had been violent to his mother and also hit him. He considered that his father had “walked out on him”. He was very complimentary about and supportive of his mother. He said she “gets emotional” at times. The Family Consultant observed the child “seems to be quite protective towards his maternal grandparents.” He is aware they do not like his father.
The Family Consultant arranged to see the child and the father together. The child looked apprehensive but not afraid when told of this by the Family Consultant. When the maternal grandfather ascertained what was about to happen he protested to the Family Consultant that it would be contrary to psychological advice to allow the meeting.
In paragraphs 63 and 64 of the report the Family Consultant says:
63. Although interactions between [the child] and his father had a stilted, awkward and (despite the tense circumstances) a rather unemotional quality, they were both nevertheless able to recall events and activities that they had previously shared, and at times were able to joke about the game that they were playing. The Family Consultant noted that, by the end of the 40 minute observation, [the child] seemed less self-conscious and more relaxed than he had been at the beginning of the observation.
64. [The child’s] mother observed several minutes of the above-mentioned observation through a one way screen. She commented to the family consultant while she was observing [the child] that he was “shaky”. This did not appear to be the case to the family consultant.
During the observation session the child accused the father of abandoning him. The father apologised to the child for that.
After the observation session the Family Consultant spoke to the child who told him the session “went a little better than he had expected”. He agreed he was not frightened of his father. He told the Family Consultant he had said to his father “that they should forget the past and move on from one another”.
The Family Consultant sets out an expansive “Evaluation” in the report. I incorporate here paragraphs 70 to 84 of the report as they are important to the decision to be made. In particular I note the following:
The child perceives his father to be a threat to his mother and himself because he believes his father abandoned them.
There is a strong bond between the child and his mother. It would be intolerable to separate him from her.
The “family context provided by the mother and maternal grandparents has compromised his developmental opportunities- particularly with respect to his social and emotional development.” In relation to this point I note the mother’s evidence on the 25 November 2010 that the child has not visited one friend’s house this year nor has he had any friend visit him. His interaction with friends apparently occurs at a store in Sydney called “War Hammer”. This is said by the mother to be a model shop where the child paints models. I have a concern that rather than any social discourse occurring on these visits to the shop it is really a group of children in parallel play (that is they are at the same place however all engaged in their individual activity without any interaction of moment).
The mother also told me that she takes him to swimming lessons on Thursdays. There he has the opportunity to play with other children before his lesson. He does not other wise see any of these children although he now knows the name of one boy and seems to be developing a friendship with him.
The Family Consultant considers that the child is displaying “quite marked social and emotional immaturity.”
The Family Consultant concludes that the maternal grandfather “wields considerable influence over his immediate family members. He has definite views about how they should behave in the extra-familial world and how others should behave towards them.” The Family Consultant described the maternal grandfather as displaying “extreme anger” towards the father. The Family Consultant considers it highly likely that the child is aware of his grandfather’s opinion of his father. He said it would be very difficult for any of the other members of the family to express a contrary view.
The Family Consultant considers that the child has not had an opportunity to develop an objective view of his father. He has adopted the beliefs of his maternal family about his father.
The Family Consultant opined that the father and paternal grandmother love and miss the child very much. The attempted restoration of a relationship between the child, his father and paternal grandmother needs to be handled in a very sensitive way. The child may experience feelings of disloyalty to his mother and her family. They may be angry with him. Being exposed to different values and life approaches is likely to be confusing to him.
The Family Consultant considered the father was amenable to advice about his relationship with the child. The father gave oral evidence which evidenced he had acted on advice when speaking with the child.
The Family Consultant concluded his report with recommendations that the child live with his mother and spend time with his father. He recommended there be a graduated process of extending the time the child spends with his father over a period of three months.
When the hearing took place on 25 November 2010 the Family Consultant gave oral evidence. He spoke of the meeting he had supervised between the child and his father early this month. He said that meeting had progressed better than the first meeting. The two played chess and had some conversation. At one stage there was even a smile from the child.
Mr L said that the mother had refused to meet with him and the father at the same time.
In other evidence Mr L thought a further trial or interim order might see the mother’s family actively work to undermine the order for the child to see his father. He advocated the making of final orders. He was concerned about the long term impact on the child of not being able to have a relationship with his father. He was concerned about the insular nature of the maternal family. He thought the impact upon the child of living in that environment without the benefit of exposure to his father’s family and the broader community would include that he would be the adult product of a significant alienation process. It would affect his future judgment about people. Reduce his chances of being able to develop normal intimate relationships. He predicted it may even be impossible for him to be able to do so. If he did manage to commence such a relationship he predicted it would be short lived. He would have problems in the workplace. He is now very socially dysfunctional. He appears to be hiding at school by spending his school break time in the library rather than playing in the playground with other boys. There are less hiding places in the workplace opined Mr L. He is likely to be a homebody and not prepared to explore his world.
Asked whether any other measures might be put in place to assist the child the Family Consultant said the school authorities might be asked to assist the child in broadening his friendships.
The Family Consultant was cross-examined by the mother’s solicitor. He was asked if the child’s views are strongly held. The Family Consultant said they were however, when he is with his father his demeanour changes. The Family Consultant considered it was unlikely that the child would run away from his father if he was ordered to spend time with him.
The Family Consultant was asked about the benefit of making an order for limited time for the child with his father and then reviewing the order after some time of operation. The Family Consultant said that proposal had merit however it had to be weighed against the family continuing to be in litigation. On balance the Family Consultant considered that final orders had more to offer the child.
The Independent Children's Lawyer asked the Family Consultant questions. The Family Consultant told me that based on his interviews with the child he assessed him to have a deep feeling of sadness and hurt, rejection as a result of his parents’ separation. He said to his father “Why did you have to go?” If the child grows up with the belief he was rejected by his father it will affect his sense of self worth. Spending time with his father is the only way to avoid that possibility.
The father in his oral evidence told the Court he supports the recommendations of the Family Consultant. In relation to the mother’s affidavit he said there were many allegations against him in the mother’s affidavit. He denied the violence alleged by the mother. He admitted he had been violent to the mother on two occasions only. One occurred early in the marriage. He pushed her from their bed and put a foot on her chest. At the point of separation he was violent to her by restraining her when she had entered his mother’s house where he had retreated to when the separation occurred.
The father denied causing any damage to the child by the slamming of a door. He agreed there were many loud arguments and that he called her names. He denied calling her a whore as she had alleged.
The father said he would be prepared to follow advice from the Family Consultant in relation to spending time with the child and any problem which might arise in relation to same.
The father was asked about contributing to the cost of the child’s school fees. He said he had tried to do so and to that end had spoken to the school authorities. He was told the school could not accept any money from him.
The father said he would consent to an order that he not physically chastise the child.
The mother swore an affidavit on 19 November 2010. In that she set out some non controversial history and then made a number of allegations against the father. She said he abused alcohol. She alleged domestic violence towards her usually in the presence of the child. She only particularised one event. No dates were provided. The place of the alleged assault was not set out. She alleged the father had attempted to strangle her. She did not allege the child was present on that occasion. She alleged the father had yelled at her and called her names.
The mother alleged the child was frightened of his father. She alleges the father had no patience with the child and raised his voice to him. She said he had slapped the child. She claimed that at a time she was not present and when the child was nine the father slammed a door on the child lacerating his right elbow requiring two stitches.
She alleged the father was a poor provider, would not socialise with the family, that he would prefer to play poker than spend time with the family. She provided further allegation about his alcohol consumption.
The mother completed her complaints about the father by saying: “The relationship between [the child] and the father has completely broken down. [The child] does not trust him and does not have any attachment or bonding with him.”
The mother annexed a copy of a statement she made to Police in 1997 alleging an assault by the father. She annexed an Interim AVO issued 21 March 2007 against the father. The document names both the mother and the child as the protected persons. She annexed the final AVO in the same terms as the interim order. Both permitted the father to have access to the child. She annexed a copy letter from the Emergency Department of Prince of Wales Hospital to Dr N. This particularises injuries observed on the mother on 23 February 2007.

Credit

THE MOTHER

The mothers’ presentation in Court has varied considerably during this year. When I first saw her she presented as stressed, shocked, troubled and overwhelmed. It was difficult to have her engage on a single topic. She avoided some questions, apparently, in the belief that her answer may go against her case. There were aspects of irrational thought.
Over the time of the case in the Court her disposition has improved markedly. On the 25 November 2010 her presentation was quite confident and contented. She largely appeared in control of her emotions. She was more able to concentrate on questions directed to her. When placed under a little pressure in the witness box following a particular allegation she appeared to revert to some irrational thought processes. This was however limited.
The mother otherwise appeared as an honest witness. I did not at any time think she was being deliberately untruthful. I did have a concern about her ability to accurately recall events given the enormity of the stress she has suffered in the last 4 years.

THE FATHER

I have had the benefit of seeing the father on a number of occasions in Court during this year. I have also read the report of the Family Consultant and heard his evidence. I have not seen for myself or heard from the Family Consultant of any presentation of the father which suggests he is violent, loud, abusive or disrespectful. He has presented as a father genuinely desiring an opportunity to have a relationship with his son away from the troubles of the parents and any inter family conflict or bitterness.
I consider the father was a witness of truth. He made a number of important concessions/admissions against his interest in both the interview with the Family Consultant and in Court. He showed the ability to be self critical in reflection on past behaviour. I saw no such ability in the mother.

Relevant Law

LEGAL PRINCIPLES

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA of the Act). In determining what is in the child's best interests, I must consider certain matters under section 60CC of the Act. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG of the Act).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) of the Act requires that:
“… When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA of the Act requires me to consider the children spending equal time or substantial and significant time with each parent where the Court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Issues

(i) Is the child at an unacceptable risk if he spends time with his father? (This is said to be danger of physical violence, exposure to inappropriate language and exposure to the father’s excessive alcohol use.)

The only person who has given evidence in this case who considers the child is at risk of violence or abuse by the father is the mother. There was an aspect of the irrational about her evidence on this point.
I consider there is no unacceptable risk to the child of spending time with his father. The child is now 14 years of age. He will turn 15 years of age in 3 months time. He is in his second year of High school. He is articulate. He is unlikely to permit his father to inflict any physical discipline upon him.
The Family Consultant concludes the father loves his son. He considers the father is appropriately motivated to do what is necessary to be able to have a relationship with his son. He has invested a great deal of time and effort into the proceedings. This is unlikely to be the behaviour of a person who merely wishes to create an opportunity to inflict harm on his son.
The Family Consultant has not detected anything about the father’s presentation or words or actions which has prompted him to recommend the obtaining of evidence from a psychiatrist in relation to the father.
There is nothing in the history provided in relation to the father since the separation of the parties in early 2007 which raises any concern in relation to the child being at risk in the father’s company.
When questioned about the possibility of the father doing some harm to the child the mother suggested he was not safe even in the most stringent of supervised contact centres.
(ii) Was the father violent to the mother and the child in the way she alleges?
I do not accept that the father has done any physical harm to the child. When the mother was questioned about any harm which the father had perpetrated against the child her answers disclosed no specific evidence. The highest her evidence achieved was to say the child had been uncertain about being struck at his father’s house.
I accept the father’s evidence as to violence by him against the mother. I consider his evidence to be more reliable than that of the mother.
The Family Consultant spoke of the mother reconstructing her recollection of prior events.
I have observed the mother give her evidence. There are aspects of her evidence which I consider make it unsafe to accept her evidence where there is controversy. Her irrational thoughts about the harm which might be perpetrated on the child if he was to spend time with his father caused me considerable concern about her evidence generally.
(iii) What weight should be given to the child’s clear stated preference not to spend time with his father?
This is possibly the most troubling aspect of the case for me. The child is almost 15 years of age. It is, in my experience unusual for the Court to make a parenting order against the clear and stated views of a child of this child’s age. The Family Consultant presses for an order to be made. The Independent Children's Lawyer presses for an order to be made.
The Family Consultant says that the child does not have the same maturity or sophistication of a 15 year old. This is because of the isolated environment the mother has created for the child. He has very little social contact with children his own age. He does not appear to have any close friends. As stated earlier he has not visited a friend’s home nor has he had a friend visit his home in 12 months. His out of school activities are very limited. His social abilities are quite restricted for a child of his age says the Family Consultant.

The evidence of the Family Consultant as to the possible outcomes for the child if he is unable to have access to a more open and socially integrated family environment are very serious not only for the child but also for our community. Generational repetition of using society’s facilities such as the Family Court are costly.
In the circumstances I am persuaded that an order for the child to spend time with his father is extremely important in order to give the child a chance at a more normal and solid adulthood providing him with greater opportunities than those facing him at the moment.
(iv) If the child is to spend time with his father how should that be structured?
This question addresses the possibility of stepping the time that the child is to spend with the father. The Independent Children's Lawyer has proposed a stepped program of time for the child to spend with the father. That proposal would see the child having his first period of time supervised by the Family Consultant. It would be for a period of one and a half hours. The supervision would be discretionary and the Family Consultant, should he consider it appropriate, may permit the child and the father to spend some time together outside of the Family Court building. It would then progress to 2 hours unsupervised on the following Friday and thereafter on each alternate Friday until 5 March 2011 when it will move to alternate Saturdays from 10 a.m to 2 p.m. Commencing 3 December 2011 the time the father spends with the child will be as arranged between the child and his father.
It seems that the proposal of the Independent Children's Lawyer is appropriate and gives the child his best chance at developing a relationship with his father while still living with his mother. Although the mother is implacably opposed to the child spending time with his father there is a possibility she will tolerate short periods of time. It is to be hoped that as time goes by and the child has not suffered any damage at the hands of his father then the mother’s opposition might wane a little.
(v) Should the Court make interim or final orders?
When the hearing was set down it was listed to be an interim hearing. The Family Consultant, the Independent Children's Lawyer and the father seek final orders. The mother seeks that interim orders be made. The reason interim orders are sought by the mother is to enable her to move the Court to vary the orders if they are not working for the child.
The Family Consultant said that final orders would be in the best interests of the child. He is concerned that the mother and her family will work to undermine the orders if they are interim orders only. I consider that is a real risk from the mother.
The mother did not state what prejudice would flow to her if final orders were made at this stage rather than interim orders. I cannot think of any prejudice which might flow other than the loss of ability to seek orders which fine tune the parenting orders.
It seems to me that this family has been in the Court for a considerable period of time. The child must be war weary from the continued litigation between the parents. The mother’s health has been a problem for her and it now seems she is regaining her strength and her emotional control. To continue to expose her to the ongoing litigation cannot in my view be good for her and consequently cannot be good for the child.

Section 60CC Considerations

PRIMARY CONSIDERATIONS

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

The orders I propose to make will give the child his best chance of being able to have a relationship with his father. He presently has a close relationship with the mother. He has a relationship with his father which could not at this time be described as meaningful.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I have determined there is no unacceptable risk to the child of spending time with his father.

ADDITIONAL CONSIDERATIONS

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

As stated earlier the child is opposed to spending time with his father. The Family Consultant has, however, given evidence stating why it is very important for the child’s personal development and advancement in life that he be assisted to establish a relationship with his father. The Family Law Act also compels the Court to ensure wherever possible that children do have a meaningful relationship with each parent.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has a close relationship with his mother and maternal grandparents. He has a poor relationship with his father and paternal grandmother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother is clearly unwilling to facilitate and encourage a relationship between the child and his father. Her fears are in my opinion unrealistic. She appears incapable of rationally considering the circumstances of the child as they now exist and likewise the circumstances of the father at present time.
The father is willing to facilitate a relationship between the child and himself. There is no suggestion that he would not support the child’s relationship with his mother.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There is a likelihood that the child will be apprehensive about spending time with his father. I accept that since the separation he has been privy to conversations in the mother’s household which were very negative towards the father. He has been painted as a monster and three years of that type of exposure has had impact. Prior to the separation, as best I can determine, there was a high level of conflict between the parents. This conflict was manifested largely in the form of arguments. The child must have had some exposure to that conflict. The father was spending considerable periods of time away from the house. He was consuming alcohol at a higher level than he currently does.
The child spending time with his father will hopefully allow him to experience his father differently to his mother and consequently start to broaden his view of his parents and of the general community.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are no practical difficulties involved in this case. The concept of the Independent Children's Lawyer’s proposal is to avoid parental contact when the child spends time with his father.
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The mother and her family have been responsible for the care of the child since the separation. The mother has consistently opposed contact between the child and the father since the separation. The exception to that position arose in March this year when the mother announced in Court that she was agreeable to the child now living with the father. That position was supported by the maternal grandfather. This was an extra-ordinary announcement and it is hard to rationalise the two positions of the mother and her parents. I consider that at the time the mother was not well. I consider this change of position by the mother to one where the child would be living with his father, to be a product of her inability to cope and think through the consequences for the child of that move.
The Family Consultant is critical of the mother and her family in creating a very insular environment for the child. They have not allowed or encouraged him to develop social skills. Consequently the Family Consultant considers that those abilities in the child are quite retarded.
The father is likely to encourage the child to explore his world more. He will allow him to socialise in different circles. He will introduce the child again to his partner and to the paternal grandmother.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child is almost 15 years of age. His level of maturity is assessed by the Family Consultant to be well below his physical age. Much of this arises from apparent social isolation which the mother has imposed upon him and which he has imposed upon himself.
The child has had extensive counselling this year which seems to have made a difference to his performance at school. He is no longer being aggressive to students. His class-room behaviour appears satisfactory. In short there has been a dramatic turnaround from the boy who was no longer welcome at the school unless he underwent a psychological assessment.
Nonetheless the information from the school attests to the fact that the child is really not socialising with other children. At recess he takes himself to the library or some other place apparently to avoid contact with other students. I have already set out details of his lack of friends outside of school. I do not even know whether there are any students who the child would describe as friends.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable to this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has raised the child with the assistance of her parents since the separation. The father has paid child support however it appears that he slipped into arrears with that at some time. He is now up to date.
The mother has not encouraged the child to spend time with his father or paternal grandmother since the separation.
(j) any family violence involving the child or a member of the child’s family
The mother alleges family violence. Assessing her affidavit and oral evidence together with the material she disclosed to the Family Consultant it seems that there may have been three episodes of violent clashes between the parties. The father has acknowledged two episodes only. One in 1997 which he clearly shoulders all the blame for. The other event occurred about the date of separation when the mother entered the house in which the paternal grandmother was living and which the father had moved to. She refused to leave. The father denied using force other than that necessary to remove her from the house when she refused to leave. After an initial attempt he father desisted from that activity and rang the police.
I have no clear sense of the child witnessing any violence between the father and mother. I do not accept he witnessed the violence confessed to by the father.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
An AVO was issued in March 2007. It was against the father. It has now expired. The AVO was consented to by the father on a “without prejudice” basis. I assume that means without admitting that the order was necessary.
The order was stated to be for the protection of the mother and of the child.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This consideration deals with whether the orders should be final or interim orders. I have already determined the orders should be final for the reasons set out earlier.
(m) any other fact or circumstance that the Court thinks is relevant
There is no other circumstance which has not been discussed in these reasons.

Section 60CC(4) & (4A)

The circumstances of the parties post separation has been that there is no communication. The mother for her part has refused to speak with the father. As recently as November 2010 the mother refused to participate in a conference with the father in the presence of the Family Consultant thus frustrating what the Family Consultant was wishing to achieve by conducting such conference. The Family Consultant considered that there was an element of contrivance in the mother’s decision.
The mother has not facilitated time for the child to spend with the father since the separation of the parties. The father has been attempting to obtain orders which might permit him to spend time with his son.

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

Balancing all of the above matters I consider orders should be made for the child to spend time with his father. Not withstanding his stated opposition to spending time with his father I accept the evidence of the Family Consultant that it is very necessary in order to contribute to the possibility that the child may be able to become more socialised in the community and possibly learn communication and social skills that his mother has been unable to provide him with.
Unless the orders are made and complied with at this time all opportunities to help the child will be lost to the Court.

SECTION 61DA

No order for equal shared parental responsibility is sort by either party. The provisions of the Act will then apply to the question of parental responsibility.

SECTION 65DAA.

As no order for equal shared parental responsibility is to be made the consideration of this section is not required.

CONCLUSION

As pointed out earlier for the Court to make an order for the child to spend time with his father at his age and against his very clear stated opposition is unusual. This case however is a very unusual one. Some of the very unusual aspects are as follows:
·The child is socially isolated.
·When the case first came before me it was for me to approve orders which provided for the father to spend no time with the child. In investigating the appropriateness of those orders (which were unusual) it was discovered that the child was not attending school because the school authorities would not allow him to return until he underwent a psychological assessment. The mother would not consent to the psychological assessment. She said there was an order of the Court which prevented her from having such assessment carried out. The requirement of the school was not brought to the attention of the Court by the mother.
·In March the mother advised the Court that she would now consent to the child living with the father. That decision was supported by her father.
·The child has expressed a clear preference not to spend time with his father, yet the Family Consultant advocates that the child’s welfare requires that an order be made notwithstanding his age and objection.
·The child is assessed to have a high level of immaturity for a boy of his age. He is almost socially dysfunctional. If that does not change then the Family Consultant predicts difficulties for the child in the workplace and in his intimate relationships. He predicts that he will be unable to maintain an intimate relationship and may not be able to even form one.
All of the above compels an extraordinary result which I find to be in the best interests of the child.

The Orders

I propose to discharge all prior parenting orders.
The child should live with his mother. She should not have to house him with her parents any longer. That order was made at a time when there was concern in the Court about the mother’s mental health.
The child should spend time with his father as proposed by the Independent Children's Lawyer. That time should commence and conclude either from the child’s school or the maternal grandparents’ residence. When the father exercises time on a weekend then he should be responsible for ensuring the child attends any school sporting engagements or other school functions.
I propose to make an order that the Family Consultant supervise the Courts orders as envisaged in section 65L of the Act.
The child should be able to have telephone and other such types of communication with his father.
This is a case where the circumstances warrant me talking to the child to explain why I have reached the decision which requires him to spend time with his father. I propose to meet with him together with the Family Consultant and the Independent Children's Lawyer.
The Independent Children's Lawyer has consented to the extension of her appointment for a further period of 12 months. I propose to so order.
In the event of the Independent Children's Lawyer making an application to the Court in the future in this matter it should be listed before me if at all possible.
All parties should be restrained from denigrating the other in the hearing of the child.
The father has consented to an order not to consume alcohol during any period he has the child in his care. He also consents to an order that he not physically chastise the child. I will so order.
Given the mother’s family connection with the Philippines neither party should be permitted to remove the child from Australia without a further order of the Court.
The method of communication between the parties needs to be specified in orders. Neither party is to use the child as a message taker or a courier for written communications.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date: 29 November 2010

[2010] FamCA 1140

29 November 2010

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Family Law

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Consent

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