Bradshaw & Bradshaw (No 2)
[2023] FedCFamC1F 430
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bradshaw & Bradshaw (No 2) [2023] FedCFamC1F 430
File number(s): NCC 535 of 2022 Judgment of: AUSTIN J Date of judgment: 26 May 2023 Catchwords: FAMILY LAW – PARENTING – Where both parties seek sole parental responsibility and the child’s residence – Where the child currently lives with the father and refuses any interaction with the mother – Where the mother and Independent Children’s Lawyer allege the father causes the child to suffer serious psychological harm by failing to ensure the child enjoys a relationship with the mother – Where the single expert reported there would be ongoing and lasting consequences for the child’s future social and psychological development if his alignment with the father is not rectified – Where the single expert evidence is accepted – Where it is found the father has engaged, and is engaging, in child abuse and the child requires protection from the risk of serious psychological harm in the father’s care – Where the child has demonstrated the capacity to flee the mother but can be viably moved to live with the mother – Where the presumption of equal shared parental responsibility does not apply – Ordered the mother have sole parental responsibility – Father restrained from any form of contact with the child for three months – Ordered the child live with the mother and spend defined time with the father Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 68B, 68C, 69ZQ, 69ZX Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3
Division: Division 1 First Instance Number of paragraphs: 105 Date of hearing: 15, 16 & 17 May 2023 Place: Newcastle Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Gillard Family Lawyers Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Powe & White Lawyers Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer ORDERS
NCC 535 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRADSHAW
Applicant
AND: MR BRADSHAW
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
26 may 2023
THE COURT ORDERS THAT:
1.All former orders relating to the child X, born 2010, are discharged.
2.The mother shall have sole parental responsibility for the child.
3.The child shall live with the mother.
4.For three months from the date of these orders, for the personal protection of the child and the mother, the father is restrained from:
(a)communicating in any way with the child, either by initiating communication with or responding to communication initiated by the child, and from causing a third party to engage in communication with the child;
(b)attending at, entering upon, or approaching within 500 metres of the mother’s residence;
(c)attending at, entering upon, or approaching within 500 metres of the mother’s place of work; and
(d)attending at, entering upon, or approaching within 500 metres of D School.
5.Should the mother prove the father’s default in compliance with Order 4 in subsequent contravention or enforcement proceedings, it shall apply for another three months from its initial expiration or the proof of its breach, whichever is the latter.
6.In the absence of proof of the father’s contravention of Order 4 for three continuous months, the parties shall take all reasonable steps to ensure the child spends time with the father as follows:
(a)for an initial period of two months, each Wednesday from 4.00 pm to 6.00 pm, for which purpose:
(i)the father and child must remain at the McDonalds Restaurant at Suburb E, NSW; and
(ii)the mother is not restrained from remaining at or in the near vicinity to the McDonalds Restaurant at Suburb E, NSW.
(b)For a further period of two months, each Sunday from 9.00 am to 5.00 pm, commencing on the first Sunday after expiration of Order 6(a);
(c)Thereafter:
(i)each alternate weekend during school terms from Friday 4.00 pm until Sunday 5.00 pm, commencing on the first Friday after expiration of Order 6(b);
(ii)from 4.00 pm to 8.00 pm on the child’s birthday each year;
(iii)from 12.00 noon on 1 January 2024 until 5.00 pm on 8 January 2024;
(iv)for the first week of the Autumn, Winter and Spring school holidays from 2024 onwards, commencing at 4.00 pm on the last day of school term and concluding at 5.00 pm on the second Saturday thereafter;
(v)from 3.00 pm on Christmas Day until 5.00 pm on 8 January each year, commencing on Christmas Day in 2024.
7.From 2024, Orders 6(b) and 6(c) are suspended between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
8.For the purpose of implementing Orders 3, 6 and 7 hereof, the parties shall ensure the child’s exchange at the McDonalds Restaurant at Suburb E, NSW.
9.Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
10.Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party.
11.The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.
12.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.
13.The mother is authorised to furnish to any therapist administering therapy to the child copies of:
(a)these orders;
(b)the reasons for judgment; and
(c)the single expert report of Ms F dated 7 December 2022.
14.The father shall forthwith leave and is restrained from returning to and entering upon the premises of the Newcastle registry of the Court for the remainder of Friday 26 May 2023.
15.The mother and the ICL shall forthwith ensure the child’s delivery into the custody of the Senior Court Child Expert of the Court Children’s Service at the Newcastle registry of the Court to have explained to him by a Court Child Expert the effect of these orders and, if deemed appropriate by the Court Child Expert, the reasons for such orders.
16.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (“the Act”), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
17.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
18.Save as to costs, any and all other outstanding applications are dismissed.
NOTATIONS:
A.Order 4 is an injunction made for the personal protection of the child and the mother pursuant to s 68B of the Act, the breach of which invokes the powers available under s 68C of the Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bradshaw & Bradshaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
The parties to these proceedings are contesting the care of their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Their financial dispute was severed from the parenting cause and is yet to be heard.
Both parties sought the child’s residence and sole parental responsibility for him. Presently, the child lives with the father and refuses any interaction with the mother, for which situation the parties advance quite different narratives. The mother asserts the child is influenced by the father to reject her, whereas the father asserts the child is acting voluntarily.
The central factual issues are therefore the risk of the child experiencing psychological harm by reason of his estrangement from the mother and the father’s capacity to adequately meet the child’s emotional needs because, even if the child is voluntarily rejecting the mother without the father’s influence, he is apparently still unable to persuade the child of the indisputable benefit he will derive by maintaining his loving relationship with her.
It is likely the father’s behaviour does influence the child to reject the mother, in which event he is unsuitable as the child’s residential carer. However, that does not axiomatically mean orders can now be capably made to reverse the child’s residence because he is adolescent and his views must carry some weight. He has already demonstrated the capacity to flee the mother and make his way back to the father. The ultimate question is whether the child can be viably moved to live with the mother.
These reason explain why orders should provide for the child to live with the mother and tightly control his interaction with the father.
BACKGROUND
The parties married in 2004 and the child was born in 2010. He is currently aged 12 years. The parties separated in February 2022 after the father discovered the mother’s extra-marital affair, resulting in her leaving the family home alone with few belongings early the next morning. The circumstances under which that occurred were contentious, but it is not necessary to make any findings to resolve that factual dispute because, regardless, both parties’ passions were inflamed and the child remained living with the father.
Thereafter, the mother had very little contact with the child so she commenced these proceedings only a few weeks later in March 2022.
In April 2022, interim orders were made for the parties to equally share parental responsibility for the child. The orders made provision for the child to spend time with the mother, beginning with a short period of introductory contact, followed by several months of substantial and significant time on weekends and on Wednesday afternoons. However, by the last school term of 2022, the child was to live with the parties for equal time in weekly rotations. The parties were also ordered to engage in family therapy with the child, for which purpose more orders were later made in July 2022 for the Independent Children’s Lawyer (“ICL”) to nominate a specific therapist.
The April 2022 orders were breached. The father told the mother of his intention to flout the orders very soon after they were made.[1] As the father foreshadowed, the child did not spend time or live with the mother at the times required by the orders and, whenever he did spend time with her, changeovers were tense affairs. The father contended the child unilaterally resisted any association with the mother, but she contended the child was only reacting to pressure exerted by the father to reject her. The child has not spent any meaningful time with the mother since May 2022,[2] around only a month after the interim orders were made.
[1] Mother’s affidavit at [32]
[2] Family Report at [12]
The father continued to take the child to McDonalds on Wednesday afternoons to meet the mother, but the child’s resistance did not dissolve and he only deigned to stay with her for short periods – the mother said no more than 45 minutes and often much less. The father conceded the child never once stayed with the mother for as long as he should have done under the orders.
Eventually, the mother stopped going,[3] but the father still took the child to McDonalds each Wednesday despite him saying in cross-examination the child “doesn’t want to be there”. The father contends he kept taking the child to McDonalds in an attempt to foster his relationship with the mother, but she suspects it was only a ruse to try and impart the impression of the father’s honest intentions. The father always hovered in close proximity at the restaurant, so the mother and child had no effective reprieve from his supervision. The father said he did so for the child’s security, but that seems an unlikely reason because the child was in no physical or emotional danger in the mother’s company, particularly when at a public venue. The father asserted his specific worry about the child being knocked by a vehicle on the nearby road if he absconded from the mother and he was not present to protect him but, objectively discerned, that risk was an exaggeration.
[3] Mother’s affidavit at [43]
By the third school term in 2022, the orders required the mother to collect the child from school for alternate weekend visits, but that did not happen either. The father would separately attend the school and the child would instead walk to his car and leave with him, without speaking to the mother.
The parties made appointments for family therapy, as ordered, but no effective therapy ensued. The therapist wrote to the parties after his initial interviews with them and the child, effectively saying therapy would be unproductive unless it was mutually supported by the father and the child.[4] The father wrote to the therapist about a month later telling him he wanted the child to try therapy again,[5] but when the therapist promptly replied asking the father what had changed in the last few weeks,[6] the correspondence ran cold. There is no evidence the father took the matter any further. Nor is there any evidence the father encouraged the child to participate, as the therapist had recommended. The father said in cross-examination he could not remember if he had done so. The attempt made by the interim orders to rectify the family schism through therapy made no tangible difference, which in hindsight is unsurprising as the father said in cross-examination he did not agree that the child needed any counselling and he had objected to the orders.
[4] Mother’s affidavit at [122]–[125] and Annexure F
[5] Exhibit F8
[6] Exhibit F8
More interim orders were made in December 2022, providing for the child to live with the mother for about six weeks over the Christmas period, following which the equal-time residential regime imposed by the April 2022 orders would apply from February 2023. Parental responsibility for the child was allocated exclusively to the mother, on certain conditions, and the child’s enrolment at his former school was to be restored. Those orders were also breached.
The father took the child to the initial Christmas changeover outside the mother’s residence on 26 December 2022, but he ran away. The child was returned to the mother by police, but he again fled her home shortly afterwards and did not return. The child has not spent any time with her since then.[7] The manner in which those events transpired is illuminating, particularly when the father told the mother as early as June 2022 that the child would run away from her.[8]
[7] Mother’s affidavit at [34h] and [41]
[8] Mother’s affidavit at [108]
The father’s adult son (“Mr H”) was integrally involved when the child absconded from the mother in December 2022. The father alleged he had been estranged from and had had no contact with Mr H “for a number of years”,[9] but that evidence was false. Their past estrangement had thawed by the end of 2022. The father was impelled to admit in cross‑examination that he invited Mr H and his family to a family gathering in late 2022, just as Mr H alleged.[10] This family gathering occurred just a few weeks before the court hearing which resulted in the interim orders made on 23 December 2022. Despite the father’s denial, I accept Mr H’s evidence that the father discussed, in the child’s presence, how the child would run away from the mother if the Court ordered the child to spend time with her.[11]
[9] Father’s affidavit at [138]
[10] Mr H’s affidavit at [8]
[11] Mr H’s affidavit at [9]–[12]
Then, on Christmas Eve, one day after the fresh interim orders were made requiring the child to spend six weeks with the mother from 26 December 2022, the father attended at Mr H’s home. Again, the father discussed the litigation in the child’s presence and told Mr H to stay by his telephone on 26 December 2022 because he would be receiving a telephone call.[12] As it transpired, Mr H received several telephone calls on the morning of 26 December 2022 – two from the father and one from the child.
[12] Mr H’s affidavit at [13]
He received two from the father at 9.20 am and 9.24 am,[13] not too long after he delivered the child to the mother’s home at 9.00 am.[14] The father said in cross-examination that he had no recollection at all what those two calls were about. It is likely they concerned his instruction of Mr H to collect the child after he absconded from the mother, as Mr H said.[15]
[13] Exhibit M2
[14] Father’s affidavit at [123]
[15] Mr H’s affidavit at [16]–[17]
Mr H also received a telephone call from the child that morning shortly after he absconded. Eventually, after police intervention, the child was taken to Mr H, who contacted the father to confirm the child was safe. The child spoke to the father over the telephone and Mr H then heard him tell the father “I did it dad. I did what you told me to do”.[16] The clear implication is that the father instructed the child to abscond from the mother and he duly did so.
[16] Mr H’s affidavit at [20]
Presumably on the father’s instructions (because there was no evidence of it in his affidavit), a different version of the child’s conversation was put to Mr H in cross-examination, but he confidently repudiated it and adhered to his evidence. When the father was later asked about that particular conversation in cross-examination, he was quite uncertain of its terms. Mr H also flatly denied the father’s evidence of not hearing about the child’s whereabouts until 27 December 2022.[17] They were in contact about the child on 26 December 2022. I accept the truth and accuracy of the evidence given by Mr H.
[17] Father’s affidavit at [138]
Eventually, on or about 5 January 2023, the child was returned by Mr H to the father as he refused to return to the mother. The December 2022 orders were flouted by the father in two respects because the orders required the child to live with the mother until February 2023 and, until then, the father was restrained from having any contact with the child. When challenged in cross-examination about such brazen default of court orders, the father said in a raised voice “as a bloody father I am gonna go and get him (sic)”.
Nor was the child’s school enrolment restored to his former school in compliance with the December 2022 orders. While living with the father, the child did not attend school for the whole of Term 1 in 2023.[18] Despite the breach, in April 2023, the mother reluctantly relented and allowed the child to attend the school for which the father advocated to ensure the child returned to school for Term 2 of 2023.[19]
[18] Mother’s affidavit at [163]; Father’s affidavit at [184], [185b] and [185i]
[19] Mother’s affidavit at [173]; Father’s affidavit at [185o] and [185p]
PROPOSALS
The mother sought the orders set out in the Minute of Orders she tendered just before the trial began.[20] In effect, she proposed the child live with her and that she have sole parental responsibility for him. She proposed that the child’s contact with the father be severed for 12 weeks, followed by their re-introduction under professional supervision for another 12 weeks, before any resumption of regular unsupervised interaction. Her case was that the child’s stability in her residential care could only be ensured by the father’s temporary elimination from his life. The mother formerly wanted the child to live with the parties for equal time, but had concluded that regime was impossible in view of present circumstances.[21]
[20] Exhibit M1
[21] Family Report at [16]
The father sought the orders set out in the Minute of Orders he tendered just before the trial began.[22] He proposed the child live with him, that he have sole parental responsibility for him, and the child spend time with the mother in accordance with his wishes. The father’s residential proposal has not changed at all over the course of the litigation.[23] Given the child has resisted spending any time with the mother in breach of existing interim orders, the father’s proposal for the child to make his own decision about seeing the mother was tantamount to the child having no interaction with her at all.
[22] Exhibit F1
[23] Family Report at [17]–[19]
The ICL began the trial by foreshadowing an intention to propose orders generally in line with those proposed by the mother, but did not tender any minute of proposed orders until final submissions.[24] By that time, the ICL’s proposal was almost identical to that of the mother.
[24] Exhibit ICL8
EVIDENCE
The mother relied upon the affidavits filed by her and Mr H on 1 May 2023.
The parties disputed whether Mr H’s cross-examination should occur by audio-visual internet link or by telephone. The father contended it should be the former, because Mr H’s credibility would be at stake and it would be advantageous to observe his demeanour under pressure, notwithstanding the father conceded the existence of authority for the proposition that credit findings based on observations of witnesses are far from infallible (Fox v Percy (2003) 214 CLR 118 at [128–132], [146–148], [163] and [165]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [607]–[608] and [617]–[621]). The cross-examination was instead conducted by telephone, for which decision there was express power (ss 69ZQ(1)(e) and 69ZX(1)(c) of the Act).
Mr H was a reluctant witness against the father and had to be served with a subpoena to give evidence. On the first day of trial, in the face of his asserted resistance to appearance as a witness, the need to issue an arrest warrant was firming as a possibility. He lived some distance from the Court and it was much more convenient for him to be cross-examined electronically. The evidence he gave fell within a relatively narrow factual compass and he claimed not to have ready access to a computer equipped with a camera. As it transpired, the portended challenge to his credibility all but fell away. He was only challenged by the father’s counsel on a few facts about past conversations, even though the father’s own recollection of those facts and conversations proved to be poor. The cross-examination petered out with Mr H being pointlessly asked to affirm portions of his affidavit.
The father relied upon his affidavit filed on 1 May 2023.
The parties and the ICL relied upon the Family Report prepared by the single expert sociologist (“the single expert”) on 7 December 2022.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
Despite the mother’s frustration with what she perceives to be the father’s antagonism, she still believes the child would derive benefit from maintaining his relationship with the father.[25] She is correct to think so because the single expert observed a “close and connected relationship” between them.[26]
[25] Family Report at [29]; Mother’s affidavit at [17]
[26] Family Report at [109]
Conversely, the father believes the child would not derive any benefit at all from maintaining a relationship with the mother and, moreover, would be completely unaffected by having no relationship with her at all.[27] He prevaricated somewhat about the harshness of that position during cross-examination, but his views appeared to remain largely unchanged. When asked about the importance of the child’s relationship with the mother, the father said it was only important so the child could have “someone else to go to if something happens to [him]”. He could not think of any other reason it was important, despite pausing to consider it at length. He was asked if he thought the child once loved the mother and he responded “I can’t speak for [the child]”.
[27] Family Report at [37]
Such confounding views seemingly stem from, at least in part, the father’s ingrained belief that the mother is sexually promiscuous, lacks intelligence, frequently lies, and is seeking financial relief against him to which she is not entitled.[28] He told the single expert he would not promote the mother to the child as a “nice person”.[29] His denial during cross-examination of having made the last comment to the single expert is rejected, particularly since the single expert quoted the father’s comment from contemporaneous notes and he answered many questions posed to him in cross-examination about past conversations and events by saying he had no recollection.
[28] Family Report at [45], [48], [50], [55], [57] and [114]
[29] Family Report at [70]
The parties have quite different perceptions about the quality of the child’s relationship with the mother before the marital separation in February 2022. The mother believes her relationship with the child was close and loving, just like the child’s relationship with the father,[30] but the father apparently believes that was only the case until a few years ago, before it then deteriorated.[31] The father’s opinion evidence is rejected. For reasons yet to be explored, his opinions and beliefs about the child and the mother are found to be seriously flawed and unreliable. Until separation, the mother was the child’s primary carer, as the father devoted much of his time to work and business interests. Most probably, the child enjoyed a warm, loving and meaningful relationship with the mother – at least until the parties separated and the child remained in the father’s primary care, susceptible to the full force of his adverse views about the mother.
[30] Family Report at [26]; Mother’s affidavit at [7] and [9]
[31] Father’s affidavit at [11]–[21]
The father’s belief the child is utterly unaffected by his estrangement from the mother is either disingenuous or demonstrates his lack of insight. It must be one or the other. He must know the child revealed to a school counsellor not long after the parties’ separation that he wanted to see the mother without interference by others,[32] but since then the child has expressed resistance to seeing the mother at all, for which the most likely rational explanation is that he perceives the father is against it and he wants to act consistently with the father’s expectations.
[32] Family Report at [66]
The father’s motivation and insight will be discussed at greater length as an “additional consideration” within the context of s 60CC(3) of the Act but, for the present purpose of evaluating the “primary considerations” prescribed by the Act, the child would benefit from the restoration of his former meaningful relationship with the mother. It is quite improbable that will ever be achievable if the child remains living with the father. If he is to derive benefit from meaningful relationships with both parents, that is only feasible if he lives with the mother.
Section 60CC(2)(b)
There was no evidence or suggestion that the child requires protection from the risk of physical or psychological harm by reason of his subjection or exposure to “family violence” or “neglect” by either party.
However, the mother and the ICL both contended the child needs protection from the risk of sustaining psychological harm by reason of his subjection by the father to “abuse”. That contention arises as follows. The term “abuse” is defined widely in the Act (s 4(1)) and includes causing the child to “suffer serious psychological harm”. The mother and the ICL submitted the father causes the child to suffer serious psychological harm by his failure to ensure the child continues to enjoy a healthy, loving relationship with the mother and by allowing (let alone encouraging) him to act and speak in hateful ways towards her.
The single expert said in her report there would be “ongoing and lasting consequences” for the child’s “future social, emotional and psychological development” if his alignment with the father against the mother is not rectified. She elaborated her opinions to mean the child will likely experience significant feelings of guilt, self-blame, anxiety and remorse. He might also experience anger at the situation, blame the father for it, and then eventually resent the father. The child might also experience distorted moral identity, difficulties with inter-personal relationships, and endure mental health complications.[33] Such opinion evidence was endorsed by the single expert during cross-examination.
[33] Family Report at [120]–[121]
The father challenged the single expert about such opinions in cross-examination, describing them as “statistical possibilities” and not “inevitabilities”, but the single expert adhered to her evidence-in-chief. She said the outcomes she described as “likely” were indeed “probable” and that the outcomes she described in language akin to possibilities were “heightened risks”. She agreed she could not accurately predict the “severity” or “degree” of such adverse repercussions, but that is unsurprising because they are predictions.
The father did not attempt to challenge the oral opinion expressed by the single expert earlier in cross-examination to the effect that the father’s conduct has already caused the child emotional harm. In final submissions, the father also notably avoided any engagement with the submission made by the mother and ICL about his “abuse” of the child. Given his counsel’s forensic competence, that was likely a deliberate strategy, due to inability to counteract the submission, rather than an oversight.
The single expert’s opinion evidence is accepted and relied upon as carrying significant probative weight. An inference arises relatively easily from such evidence: the child will likely suffer serious psychological harm if the current situation continues to prevail. The father has allowed a situation to develop which is “abusive” to the child. The child needs protection from the risk of harm which will likely arise from continuous subjection to such abuse.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Not all “additional considerations” prescribed by s 60CC(3) of the Act were engaged by the evidence and the submissions made by the parties and the ICL. It is only necessary to advert to those that are relevant.
Section 60CC(3)(a)
It was entirely uncontroversial that the child has repeatedly expressed his desire not to see or communicate with the mother and he has acted accordingly. The controversy centred on why he expresses those views and acts that way.
The father contended the child is only expressing his own feelings, uncontaminated by anything said or done by him. In support of that contention, the father pointed to how the child has independently expressed his views to others like the school counsellor[34] and the single expert[35] when he was not present.
[34] Exhibits F4, F5, F6 and F7
[35] Family Report at [90], [104], [107], [108] and [110]
That may be so, but it does not necessarily mean the child expressed those views free of the father’s influence. It is a well-known phenomenon that children’s views are invariably vulnerable to the influence of adults with whom they live (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41]; RCB v Forrest & Ors (2012) 247 CLR 304 at [52]) and so, even though a child’s views must be taken into account under s 60CC(3)(a) of the Act, the probative weight attributed to those views is an altogether separate question.
Here, the vehemence of the child’s expressed views and his rejection of the mother are quite incompatible with his character. He was described by the single expert as friendly, polite and respectful,[36] with which description the father readily agreed. Indeed, the child’s school records for 2022 and 2023 describe him as cooperative, friendly, well-mannered, responsible and respectful.[37] The only person to whom he is overtly rude and defiant is the mother.
[36] Family Report at [89]
[37] Exhibits F3 and ICL5
Undoubtedly, the father’s influence does not exclusively explain the child’s antithetical views about the mother. He was disappointed – even angered – by his discovery of her extra-marital affair in February 2022, which he presumably perceived to be an act of disloyalty to the father. It was the precipitating cause for the marital separation and the family disintegration. Nonetheless, such anger or disappointment could reasonably be expected to abate with the passage of time as wounded feelings heal. However, the child’s expressed disrespect for the mother has since intensified rather than abated and the basis for his asserted disrespect for her has widened to include her supposed deprivation of his anticipated inheritance from the father. That is most likely explained by the child’s exposure to the father’s incessant criticism of the mother, as his current total rejection of the mother is a wholly disproportionate reaction to the sting he must have first felt when he learned of the mother’s infidelity. The father certainly still feels very strongly about the mother’s infidelity and the betrayal it represented,[38] but the child should not.
[38] Family Report at [48]
The child has not always been able to maintain the façade of resistance to the mother. In mid‑2022, he had a school friend make enquiries for him to make sure the mother was well.[39] Also in mid-2022, at the father’s request, the child stayed with her for about a week, during which time he was physically affectionate with her, made no reference to her affair, did not raise the issue of his inheritance, and showed no inclination to abscond.[40] It was only after the child returned to the father and was exposed to the father’s profane criticism of the mother that he telephoned the mother to tell her he hated her and did not wish to stay with her anymore.[41] Thereafter, in mid-2022, the child’s demeanour towards the mother was either hostile or detached.[42] He has hardly spent any time with the mother since mid-2022. He refused to see the mother in the single expert’s presence in November 2022, told the single expert he would not comply with orders requiring him to spend time with her, and told the single expert he could not imagine any change of mind.[43]
[39] Mother’s affidavit at [51] and Annexure C
[40] Mother’s affidavit at [78]–[82]
[41] Mother’s affidavit at [83]–[89]
[42] Mother’s affidavit at [90]–[93], [96]–[97], [102]–[103], [106]–[108]
[43] Family Report at [104], [107], [108] and [110]
The single expert found the child completely aligned with the father.[44] The single expert opined the child’s behaviour was “deeply influenced” by the father’s behaviour,[45] which opinion evidence is accepted as correct.
[44] Family Report at [113]
[45] Family Report at [117]
The child is of sufficient age and maturity that his expressed views must carry some weight, but his views are not dispositive. Most probably, the adverse views expressed by the child about the mother are an artifice. He must feel that he cannot show any inclination to retain his relationship with the mother without offending the father and must be tormented by feeling obliged to outwardly reject a parent whom he loves deeply. It is most likely that, reprieved of the pressure exerted upon him by the father to reject the mother, the child will abandon the artifice and revert to the former harmonious relationship he enjoyed with her with an immense sense of relief. That might not happen immediately though.
Section 60CC(3)(b)
The nature of the child’s relationships with both parents has already been addressed.
Living with the father, the child has no other familial relationship to draw upon for support.[46]
[46] Family Report at [33]
By comparison, the child’s residence with the mother offers him more in the way of familial interaction.[47]
[47] Mother’s affidavit at [185]–[186]
Section 60CC(3)(d)
Given events over the past 12 months, there is no doubt the child would be disturbed and upset if moved to live with the mother and isolated from the father for a moratorium period, as was proposed by the mother and the ICL. The child has spent nearly a year maintaining staunch opposition to any contact with the mother, so finding out he must live with her would come as a shock. It is likely he would be acutely embarrassed by his past behaviour towards her. His initial reaction would likely be resistance to the new arrangement, but the mother knows that. She is as well prepared for it as she can be.
As the single expert opined, the success of such a residential transition would hinge upon several factors: the mother’s capacity to manage the child in a sensitive and sophisticated way; the child’s memory of a loving relationship with her; and his freedom from further influence by the father.
The mother has a developed plan about how to support the proposed reversal of residence. She will live with the child in a house at an undisclosed rural property which is 30 kilometres from the nearest neighbouring property, she will have friends stay with them to assist with support, she will arrange for the child’s therapy with a therapist of whom the ICL approves, and the child will have no means of electronic communication and no access to money or transport. The mother can use the property for as long as is necessary, but hopes she can return with the child to her own home within a few weeks. She will take time off work, already approved by her employer, to stay with the child full-time. She has arranged with the principal of the D School to set academic work for the child to complete at home, with a view to the child returning to that school when they return to live in town.
The mother appreciates the likely difficulties which confront her and gives the impression she is ready and able to tackle them in the sensitive and sophisticated way envisaged by the single expert. In that event, the single expert said she expected the child would settle in her care.
The evidence suggests the child has a bank of favourable memories of the mother and his happy experiences with her upon which he can draw to help settle in her residential care. If he realises the mother does not blame him and holds no grudge against him for his past rejection of her, then it is likely he will settle with her. The mother wrote to the child several times over recent months affirming her love for him and expressing her desire to restore their relationship,[48] so the child should be re-assured.
[48] Father’s affidavit at [189]–[192] and Annexure N
The child’s freedom from any influence by the father if he moves to live with the mother is an important component to the success of any transition. The time spent by the child with the mother in the past has been sabotaged by the father’s conduct, because he has always afforded the child a way to avoid staying with the mother. He always remained at McDonalds when he took the child there to see her. He always attended the child’s school so the child could depart with him rather than go with her. The father admitted in cross-examination he told the child he would be at the school if he did not want to go with the mother. When the child was ordered to spend time with the mother for six weeks over the last Christmas school holidays, the father inveigled the child to abscond and refuse to return to the mother. If the child moves to live with her, the father’s opportunity to furnish the child with an escape plan must be removed.
The mother and the ICL proposed a moratorium period of three months during which there should be no contact of any sort between the child and the father. The single expert said in cross-examination she recommended that the child should live with the mother and there was “no particular magic” about the length of the moratorium, but it needed to be long enough for the child to re-form his own opinions about the mother.
The evidence suggests it is more likely than not that the child’s initial objection to the reversal of his residence would subside over a period of weeks, though it would likely be a bumpy ride for the child and the mother during that period.
On the other hand, if the child remains in the father’s residential care, he will have no contact with the mother and his relationship with her will wither. His continuing rejection of the mother and his indefinite separation from her is likely to cause him internal feelings of despair, even if he does not outwardly express that sentiment. The emotional effect upon him in the long-term is likely to be deleterious, in the manner opined by the single expert.
Section 60CC(3)(e)
The mother ordinarily lives on the fringe of J Region, which is where she proposes to live with the child after she has stabilised his residence with her at the undisclosed rural location during the moratorium period she proposes.
The father lives on a farming property near to Town C.
The distance between the two households is about one hour’s driving time.[49] There is no practical difficulty or undue expense involved in the child’s exchange between the parties.
[49] Family Report at [6]
Sections 60CC(3)(f) and 60CC(3)(i)
The evidence was replete with examples of the father’s impaired capacity to provide for the child’s emotional needs and his delinquent attitude to the responsibilities of parenthood.
In summary, those conclusions inexorably flow from the evidence of: his non-compliance with interim parenting orders; his unremitting derision of the mother, often in the child’s presence; his intentional or reckless involvement of the child in the parental litigious dispute; and his lack of insight about how his conduct tends to align the child with him against the mother and preclude the child from having loving relationships with both parents.
The father’s outward petulance about the marital separation started immediately. He withdrew the mother’s jewellery from the family safe and hid it from her, making the child complicit in the subterfuge. He allowed the child to leave a note for the mother in the empty safe saying “Fuck you Bitch”, expecting the mother would later find the note in the otherwise empty safe when she returned to recover the jewellery,[50] as she did about 10 days later.[51]
[50] Family Report at [60]; Mother’s affidavit at [23], [24] and Annexure B
[51] Father’s affidavit at [30]
Within the first few weeks of the marital separation, the father invited the mother to see him and the child.[52] The mother either refused the invitation or left shortly after attending upon them because she did not want to be interrogated, either by the father or the child, about the circumstances of her affair and her future intentions. To the extent the father now expects his invitations to be perceived as sensitive forays into the repair of the child’s relationship with the mother, his expectation is forlorn. Most likely, it was for him to explore the prospects of their reconciliation.
[52] Father’s affidavit at [39], [43] and [54]–[57]
The father failed to comply with the interim orders made in April 2022. He told the single expert he took the child to the changeover venue at McDonalds, whereupon the child bought something to eat, ignored the mother, and then left. The child confirmed that is his routine.[53] The father thought his delivery of the child to the changeover venue represented his compliance with the orders,[54] but they actually required him to ensure the child spent time with the mother. His assertion that he could not make the child do something he did not want to do is rejected. Competent parents can make children do what they do not wish to do. When it suited the father, so he could attend to his work commitments, he was able to make the child spend a week with the mother in mid-2022.[55] If his answer to that example is the child was willing to spend time with the mother on that occasion, it undermines his central contention that the child has never wanted to spend any time with the mother since the marital separation in February 2022 due to his grievance about her affair being a breach of the father’s trust.
[53] Family Report at [100]
[54] Family Report at [12]; Father’s affidavit at [209]
[55] Mother’s affidavit at [78]–[82]
The father’s failure to comply with the interim orders made in December 2022 has already been discussed. With the father’s encouragement, the child ran away from the mother on the day he was delivered to the mother and has not seen her since.
Since the marital separation in February 2022, the father has relentlessly involved the child in the parental dispute. He derides the mother’s intelligence and often denigrates her.[56] He has also discussed the mother’s affair in explicit terms with other adults in the child’s presence,[57] so much so that the child criticised the mother because she “opened [her] legs”.[58] The mother said in cross-examination such vile condemnation occurred in the father’s presence, but he did not admonish the child for it. The father also admitted having discussed the parties’ financial dispute with and in the child’s presence.[59] He also acknowledged the child had been allowed to read much of the correspondence exchanged between the parties’ lawyers. There is no other rational explanation for why the child would raise the financial dispute and his supposed loss of inheritance in conversation with other adults like the school counsellor and the mother.[60] The child also complained about the mother to the single expert in terms which suggest his engagement by the father in the parental dispute.[61]
[56] Family Report at [45], [50] and [55]; Mother’s affidavit at [45], [47] and [85]
[57] Family Report at [63] and [64]
[58] Mother’s affidavit at [112]
[59] Family Report at [64] and [70]
[60] Family Report at [66], [67] and [72]; Mother’s affidavit at [22], [65], [92] and [111]
[61] Family Report at [57], [99], [105], [106]
The father also directly engaged the child in the litigation. The letter of complaint composed by the child about the ICL[62] was most probably the father’s idea. The father also probably encouraged the child to take voluminous notes to his appointment with the single expert.[63] The father even admitted in cross-examination that he took the child out of school to an appointment with a solicitor with the intention of having the solicitor act independently for the child in the proceedings.
[62] Father’s affidavit at [95]–[99] and Annexure C
[63] Family Report at [90]
The father’s ostensible reason for directly engaging the child in the parental dispute is that there should be no secrets between him and the child.[64] A competent parent would, however, realise that a 12 year old child is not mature enough to deal with, and should be protected from, the emotional reactions of adults to a marital separation. The father’s treatment of the child as if he is a detached adult capable of objectively making his own decisions speaks volumes about the father’s lack of insight. The father mistakenly thinks it is for the child, rather than him, to decide whether the Court orders should be followed and his relationship with the mother fostered.[65]
[64] Family Report at [70]
[65] Family Report at [34]
The father could not apparently appreciate the potential benefit of therapy for the child, even when ordered by the Court and informed by the therapist that the derivation of any benefit hinged on the father’s genuine cooperation.[66] That is most likely because he maintains the view that the child would not benefit from any relationship with the mother.[67] He does not want the child to be “tormented” by going between the parties’ homes and he justifies the child’s antithetical attitude to the mother.[68]
[66] Family Report at [13]
[67] Family Report at [37]
[68] Family Report at [59] and [61]
In answer to the first series of questions asked in cross-examination, the father said he had done everything he could to encourage the child’s relationship with the mother and he did not know what he could have done any better. Sadly, if that is true, there is no realistic prospect of resurrecting the child’s relationship with the mother if he remains living with the father.
The single expert regarded the father as rigid, fixated, and lacking insight.[69] She was concerned by the manner in which he had involved the child in the dispute.[70] She was also concerned about the child not being able to reality-test the negative views of the mother to which he is perpetually exposed by the father,[71] fearing the child could not extricate himself from his enmeshment with the father.[72] Currently, the child has been induced to believe his future is tied to the father and is conditional upon his rejection of the mother,[73] which binds him in a loyalty conflict.[74] Rejection of the mother gives the child temporary respite from stress, but will likely lead to long-term adverse psychological consequences.[75] The single expert’s opinion evidence is accepted as being correct and she was rightly concerned about the adverse effects upon the child.
[69] Family Report at [53] and [118]
[70] Family Report at [117]
[71] Family Report at [117]
[72] Family Report at [119]
[73] Family Report at [119]
[74] Family Report at [120]
[75] Family Report at [120]
It is uncertain whether the father’s alignment of the child against the mother is deliberate or inadvertent. Some evidence implies it is deliberate, such as when the father told the mother her relationship with the child would improve if she settles the financial dispute with him[76] and by co-opting the child to refer to the mother by her first name rather than as “Mum”.[77] On the other hand, some evidence implies it is unintentional, such as the father’s statement to the single expert and in his evidence that the child is realistically estranged from the mother on account of her behaviour.[78] In the end it does not matter because, as the single expert said, the alignment effect upon the child is just the same. The father, as he seemed to the single expert,[79] is either unwilling or unable to modify his behaviour.
[76] Family Report at [55]; Mother’s affidavit at [45], [118] and Annexure D
[77] Family Report at [91]
[78] Family Report at [36] and [57]; Father’s affidavit at [205]–[206]
[79] Family Report at [122]
The father’s capacity to meet the child’s emotional needs is so impaired that he is not a suitable candidate for the role of residential parent. If the child lives with him, he will lose his valuable relationship with the mother. Moreover, his constant exposure to the father’s rigid narrative and gruff role-modelling will likely cause the child to grow into an inflexible and isolated adult with a disrespectful attitude to women.
Section 60CC(3)(l)
If the child is moved to live with the mother, at least in the initial phase of the transition, it is highly likely he will demonstrate resistance, as the single expert hypothesised.[80] He might even try to abscond, though the chance of that is diminished if he realises he is living with the mother in a rural location, without money, without any means of electronic communication, without any means of transport, and some 30 kilometres distant from the neighbouring property.
[80] Family Report at [125]
In any event, there is a heightened chance of more litigation in the nature of enforcement or contravention proceedings if the child’s residence is reversed and he absconds. The father’s proposal is much less likely to engender further litigation.
CONCLUSION
As already mentioned, whenever parenting orders are sought and made, the Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA(1)), though the presumption either does not apply or is rebutted in certain circumstances.
The presumption does not apply due to the finding that the father has engaged and is engaging in child abuse (s 61DA(2)). Even if the presumption did apply, it would be easily rebutted by the evidence showing the child’s interests would not be advanced by the parties having equal shared parental responsibility for him (s 61DA(4)). Obvious examples of their inability to exercise equal shared parental responsibility are their failure to faithfully implement interim parenting orders, both as to the child’s interaction with the mother and his school enrolment.
The single expert said the parties had a “very poor co-parenting relationship with little to no communication between them”, which motivated her to recommend against them having equal shared parental responsibility.[81] That was not controversial because both parties and the ICL applied for an order granting sole parental responsibility to the residential parent, which was ironically one of the few things upon which they could agree. The residential parent will have sole parental responsibility.
[81] Family Report at [39], [40], [130] and [131]
Given there will be no order for equal shared parental responsibility, the orders regulating the child’s residential care are not constrained by s 65DAA of the Act. Discretion in that regard is at large.
The single expert foresaw two stark options for the child: either he lives with the father and has no relationship with the mother, or alternatively, he lives with the mother and spends defined time with the father.[82] Neither the parties nor the ICL submitted there was any other option.
[82] Family Report at [123]
The single expert did not say so in her report, but in cross-examination she recommended the child’s immediate transition to live with the mother. She confirmed the view she expressed in her report that any delay will tend to hinder the success of the transition.[83]
[83] Family Report at [126]
The child should immediately move to live with the mother. In summary, the reasons for that decision are:
(a)he cannot derive benefit from meaningful relationships with both parents whilst ever he lives with the father (s 60CC(2)(a));
(b)he needs protection from the psychological harm he experiences by subjection or exposure to the father’s emotionally abusive conduct (s 60CC(2)(b));
(c)the father does not have the capacity to meet the child’s emotional needs (s 60CC(3)(f)) and displays a poor attitude to the responsibilities of parenthood (s 60CC(3)(i)); and
(d)the child will likely have more adult supports if living with the mother (s 60CC(3)(b)).
Those aspects of the evidence weigh much more heavily in the balance than the countervailing evidence militating in favour of the child continuing to live with the father, which may be summarised as:
(a)the child’s expressed view is to remain living with the father and not have any contact with the mother (s 60CC(3)(a));
(b)the likely initial upheaval if the child is moved to live with the mother and the risk to the child’s physical safety if he attempts to abscond from her (s 60CC(3)(d)); and
(c)there is a stronger chance of more litigation if the child is moved to live with the mother (s 60CC(3)(l)).
The mother and the ICL, with the support of the single expert, proposed a moratorium upon any form of contact between the child and the father once the child is moved to live with the mother – the theory being that such absence of contact will give the child a better chance of settling with the mother without interference by the father. The single expert said the length of the moratorium is relatively arbitrary, but did not disagree with the proposal of three months. The proposal is adopted. The need for the moratorium was demonstrated by the father’s evidence in cross-examination, as he said he would not force the child to return to the mother if he visits him and wants to stay.
If the father’s breach of the moratorium period is proven by the mother in any subsequent enforcement or contravention proceedings, aside from any other repercussions, the moratorium period should begin again. That might help deter the father from any breach.
The moratorium period will be enforced by an injunction restraining the father from any form of contact with the child for three months. The injunction is made pursuant to s 68B of the Act, as it is made to protect the child from the father’s emotionally abusive behaviour and to protect the mother from any intimidation she is liable to experience from the father due to his anger at the child’s change of residence. Any breach of the injunction will engage the powers available under s 68C of the Act.
After the moratorium period expires, the child’s re-introduction to the father should be steady, measured and tightly controlled for several months to re-inforce the idea in the minds of both the child and the father that the mother is and will remain the residential parent. Thereafter, the child can move to a regime of spending more expansive time with the father.
The mother and the ICL sought that a recovery order be made now, with it to lie in the registry for 12 months, to be taken from the shelf for use as and when needed. The application for such orders is rejected as they afford no satisfactory governance of the recovery order’s activation. The suspended recovery order could only be enlivened by a subsequent application to the Court explaining the need for the suspension to abate. Recovery orders are coercive orders and should only be made when warranted by current evidence. If the mother perceives one is needed in due course, she should apply for it when needed and adduce the evidence to prove the need. It would be precipitous to now make and suspend a recovery order as it is not presently needed.
Changeovers will always be at the public venue the parties have habitually used. The father ruined changeovers at the child’s school. Nor should the parties exchange the child at their homes, given the level of animosity between them.
The mother and the ICL proposed that, upon expiration of the moratorium period, the child and father experience an intermediate period of professional supervision. That idea is rejected as it serves no pragmatic purpose. The only reason to monitor the child’s interaction with the father is to guard against the father’s emotional manipulation of the child, but that aim can only be achieved if supervision reports are prepared and used as evidence in further proceedings before the Court. Nobody asked for merely interim orders to be made and the proceedings adjourned to test how the supervised visits unfold. The parties expected orders to finalise these proceedings, in which event reports by a supervision service would be useless. Otherwise, the father will be irritated by the professional supervision of interaction with his adolescent son and no staff member of a supervision service is likely to satisfactorily manage the father’s behaviour if determined to be unruly and disruptive. Potential irritants should be avoided.
The mother said she planned to have the child counselled as part of her strategy to help him settle in her care. For that purpose she is permitted to give copies of these orders, these reasons, and the single expert’s report to the counsellor.
The orders must be sensitively explained to the child by a Court Child Expert, about which the parties and the ICL all agreed. The father is ordered to forthwith depart the Court so that his presence will not impede the child’s transition to the mother.
The remaining orders could not be the subject of sensible dispute.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 26 May 2023
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