BRISTOW & BRISTOW

[2014] FamCA 1153

FAMILY COURT OF AUSTRALIA

BRISTOW & BRISTOW [2014] FamCA 1153

FAMILY LAW – CHILDREN – Interim application by the father to change the ‘live with’ arrangements – Where consent orders have been in place for 11 years – Where the mother had made a serious allegation against the father – Where the mother accepted that there was no evidence to support her initial assertion that there was an unacceptable risk to the child arising from the father’s behaviour – Where the child has a moderate intellectual disability and cerebral palsy – Where the family consultant recommends changes to the orders only be introduced with preparation and occur incrementally – Where it is found that it is not in the child’s best interests to disturb on an interim basis, the arrangements that have been in place for 11 years – The father’s application is dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Bristow

RESPONDENT: Ms Bristow

INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall

FILE NUMBER: SYC 6525 of 2014

DATE DELIVERED: 19 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Sharon Moss Legal

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Kennedy & Cooke

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall

Orders

Orders made 15.12.14

1. The father’s Contravention Application filed 17 October 2014 be dismissed.

2. Order 4 made 10 November 2014 be discharged.

3. I reserve my decision in relation to the father’s application for interim orders in the terms of paragraphs 1-3 of Exhibit 4.

4. I make orders 4 and 5 of Exhibit 4 as follows:

   4.That the mother not take the child J to:

   (a)The police except in an emergency;

   (b)A doctor other than Dr G except in an emergency.

   5.That the family consultant’s report be provided to the child’s school.

5. I reserve reasons for making orders 4 and 5 of Exhibit 4.

6. This matter be listed for mention on 19 December 2014 at 9.45am.

7. Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth), 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.

ORDERS

1. The orders sought by the father, being orders 1 to 3 in Exhibit 4 of 15 December 2014, be dismissed.

2. The Independent Children's Lawyer forward to the child’s school a copy of the family consultant’s report dated 9 December 2014 and a copy of these reasons for judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bristow & Bristow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6525 of 2014

Mr Bristow

Applicant

And

Ms Bristow

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the parties’ 16 year old son, J Bristow (“the child”), who has a moderate intellectual disability and cerebral palsy. The family consultant says that the child has the intellectual maturity of a child of infant school age or younger.

2. The parties separated in February 2002 and entered into final consent orders on 4 August 2003 which, amongst other things, provide that the parties have equal shared parental responsibility for the child and that he spend equal time with each parent on a week about arrangement.

3. The mother alleges that on 6 October 2014, the child indicated to her that his father had attempted to kill him by strangling him with a towel. As a result of that alleged report by the child to the mother, the mother moved to reside in a home in Town A, and the child ceased to attend his current school, R School, which is a special school designed to meet the needs of students with physical disabilities, autism and medical conditions.

4. The father filed an application on 29 October 2014 that the child live with him and that he have sole parental responsibility. He sought identical orders on an interim basis. He also sought that the mother be dealt with for contravention of the orders that have been in place for 11 years.

5. I note that the father’s contravention application filed 17 October 2014 is not pursued by him and I dismiss that application.

6. I note that this matter was originally listed before me for a hearing in relation to the limited issue as to whether or not there is substance in the allegation that there has been an altercation between the father and the child on 6 October 2014 as a result of which the child has formed the view that his father, on that occasion, was attempting to kill him. 

7. At the commencement of these interim proceedings, counsel for the mother announced that the mother now accepted that there was not enough evidence to establish that there was an unacceptable risk that the father had behaved in this way. The mother’s position was that the current interim orders requiring supervision of the child’s time with his father be discharged, and that the orders made by Justice Barry for the child to spend week about time with each of his parents, that have existed for 11 years, remain in place. The child would return to his usual schooling, extra-curricular activities and support in Sydney.

8. Counsel for the mother sought that the matter be put over to a date next year so the mother could consider whether or not she wished to continue to press, on a final basis, her application that the child live with her and that she have sole parental responsibility. That order would enable her to relocate with the child to Town A, where E, the parties’ intellectually disabled 21 year old daughter, currently lives.

9. The father successfully opposed that adjournment application and sought that orders be made on an interim basis as set out in Exhibit 4:

   1.    That [the child] live with the father.

   2.    That [the child] spend time with the mother as follows:

   (a)From after school Friday in term time to 6pm Sunday each alternate week commencing on the second weekend of each school term and each alternate weekend thereafter.

   (b)For half the school holidays by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years.

   3.    That [the child] spend time with the father from 25 December noon to 28 December 6pm in 2014.

   4.    That the mother not take [the child] to:

   (a)The police except in an emergency;

   (b)A doctor other than Dr [g] except in an emergency.

   5.    That [the family consultant’s] report be provided to [the child’s] school.

10. The mother opposed those orders, except for order 4(a).

11. The Independent Children's Lawyer also opposed orders 1 to 3 of the interim orders sought by the father. She consented to orders 4(a) and (b) and indicated that she did not have any instructions in respect of order 5 as sought.

12. When the matter came before me initially on 10 November 2014, and in response to the serious allegation raised by the mother, I made an order which was in part in the following terms:

    …

    2.    As soon as is practicable and pending further order, [the mother] and the mother return to Sydney and reside in the premises that the mother has in Sydney at [Suburb W].

    3.    [The child] is to forthwith resume the normal educational activities and other involvements with extra-curricular activities and other services that he attended or used prior to his mother taking him away from Sydney.

    4.    Pending further order, [the child] is to be with his father on each weekend from after school Friday to the beginning of school Monday on the condition that at all times either the father’s sister [Ms B] or her husband [Mr M] be present during those occasions.

    …

13. At the hearing on 15 December 2014 I discharged order 4 made 15 November 2014 on the basis that the mother no longer pressed any order that the child’s time with his father be supervised. In effect, the orders made on 15 December 2014 reinstated the orders Justice Barry made 11 years ago. I also made orders in accordance with paragraphs 4 and 5 of Exhibit 4 as sought by the father, pending further order. I reserved my reasons for doing so. Those reasons are set out below. I also reserved my decision in relation to interim orders 1 to 3 as sought by the father.

14. The father presses his application for a change in the ‘live with’ arrangements based on what he says is:

    ·     The history of allegations that the mother has made against him since the original orders were made.

    ·     The disregard that the mother had for the child, particularly in relation to his educational requirements when unilaterally taking him to Town A; and

    ·     The relationship that the child has with his father and the view that the child has expressed to the family consultant that he wants to ordinarily be with his father in Suburb W, views which the family consultant opined should be given considerably weight.

NO CROSS-EXAMINATION

1. Because of the exceptional allegations made, I indicated that I would allow cross examination of the parents. Counsel for the parents and counsel for the Independent Children's Lawyer chose not to cross examine the parents.

HISTORY OF THE MOTHER’S COMPLAINTS

1. The father points to a complaint made against him by the mother on 6 September 2002. Annexure D to the father’s affidavit of 8 December 2014 (pages 23 and 24) indicate that the mother made a very serious allegation involving the father’s behaviour with the parties’ daughter at that time. Paragraph 17 of the father’s affidavit of 8 December 2014 records that on 16 September 2002, “while [the parties] were living separately under the one roof, a police report was made as a result of an unsubstantiated allegation by the mother against [the father]. This allegation came about because [the parties’ daughter] wanted to give [the father] a good night hug, after giving one to the mother”. The parties’ daughter was about nine years of age at the time. The inference to be drawn was the serious allegation made by the mother had something to do with improper physical contact between the father and the daughter. Counsel for the mother submitted that the court could not draw any conclusions in relation to this event as the full police report was not in evidence. On the face of the documentation, it does appear that in 2002 the mother raised a serious allegation against the father which was ultimately not pursued. The full circumstances in respect of that allegation have not however been explored in the context of this hearing. I also take into account that it is something that happened 12 years ago.

2. I accept the submission made by counsel for the mother that in the context of an interim application, the exact nature of what the allegation was is unknown. I have been informed that the proceedings which were listed for hearing before Justice Barry settled and the orders of 2003 are orders that were made by consent. I infer that whatever the serious allegation was that the mother made, in relation to the father’s interaction with the parties’ daughter, and whatever fears that she held, had abated by the time that she agreed to consent orders for week about time for both children.

3. The mother first expressed a desire to move to Town A on a permanent basis in 2009. On 28 January 2009 the father caused his solicitors to send a letter to the mother due to concerns that he had about the mother indicating to him that she was not able to afford to remain in the Sydney area and his fear that the mother intended taking the children to Town A without his knowledge and/or his consent. The mother did not respond to that letter but she did not move to Town A at that time.

4. In April 2014 a few hours after the child J had been delivered by the mother to the father, the police arrived at the father’s home. The police informed the father that the mother had contacted them. The father claims that the police said to him that the mother had told them that she was “concerned for [the child’s] wellbeing”. The father says the police told him that no event record was entered on the police COPS entry system. The mother has not filed evidence in response to the allegation that she caused the police to come to the father’s house. In the context of this hearing, where neither parent was cross examined, the matter was not further explored. The mother does not raise any specific allegation in her affidavits that she had concerns about the child’s wellbeing in the father’s care in April 2014.

5. It is submitted that part of the history of the mother’s premeditation is the Legal Aid conference on 4 June 2014 where the mother proposed that she be able to relocate with the child to Town A. At that conference the father proposed that the child reside with him.

6. Counsel for the father also pointed to the fact that the mother had failed to attend a future planning vocational education evening at the child’s school on 8 August 2014. The child’s teacher, the father and the paternal grandmother were present. The meeting, amongst other things, was a forum to set goals for the child’s future work experience, set programs for greater community access and travel training, and for the improvement of the child’s speech and functional communication. Counsel for the husband asked me to draw the inference is that prior to 8 August 2014, the mother had already taken the decision to move the child to Town A and any planning meeting was irrelevant. There is some force in that submission.

7. Counsel for the father submits that there is a discernible pattern of behaviour by the mother which has, as its ultimate aim, the creation of circumstances where the child will live with her in Town A.

THE MOST RECENT SERIOUS ALLEGATION

1. Whilst the mother no longer suggests that there is an unacceptable risk of the child being unsupervised in his father’s care, the circumstances in which the most recent allegation was made are of some importance. Again, there was no testing by way of cross examination of what has happened.

2. The child’s sister E settled in Town A in November 2013. Since then the mother has mostly lived in Town A with the parties’ daughter when the child has been with his father each alternate week. I note in passing that the parties’ daughter was in Sydney with her mother when the child returned on 6 October 2014.

3. On 6 October 2014 the father left work at about 5.40am. The child was in bed asleep at the time. The father returned from work in the afternoon and delivered the child at the appointed time of 6.00pm for week about changeover, by taking the child to the mother’s unit.

4. In her affidavit filed 6 November 2014, the mother says:

   On 6 October 2014 [the child] returned to me after a week with the applicant and he said to me, ‘Dad put a towel around my neck and pulled it tight’. [The child] has since said to me, ‘Dad tried to kill me’ and ‘I don’t want to go back’.

5. The mother also says she noticed marks around the child’s neck and on his sternum. At around 7.00pm on 6 October 2014 the mother took the child to W police station and reported the incident there. The notes taken by the police in relation to that attendance are annexed to the father’s affidavit filed 29 October 2014 (annexure B). The relevant part of the police note is as follows:

   .... [The child] has severe cerebral palsy. The disability affects his physical movement and communications ability. He is unable to communication [sic] effectively. There are family law court papers currently in affect which state the two have joint custody over [the child]. About 1930 on Monday 6^th October 2014 the PR attended [W] Police Station. She stated that she though [sic] the POI may have harmed their son [the child]. [The mother’s] version of events changed a couple of times, she suggested that the POI has grabbed a towel and placed it around [the child’s] neck and this has caused him to be distressed. There were no witnesses to this allegation.

   The PR believes that as a result of this incident [the child] has a small 20 cent sized red mark on the lower sternum in the middle of his chest. The mark is slightly red and barely visible. It does not suggest a direct hit. It could have been caused by simple sun exposure.

   The PR was unsure [sic] exact details surrounding the incident but was adamant that one had occurred. She called the victim to the station front counter and attempted to get him to communicate, which he was unable to, due to his disability.

   [The child] appeared well to police. This [sic] comprehension seemed limited but he seemed happy and not in any pain. His mark did not warrant medical treatment and by the end of interaction with [the child] the mark had started to fade.

   Police contact the POI, [the father], who immediately came to [W] police station. He was exceptionally upset about the allegation and stated it was completely unfounded. He said that the PR was attempting to move to [Town A] and wanted to take sole custody of [the child]. He believed this may have been the reason for the allegation.

   Police have no reason to suspect that an offence has occurred. The small mark on [the child’s] chest was not consistent with the allegation proposed by the PR. [The child] appeared well and fine. Police do not hold any concerns for his well being.

6. Unfortunately the note does not amplify the different versions of events which the mother gave at the police station which “changed a couple of times”. The mother was not tested in relation to what versions she told the police.

7. Later that evening the mother took the child to Dr T at an after-hours clinic, clearly for forensic purposes as the child was in no obvious need of medical assistance. Dr T’s record (Exhibit 5) records that the mother was concerned about a small mark on the child’s chest which the doctor recorded as “? small bruise 1.5cm”. He also recorded that the mother said she was concerned about the father using a towel around the child’s neck. There was also some redness behind the child’s left ear, which the mother told the doctor comes and goes. Importantly the doctor recorded that the child was not in distress and that he was smiling and had no obvious other injuries. No treatment was required.

8. I pause to note that objective records made by professionals (police and doctor) observing the child on the night of 6 October both record that he was not in any way distressed.

9. In an amended affidavit filed by the mother on 1 December 2014, the mother gives the following additional information:

   12.  We left the doctors surgery and were driving back to my unit when the child said to me, “It hurts. I’m not going back”. When we got back to my unit that night he kept saying to me, “I’m not going back”. As I put the child to bed that night as I was tucking him in he said, “Dad tried to kill me”. [E] also heard [the child] say this, as I asked him to tell her what he had just told me. The second time he said it, it came out as a whisper, “Dad tried to kill me”.

10. The following day, 7 October 2014, the mother took the child to consult a person whom she described in her affidavit of 1 December 2014 as “our family doctor [Dr F] of [X Medical Services]”. Dr F’s records indicate that this was the first occasion that the mother had taken the child to see this doctor. I note that in the bundle of documents tendered, there is a copy of a new patient information form filled out by the mother on 7 October 2014. Counsel for the mother indicated from the bar table that his instructions were that it was the second occasion. The objective records do not support that contention. No matter what version is correct, it is inappropriate to describe Dr F as “our family doctor”.

1. Dr F’s notes of the mother’s attendance with J and E on 7 October 2014 (Exhibit 6) are of some importance and I set them out in full:

   Brought in by his mother who states he has been harmed by his father

   Mother has written down some of the history---see copy
   It is alleged that father wrapped a towel around him and pulled it tight as if to ??? strangle him
   Has bruise on upper central anterior chest but not on neck
   Story difficult to elucidate from [the child]
   States he came out of the shower and walked to bedroom
   Father always supervises the shower and walked to the bedroom before [the child] and turned around and put the towel around him and pulled it tight
   I asked [the child] to demonstrate with a small sheet and [the child] put it around his neck and pulled it tight
   He did not put it around his body as one would do when going to dry someone
   Both Mother and [sister] state that [the child said that his father tried to kill him and that he did not want to return to his home.
   When I questioned about returning home to his father [the child] said he would return but looked anxiously and questioningly at his mother
   O/E there is a bruise 3cm by 1.5cms in the upper central anterior chest.

   this could have come from a thumbprint
   there are no marks on the neck

   Family advised that I need to make a DoCs report
   Headmistress of his school is doing likewise
   I advised Mother to take him back to [Town A] but to inform the school and the police that this is what she is doing
   Later [the mother] left a message that, as they were walking to the car, [the child] said “I want to stay with you”
   She had also noticed that his thumb had been bent back and there was bruising on the palm of his right hand.
   Reason for contact:
   Assault - alleged

2. Dr F’s notes corroborate the mother’s version to some extent. It seems from the notes that the child did tell the doctor that his father put the towel around him and pulled it tight. It further seems that the child demonstrated to the doctor with a small sheet how the towel was put around his neck and pulled tight. It seems that the child told the doctor that his father hadn’t put the towel around his body as one would normally do. The parties’ daughter told the doctor that the child had said to her that his father had tried to kill him and that he did not want to return to his home. The mother told the doctor the same thing. The child did not tell the doctor that his father had tried to kill him, although he was aware that the mother and E were saying he had said that. The child told the doctor he would return to his father but was clearly anxious about his mother’s response to that question.

3. Dr F’s notes to some degree ameliorate the deficiencies in the statement that the mother made to the police on 22 October (to which I will shortly refer). The doctor also referred to a “bruise” 3cm x 1.5cm in the upper central anterior chest which she opined could have come from a thumb print. She importantly records there are no marks to the child’s neck.

4. Counsel for the father submits that there is a clear difference between what the child is saying on 7 October 2014 to what he was saying on 6 October. Counsel for the father wished the court to infer that the mother had encouraged the child to make the statements that he did. Certainly the environment in which the doctor saw the child (with both the mother and E present) was an environment conducive to contaminating the accuracy of what the child was reporting. Counsel for the mother submits that the difference is not from the child but rather in what different people are observing and then recording. I find there had been conversation between both the mother and the parties’ daughter and the child about what had happened with his father and the towel. It is likely whatever the child said, the mother formed an unreasonable belief that the father had tried to kill the child and encouraged the child to that view, including encouraging the child to tell Dr F that his father had put a towel around his neck. Dr F noted that the child was anxious about his mother’s reaction to what he said.

5. The mother encouraged Dr F to report the matter to the Department of Community Services.

6. There is conflicting evidence in relation to the “bruise” on the child’s chest. On the night of 6 October 2014 the police officer who saw it described it as a “small 20 cent size red mark on the lower sternum in the middle of his chest. The mark is slightly red and barely visible” and that it could have been caused by simple sun exposure. He goes on to record that the mark did not warrant medical treatment and by the end of the interaction with the child the mark had started to fade. Later in the evening Dr T queried whether or not it was a bruise. The next day Dr F described it as a “bruise”. The mother took a picture of the bruise on the child’s sternum on 7 October 2014 (annexure B to the mother’s affidavit of 1 December 2014). The father tendered in evidence (Exhibit 3) a letter from Dr G. That doctor expresses the opinion that the “bruise” on the child’s chest is a “flat macular lesion” and that the lesion “has arisen de novo and is not a consequence of trauma”. In the context of this interim hearing. It seems that what Dr G looked at is the same mark as what Dr F looked at and what the mother photographed on 7 October 2014. In the context of this interim hearing and without the doctors being tested, on balance, I would conclude that the mark on the child’s chest was not a bruise, given that Dr G has specifically and seemingly more closely examined it than has Dr F.

7. Consistent with the advice Dr F gave the mother, the mother took the child back to Town A on 7 October 2014. On 9 October 2014 the mother went to Town A police to record her “serious concerns for [the child’s] safety with the applicant father” and also on the same day she went to Centrelink to arrange for the child’s disability support pension to be transferred to her.

8. Unfortunately the mother did not inform the father about the child’s whereabouts for approximately six weeks and the child had no contact with his father or any of the father’s family in that time.

9. The father filed his applications for contravention and for variation of parenting orders on 17 October 2014.

10. On 22 October 2014 the mother made a statement to the police at Town A. That statement is annexure B to the mother’s affidavit sworn 6 November 2014. The statement does not refer to the child as having said “dad tried to kill me” as the mother asserted in her first affidavit. That is an important omission from her police statement. The inconsistency between the mother’s police statement and her first affidavit however is not of great significance given that the records subpoenaed from Dr F indicate that on 7 October 2014 the mother had told Dr F that the child had said that to her.

11. The child and his parents were interviewed by a family consultant on 27 November 2014 pursuant to an order that I had made on 13 November 2014. I had asked the family consultant to report on the relationships between the child and each of his parents, and the child’s views and the weight that should be attributed to those views.

12. The child described his relationship with his father in spontaneous, warm and positive terms. He said that they share jokes, go shopping and they like to “hop on buses” together. He said he especially enjoys staying at home just “hanging around” with his father. The child indicated that he likes that his father shares his interest in transport. The child greeted his father with a smile. Throughout the family consultant’s observation, the child interacted with his father in a sustained way, remaining focused on the board game that was being played and being relaxed with his father throughout. The family consultant described the mood of their interaction as calm and tranquil. The father was assessed to demonstrate a reserved parenting style that was quietly supportive and affirming of the child. The family consultant opined that they appeared to have a close, warm and satisfying relationship. The information that the family consultant obtained throughout the interviews did not indicate that the child was at risk in the care of either of his parents. The family consultant is of the view that the child gave no indication that he once thought, or now thinks, that his father harmed or might harm him. The family consultant opined that the greater risk to the child’s social and emotional wellbeing was potential damage to the relationship with his parents.

13. In addition, the child expressed an unequivocal wish to live with his father in Suburb W.

14. Whilst neither parent was cross examined, looking at the objective evidence overall, the most likely explanation as to what happened on 6 October 2014 was that the child said something to his mother that his mother then grossly misinterpreted in a way that led her to conclude that the father had behaved totally uncharacteristically (after 11 years of equal care for the child) and that the child’s wellbeing was seriously threatened by the father. I accept that by 7 October 2014 the mother had the child saying things to Dr F that would support her view that the father had tried to strangle him with a towel. The mother now correctly, in my view, accepts that there was never any unacceptable risk that any such event had happened. The mother’s willingness to jump to the conclusions which she did needs to be seen in the context of the mother’s earnest desire to relocate with the child to Town A.

15. The mother has indicated that she is undecided as to press for the final orders set out in her response and that she has not yet formulated her proposal for final orders. It is unknown at this time as to whether or not she intends to pursue an application that she relocate with the child to Town A.

THE DISREGARD THAT THE MOTHER HAS HAD FOR THE CHILD BY UNILATERALLY MOVING HIM TO TOWN A

1. Counsel for the father, in support of the application that on an interim basis the child live primarily with the father, points to the mother’s total disregard for the child’s educational and extra-curricular requirements when she took him out of school for over six weeks.

2. Counsel for the father also pointed to the fact that notwithstanding that I had made an order on Monday 10 November 2014 that the child be forthwith returned to Sydney and put back into his school, the mother did not do that immediately and as a consequence, the child was not at school at any point during that week (notwithstanding the fact that the mother effected changeover at the school on Friday afternoon of that week).

3. The father sets out in his affidavit filed 29 October 2014 that the time from now until the end of the child’s schooling is a critical time for the child as he will receive the most intensive and significant training and support. The child’s current school offers many opportunities important to the child’s education and future life skills. Severe changes at this time will have significant consequences.

THE RELATIONSHIP THAT THE CHILD HAS WITH BOTH HIS PARENTS AND THE CHILD’S VIEWS

1. I have described above the family consultant’s observations between the child and his father and I mention the child’s views.

2. The mother told the family consultant that the father had been controlling and too emotionally and socially reliant on the child.

3. The father’s sister provided the view to the family consultant that the child has a special and primary “attachment” to the father and described the relationship between the child and his father as close and happy.

4. The child told the family consultant of a trip to Melbourne with his father which he described in positive terms. He also expressed a desire to go on another long train trip with his father. As set out above, the family consultant records that the child described his relationship with the father in spontaneous, warm and positive terms.

5. The family consultant says that the child was a little equivocal when he described his relationship with his mother. He was unable to speak about his mother’s home with ease.

6. When observing the child interacting with the mother, the family consultant opined that the mother demonstrated an enthusiastic and high energy parenting style but did not appear to connect with the child. She said they “appeared to have a functional but disconnected relation” but noted that it was possible that the mother’s level of anxiety impacted on her behaviour during the observation.

7. The family consultant observed that the father and the child appeared to have a close, warm and satisfying relationship. She also noted that during informal observations at no point did the child indicate that he feared the father. He seemed to be delighted sitting close to the father.

8. The family consultant recommends that the child will benefit from relationships with his carers that are supportive and stable. She notes that changes should be ideally introduced with preparation and occur incrementally.

9. Further, it is suggested that the child would benefit from enjoying exciting new experiences within a context of as much stability and as many familiar routines as possible.

10. The family consultant opined that the interviews and observations would suggest that while the child feels generally secure and comfortable with both his parents, he has a connectedness with the father that was not evidence in the assessment in his relationship with the mother.

11. It is noted by the family consultant that it is very possible that the child has been unsettled by the changes in parenting arrangements currently, and that he misses the father.

12. It is indicated that the child expressed himself without inhibition about topics that seemed important to him. He was consistent and confident in what he said about his likes, disliked and feelings. Also, the child was unequivocal in his expressed view that he wished to live in Suburb W with the father. The family consultant records that the child’s expressed wish is consistent with other aspects of the assessment and as such the child’s views should be afforded considerable weight.

13. When the family consultant interviewed the child she reported that he was well able to talk in concrete terms but he had more difficulty with abstract communication. He had difficulty recalling specific events and time frames.

14. The family consultant was not cross examined. Whilst the child has the physical development of a 16 year old male adolescent and consequent emotional and social needs, the family consultant (as recorded earlier in these reasons) assesses that the child’s intellectual maturity is that of a child of an infant school age or younger. In those circumstances, without the benefit of oral evidence from the family consultant, on an interim basis I am very reluctant to put a great deal of weight on the child’s expressed views, notwithstanding the recommendation of the family consultant to do so.

15. It should be borne in mind that the parties have successfully equally managed the child’s care in a consensual co-parenting arrangement for over 11 years. The mother has had the child week about. The father in all of that time has not sought to bring any application that would seek to disturb the mother’s care on a week about basis.

16. Clearly the father is motivated by his fear that the mother will continue to attempt to undermine the current arrangements so that she creates a circumstance which fulfils her wish to return to Town A.

17. I am required to have regard to the considerations set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth), so far as I am able to in the context of interim proceedings. Many of those considerations have been addressed already in these reasons. I agree with the Independent Children’s Lawyer’s submission that there is nothing to suggest that the child has not benefited from having a relationship of equal shared care as between both his parents. Risk of violence and the child’s views have already been set out above, as have the relationships between the child and each of his parents. It is important to be particularly careful when considering the child’s views about complex issues. Central to this case is also the effect of change on the child’s circumstances. I accept the submission by counsel for the mother that before any reliance is placed on the child’s expressed views, the court would need a better understanding of his capacity to understand the choices he is making. The family consultant notes that the upheaval of recent months may have impacted on the child’s relationship with each of his parents. I am unable to make any finding about that. There do not appear to be any practical difficulties in the child spending time with each of his parents (the mother has agreed to travel back and forth to Sydney). There is no evidence before me other than to suggest the father has a flexible working arrangement. The parents have clearly done a good job in providing for the child’s needs. The family consultant records that the child is a well nurtured child. It is also important to highlight the family consultant’s observation that the recent events have not coloured or influenced the child against his father. The child’s disability must be given some careful consideration if the matter proceeds to a final hearing and it is noted that there is no independent evidence before the court about this.

18. As set out above, the family consultant is of the view that the child will benefit from a stable relationship with his parents and I find that the father’s proposal would disturb the stability of current arrangements and not be in the best interests of the child. As submitted by counsel for the Independent Children’s Lawyer, there is no compelling evidence that the current stability of arrangements ought be threatened.

19. I therefore conclude that it is not in the child’s best interests on an interim basis to disturb what, apart from the most recent short fracturing of the arrangement, has been an arrangement which has served the child well for over 11 years now.

20. I am also not keen to create some new set of circumstances prior to a full hearing with a full expert report.

21. I anticipate that once that report is available if either the parents still wishes to proceed to a final hearing, dates can be given to explore the father’s application for the child to live with him primarily. It may be that hearing will also (depending on the mother’s final position) look at whether or not relocating the child to Town A would be in the child’s best interests.

22. Accordingly, I will dismiss the father’s application that the child live with the father on an interim basis. The existing orders made by Justice Barry in 2003 will continue.

23. Based on the information that I have, it seems that Dr G was the child’s ordinary family doctor for a period of approximately ten years. Dr F, so far as I can tell, has only seen the child on one occasion and that was for a forensic purpose. Dr G apparently gave some oral evidence in the Guardianship Tribunal in proceedings between the parents relating to their daughter E and the mother formed a negative view of Dr G as a result. I have, however, no information that would indicate to me that Dr G was not an appropriate medical practitioner to treat the child’s normal general medical needs and I will make the order as sought by the father in order 4(b) of Exhibit 4.

24. Dr F’s notes indicate that the mother had informed the school that the father had tried to kill the child and that is the reason she was moving away. The mother told Dr F that the headmistress of the school is making a report to DoCS. The mother opposes the family consultant’s report being provided to the child’s school. Given that the child’s headmistress may have some one-sided information about what has recently transpired in the child’s life, I have made an order that the school be provided with a copy of the family consultant’s report. I shall also order that the Independent Children's Lawyer provide the child’s headmistress with a copy of these reasons.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 19 December 2014.

Associate: 

Date:  19.12.14