Carr and Carr - [2012] FMCAfam 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARR & CARR

[2012] FMCAfam 754

FAMILY LAW – Parenting – child aged 4 – change of residence – father’s allegations of violence and alcohol abuse – assessment of same – enmeshment by father in life of child – inappropriate resultant alignment of child – risk to the mother/child relationship – child to live with mother – child’s contact with father suspended for a period.

Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65DAA and Part VII

AMS & AIF (1999) 24 Fam LR 765
Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93
MRR v GRR [2010] HCA 4
Lansa & Clovelly [2010] FamCA 80
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright [2007] FamCA 520, (2007) 37 Fam LR 518
Champness & Hanson [2009] FamCAFC 96, (2009) FLC 93-407

Applicant:

MS CARR

Respondent:

MR CARR

File Number:

WOC 224 of 2011

Judgment of:

Foster FM

Hearing dates:

14, 15 and 16 May 2012

Date of Last Submission:

18 June 2012

Delivered at:

Sydney

Delivered on:

10 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Cairns

Solicitors for the Applicant:

G Shelton & Associates

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:

Rowley & Ross Lawyers

Counsel for the Independent Children’s Lawyer

Mr Barry

Solicitors for the Independent Children’s Lawyer

Legal Aid NSW

ORDERS

That all previous parenting Orders be discharged.
That for a period of 12 months from the date of these orders the mother have sole parental responsibility for the long term care, welfare and development of the child X (“the child”) born on (omitted) 2007 to include, but not be limited to, issues about:-
(a)The education of the child – both current and future;
(b)The religion of the child;
(c)The health of the child;
(d)Any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent;
and that upon the expiration of that period the mother and father thereafter have equal shared parental responsibility for the long term care, welfare and development of the said child.
That the child live with the mother.
That the child shall spend no time with the father and that there will be no communication between the child and the father for a period of six (6) weeks from the date of these Orders, save and except for any communication by telephone that is assessed as being appropriate by Relationships Australia and that is agreed to between the parents.
That thereafter for a period of two (2) months the child shall spend time and communicate with the father as follows: -
(a)Commencing on the first Saturday after the expiration of the period as set out in Order 4 above, on each alternate weekend from 10am Saturday until 4pm Sunday;
(b)In the event the child is not otherwise spending time with the father on the weekend that includes Father’s Day in 2012 in accordance with (a) above, he shall spend time with the father that weekend from 10am Saturday until 4pm Sunday but, by way of substitution, he shall remain with the mother the following weekend;
(c)Commencing on the first Wednesday after the expiration of the period as set out in Order 4 above, the child shall communicate with the father by telephone each Wednesday evening at 7pm, with the mother to dial the father’s telephone number and then hand the phone to the child before the father answers the phone, with the provisions of Orders 8(c) – (e) also applying;
(d)At such other times as are agreed to between the parents.
That thereafter upon the expiration of the period provided for in Order 5 that the child shall spend time with the father as follows:-
(a)Commencing on the first Friday after the expiration of the period as set out in Order 5 above, on each alternate weekend from after school or preschool Friday (or 3pm if a non-school day) until the start of school or preschool Monday (or 3pm if a non-school day), provided that the alternate weekends continue through until the end of Term 2 in 2013 and, thereafter, the alternate weekends are suspended during school holiday periods and resume on the second Friday of each new school term;
(b)Commencing on the second Thursday after the expiration of the period as set out in Order 5 above, on each alternate week from after school or preschool Thursday (or 3pm if a non-school day) until the start of school or preschool Friday (or 3pm if a non-school day), provided that the alternate Thursday nights continue through until the end of Term 2 in 2013 and, thereafter, the alternate Thursday nights are suspended during school holiday periods and resume on the first Thursday of each new school term;
(c)From 2013 onwards, in the event the child is not otherwise spending time with the father on the weekend that includes Father’s Day, he shall spend time with the father that weekend from after school Friday (or 3pm if a non-school day) until the start of school Monday (or 3pm if a non-school day) but, by way of substitution, he will remain with the mother the following weekend;
(d)Commencing at the end of Term 2 in 2013, for one half of the nights of all NSW school holiday periods as agreed or, failing agreement, the second half and, for the purposes of calculating the number of nights in each school holiday period, school holidays commence on the last day of a school term and conclude the day before child actually returns to classes in the new school term and, in the event of an uneven number of nights in any school holiday period, the child will spend an additional night with the father with changeover time to be 3pm;
(e)At Christmas as agreed or, failing agreement:-
(i)From 10am Christmas Eve to Noon on Christmas Day in all odd years;
(ii)From Noon on Christmas Day to 5pm on Boxing Day in all even years;
(f)At Easter as agreed or, failing agreement:-
(i)From 10am on Easter Saturday to 6pm on Easter Sunday in all odd years;
(ii)From 10am on Easter Sunday to 6pm on Easter Monday in all even years;
(g)On the child’s birthday as agreed or, failing agreement, from after school until 6pm if the birthday falls on a school day the child is not otherwise spending time with the father, or from 2pm until 7pm on a weekend day the child is not otherwise spending time with the father;
(h)On the father’s birthday as agreed or, failing agreement, from after school until 6pm if the birthday falls on a school day the child is not otherwise spending time with the father, or from 2pm until 7pm on a weekend or school holiday day the child is not otherwise spending time with the father;
(i)Such other times as are agreed to between the parents.
That the child shall spend time with the mother (and, if necessary, the father’s time with the child is suspended) as follows: -
(a)In the event the child is due to spend time with the father on the weekend that includes Mother’s Day, he shall remain with the mother that weekend but, by way of substitution, he will spend time with the father the following weekend from after school Friday (or 3pm if a non-school day) until the start of school Monday (or 3pm if a non-school day);
(b)At Christmas as agreed or, failing agreement: -
(i)From 10am on Christmas Eve to Noon on Christmas Day in all even years;
(ii)From Noon on Christmas Day to 6pm on Boxing Day in all odd years;
(c)At Easter as agreed or, failing agreement:-
(i)From 10am on Easter Saturday to 6pm on Easter Sunday in all even years;
(ii)From 10am on Easter Sunday to 6pm on Easter Monday in all odd years;
(d)On the child’s birthday as agreed or, failing agreement, from after school until 6pm if the birthday falls on a school day the child is due to spend time with the father, or from 3pm until 8pm on a weekend day the child is due to spend time with the father;
(e)On the mother’s birthday as agreed or, failing agreement, from after school until 6pm if the birthday falls on a school day the child is due to spend time with the father, or from 2pm until 7pm on a weekend day the child is due to spend time with the father;
(f)Such other times as are agreed to between the parents.
That after the expiration of the period as provided for in Order 5 above:-
(a)The child will communicate by telephone with whichever parent he is not in the care of each Tuesday and Thursday evening at 7pm;
(b)For the purposes of telephone communication, whichever parent the child is with will dial the telephone number of the other parent and then hand the phone to the child before the other parent answers the phone;
(c)The child will have complete privacy for the duration of the telephone calls;
(d)Both parents are restrained from recording, by any means whatsoever, the telephone communication between the child and the other parent;
(e)Both parents are restrained from using the speakerphone for the child’s telephone communication with the other parent and are to use their best endeavours to ensure that the child does not use the speakerphone.
That for the purposes of Orders 5, 6 and 7 above, unless otherwise agreed to between the parents in writing:-
(a)Up until the time the child commences school in 2013, changeover is to occur as agreed to by the parties in writing and, in default of agreement, the father or his nominee known to the child is to collect the child from preschool, if applicable, or from the mother or her nominee known to the child at the (omitted) Supermarket, (omitted) at the commencement of the child’s time with the father and return the child to preschool if applicable or to the mother or her nominee known to the child at the (omitted) Supermarket, (omitted), at the conclusion of such time.
(b)From the time the child commences school in 2013, changeover is to occur as agreed between the parties in writing and in default of agreement as follows: -
(i)The father or his nominee known to the child will promptly collect the child from school on those school days that coincide with the provisions of Order 6 above;
(ii)The father or his nominee known to the child will promptly deliver the child to school on those school days that coincide with the provisions of Order 6 above;
(iii)Otherwise the father or his nominee known to the child is to collect the child from the mother or her nominee known to the child at the (omitted) Supermarket (omitted) at the commencement of the child’s time with the father and return the child to the mother or her nominee known to the child at the (omitted) Supermarket at the conclusion of such time.
(c)Provided always that until such time that the parents’ face –to-face communication has improved (as assessed by the staff at Relationships Australia): -
(i)The parents are to limit their verbal communication at changeover to a brief greeting and verbal encouragement to the child to greet and/or farewell his parents,
(ii)They are to then move back to their respective vehicles, and
(iii)The parent with whom the child will travel is solely responsible for placing the child in their car and the other parent will return to their car and depart forthwith.
That both parents are restrained from discussing and/or consulting with the child and/or otherwise engaging the child in any conversation regarding any issues concerning the parenting dispute, these Court proceedings and/or these Final Orders and they are both restrained from discussing any such issues in the child’s presence and/or within his hearing and they are to use their best endeavours to ensure that no other person does so.
That both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the child; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their families in the presence or within the hearing of the child.
That both parents shall ensure that the other parent is kept informed of:-
(a)Any serious medical problems or illnesses suffered by the child, with the other parent to be notified as soon as possible;
(b)Any medical emergencies involving the child, with the other parent to be notified immediately;
(c)Any medication that has been prescribed for the child that needs to be taken during the time the child is with the other parent, with the other parent to be notified at the time of changeover;
(d)Any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified as soon as is practicable);
(e)Any social, school or religious functions which the child is involved in or invited to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;
(f)The telephone contact number and residential address of the parent, with any changes to be advised within twenty-four (24) hours; and
(g)Any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.
That, for the purposes of parental communication: -
(a)For emergencies, telephone communication will be used;
(b)For pressing (but non-emergency) issues, short factual text messages will be used, limited to the issue(s) raised only;
(c)For minor or day-to-day issues, the parents will use a communication book, which will travel with the child at changeover and the parents will include short factual written entries and/or paste copies of relevant information supplied to them about the child and they will ensure that the book travels with the child at each changeover;
(d)At the expiration of 12months from the date of these orders in relation to major issues such as long-term decision-making, the following communication plan is to be implemented:-
(i)The parent who wishes to raise the issue must do so in writing, preferably by email;
(ii)The other parent must respond within seven (7) days;
(iii)The instigating parent must reply to that response within seven (7) days;
(iv)Further direct negotiations are to occur within the following seven (7) days;
(v)In the event no agreement is reached within the twenty-one (21) day period (unless it is otherwise mutually agreed to in writing between the parents to extend this time) both parents must make contact with Relationships Australia in Wollongong and thereafter do all acts and things as are necessary to arrange for an urgent family dispute resolution (mediation) session with a view to resolving the issue in dispute;
(e)The parents are restrained from using emotive, abusive and/or aggressive language in any of the forms of communication set out above (or any other form of communication that they use);
(f)The parents will be courteous and civil towards each other at all times but especially in the presence, or within the hearing, of the child;
(g)The parents are restrained from involving the child in their parental communication (including but not limited to asking the child to pass messages to the other parent);
(h)The parents are restrained from recording, by any means whatsoever, any telephone and/or face-to-face conversation between them.
That both parents will ensure that they first consult with and obtain the consent of the other parent regarding all non-urgent invasive medical treatment, all specialist care and/or non-medical therapy that is sought to be provided to the child.
That both parents will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
That both parents are permitted to liaise directly with the child’s school, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress and that both parents will authorise the school(s), sporting bodies and/or other organisations to facilitate this.
That both parents will provide the necessary authorities to the Principal of the child’s school to ensure that the school forwards to both parents copies of the child’s school reports as they fall due along with copies of all school circulars, newsletters, school photo order forms and invitations to any school activities which parents are invited to attend.
That both parents are restrained from enrolling the child in any extracurricular activity without first consulting the other parent.
That, where the parents have agreed on the child being enrolled in an extracurricular activity, both parents will facilitate the child’s attendance at that extracurricular activity (including any training session) during any time that the child is in each parent’s respective care where practicable.
That upon the expiration of six (6) weeks from the date of these orders both parents and member of their respective families are entitled to attend all events involving the child including, but not limited to:-
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance or participation;
(c)School functions and events that allow for parental attendance or participation and the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless as otherwise agreed to between the parents.
That both parents are restrained from removing the child from New South Wales without providing at least seven (7) days’ notice to the other parent, such notice to include relevant travel particulars including but not limited to travel dates and emergency contact numbers.
That both parents are restrained from removing the child from the Commonwealth of Australia without the written consent of the other parent and in the event such consent is provided, the parent with whom the child travels overseas with will provide to the other parent full travel particulars in writing, at least twenty-eight (28) days prior to the date of departure, including but not limited to an itinerary, accommodation details and emergency contact numbers.
That:-
(a)The father shall complete the Parenting After Separation course he is currently enrolled in at Relationships Australia;
(b)Both parents shall continue participating in the Parenting Orders Program at Relationships Australia in (omitted) for so long as deemed appropriate by Relationships Australia;
(c)If deemed appropriate, both parents will facilitate the child attending upon Relationships Australia for the purposes of assessment and/or counselling;
(d)Both parents will attend any (individual, joint, child-inclusive and/or group) appointments, meetings and/or sessions at any reasonable location and time as nominated by Relationships Australia.
That both parents are permitted to provide to Relationships Australia copies of any Child Dispute Conference memorandum, Family Report and/or Alcohol Assessment Report prepared in these proceedings, but that both parents are otherwise restrained from providing copies of the above named memorandum and Reports to any other person and/or organisation.

That the child’s passport shall be held by the Registrar of the Federal Magistrates Court at Wollongong and is only to be released to either parent with the written consent of both parents and/or an Order of the Court and in the event it is released, it must be returned to the Court Registry within seven (7) days of the child returning into the Commonwealth of Australia.
In the event either parent proposes to move out of the local government area in which they currently reside, they are to provide at least twenty-eight (28) days’ notice to the other parent and both parents are to then do all things necessary to arrange an urgent family dispute resolution (mediation) conference at Relationships Australia in (omitted) with a view to discussing any necessary amendments to these Orders (including but not limited to amending the changeover arrangements provided for above.
That the Independent Children’s Lawyer, with the assistance of the Family Consultant Ms O, will explain these Orders to the child as soon as is reasonably practicable.
That otherwise all applications before the Court be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT WOLLONGONG

WOC 224 of 2011

MS CARR

Applicant

And

MR CARR

Respondent

REASONS FOR JUDGMENT

The Proceedings

These are parenting proceedings between the applicant mother and the respondent father in relation to the child X born on (omitted) 2007. X is now 4 years of age.
The applicant mother relied upon the following documents:
a)Initiating application filed on 25 March 2011;
b)Notice of child abuse filed on 25 March 2011;
c)Affidavit of the mother filed on 30 April 2012; and
d)Case Outline admitted into evidence as Exhibit H.
At trial the mother sought in summary the following orders:
a)The parents shall have joint parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father on alternate weekends from 10am Friday to 3pm Sunday prior to commencing school and once the child has commenced school from after-school Friday to 3pm Sunday and at other times as agreed including half of the school holidays;
d)That changeovers be at (omitted) at (omitted) or the mother’s residence at the start of the father’s time and at (omitted) at (omitted) at the end of the father’s time;
e)That the parent with whom the child is not living be able to telephone the child at 7pm each Tuesday and Thursday night;
f)That the child be enrolled in (omitted) preschool and in 2013 at (omitted) primary school;
g)That the mother be permitted to take the child to Queensland and New Zealand to visit relatives provided that the father is duly provided with travel arrangements;
h)That the father undergo psychiatric assessment and counselling for “depression, control issues and post traumatic stress from his job as a (omitted)”; and
i)That the time with the father referred to above not commence for a period of three months after the making of these orders.
The respondent father relied upon the following documents:
a)Further amended response filed on 4 May 2012;
b)Affidavit of the father filed on 4 May 2012;
c)Affidavit of Mr Carr filed on 28 March 2011;
d)Affidavit of Mrs Carr filed on 28 March 2011;
e)Outline of case document filed 4 May 2012; and
f)Minute of orders sought by the father admitted into evidence as Exhibit G.
At trial the father sought in summary the following orders:
a)That the parties have shared joint parental responsibility for the child,
b)That the child live with the father,
c)That the child spend time with the mother as follows:
i)Until the child commences school, from Friday evening to Sunday evening or Monday morning;
ii)Once the child commences school, from the conclusion of school each alternate Friday to the commencement of school the following Monday, on the Thursday of the other week to the commencement of school Friday, for one half of each school holidays, and on special days including Mother’s Day, the child’s birthday and Christmas day; and
iii)At other times as agreed between the parties.
d)That the parties continue with all courses and counselling as is recommended for them by Relationships Australia, (omitted) for so long as is reasonably required by Relationships Australia;
e)That neither party shall remove the child from the Commonwealth of Australia or New South Wales without the written agreement of the other;
f)That both parties shall authorise the child’s preschool, school and medical practitioners to provide the other with all information and documentation requested by that party;
g)That neither party shall discuss with the child any issues concerning this parenting dispute or where the child shall attend school;
h)That neither party shall denigrate the other or members of the other’s family in the presence of the child;
i)That the mother shall refrain from consuming alcohol within 12 hours prior to the commencement of and during the child’s time with her; and
j)That all expert reports tendered in this matter be referred to the (omitted) clinic, (omitted)

Background

The mother was born on (omitted) 1972 and is 40 years of age. The father was born on (omitted) 1973 and is aged 39 years.
The parties met in May 1998 and at that time both parties lived at (omitted), the mother in rented premises and the father with his parents.
The parties commenced cohabitation initially in the rented premises occupied by the mother at (omitted) and in February 1999 they moved to a one-bedroom flat at (omitted).
In the early period the father was in a (omitted) band and admits to drinking alcohol. He complains as to the mother’s alcohol intake.
The father entered the (course omitted) in about August 2002 and was at that (course omitted) in (omitted) for about 12 months. During this period the mother supported them both by working as a (occupation omitted) at (omitted).
The father graduated from the (course omitted) in about May 2003 and commenced service as a (occupation omitted).
Thereafter the parties saved, and in October 2004 purchased a block of land at Property H in the (omitted) area south of Sydney. The parties moved into rented premises at (omitted) whilst a home was built on the land.
The father was employed as a (occupation omitted) and the mother as a (occupation omitted) in (omitted).
On (omitted) 2006 the parties married.
The child X was born on (omitted) 2007 by emergency Caesarean section. Following the childbirth and the father took leave from his employment to assist the wife with the care of the newborn child.
The mother observed that the father during the early months following the birth of the child was “very hands on” with the child almost to the “point of obsession”.
Upon the father returning to work he worked various shifts involving morning, afternoon and night shifts.
The parties agreed that the mother would stay at home and care for the child for the first three years and once the child commenced preschool she would return to work on a part time basis.
The mother says that because the parties resided in an isolated area she endeavoured to keep in touch with family by travelling regularly to (omitted) to visit the father’s parents and to Queensland to visit her family every four months or so.
In this early period the mother observed that the child was healthy, calm and well adjusted.

The Father’s Injury and Thereafter

On 18 October 2008 the father was seriously assaulted during the course of his duties. In an incident at a hotel the father was taken to the ground, punched, kicked and stamped on and sprayed with capsicum spray. The father suffered head injuries and abrasions to his body and was treated in the emergency department at (omitted) Hospital.
The perpetrators of the assault on the father were prosecuted but were not convicted. The mother asserts that the father thereafter felt unsupported by the (employer omitted). To the mother’s observation the father became depressed commenting to her that “ if I am killed on the job you should be reassured that you and X will be covered and you will probably be better off”.
The mother observed that the father became disinterested in his job, reclusive, withdrawn, always tired and seemed to be overprotective and obsessive towards the child and her. She asked of the father whether he thought he was depressed. He replied “probably but I don’t want it to go on my (omitted) record”.
The father later said to the mother: “if I can’t pay my parents back the $80,000 I owe them, I will kill myself”. This statement concerned the mother and she says she then believed that the father was deeply troubled and depressed.
In May 2009 the mother commenced part-time work at (omitted) as a (occupation omitted) as the parties needed additional income. The father was able to care for the child on this day and, when the mother started to work two days a week, the paternal grandmother Mrs Carr travelled from (omitted) to assist on the second day.
In August 2010 the paternal grandmother was injured in a motor vehicle accident and unable to attend to assist with the child. At this time the father’s roster was being changed and it was difficult for him to assist with the child if the mother was to continue part-time work. As a consequence the mother ceased part-time work.
The parties agreed that the child would not commence preschool until 2011.
In July 2010 the mother attended a social engagement with work colleagues at (omitted) and then later at (omitted). This was the first occasion the mother had been out on her own since the birth of the child. Unbeknown to the mother, the father, after midnight, attended at premises (omitted) and then at (omitted) where he angrily confronted the mother.
After this incident the relationship between the parties deteriorated considerably. The father accusing the mother of being “a drunk”, “a houso”, “a sponge” and “a lazy bitch”. To the mother’s observation the father was becoming more and more volatile and irrational. The father had developed a strong dislike of alcohol and pubs and bars. He did not like being around people drinking alcohol. She believed that this was because of what he had witnessed and was the victim of as a (occupation omitted).
The father, the mother asserts, started to threaten her saying words to the effect of: “if you leave me, you won’t get a cent out of me and you won’t get X either. I will never be the one to leave you”.
To the mother’s observation, the father’s outbursts were affecting the child who was becoming upset and naughty. The mother became tired and she complains of being constantly harassed, bullied, intimidated, undermined and disrespected by the father.
Indeed the father concedes that the mother accused of him of being a “controlling manipulative bastard”.
The father asserts that over the 12 to 18 months prior separation the mother was abusing alcohol and on occasions would drink from late afternoon until 12am. He says he has observed the mother drink usually a whole bottle of wine but sometimes about three quarters and rarely drink little or nothing on a night. He asserts that the mother had become secretive about her alcohol abuse. He asserts that she failed in her responsibility to properly care for the child.
The father maintains that, notwithstanding the reports and test results in relation to the mother conducted in the context of these proceedings, the mother has a problem with the consumption of alcohol and the control of her aggression. He expresses personal doubts as to the accuracy and efficacy of the reports.
The father asserts that there was physical conflict between them on 15 October 2010. He asserts that he recorded the incident on his mobile phone but in an effort to attempt to resolve matters within the family he did not report the incident to the police. Previously he asserts that in January 2010 he made a pre-emptive call to the NSW Police Service to advise as to the possibility of a vexatious complaint by the mother and the mother’s threats to take the child to Queensland.

Separation

The child commenced preschool in January 2011 at (omitted).
On the day of separation, 3 February 2011, the child was at preschool. It had been arranged that after preschool finished at 3pm the father would take the child to his parents’ home at (omitted) as the day was extremely hot and it would be more comfortable for the child in air conditioning and near the beach.
On the day of separation the father said to the mother: “I will leave work and go on the dole so you don’t get cent out of me.”
On the following day, Friday, the father did not return the child to the parties’ home at (omitted). He made various excuses and later threatened to call the police if the mother went to his parents’ home where the father was with the child. The mother contacted the police who were of little assistance.
Over the weekend the father made demands of the mother to give to him the child’s passport. The mother believes that the father may have been concerned that the mother might take the child to New Zealand.
On the evening of Sunday, 6 February, the maternal grandmother telephoned the mother advising that she had spoken to the father the evening before and that he “sounded drunk and was speaking very slowly and slurring his words. He was talking around in circles.” The mother became concerned as to the father’s mental state and on Monday 7 February she sought legal advice.
The father had, after separation, closed off the parties’ joint bank account leaving the mother with no access to funds. On Thursday, 10 February, the father e-mailed the mother warning her not to go near his parent’s home where he was staying with the child. The next day the mother sought legal advice in relation to making application for a recovery order in relation to the child.
Once again the mother spoke to the police on Saturday, 12 February, and again the police were of no assistance.
Subsequently on Monday, 14 February, almost 2 weeks after the child being removed from the mother’s care, the father agreed for the mother to visit the child at his parents’ home. The father permitted the mother time with the child but remained at all times close by. The mother asserts that she was frightened and intimidated by the father and concerned that she might be harmed.
The mother was able to visit the child again on Friday, 18 February, at (omitted) near the paternal grandparents’ home. On this occasion not only was the father ever present but the paternal grandfather, Mr Carr, was in attendance as well. The mother says that she felt confused, angry and intimidated and had no idea why the father and his father were so hostile towards her. She says the child was very clingy and asking the mother lots of questions.
The mother was permitted a further visit with the child in a park at (omitted) on Friday, 4 March. On this occasion his brother accompanied the father. During the visit the mother started to walk towards her car with the child, thereupon the father rushed towards her and grabbed the child from her arms saying: “ no, no, no you don’t.”
The mother thereupon drove to the paternal grandparents’ home to talk to them. She observed that the father had parked his car nearby and that there was a police vehicle also parked nearby. As the mother approached the father she could hear him say on his phone to the police: “she’s here, she’s by the car, I feel threatened.”
On 7 March the father afforded the mother another visit with the child for less than one hour at local gardens. The mother observed that the child was very clingy and said to her disturbingly: “I don’t have a mummy any more”. His brother also accompanied the father on this occasion. Upon the mother taking the child to the toilet the father berated his brother for letting the mother out of his sight with the child. The father grabbed the child from the mother and left. On leaving the child said to the mother: “I am being brave and strong, aren’t I mummy.”
The father thereafter enrolled the child in preschool at (omitted) against the mother’s wishes.
On 10 March the power and phone to the matrimonial home at (omitted) was cut off by the father. It was the mother’s intention to remain in the home, as mortgage payments would be similar to what she would have to pay for a rental property.
By agreement brokered through the parties’ solicitors the mother was afforded by the father very limited time with the child in visits at the paternal grandparents’ home. The mother complains that she was not afforded reasonable telephone contact with the child.

The Incident of 19 March 2011

On Sunday 19 March the mother and the maternal grandmother were permitted to visit the child at the paternal grandparents’ home at (omitted). During the course of the visit the father engaged the mother in conversation about the matrimonial home at (omitted). The father told the mother that she should get a full-time job and move out of the house.
As the mother was leaving she had the child in her arms. The father attempted to grab the child from the mother and said to her “I am going to arrest you”. Thereafter an incident occurred between the paternal grandfather and the maternal grandmother and then between the paternal grandfather and the mother.
The mother and the maternal grandmother left the home and drove to (omitted) police station and reported the incident. The mother was arrested and taken to (omitted) police station. The mother asserts that injuries received by her in the incident at the hands of the paternal grandfather were clearly apparent but that the police took no action on her behalf. The mother was subsequently released with no charge and the father’s attempts to obtain an in interim apprehended violence order against the mother was rejected by the police.
In oral evidence the father conceded that in his view all parties were partly to blame for the incident.
After this incident the mother commenced the present parenting proceedings.

AVO Proceedings

Subsequently the mother and the maternal grandmother attended at Wollongong courthouse on 24 March, taking out AVO proceedings against the paternal grandfather.
AVO proceedings taken out by the police against the mother came before the Local Court at Kogarah on Thursday, 31 March 2011. On that day and pending final hearing an interim AVO order was made by the Court for the protection of the father in the following terms;
a)The defendant must not assault, molest, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship;
b)The defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship;
c)The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship;
d)The defendant must not approach, contact or telephone the protected person by any means whatsoever except through the defendants legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied suspended or discharged under section 68R of the Family Law Act 1975;
e)The defendant must not approach the school or other premises at which the protected person may from time to time attend for the purposes of education or childcare or other specified premises being (omitted) Preschool, (omitted);
f)The defendant must not approach the protected person or any such premises or place at which the protected person from time to time resides or works within 12 hours of consuming intoxicating liquor or illicit drugs;
g)The defendant must not destroying or deliberately damage or interfere with the property of the protected person; and
h)The Court extends the operation of orders to include the following persons with whom the protected person has a domestic relationship:
i)Mr Carr
ii)Mrs Carr
iii)Mr D

The Court observes that the scope and ambit of the orders sought on behalf of the father as the protected person on his complaint in the circumstances are astonishing.
In circumstances where the parties have a four-year-old child, the best interests of who would appear to be their primary concern, the existence of such an order and its use by the father to seek to have the mother dealt with for various breaches is indicative of conduct by him seeking to be controlling, intimidating and coercive of the mother.
The father concedes that subsequent to the interim orders he has on a number of occasions made complaints alleging the mother’s breach and provided to the police statements from various witnesses.
Subsequent to the interim AVO the mother by arrangement had time with the child on Saturday, 2 April at (omitted). Concurrently with the mother’s presence at (omitted) the father sought to enter the former matrimonial home at (omitted). On finding someone present he called police who attended the home and a formal police event notation was made.
Again on Saturday, 9 April whilst the mother was spending time with the child at (omitted) the father attended at the matrimonial home in company with his sister and police officers whose attendance had presumably been pre-arranged by the father. The father was unable to enter the home as locks had been changed.
Subsequent to separation the mother retained use of the Ford Falcon motor vehicle that was registered in the name of the father. The father on separation retained the registration papers and was well aware that on 25 May registration of the vehicle was due for renewal.
With that knowledge and knowing that the mother needed to travel to Court on 25 May the father made a complaint to the police asserting that the mother was driving an unregistered and uninsured motor vehicle. On 27 May a police officer attended at the mother’s home at (omitted) in relation to the allegation made by the father. By that date the mother had been able to facilitate the registration of the vehicle.
Once again the father’s conduct exhibits an intention to intimidate and harass the mother.

These Proceedings

The mother’s Initiating Application was filed on 25 March 2011 and was first listed before the Court on 28 March 2011. The parties on that day attended upon a family consultant pursuant to section 11F of the Act.
The Family Consultant’s memorandum (Exhibit B) observes in relation to issues impeding resolution that:
a)The parties only recently separated and since then X has lived with his father. He has spent minimal time with his mother. The father alleges that the mother has a drinking problem and that this impacts on her parenting, making her unable to adequately supervise X. The mother disputes this strongly; she states that she has a few drinks a few times per week but that her usage has never been problematic or impacted on her parenting or general functioning.
b)The parties report that the last year of the marriage was particularly difficult with increasing arguments. The father suggests that the conflict centred around the mother’s drinking while the mother reports that the father was belittling and controlling, criticising her parenting and attention to the home. It appears that X was exposed to some of the conflict and both report a change in his behaviour in that he would act out and become “ naughty”.
c)The mother alleges that the father is involving the child in the disputes and is unable to encourage her relationship with X.
d)The father suggests that he is better placed to provide the child with a stable home environment; he expressed concerns that the mother’s alleged alcohol use poses unacceptable risk to X.
The Court made the following orders:
a)That the child live with the father;
b)That the child spend time with the mother each Wednesday from 10am until 2pm at (omitted), each Saturday from 10am until 2pm at (omitted), and any other public place agreed to by the parties;
c)The mother was restrained from taking the child to the former matrimonial home at (omitted) and was restrained from consuming alcohol within 12 hours of spending time with the child;
d)That the mother have telephone contact with the child each morning at 9am and each afternoon at 6pm;
e)That the child’s passport be held at the offices of Rachel Stubbs and Associates solicitors;
f)That the mother within 14 days undertake a drug and alcohol assessment;
g)That an Independent Children’s Lawyer be appointed.
The Court noted that orders made were short-term interim orders pending a further interim hearing on 7 June 2011.
On 7 June 2011 the matter was before the Court for interim hearing. On that day the Court made orders by consent in summary in the following terms:
a)That the parties have equal shared parental responsibility for the child;
b)That the mother spend time with the child each alternate Wednesday from 10am until Thursday at 4pm and each alternate weekend from Friday 3pm until Sunday 4pm;
c)That for the purposes of changeovers the mother will collect the child from the father’s residence at the commencement of time and the father will collect the child from the mother’s residence at the conclusion of time unless otherwise agreed;
d)Otherwise injunctive orders made previously were to continue;
e)That a Family Report be prepared; and
f)Proceedings be listed for hearing for two days commencing 8 February 2012.
On 18 July 2011 interim property orders were made which, in summary, provided for the wife to vacate the home at (omitted) by 1 August 2011 and that for the property to be tenanted with an agreed agent.
On 7 November 2011 further consent orders were made in summary as follows:
a)Facilitating a sale of the home at (omitted);
b)Providing for the child to spend time with the mother on Christmas Day;
c)Facilitating the delivery of the child’s passport to the Registrar of the Federal Magistrates Court at Wollongong;
d)Appointing Mr K as a single expert witness to determine the following issues in relation to the mother:
i)Is the mother affected by a functionally significant substance abuse problem?
ii)If so, what is the nature, intensity and impact of the problem?
iii)What is the mother’s readiness and capacity to address the problem?
iv)Any other matters that the expert regards as important, within the context of his expertise.
On 8 February 2012 the matter again came before the Court on its listing for hearing.
The parties resolved the question of property settlement on the basis that the former matrimonial home was transferred to the father and that he thereafter indemnified the mother in regard to the debts secured thereon and the debt to the father’s parents and that otherwise the Ford Falcon motor vehicle be transferred to the mother.
Proceedings as to parenting were adjourned for hearing for three days commencing 14 May 2012.
The parties and the Independent Children’s Lawyer agreed to further interim orders as to parenting which, inter alia, in summary provided as follows:
a)That all previous parenting orders be discharged;
b)That the parents have equal shared parental responsibility for the child;
c)That the child live with the father;
d)That the child spend time with the mother as follows;
i)Each alternate weekend from 3pm Friday until 4pm Sunday;
ii)Each Thursday in each alternate week from 10am Thursday until 4pm Friday, and on the Mother’s Day weekend from 4pm Saturday until 4pm Sunday;
iii)At other times as agreed.
e)That each of the parties have telephone communication with the child each evening when the child is not in their care at 7pm;
f) That the parties engage with Relationships Australia for the purposes of a post separation parenting assessment and if assessed as suitable undertake such counselling mediation or program as is recommended by Relationships Australia.

Interim Orders and Thereafter

After the commencement of the mother’s time with the child pursuant to the various interim orders referred to above, the mother complains that the father has remained controlling and threatening. She has observed that the child was becoming more confused and frustrated and angry.
After moving out of the former matrimonial home the mother was afforded accommodation by a friend at (omitted). At first the father refused to allow the child to stay at these premises.
Father’s Day 2011 was on a weekend where orders provided for the child to be with the mother until 3pm Sunday. The mother asserts that previously she had missed the preceding two weekends with the child as a consequence of the father’s request to have the child with him. The father in that circumstance makes a somewhat ingenuous complaint that the mother did not afford the child more time with him on Father’s Day.
The mother was able to obtain part-time work commencing on Monday, 12 September, at (omitted) as a (occupation omitted). She works a variable roster but usually works on a Monday and Wednesday each week.
In September 2011 the father resigned from the (employer omitted) having been on various types of leave since he was assaulted in October 2008.
Since September 2011 the father remains unemployed and in receipt of government parenting benefits.
The parties inability to communicate in relation to the child is manifest and culminated in the father unnecessarily having the child immunised against chickenpox on 23 November without consulting the mother notwithstanding that the child had been properly immunised when 18 months old.
On 3 December the mother was able to obtain her own private rental accommodation. The home comprises a three-bedroom cottage with a large enclosed yard. The home is close to the local school, preschool medical centre, shops and (omitted) hospital and is about a 10 minute drive from the mother’s place of employment. To the mother’s observation the neighbours are friendly and have children of about X’s age.
On the 16 December 2011 the mother attended upon the single expert Mr K. His reports are in evidence before the Court (Exhibit E).
The mother expresses concern about the child being exposed to inappropriate images whilst in the father’s household. On 15 December the child told the mother about “a friend of his who was dead and hanging from a tree he turned into bones”. The child asserted that he had seen such images on the father’s brother’s computer. Again several weeks later the child described in great detail how he ‘saw a girl in a wheelchair who had been in an accident, her head was hanging off and her windpipe was coming out of her mouth…” Once again the child asserted that he had seen these images on the father’s brother’s computer.
The mother is concerned about how often the child is talking about death and violence. When playing he is punching things and killing them and chopping the heads off. The child tells the mother that he is having nightmares and does not want to dream.
The child tells the mother that the father gets in the bath with him and that sometimes he sleeps in the father’s bed. The child has expressed to her his concern that the mother might get arrested and go to gaol or that he might go to gaol. She is deeply concerned about her son’s welfare.
The mother asserts that the father’s telephone contact with the child has been at best problematic. She says that the child becomes extremely upset each time he speaks to the father on the phone. She has to calm him down as he has tantrums and cries uncontrollably afterwards. During the father’s conversations she overhears the father making promises to the child, enquiring of the child as to whether he is okay or saying to the child when it is time for the call to end “you don’t have to go now” and promising to do fun things together when the child returns to the father’s household.
It is clear that the father’s conduct is an emotional manipulation of the child, enmeshing the child in the conflict between the parents. The child is exhibiting concerning behaviour. The father asserts the child displays spontaneous anger, has angry mood swings and yells at people spontaneously. The father asserts that the child scowls “in an imitation of what he has seen from (the mother’s) attacks upon my family and I.”
The father’s primary affidavit of 389 paragraphs is mostly a litany of complaints about the mother delving deep into minutiae and self serving evidence that the father sees as supporting his behaviour and his application before the Court. His complaints are many and endless.
The father has stooped to recording telephone calls between the mother and the child, and himself and the mother, with such calls set out in minute detail in his affidavit. The father’s criticism of the mother devolves to the extent that he asserts that the mother has had 667 opportunities for phone contact with the child until January 2012 and has been late on occasions and he asserts she has not called on 135 occasions. The mother says that on many occasions she was, despite her calling, unable to contact the child or the father.
The father has immersed himself in the child’s life, ceasing employment so as to be with the child almost every waking hour describing his relationship with the child as “special”. He has and proposes to engage the child in many activities in the future all without regard to the mother’s future relationship with the child.
The sense of the father attempting to align the child with him is overwhelming.

The First Family Report

The first Family Report (Exhibit C) in the proceedings was released on 12 October 2011.
The Family Reporter observed:
“Ms Carr expressed her disbelief at the events which have unfolded since the separation, stating that she has felt shocked and traumatised by the loss of her son. She described feeling disenfranchised by Mr Carr, having both her son and the family home taken from her. She described the subsequent local and family law action as “a mess”, stating that she has struggled to understand the legal rules and the system, and has felt forced to justify herself against claims made by her ex-partner. Ms Carr appeared confused when explaining the circumstances of the AVO and the interim orders, stating that she was uncertain of the implications of agreeing to these.
Ms Carr described the court action as an extension of the control Mr Carr has allegedly exercised over her throughout their marriage. She described Mr Carr as having been emotionally abusive and controlling towards her, criticising her decisions and her parenting of X. She reported that he would “obsess on me”; challenging where she had been; what she had done and when she had completed chores, such as grocery shopping, or whether she had appropriately attended to X’s needs. She reported that the couple would argue often about Ms Carr feeling “steamrolled” and her consumption of alcohol was a regular source of tension between them. She reported that Mr Carr would videotape her at times which made her feel uncomfortable.”
And later:
“Ms Carr was indignant about any concerns with her alcohol use. She reported that she cannot understand why it has been raised as a concern as she considers her past use to be reasonable. She denied that alcohol ever impacted negatively on her parenting or lifestyle and cited recent medical test results which, she states, substantiate that she is healthy. She explained that, during the last stage of the marriage, she would enjoy a couple of glasses of wine in the evening when she was preparing dinner and when X was cared for by his father. She reported that, in her view, Mr Carr had a disproportionate reaction to any consumption of alcohol, possibly as a result of the social problems he may have seen in the course of his work as a (occupation omitted).”
Later, as to the father, the Family Reporter observed:
“On the day of interviews, Mr Carr presented as a softly spoken man. He became tearful at times during the interview and his discussions were tangential, struggling, in particular, to articulate his proposals for X to spend time with his mother.
Mr Carr stated that the court action would not have arisen were it not for Ms Carr’s alleged alcohol abuse. He stated that this concern and her unwillingness to surrender X’s passport, created a situation whereby he considered that X would be at risk in his mother’s care.”
And then:
“Mr Carr reported that he was surprised by X’s behaviour on the day of the Report interviews, describing a tantrum X had in the waiting room as very unusual and out of character for him. He expressed distress at X’s comments, reporting that his son had told him “I don’t want to talk to you. I want to see Mummy. You broke my heart”. Mr Carr stated that his son is confused and perhaps expected that the purpose of the interviews was to achieve reconciliation between the parents. Mr Carr reported that X is only agitated when he returns from spending time with his mother. He believes that X has been told things by his mother, such as that Mr Carr kidnapped him. He is also concerned at Ms Carr’s allegedly aggressive behaviour at times of changeover.”
As to the child, the Family Reporter observed:
“X (aged 3 years and 10 months) presented as a bright and articulate child. He was able to separate from his carers to spend time with the Family Consultant and to engage positively in interview. X’s opening comment to the Family Consultant when introduced in the waiting room was “My Mummy doesn’t love my Daddy, that’s sad isn’t it?”. X appeared aware of the reason for his attendance at the interviews, stating that his father had explained that he was coming to talk about his parents and where he would live in the future.
In interview, X spoke of the conflict between his parents and in projective tasks described each parent as angry. A recurrent theme of his mother not loving his father emerged. X explained that his father loves his mother and gets sad when X goes away to spend time with her. He described living with his father, grandparents and uncle. He said that he wants to live with his father as his father gives him more toys than his mother does. X’s play had themes of death and loss.”
And later:
“He was enthusiastic about spending time with Ms Carr and greeted her with surprise and excitement. He reached out for his mother’s hand and led her to the playroom, appearing to take delight in showing her the various toys. Throughout the day, he often asked about his mother and requested to see her again. When the Family Consultant came to the waiting area to interview Mr Carr, Mr Carr was observed to be managing some challenging behaviour with X protesting. X was heard to say “because I want my Mum!” to which Mrs Carr Snr replied “you don’t really”. When Mr Carr was returned to the room after his interview, X asked “Does my Mum love my Dad now?” and “Can we play with Mum?”
“In formal observations with his mother, X and Ms Carr engaged in imaginary play. The pair sought close proximity to one another and X was seen to lean into his mother, lying on her lap. X made comments in the observation such as “You should come and stay at my house...forever”, “I didn’t know you were here” “You just visit me still.. I thought I go to your house.. I did go.. now it stopped”. There was much eye contact and smiling and mirroring of behaviour. Ms Carr’s tone with X was light and positive. She responded lightly to these comments, reframing them and focusing X on the play and on upcoming time they would spend together. Ms Carr was also observed to positively redirect X’s play and set appropriate boundaries with him…”
And then:
“When X was taken to say good bye to his mother, he protested at her leaving, and requested to go with her. He held on tightly to Ms Carr’s neck and beseeched her to continue to play with him, pulling her back towards the playroom. X put his hands to his eyes and appeared very flat. Ms Carr was positive and reassured X that she would be seeing him soon, embracing him but encouraging him to go back with the Family Consultant. When X was taken back to the waiting room to be reunited with the paternal family, he appeared flat and said “I wish I was seeing my Mum later on”.

In evaluation the Family Reporter observed:
“Arrangements for X post separation have evolved with Mr Carr very much now the gatekeeper to X. There has not been any discussion or negotiation about these arrangements between the parents. This situation has arisen mainly based on the belief that X may be at risk in his mother’s care due to her alcohol consumption. It is not possible within the scope of this assessment to determine whether Ms Carr’s alcohol use is problematic and that will be a matter for the court to determine. Certainly excessive alcohol use renders a parent less responsive and, therefore, less attuned to meeting the child’s needs. It is interesting to note, however, that despite these concerns, Mr Carr was willing to reconcile with Ms Carr and continue the prior arrangements, whereby X was mostly in her care. It seems that in early February he was also willing to agree to a shared care arrangement with her. This raises some question about the strength of his concerns and motivations.”
And then:
“Much of this dispute will centre around parental capacity and in particular the parents’ ability to reflect upon themselves, their parenting and X’s needs. Related to this is the parents’ capacity to support X’s relationship with his other parent. Both parents appear to have some limitations in this regard and X’s awareness and exposure to the conflict between them is concerning. It is assessed that, if unchecked, X is at high risk of becoming aligned with one of his parents as it is often too burdensome for children to maintain relationships with both parents in the midst of such high conflict. (Emphasis added)
…There are, however, some concerns with Mr Carr continuing to care for X. At times, Mr Carr appeared to minimise the loss for X in living separately from his mother. He appeared to be confused by X’s desire to see his mother and unperturbed by X’s view that he is no longer living with his mother because Ms Carr does not love his father. This is a concern because it is as if X were an extension of himself and not a separate individual with the right to separate relationship.
Mr Carr’s focus on further limiting his son’s contact with his mother, in the context of X’s apparently overt desire to spend time with her, is suggestive that he is not in tune with his son in this regard. Whilst his desire to protect X from harm is completely understandable, his discussions regarding Ms Carr lacked empathy for X and how the loss of this significant figure from X’s day to day life may affect him now and in the future.”

Whilst acknowledging the difficulties in the child transitioning to the mother’s care the Family Reporter observed:

“Should X move to his mother’s care, he would be moving to a familiar and loving carer. X conveyed a sense of wanting more time with his mother and it is clear that she has played a major part in his life so far. Ms Carr appears to be sensitive to X’s needs and demonstrated some insight into the struggles he may experience, such as adjusting to living apart from his father. Ms Carr reports that she is able to give X room to be himself and is more encouraging of his development as a separate individual. On the day of interviews, Ms Carr was able to prioritise X’s needs and emotions over her own, for example in sensitively managing separations from him. Many other parents, given the context, would have amplified the child’s distress for their own means. She was also able to identify strengths in Mr Carr and recognise his importance to X, despite her own ill feelings towards him.”

Regrettably the alcohol assessment relating to the mother that was so clearly pivotal to the father’s concerns was not available for the purpose of the first hearing dates and the matter was adjourned for some months to await receipt of that report and its consideration by the family reporter.

The Second Family Report

The Family Report (Exhibit D) was released on 3 May 2012.
The ongoing conflict between the parties was evident. The Family Reporter observed:
“During the interview, Ms Carr expressed strong negative feelings towards her ex-husband. She described him as “nasty piece of work.(this) last year (his) full time job (has been) to ruin my life”. , “I can’t stand him”, “he’s quiet…conniving…worst kind…like a serial killer”. Ms Carr stated that she feels that Mr Carr has engineered circumstances to “steal” X from her, fabricating concerns to keep X in his sole care. She stated that the recent claims by Mr Carr that she has been physically violent towards X have sickened her and she strenuously denied having ever been violent towards X. Ms Carr voiced her concern that Mr Carr is mentally unbalanced to have suggested such things and stated that she believes that he should be assessed for psychological disturbance.”
And later:
“Mr Carr stated that X is subjected to “inexcusable violence and constant mental abuse...from Ms Carr”. He asserted that his concerns have been mostly ignored by authorities and that he has been pressured to allow X to spend time with Ms Carr despite his serious misgivings. Mr Carr reported that he believes that the risk to X’s welfare is such that visits should only occur once a fortnight and not involve overnight time. In addition, he believes that there is no possibility of viable co-parenting so he should have sole parental responsibility for X.”
The Family Reporter observed in relation to the father:
“Mr Carr appeared unyielding in his view that the primary focus of any assessment ought to be on the risk posed to X by his mother. It was difficult to establish a rapport with Mr Carr and, on the morning of this updated Report, Mr Carr was critical of the prior Family Report and handed the Family Consultant a ten page typed document outlining his position and current concerns. The document stressed the positive involvement and lifestyle X has and his settled relationships with the paternal family, child care and the local area….”
And later:
“Mr Carr was assertive in his discussions about what should happen for X and there was little opportunity to discuss or explore other perspectives. At times in the interview Mr Carr was dismissive and patronising in his tone.”
And:
“Mr Carr argued that what was identified as high conflict in the previous report should be acknowledged as domestic violence.”
And:
“Mr Carr indicated that, given his concerns about risk of harm, he feel unable to identify any positive benefits to X in spending time with his mother. He reported that X is more settled when he has not spent time with his mother and, other than when he is disrupted by contact with Ms Carr, described his son as a settled and happy child. He stated that, in addition to his serious concerns about risk of harm, he also recognises that his and Ms Carr’s parenting styles are so divergent that it would be disruptive for X to move back and forth between their care.”
As to mother’s asserted alcohol dependence the Family Reporter observed:
“The Substance Abuse Assessment prepared by Dr K was reviewed in the preparation of this update report. It appears that Dr K assessed Ms Carr as both “stressed” and “strained” during his meetings with her, however he noted that she was both polite and compliant with the assessment. He makes reference to her descriptions of the history of relationship difficulties, in particular her account of Mr Carr as “overbearing and smothering”. He also notes that in material filed to the Court Mr Carr describes Ms Carr as a habitual drinker, “prone to outbursts of anger and physical aggression”.
Dr K reports that, in his interviews, Ms Carr denied any significant psychological concerns generally or substance misuse issues in particular. He states that Ms Carr expressed discomfort with the assessment as she did not consider herself to have a functionally significant alcohol problem. He reports that she suggested that Mr Carr was “much more compromised in his wellbeing”. Dr K notes that Ms Carr denied that she had any significant life problems prior to her relationship with Ms Carr.
Dr K’s findings appear to be that there is little evidence of Ms Carr having an alcohol dependence problem. He notes that she appears to have used alcohol as a relaxant and that her drinking prior to the separation could be classified as “hazardous to harmful”. He suggests that Ms Carr appears to have, in the past, relied on alcohol to manage the conflict in her marital relationship and the stress of her living circumstance. He cautions Ms Carr against reinstatement of regular drinking at the levels she has reported previously. In relation to the impact of Ms Carr’s alcohol use on her parenting, Dr K reports “it is much less clear to what extent the reported pattern of drinking would have been functionally significant, especially upon her parenting of X”. He reports that he is unable to comment upon allegations regarding Ms Carr’s reported aggression and suggests that if this is founded, she may benefit from counselling. He reports that Ms Carr “did not exhibit, express or act in any manner that would cause this reviewer to become concerned that her psychological wellbeing was seriously compromised.”
As to observations of the mother with the child the Family Reporter noted:
“Ms Carr appeared initially uncomfortable with the observation, questioning its purpose and expressing her frustration to the Family Consultant, stating “My life’s been a living hell for the last year.. because of him ( Mr Carr).. Ok just play”. X looked downcast while this comment was made. X and his mother appeared to struggle to get involved in the play and X wandered the room at times, behaving in a more frenetic manner than he had in the earlier observation with his father. X looked over at the Family Consultant a few times and said “Lets go out of here” on a few occasions. He appeared restless and the observation was terminated. X appeared quite detached and there were few demonstrations of affection towards his mother. His farewell to her was brief and he walked away. Likewise, when Ms Carr was leaving for the day and X was taken to say good bye to her, the farewell was brief and X appeared somewhat stiff and detached.”
The diminution of the child's relationship with the mother since the first report was clearly obvious. The Family Reporter observed:
“There was a noticeable change in X’s presentation on this occasion compared to the earlier Family Report. There were no demonstrative displays of affection towards his mother and he did not seek her out as he had done at the time of the last assessment. In contrast he appeared detached and avoidant with her. He appeared ill at ease at being observed with her and this was in contrast to the sense of longing he displayed last time. It is apparent that the relationship with his mother has been sadly damaged by the events of the past year.”
The Family Reporter in considering her evaluation observed:
“There has been little improvement in the parents’ relationship and in many ways the matter has deteriorated since the last report with both parties’ concerns regarding the other having intensified. It appears even less likely that X will be able to enjoy healthy and positive relationships with both parents…
….
The issue of risk is central in this matter. The parties have both outlined their very real concerns that X is at serious risk of physical and/or emotional harm in the other parent’s care. Mr Carr has stressed his belief that X has been exposed to what he reports as on-going domestic violence, alcohol misuse and mental abuse by Ms Carr. He states that, given these concerns, he is unable to positively promote Ms Carr’s relationship with X or support any overnight or extended time occurring. Ms Carr suggests that X is at risk of mental and emotional abuse whilst in his father’s care and that Mr Carr’s failure to support her relationship with X is a serious failure of his parental responsibility.”
And then:
“Ms Carr has expressed that she feels controlled and overpowered by Mr Carr and that he has incited her, resulting in the AVO and associated breaches. She suggests that this control is symptomatic of a history of mental and verbal abuse in their marriage and she suggests that Mr Carr is mentally unstable, requesting that he participate in a psychiatric assessment…
…
…. Mr Carr did present, during this limited assessment, with a rigid position, he appeared unwilling to consider information which did not fit within his view and was dismissive of alternative perspectives. His defensiveness regarding the previous report and his determination to have his viewpoint endorsed made the assessment difficult to conduct. Mr Carr’s history of videotaping Ms Carr is concerning as this practice is clearly intimidating. It was apparent that the earlier Family Report had been read by the paternal grandmother. There is a sense that, for Mr Carr, the ends justify the means. He states that his sole focus is on protecting his son and it seems he will do what he needs to ensure that goal.”
Whilst considering the positive aspects of the child remaining primarily in the father's care the Family Reporter observed:
“The concerns with such an arrangement are that Mr Carr is unapologetic in his stance that X’s mother has little to offer him. He is unable to see the benefit in this relationship and it is likely to be very difficult for X, should he live with his father, to maintain a positive relationship with his mother. Mr Carr is likely to unilaterally make decisions, believing that his approach is superior to that of Ms Carr. While parents are the authorities on their children, it is important that they are able to reflect on the child’s perspective and reflect upon their parenting actions. Mr Carr’s disregard for suggestions posed by this Consultant, rejection of information that does not fit within his own viewpoint and scepticism regarding counselling suggest that he has some limitations in his ability to be reflective. If the Court considered that X should remain in his father’s care, it is recommended that both X and his father be referred to counselling to address X’s relationship with his mother.”
In relation to the mother’s proposals the Family Reporter commented:
“If X lives with his mother he will be going to the care of a familiar parent. The previous assessment demonstrated X’s positive interactions and desire to spend time with her. She is able to take on information and has cooperated with numerous assessment and counselling appointments. She appears motivated and willing to provide X with the support that he may need. Prior to the separation, Ms Carr was primarily a stay at home parent for X and had extensive and positive involvement with him. The disadvantage of such an arrangement is that Ms Carr’s care of X full time as a single person is untested. She has little local family support. Her relationship with her son has been damaged by the events of the past year and will require repair. There remain allegations about her which will need to be further explored by the Court. X would be likely to experience some distress in, at least, the short term if a change in care were ordered and it is likely that Mr Carr would struggle to accept such a plan. There would be a high likelihood of further litigation and risk that the father would undermine such an arrangement, making it difficult for X to settle. If a change in care were considered appropriate, it may be necessary to limit the contact between X and his father in the short term to enable X to settle into the mother’s home.”
The Family Reporter’s recommendations are:
a)It is not possible, within this limited assessment, to make a clear recommendation on parenting arrangements for X.
b)It is suggested that, given the on-going and intractable conflict between the parents and X’s exposure to incidents of violence post separation, that there should be no contact between the parents at times of changeover. It is recommended consideration be given to utilising a supervised contact centre.
c)It is further suggested that due to the distress and apparent conflicts of loyalty X experiences during telephone contact, such contact be limited to enable X to settle in the care of the parent he is with.
d)It is suggested that whichever parent X lives with should have sole parental responsibility for him.

The Family Reporter’s Oral Evidence

With the agreement of all parties the Family Reporter gave oral evidence at the commencement of the proceedings on the proviso that if after the evidence had been completed she would be recalled for further oral evidence. On the completion of the evidence in the proceedings neither party sought to recall the Family Reporter.
The following parts of the Family Reporter’s oral evidence in response to the Independent Children’s Lawyer are of particular note:
“Mr B: And when you saw X for the first time for the – in September 2011, would you say that he was fairly secure in his attachments, in that he was able to move readily between the parenting figures in his life?‑‑‑He was.
____________
Your second report was prepared after interviews, I think, in September 2011 – and that’s exhibit C, your Honour. Do you have a copy of the report with you?‑‑‑I do.
And you had observations – you had interviews with the parties and observation – interviewed X and you had observations of X with both parents and his parental grandparents. The father – he revoiced his concern about X and he was concerned about X spending overnight time with the mother at that stage?‑‑‑He was.
Yes?‑‑‑He was fairly strident in his opposition to the mother having overnight time. The general impression was that he was quite critical of the prior assessment and the direction of the matter so far, that he felt that his concerns hadn’t been given enough voice; that he felt that X was at risk and that the focus of any intervention should be on the risk posed by the mother. And in light of that, then there shouldn’t be any overnight or extended periods of time…
____________
Now, I think you observed at paragraph 40 of your report some – well, perhaps dismay is too strong a word, but you observed the father had been earlier willing to reconcile and that in February 2011 he had proposed equal access or equal time as regards X and the parenting. You observed at paragraph 40?‑‑‑Yes. That’s right. It certainly was my impression that over time the concerns have amplified. At the time of the initial child dispute conference, Mr Carr described his ex-partner as a good mother but his main focus was on the alcohol – alleged alcohol abuse and the issues that were associated with that. At the last meeting I had with him, it was apparent to me that the lens through which he was looking at the relationship was very much focused on the relationship having been domestically violent and the concerns had now extended to effectively child abuse. The mother had assaulted the child and was – there was a reference to suffocation and other things. So certainly the concerns over time, I think, have escalated….
______________
And then you report at paragraph 21 that X had not been unduly distressed at living separately from his mother. Given the subsequent observation of X and his mother, do you have any comments about that report by the father?‑‑‑Look, there were inconsistencies in my observation of X and his father’s account of how he was behaving. My recollection of what the father and the paternal grandparents had told me about X and how he was coping differed from the child that I saw at the time in September in that they were saying to me that he rarely asked about his mother; that he was resistant to talking to her on the telephone; that there wasn’t any real distress at being separated from her. And that was quite at odds with what I had observed in September where there was a real sense of longing and
Curiosity?‑‑‑Probably even more than curiosity, I would say.
Yes?‑‑‑The – it was 
Curiosity as to what had happened to his mother. Where had she been?‑‑‑Yes. He – certainly in the observations, was questioning Ms Carr about what was happening and – and when she was coming to see – when he was going to see her and he became quite distressed when she was leaving at the end of the day. And even when I reflected the presentation to Mr Carr, he was saying he was surprised, that it wasn’t consistent with his view either…
____________
… In the – if we just jump ahead very – now into paragraph 29, X says:

Parental Responsibility

In Lansa & Clovelly [2010] FamCA 80 (“Lansa”) Murphy J referred to the issue of conflict between parents in disputes over parenting orders. His observations have relevance in this matter. He said:
“Conflict and its Central Role in this Case:
50. The rights of children, and assertions as to their best interests are, in many highly conflicted parenting cases ending in trials, refracted through a prism of each parent’s creation which contains their interpretation of the children’s best interests clouded by the (often unstated and sometimes denied) assertion of parental rights, both of the type earlier described and of a more self-centred type. In my judgment, such is the case here.
51. Where there is conflict of a chronic and debilitating kind, as there is here, the issue is further considerably clouded by assertions and counter-assertions of past and present “wrongs” said to support ultimate assertions about the best interests of the children and said to “justify” the exercise of rights by a parent or, at least, to explain why those rights are being exercised in a particular way. Again, in my judgment, such is the case here”….
Murphy J continued and said:
“Reducing Conflict
80. It will be clear from what I have said about conflict and its central place in these children’s best interests that, if a proposal or proposals are found to be significantly likely to reduce the conflict between these parents, any such proposal or proposals might be thought likely to be significantly beneficial for the children and, thus, strongly indicative of a result consistent with the children’s best interests…”
Murphy J then discussed the issue of parental responsibility under the Act, the Court said:
“141. The ambit of the legislative provisions referred to thus far is narrowed by reference to s65DAE and the Note to s65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
142. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s65DAE(2))…….
144. Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
145. Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s65DAE(1) and (2)).
146. Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision….”
The Court in Lansa considered some of the authorities:
“152. Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
“In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss.60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter His Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as His Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.”
153. As the Full Court points out, it is open to the Court to find that “the track record of the parents [is such that it] would suggest a high probability of deadlock, which would inevitably lead to further proceedings.” Equally, it seems to me, that circumstances of pervasive, and apparently intractable, conflict can point to the process of consultation and endeavour to reach agreement required by the Act being productive of yet more conflict and consequent strain and stress for the children; something surely contrary to their best interests.
154. Yet, subject to specific Court order to the contrary, it needs to be borne in mind that the statutorily-required process is in respect of “major long-term issues”. There should, it seems to me, be good reason why, it is in the best interests of the children, for a finding that both parents ought not equally and jointly be involved in the sort of major decision embraced by the definition. It can readily be envisaged that high conflict can be a good reason. All the more so, it seems to me when one, or both, parents are affected by issues such as drug or alcohol addiction, mental health issues and the like.
155. Here, the pervasive, and apparently intractable, conflict is not in doubt. There are consequent concerns about the Act’s requirements if the presumption is to apply. But, these are two intelligent people. There has in the past been significant co-operation between them (and, if the earlier affidavit evidence of the wife is accepted, some goodwill). The children love their parents dearly and, dare it be said, equally. They – or at least Y, and probably C – recognize the polarized nature of their parent’s parenting and their different attitudes, standards and styles. Ms V is hopeful that a decision about parenting (and, specifically, “relocation”) will see an abatement of the conflict. It seems to me that these children should have the benefit of having each of their polarized parents having input into the major long-term issues affecting them.
156. Accordingly, on balance, I do not consider that the presumption is rebutted by reference to the children’s best interests. (I should say for the sake of completeness that, additionally, I do not consider that the evidence in this case sounds in the presumption’s rebuttal by reason of “abuse” or “family violence”).”
The Independent Children’s Lawyer contends that the parties should have equal shared parental responsibility for the child. The parties also contend for that position. The Family Reporter suggests not. In the context of this highly conflictual relationship the Court has some concerns as to the immediate prospect of conflict between the parties as to aspects of long term parental responsibility in the short term. The Court is of the view having regard to the orders that it proposes to make in the light of the considerations set out below that the mother should have sole parental responsibility for the child for a defined period and that thereafter there should be an order for equal shared parental responsibility.
In making the observations above in relation to parental responsibility the Court is not satisfied that there are issues of abuse or violence that should prevent the presumption applying but the Court is satisfied that in the best interests of the child there should be a hiatus before the parties equally share parental responsibility.

Equal or Substantial and Significant Time

Neither party seeks an equal time order. Having regard to the matters set out above it is clear that such an order would firstly not be in the best interests of the child nor reasonably practicable in all the circumstances.
Similarly in considering whether they should be an order for substantial and significant time there are issues identified above that clearly contraindicate such an arrangement. The Court is comfortably of the view that substantial and significant time is neither in the best interests of the child nor in all the circumstances reasonably practicable.
In that circumstance the orders to be made by the Court fall to be determined by reason of a consideration of the best interest considerations set out in section 60CC of the Act.

Best Interest Considerations

The Court will now consider the best interest considerations set out in s60CC.
As the Full Court observed in Collu & Rinaldo [2010] FamCAFC 53 at [335]:
“There is a possible overlapping of a number of the considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2): Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J.”

The Additional Considerations: s 60CC (3)

Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

The child X is of tender years. He is presently in preschool and it is expected that he will commence formal schooling in the 2013 academic year. In all the circumstances, particularly the child’s physical circumstances since separation, the Court is not assisted by this consideration.

The nature of the relationship of the child with each of the child’s parents and other persons

An assessment of the child’s relationships with the parents and others must be undertaken in the context of what has transpired since separation, and the circumstances in which each parent found themselves for whatever reason in relation to the child.
There is no doubt that the child has a strong and positive relationship with the father. The Court is comfortably satisfied that the father has so enmeshed himself in the child’s life that such conclusion could not be otherwise. The mother described the father and his relationship with the child as overprotective and smothering although conceding that he was an attentive father motivated to care for the child during the cohabitation.
The father’s conduct since separation has in effect limited and isolated the child relationship with the mother. Indeed the father’s conduct has caused a significant deterioration in the child’s relationship with the mother in between the observations set out in the first Family Report and the second Family Report. Thus the mother’s relationship with the child in the present circumstances must be seen in this context.
It is the very nature of this deterioration in the child’s relationship with the mother that is a primary focus in this matter.
Otherwise the Court is comfortably satisfied that the child has an affectionate and comfortable relationship with the paternal grandparents.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

The Court has grave reservations as to the father in relation to this consideration. The Court cannot be satisfied that should the child remain primarily residing with the father that the father will in any real sense facilitate the child having a close and continuing relationship with the mother.
On the other hand the Court is satisfied that the mother, albeit cautiously, would use her best endeavours to ensure that the child’s relationship with the father was encouraged to the best of her ability.
Of course, the mother’s ability to undertake this task will be easier in circumstances where the father can see his way clear to limiting the conflict between the parties and his efforts to so enmesh himself with the child to the detriment of the child’s relationship with the mother.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living

This factor is of significant moment. As submitted by the Independent Children’s Lawyer, a change in the child’s primary living circumstances will have much effect on the child. Such a change will need to be managed in the way recommended by the Family Reporter in oral evidence. The Independent Children’s Lawyer has reflected that circumstance in the minute of orders sought by the Independent Children’s Lawyer.
The minute of orders sought by the Independent Children’s Lawyer, it is submitted, are detailed but designed to articulate with some precision the arrangements for the parties to take into account any geographical or other logistical concerns. They are primarily designed to regulate the parties’ necessary interaction regarding the child as opined by the Family Reporter in oral evidence, particularly as to telephone communication.
The Independent Children’s Lawyer submits that the child will need to have his anxieties and the pain of removal from his present circumstances alleviated by means of all available resources, and seeks orders that there be an explanation rendered to the child by the Independent Children’s Lawyer and the Family Reporter, both of whom are known to the child. The Independent Children’s Lawyer seeks orders that facilitate therapeutic intervention through Relationships Australia with such intervention to continue for so long as is determined by that organisation.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Whilst the parents live some distance apart geographically, that distance is not such as would prevent the child from maintaining a significant personal relationship and direct contact with each parent. The Court proposes to fashion orders that will facilitate this occurring.

The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs

This consideration is of great moment in this matter. Having regard to the matters set out above in these reasons for judgement the Court can have little confidence that the father has an appropriate capacity in this regard. Indeed, the Court is comfortably satisfied that, should the child remain primarily residing with the father, the child will continue to suffer a deterioration of his relationship with the mother. The father clearly lacks the “reflective capacity” seen by the Family Reporter as so important to parental capacity. In that circumstance, the child’s psychological and emotional development must be compromised.
Having said that, the father is quite capable of providing for the physical needs of the child in the circumstance where he continues to reside in his parent’s household. Should he live independently his capacity is untested.
Should the mother be the primary carer for the child the Court is satisfied that she will have the capacity to provide most adequately for the child’s needs, including his emotional and intellectual needs. The mother as the child’s primary carer prior to separation and having continued her relationship with the child thereafter, albeit in difficult circumstances, clearly has the capacity to provide for the child’s physical needs should the child live primarily with her.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

Many of the matters set out above are relevant to this consideration.
The Court is satisfied that the father’s capacity in this regard is at best problematic, and at worst destructive, of the child’s relationship with the mother. The father’s behaviour post separation reveals a disturbing lack of understanding of a proper attitude to his child and his responsibilities as a parent.
As observed by the Family Reporter during the course of oral evidence in response to a question from the Counsel for Independent Children’s Lawyer:
“You suggest in the last sentence that his failure to support the mother’s relationship with X is a serious failure of his parental responsibility and the developmental impediments for X, does that pose developmental impediments for X. What are the implications for X of that failure of parental responsibility?‑‑‑I think there’s a real risk of X growing up with a distorted perception of what his mother has to offer or what the family situation is really. So I think that it’s – ideally we would suggest that children need positive relationships with both parents and that they should be entitled to have a really healthy, strong, positive relationship with both. And that’s fundamental to their sense of themselves and their sense of having an integrated sense of themselves moving forward into the world, that children perceive themselves as being part of both parents. So having parts of mum and of dad and doing things that, you know, ideally, in families you say, “Oh, that’s just like this person” or “that person” and you are able to integrate a holistic sense of yourself. And I think there’s a real risk where one parent is consistently seen as a negative without basis and disproportionately to what they are. If that’s the case, then the child has a sense of themselves on some level as being bad or – there’s not a full sense of integration.”
On the other hand, the mother’s involvement with the child has been restricted by the father’s behaviour, his use of the state legal system as a weapon against the mother, and his unwillingness to more fully involved the mother in the child’s life post separation. However the Court is satisfied that the mother as best she has been able in what have been difficult circumstances has demonstrated a proper attitude to the child and her responsibilities as a parent.

Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

Whilst this is a consideration much in the mind of the father it is properly submitted by the Independent Children’s Lawyer that the question to be answered is whether there is any cogent evidence to support the father’s assertion that the mother has been violent or abusive to the child such as to pose a serious risk of harm to the child.
As the Court has previously observed in respect of any factual matter in dispute the Court prefers the evidence of the mother. There is nothing in the Family Reporter’s observations of the child to suggest there was any fear in him of his mother by reason of any violence or abuse. As submitted by the Independent Children’s Lawyer, on the contrary, the day after the asserted traumatic events of 4 September 2011, the child was observed to greet the mother with surprise and excitement and to be enthusiastic about spending time with her.
The Court is comfortably satisfied that there has been no family violence or abuse either between the parties or members of their families or in relation to the child that would enliven this consideration.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court expects that the orders proposed will reduce the likelihood of further child related proceedings.

The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent: S60CC(4)

The Court has considered this issue in the context of its findings and observations set out above.

The Primary Considerations: s 60CC(2)

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

In Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed:
“[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83, 502:
“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.”
The Full Court also observed at 83,513:
“The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.”
It appears without doubt that the common ground is that the child should have a meaningful relationship with both parents. There is no doubt that the child enjoys, as submitted by the Independent Children’s Lawyer, an “idyllic family environment” with his father and paternal grandparents. However this has been achieved by the father in a manner that has diminished the nature of the relationship between the child and his mother.
In reality the Court needs to consider the way in which a meaningful relationship in the sense of that relationship being valuable to the child can be achieved firstly, with the mother as an amelioration of the present circumstance, and secondly, by the maintenance of a meaningful relationship with the father.
The Court is satisfied that in the event that the child remains residing with the father that any improvement of the present relationship between the child and the mother would at best be problematic, and any ability to restore the relationship to a position where it was meaningful in the full sense of the word would be improbable.
The Court is certainly not satisfied that the father understands the damage that has been wreaked upon the child’s relationship with the mother, nor indeed that the father has any understanding of the nature and consequences of his behaviour since separation upon the child and his relationship with his mother.
His efforts to put a gloss on his most recent realisation of the improvement in the child’s relationship with the mother and his future intentions to promote that relationship seemed contrived, ingenuous and simply evidence of convenience when confronted in cross examination with the reality of his behaviour.
The mother, on the other hand, is conscious of the need for the child to maintain a relationship on a proper level with both parents and the Court has every confidence that she will use her best endeavours to do so.
This factor favours an order that the child live primarily with the mother.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

This consideration has been of prime concern to the father during the course of proceedings. It is submitted on behalf of the father that:
“X has witnessed family violence between his parents. In the Second Report it is noted: “ it is abundantly clear that X has been exposed to high levels of parental conflict which have continued post separation and that he has witnessed incidents of violence post separation. These events have been traumatic and distressing for him.”
The Family Reporter notes:
a. He (X) identified his mother as the instigator of such conflict;
b. (He) has made comments about his mother hurting his father.”
The child’s observations are consistent with the father’s allegations that the mother instigates violence.”
Unfortunately, no weight can be attached to such submission as it was clear that the child had become closely aligned to the father in the period since separation. There is a strong inference from the evidence that the father has engaged the child in the conflict between himself and the mother and openly blamed the mother for the breakdown of the relationship. In such a circumstance it is understandable that after many months of living within the father’s household a child of such tender years would become so aligned.
Otherwise, there is little evidence up in which the Court can find evidence of domestic violence of any significance so as to be relevant within this consideration. In fact, as the father conceded, the major incident upon which he relies in September 2011 was occasioned partly by all parties.
Appropriately, it was submitted on behalf of the father, that the father accepted the conclusions of Dr K during his cross-examination and declined the opportunity to contest the reports by way of cross-examination.
As was noted by the Independent Children’s Lawyer, in submissions, in relation to the alleged risk of harm from the mother, the father’s allegations focused at the outset on the mother’s alleged abuse of alcohol. Nevertheless, in March 2011 the father proposed equal access by both parents.
By the time of the interviews with the Family Reporter in September 2011, the father maintained his concerns regarding the mother’s alcohol use and that together with uncertainty about the child’s passport he said “was the sole reason for the litigation.” However, submits the Independent Children’s Lawyer, by the time of the third interview with the Family Reporter in April 2012 the risk from the mother’s alcohol abuse and/or dependence appears to have become secondary to the father’s allegations of domestic violence said to be perpetrated by the mother, both before and after separation, on the child and on himself.
There is certainly no doubt that conflict was a feature of the parental relationship before separation. Thereafter incidents relied upon by the father in March of 2011 and September 2011 involved the parties and others of the child’s relatives.
On all the evidence the Court could not be satisfied that the mother has been violent or abusive to the child since separation. The Court is well satisfied that the mother poses no risk whatsoever to the child.
The Independent Children’s Lawyer correctly submits that the question to be posed in the present circumstances is: “is their persuasive evidence from which a reasonable inference can be drawn that if X continues in the current parenting arrangements, there will be an inevitable loss of his relationship with his mother, to the extent that it would be harmful to him?”
It is clear from the Family Reporters oral evidence, adduced by counsel for the Independent Children’s Lawyer, and on which the Family Reporter was not cross-examined by counsel for either party, that the child was at high risk of becoming aligned with one of his parents. The Family Reporter expressed pessimism about the child’s future relationship with his mother should the current trajectory of their relationship continue.
There is ample evidence referred to in the reasons for judgement above giving rise to the very strong inference that if the current parenting arrangements continue, there will be, at best a continuing diminution of the child relationship with the mother, and at worst, the loss of that relationship. Some of the evidentiary matters can be identified as the manifestations of the father’s controlling behaviour, his emotional abuse of the mother, his surveillance of her, his disdain for the Family Report process, his contrived presentation in the witness box, his failure to acknowledge any benefits to the child of a relationship with the mother, his regard that the child is an extension of himself and not a separate individual with a right to a separate relationship, his enmeshment either consciously or subconsciously overwhelmingly in his child’s day-to-day life, his lack of empathy for the child and his lack of reflective capacity.
The Independent Children’s Lawyer submits that the imminent loss of the relationship with the mother would be harmful to the child in the longer term, to extent that it is not justifiable and in circumstances where it is unlikely that the father’s attitudes have changed to any meaningful extent, the only prospect of the child’s relationships with both parents lies in his being placed with a parent, who, on balance, could manage to facilitate and maintain a relationship with the other.
With this submission the Court concurs.
This consideration strongly favours the child residing primarily with the mother.

Proposed Orders

As was quite properly submitted by counsel for the Independent Children’s Lawyer the Court is required to have regard to the objects of, and the principles underlying Part VII of the Act. From the Independent Children’s Lawyer’s prospective, particular reference was made to section 60B(1)(a) and (b) and section 60B(2)(a) and (b) and these paragraphs have a singular relevance to the child and his parents.
In the current circumstances, there is a significant risk that, without changes to the current parenting arrangements, those particular objects and principles will not be realised and given effect.
The Court considers it to be in the child’s best interests to live primarily with the mother. Issues touching upon the proper orders to be made have been referred to above and the Court has been greatly assisted by draft orders proposed by the Independent Children’s Lawyer.
The Court makes orders in terms as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Foster FM

Date: 8 August 2012