CHAPMAN & TIMMS
[2017] FamCA 982
•4 December 2017
FAMILY COURT OF AUSTRALIA
| CHAPMAN & TIMMS | [2017] FamCA 982 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where there is one child of the parties’ relationship – Where the child has expressed a desire not to spend time with his father – Where it would not be in the child’s best interests for the parents to have equal shared parental responsibility – Where the mother makes allegations of the father engaging in acts of family violence towards her – Court makes no finding of family violence – Consideration of section 60CC of the Family Law Act1975 (Cth) factors – Where there is a short term risk in compelling the child to spend time with his father – Where the long term consequences of the child permanently losing his relationship with his father justifies the orders made – Orders made for the child to spend time with the father every second week from 9.00am Saturday to 9.00am Monday or the commencement of school – Orders made for block holiday time – Orders made to facilitate the parties agreeing to that time increasing – Court cautions that, given child’s psychological fragility, coercive force should not be applied to enforce the orders for the child to spend time with his father |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65Y Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 |
| B and B (1993) FLC 92-357 | ||
| APPLICANT: | Ms Chapman | |
| RESPONDENT: | Mr Timms |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Victoria |
| FILE NUMBER: | MLC | 582 | of | 2012 |
| DATE DELIVERED: | 4 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 7, 8, 9, 10, 11 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Thompson |
| SOLICITOR FOR THE APPLICANT: | Ocean Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | DLT Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Victoria |
Orders
THE COURT ORDERS THAT:
The mother shall have sole parental responsibility for the child B born 19 August 2003 in relation to the following long-term issues:-
(a) The child's education (both current and future); and
(b) The child's health;
on condition that:-
(c) The mother will contact the father in writing and provide her views about any such issue;
(d) The mother shall consult with the father with regard to any such issues;
(e) the mother and the father will make a genuine effort to come to a joint decision about any such issues; and
(f) If no agreement is reached between the parties then the mother shall make the final decision and advise the father in writing (electronically or
otherwise) of the decision.
That notwithstanding order 1(b) of these orders, the parties be restrained by injunction from organising, or otherwise allowing or permitting the child to be engaged in personal counselling without the prior written consent of the father.
That notwithstanding order 1(a) of these orders, the parties be restrained by injunction from changing the child’s enrolment at Z School without the prior written consent of the other party or by order of the Court.
In all other respects, the parties shall have shared parental responsibility for the child.
The child shall spend time with the father as follows:
(a) during school terms:-
Each alternate weekend from 9.00am on Saturday until the commencement of school on the following Monday (or 9.00am if not a school day);
(b)During each of the three mid-year holidays for one week to commence at 9.00am on the first Saturday of the said holiday and to conclude at 6.00pm on the second Saturday;
(c) From 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2017;
(d)For one week commencing 3.00pm on New Year's Day 2018 to 3.00pm on 8 January 2018 and thereafter in accordance with order 5(a);
(e) As and from the 2018/2019 long summer holidays, for one half of the said summer holidays at times to be agreed and in default of agreement for the first half of the said holiday period commencing 2018/2019 holiday period and in each alternate year thereafter provided that, in any year, the holidays will be calculated from the first Saturday of the school holiday period being the first day and the Saturday immediately preceding the commencement of the new school term shall be the last day of the holiday period.
(f) As and from 2018, from 3.00pm on Christmas Eve until 3.00pm on Christmas Day and each alternate year thereafter and in 2019 from 3.00pm on Christmas Day to 3.00pm on Boxing Day and each alternate year thereafter;
(g) On the father's and the child's birthday each year for three (3) hours (if a school day) with such time to commence immediately after school if the child is living with the mother on each of those days;
(h) On the father's and the child's birthday each year for four (4) hours (if a non-school day) and in default of agreement such time to commence at 10.00am if the child is living with the mother on each of those days; and
(i) From 9.00am until 5.00pm on Father's Day should that day not fall during the father's time with the child.
That the father's time with the child shall be suspended during the following periods:-
(a) On Mother's Day from 9.00am to 5.00pm each year;
(b) From 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2018 and each alternate year thereafter;
(c) From 3.00pm on Christmas Eve to 3.00pm on Christmas Day in 2019 and each alternate year thereafter;
(d) On the mother's and the child's birthday each year for three (3) hours (if a school day) commencing immediately after school if the child is spending time with the father on each of those days;
(e) On the mother's and the child's birthday each year for four (4) hours (if a non-school day) commencing at 10.00am in default of agreement if the child is spending time with the father on each of those days
Notwithstanding the foregoing provisions, the child shall spend such further and other time with the father upon such terms and conditions as the parties may agree in writing.
As from commencement of school term in 2018, the operation of paragraph 5(a) shall be suspended during all periods of school holidays.
That the child live with the mother at all other times.
That all handovers occur as the parties may agree but in default of agreement inside the Suburb I Library.
That the father be restrained from requesting the child to engage in communication with him by way of emails, diaries and text messages, mobile phone or skype communication outside of the previous order save that if the child wishes to communicate with the father outside of those times, the mother will not unreasonably refuse him permission to do so.
When the child is in the father’s care the father shall not unreasonably refuse the child permission to contact his mother by way of emails, diaries, text messages, mobile phone or Skype communication as and when he wishes.
That the parties ensure that at all times the child is known by his full name being B Chapman Timms.
That the mother and father forthwith do all things necessary to re-engage in family therapy with a therapist agreed between the parties and ensure that the child and the parties attend as directed and at the discretion of the therapist save that the period of the therapy shall be limited to a period of six months from the date of this order unless it is extended with the consent of the parties upon such recommendation by the therapist with the cost of the therapy to be shared equally between the parties.
For the purpose of order 14 the mother shall, within seven days of the date of these orders, provide the father with a list containing the names of three appropriately qualified therapists and the father shall choose from that list, one therapist to provide the therapy referred to in order 14.
That the parties shall inform the other of any change in residential address or change in landline number not more than fourteen (14) days after any such change.
Each party shall keep the other informed at all times of all significant medical issues affecting the child including any significant injury or medical condition suffered by the child during such time and such periods when the child is in the care of each of them.
The mother may authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other in respect of the child’s medical condition and/or requirements.
That the mother shall authorise the school at which the child attends to:
(a) provide the father at his expense copies of all school reports, NAPLAN results, school notices and order forms for school photographs;
(b) permit the father to attend for parent/teacher interviews (separately to the mother and in the absence of the child);
(c) permit the father to otherwise meet with the child’s teachers or school authorities to discuss the child’s education and welfare subject to such meeting taking place outside school hours; and
(d) service on the school with a copy of this order by the mother shall be taken to stand as authority for the purpose of this order.
That save as provided for in order 19 and save for delivering the child at the school gates at the conclusion of his time on Monday, the father is otherwise restrained from attending at the child’s school unless there is agreement reached between the mother and father on this issue with the assistance of the therapist engaged pursuant to this order.
Each of the parties are restrained from abusing, denigrating or insulting the other in the presence of the child or allowing anyone else to so do and from discussing the proceedings with or in the presence of the child.
That the parents are at liberty to provide a copy of Family Reports and Therapy reports, Court Judgments and Final Orders prepared in these proceedings to the therapist engaged pursuant to this order.
That the father be restrained from leaving the child unattended overnight during his time with the child.
All previous parenting orders be discharged.
All applications are hereby dismissed and removed from active pending cases list.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled "Parenting orders - obligations, consequences and who can help", a copy of which is annexed to these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chapman & Timms has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: MLC 582 of 2012
| Ms Chapman |
Applicant
And
| Mr Timms |
Respondent
And
LEGAL AID VICTORIA COMMISSION
Independent Children’s Lawyer
Introduction
This matter concerns competing applications by the parents of B (“the child”), born 19 August 2003 and currently aged 14, for parenting orders. The mother seeks a variation of parenting orders made by Berman J on 19 May 2014 as a result of the child’s reluctance to spend time with his father. The mother contends this reluctance is due to the fact that the child “has been subjected to five years of manipulation” by his father and, despite her encouragement, the child has now decided to take matters into his own hands by refusing to see his father. The mother acknowledges that it is intrinsically a good thing for the child to spend time with his father but, despite her best endeavours, she believes that it is not possible to restore the relationship.
The father, on the other hand, challenges the genuineness of the mother’s attempts to encourage a relationship between himself and the child. The father, through his counsel, contended that the mother has a “grossly manipulative personality”[1] and has engaged in a course of conduct with a view to undermining and destroying the child’s relationship with his father. As a consequence, it was contended that the child lives in an “appalling environment which is steeped in hatred and resentment”.[2]
[1] Transcript of proceedings dated 7 August 2017 at page 63.
[2] Ibid at page 18.
Tragically for the child, the contentions of the parties in this current application are, in substance, the mirror reverse of the parties’ contentions in the proceedings before Berman J.
This has occurred in circumstances where the decision of Berman J placed the parties on notice about the child’s emotional vulnerability and the impact that the parties’ conflictual relationship was having on his psychological well-being.
A single expert appointed by the Court to provide her opinion to assist the Court in making orders that are in the best interests of the child has described the child as being one of the most disturbed young men she has confronted in her 30 years of professional practice.
The inescapable conclusion is that the parties’ conduct has been the primary cause of this entirely unacceptable situation.
It is to be acknowledged however, that the parties significantly modified their positions during the course of the hearing. Ultimately, both parties have accepted the unequivocal evidence of the experts that it is in the best interests of the child for the child to spend time with his father.
In the context of that background, orders are made in an attempt to restore the child’s relationship with his father. However, whether or not that is achieved will substantially depend upon whether the parents recognise and appreciate the extent to which they have both engaged in conduct that has caused significant psychological harm to this young man. It is imperative that they both focus upon the best interests of the child rather than the perpetuation of their destructive conflict with each other.
Background
Pre-marriage
The father was born in 1964 and is aged 53 years. He is a self-employed and is also involved in the operation of an open air market stall with other members of his family. In more recent years the father has also operated two businesses in suburban Melbourne.
The mother was born in 1967 and is currently aged 50 years. She is a consultant.
The parties commenced their de facto relationship in 1999 and separated under one roof in January 2010 before finally separating in October 2010.
Following separation, the mother and the child remained in the family home at N Street, Suburb O until the mother moved into her current residence at Q Street, Suburb R in November 2011.
The mother alleges that, approximately six months following the parties’ separation, the child complained that he had been left unattended, by his father, as a result of his father leaving home to prepare a market stall in the early hours of Saturday morning. The mother also alleges that child was left for additional periods of time on Sundays as result of his father pursuing his interest in cycling.
Family law proceedings were originally commenced in January 2012. On 2 April 2012 interim orders were made by Senior Registrar Fitzgibbon. Those interim orders included an order that “the defacto husband shall not attend to set up or run his Market Stall at [Suburb BB] Market at any time the child is in his care”.
During the course of 2012 the child was diagnosed with having Oppositional Defiance Disorder (“ODD”).
On 27 March 2013, the parties jointly appointed Dr L, Clinical Psychologist, to provide therapeutic support and counselling for the child.
On 22 November 2013 orders were made by consent resolving property settlement and child support. Those orders included an obligation on the part of the father to pay for the child’s school fees and to reimburse the mother for out-of-pocket expenses associated with the child’s education, extracurricular activities and health care.
On 19 May 2014 final parenting orders were made by Justice Berman. Excluding formal parts, those orders provided as follows:
1. The mother shall have sole parental responsibility for the child B born … 2003 in relation to the following long-term issues:-
(a) The child’s education (both current and future);
(b) The child’s health;
on condition that:-
(c) The mother will contact the father in writing and provide her views about any such issue;
(d) The mother shall consult with the father with regard to any such issues
(e) The mother and the father will make a genuine effort to come to a joint decision about any such issues; and
(f) If no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of the decision.
2. In all other respects the parties shall have shared parental responsibility for the child.
3. The father shall spend time with the child during school terms as follows:-
(a)Each alternate weekend from after school on Friday (or 3.30pm if not a school day) until the commencement of school on the following Tuesday (or 9am if not a school day);
(b)During each of the three mid-year holidays for one week to commence at 9am on the first Saturday of the said holiday and to conclude at 6pm on the second Saturday;
(c)From 3pm on Christmas Day to 3pm on Boxing Day in 2014;
(d)For one week commencing 3pm New Year’s Day 2014 to 3pm on 8 January 2015;
(e)From 10am on Saturday 17 January 2015 to 3pm on Monday 26 January 2015;
(f)As and from the 2015/2016 long summer holidays, for one half of the said summer holidays at times to be agreed and in default of agreement for the first half of the said holiday period commencing 2015/2016 and in each alternate year thereafter and for the second half of the said holiday period commencing 2016/2017 holiday period and in each alternate year thereafter PROVIDED that in any year the holidays will be calculated from the first Saturday of the school holiday period being the first day and the Saturday immediately preceding the commencement of the new school term shall be the last day of the holiday period.
(g)As and from 2015, from 3pm on Christmas Eve until 3pm on Christmas Day and each alternate year thereafter and in 2016 from 3pm on Christmas Day to 3pm on Boxing Day and each alternate year thereafter;
(h)On the father’s and the child’s birthday each year for three (3) hours (if a school day) with such time to commence immediately after school if the child is living with the mother on each of those days;
(i)On the father’s and the child’s birthday each year for four (4) hours (if a non-school day) and in default of agreement such time to commence at 10am if the child is living with the mother on each of those days;
(j)From 9am until 5pm on Father’s Day should that day not fall during the father’s time with the child.
4. That the time as provided for in paragraph 3(a) and (b) of these orders shall be suspended for a period of four (4) calendar months from the date of this order.
5. That the father’s time with the child shall be suspended during the following periods:-
(a)On Mother’s Day from 9am to 5pm each year;
(b)From 3pm on Christmas Day to 3pm on Boxing Day in 2015 and each alternate year thereafter;
(c)From 3pm on Christmas Eve to 3pm on Christmas Day in 2016 and each alternate year thereafter;
(d)On the mother’s and the child’s birthday each year for three (3) hours (if a school day) commencing immediately after school if the child is spending time with the father on each of those days;
(e)On the mother’s and the child’s birthday each year for four (4) hours (if a non-school day) commencing 10am in default of agreement if the child is spending time with the father on each of those days/
6. Notwithstanding the foregoing provisions the child shall spend such further and other time with the father upon such terms and conditions as the parties may agree in writing.
7. That the operation of paragraph 3 (a) shall be suspended during all periods of school holidays.
8. That the child live with the mother at all other times.
9. That all handovers that do not occur at the child’s school shall occur as the parties may agree but in default of agreement at the front of [Business K] in [Suburb I].
10. That the parties shall take all reasonable steps whilst the child is in their care to ensure that the child communicates with the other parent by telephoning the other parent’s landline between 6.30pm and 7.30pm on each Wednesday and Sunday (as applicable).
11. That the father be restrained from requesting the child to engage in communication with him by way of emails, diaries and text messages, mobile phone or skype communication outside of the previous order SAVE that if the child wishes to communicate with the father outside of those times, the mother will not unreasonably refuse him permission to do so.
12. That the parties ensure that at all times the child is known by his full name being [B Chapman Timms].
13. That the parties do all things necessary to cause the said child to re-engage for counselling and/or therapy with [Dr L] and that at the direction and discretion of the said practitioner, the parties shall be involved PROVIDED that subject to the consent of the parties to extend the period, the said therapeutic intervention shall be limited to a period of six (6) months from the date of this order and shall be at the joint expense of the parties.
14. That the parties shall inform the other of any change in residential address or change in landline number not more than fourteen (14) days after any such change.
15. Each party shall keep the other informed at all times of all significant medical issues affecting the child including any significant injury or medical condition suffered by the child during such time and such periods when the child is in the care of each of them.
16. The mother shall authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other in respect of the child’s medical condition and/or requirements.
17. The mother shall authorise all schools at which the child attends to:-
(a) Provide to the father at his expense copies of all school reports, notices and school photographs;
(b) Permit the father to attend all school functions to which parents are normally invited.
18. Each of the parties are restrained from abusing, denigrating or insulting the other in the presence of the child or allowing anyone else to so do and from discussing the proceedings with or in the presence of the child.
19. That a copy of these reasons and orders be provided to [Dr L].
Decision of Berman J of 19 May 2014
Relevantly, for these proceedings and by way of summary, Berman J found as follows:
·After separation any residual goodwill between the parties soon dissipated.
·The parties were not able to communicate effectively with each other.
·The parties hold and are likely to continue to hold a deep mistrust of each other.
·The child has been involved at an inappropriate level in the internecine dispute between the parties and in particular as it involved a male who the mother was then in a relationship with.
·A strong bond and relationship has been formed between the father and the child.
·The father has attempted to undermine the relationship that the child has with his mother.
·The father has engaged in conduct which is manipulative and likely to be damaging to the relationship between the child and his mother.
·The father’s actions were motivated by a desire to cause hurt and distress to the mother.
·The child is highly disturbed and his views are coloured by his overt reaction to the conflict between the parties and his perception that his father needs his support.
·The child was reacting to the emotional despair of the father.
·The child was, as at the time of His Honour’s decision, of the view that his mother was responsible for the family breakdown.
·The child has a difficult and, at times, highly conflicted relationship with his mother.
·The child is clearly not an emotionally or psychologically robust boy.
His Honour held that there was substance to the allegations of the mother that the child should be protected from the psychological harm perpetrated by the father’s manipulative behaviour.
Berman J stated at paragraph 58:
To place the seriousness of [the child’s] presentation into stark contrast, it is the somewhat chilling evidence of the family consultant that [the child] was one of the more disturbed children that she had observed in more than 30 years of her professional life.[3]
[3] Chapman & Timms [2014] FamCA 316.
Berman J was not satisfied that the father had gained any insight into his conduct but equally, the mother was at a stage where she was not able to see any positives in the father’s relationship with the child.
Prophetically, Berman J predicted:
These issues will become more acute in the years to come as [the child] matures and gradually takes more responsibility for the decisions that he will make.[4]
[4] Ibid at [185].
The mother contends that, in June 2014, during suspension of time that the child was to spend with him, the father entered the school grounds to attend weekly assembly with the students. The mother alleges that, on occasions, the father was accompanied by other members of his family.
On 19 September 2014, the father’s time with the child re-commenced.
The mother contends that, on 5 March 2015, the child confided to her that he was again left alone overnight on the Friday nights he spent at the father’s house and that he became frightened when that occurred.
In April 2015 the child told his school teacher that he no longer wished to spend time with the father.
The mother contends that Mr BB, who is married to the father’s sister Ms BB, contacted the mother and asked to meet with her for coffee and cake. The mother contends that the parties met on 15 May 2015 at which time Mr BB expressed his concern to the mother that the child had been left unattended on Friday evenings into Saturday morning.
In May 2015, the child told school teaching staff he no longer wanted to be known as “B Chapman-Timms”.
On 3 June 2015 the mother took the child to Suburb CC Police Station, where he spoke to Senior Constable DD for approximately one hour. The mother contends that this was at the request of the child. The child advised the police of his concerns about being in the care of his father.
On 4 June 2015 an Interim Intervention Order was made at Ringwood Magistrates Court (ex parte) against the father, on the mother’s application, with the child named as the ‘Affected Family Member’.
On 17 June 2015 the mother filed an Initiating Application seeking to vary the parenting orders made on 19 May 2014 to suspend the father’s time with the child on an interim basis and, on a final basis, for the child to spend time during the day with the father on special occasions only.
On 6 July 2015 interim orders were made by Senior Registrar Fitzgibbon, providing, inter alia, for the preparation of a further Family Report by Ms M. The orders for the child to spend time with the father were suspended.
On 26 August 2015 the Family Report was released. Interim orders were made by Senior Registrar Fitzgibbon, inter alia, that the parties attend upon Ms EE for “therapeutic counselling with a view to addressing the issues contained in the report of Ms M dated 24 August 2015”.
On 1 September 2015 non-reportable family therapy commenced with Ms EE. On 6 October 2015 Ms EE wrote to the Independent Children’s Lawyer (“ICL”) stating she did not consider further sessions for the child were appropriate given that he was “so resolute about his inability to safely pursue both relationships… and that any further therapeutic work should be with the child’s parents in the first instance”.[5]
[5] Annexure SMC-3 to the Mother’s Affidavit dated 8 May 2017.
Following cessation of therapy with Ms EE, the mother made an appointment for the child with Dr L. The first appointment occurred on 30 October 2015.
The mother alleges that Dr L suggested that the child attend for three weekly therapeutic sessions to supplant family therapy.
On 12 November 2015, on the application of the father, Senior Registrar Fitzgibbon made parenting orders including that both parents be restrained from permitting the child to have any further therapy with Dr L.
On 27 November 2015 the father attended an end of year graduation/dinner/concert at Z School. During the evening the child asked the father to leave.
On 8 December 2015, Ms EE issued a report in which she suggested that it would be beneficial for the child to engage with Simon Kinsella for therapeutic support therapy in conjunction with family therapy which should be recommenced at a future time. Ms EE suggested the parents engage in extended counselling.
On 9 December 2015 interim orders were made by Senior Registrar Fitzgibbon that the parties attend upon Dr FF (“Dr FF”) for reportable family therapy “to address the issues raised in the Family Report of Ms M of 24 August 2015”. Senior Registrar Fitzgibbon also suspended order 17 (b) of the orders made on 19 May 2014, and made an order to restrain the father from attending at the child’s school.
In February 2016 the parties commenced family therapy with Dr FF.
On 2 May 2016 the father made an online appointment to visit the child’s school to speak to the child’s teachers.
On 20 May 2016 Dr FF requested the parents sign a consent form so that she could speak with the Year 7 Co-Ordinator at the child’s school “in regard to his progress, behaviour and for opinion”.
On 17 October 2016 the mother was contacted by a parent from the child’s school requesting an urgent meeting, which took place the same day. The parent gave to the mother copies of private Instagram messages the child had written to her daughter and another child at Z School in which the child mentioned the thoughts of self-harm.
On 28 October 2016 Dr FF contacted the mother by phone, and suggested that the mother invite the child to attend a pizza dinner with Dr FF and the father in Suburb GG. The mother contends that, when she raised the matter with the child, he indicated to her that he would not attend the dinner.
On 28 February 2017 Dr FF’s report issued.
In March 2017 the mother discovered that Dr FF’s husband had appeared on behalf of the father in respect to the property aspects of the parties’ family law proceedings.
On 9 March 2017, at the request of the father, communicated through the parties’ lawyers, the mother arranged for the child to spend time with the father with changeover to occur at the child’s school. The changeover was unsuccessful.
On 16 June 2017 the parties attended upon Ms M for the purposes of preparing a Family Report. On 24 July 2017 Ms M’s Family Report dated 19 July 2017 was issued to the parties.
Applications
The mother’s application
The Minute of Order initially proposed by the Mother was as follows:
1. That all previous parenting orders are hereby discharged.
Parental Responsibility
2. That the mother, [MS CHAPMAN], have sole parental responsibility for the child [B] born … 2003 “[The child]”.
3. THAT the mother be permitted to do all things and sign all documents to change the surname of [the child] to “[CHAPMAN]”.
Live with and spend time with provisions
4. That [the child] live with the mother.
5. That father spend time and communicate with [the child] at such times, on such dates and in such manner in accordance with [the child’s] wishes.
Injunctions and Responsibilities
6. That unless the communication is an emergency, the parties will communicate with each other directly by use of email.
7. That the parents will use language which is respectful and civil when communicating with each other and will avoid sarcasm.
8. That the Father and Mother are each restrained from:
(a) abusing, insulting, belittling, rebuking, or otherwise speaking negatively, rudely or critically about the other parent or his or her family to the child, in the presence of the child or within [the child’s] hearing, or on social media and nor will they permit any other person to do so;
(b) initiate discussions of these proceedings or any future dispute between them in the presence or hearing of the child or permitting any other person doing so, except in a therapeutic environment with professionals;
(c) subjecting or exposing [the child] to any form of family violence as defined by the Family Law Act.
9. That the parties are at liberty to provide their respective present or future health professionals or any health professionals consulted by [the child] with a copy of the family report of [Ms M] dated 19 July 2017 prepared for this trial.
10. That the mother will authorise any school at which the child is enrolled to provide the father with [the child’s] school reports and school photograph order forms, provided should there be any costs associated with that the father pays those costs AND failing the mother providing such authority this order shall, of itself, constitute such authority;
11. That the parents will each advise the other parent in writing within seven (7) days of any change to their respective residential address and/or telephone contact number.
12. That the mother will notify the father of any medical emergency, serious illness, or other significant issue affecting [the child’s] health or welfare within a reasonable time of the event and no greater than 24 hours.
13. That the father is hereby restrained from accessing the school portal of [Z School].
14. That unless otherwise agreed in writing with the mother or invited by [the child], the father is hereby restrained from entering the grounds of [Z School] or any other school at which [the child] is enrolled in the future or causing any third party to do so on his behalf.
15. That the father is permitted to send [the child] a card and / or present at Easter, the child’s birthday and Christmas by sending the present or card to the mother’s residential address via Australia Post AND the mother will give [the child] the card or present the day it arrives.
The child’s Passport, Overseas Travel & Watch List Order
16. That the inclusion of the child [B] born … 2003 on any Australian Federal Police Travel Watch List is hereby removed AND any Watch List Order with respect the child [B] born … 2003 is hereby discharged.
17. That forthwith the mother will serve a sealed copy of this order on the Australian Federal Police.
18. That the child [B] born … 2003 be allowed to be issued an Australian passport, without the consent of the father, by the Department of Foreign Affairs and Trade.
The father’s application
The orders initially sought by the father in his case outline document were as follows:
1. The parenting Orders of Justice Berman made 19 May 2014 be discharged.
2. The parties shall have equal shared parental responsibility for the child [B] born …, 2003;
3. [The child] live with the father for a period of six (6) calendar months commencing 14 days after the making of final Orders for the purpose of resuming the relationship between the father and [the child].
4. That upon the commencement of the living arrangements set out in paragraph 3:
(a)The mother may communicate with [the child] by way of Skype or telephone call each Wednesday and Sunday between 6:30pm and 7:30pm and is otherwise restrained from initiating contact with [the child] by any means or from encouraging or permitting others to do so on her behalf;
(b)The mother is restrained from discussing these Orders or [the child's] living arrangements with [the child] or seeking or eliciting [the child's] views as to his living arrangements , the father's behaviour or [the child's] interaction with the father and/or his extended paternal family or from permitting or encouraging anyone else to do so on her behalf;
(c)The parties and [the child] shall attend upon such therapist as [Ms M] or [Dr FF] may recommend, for assistance as required, with the cost to be shared equally between the parties.
5. That at the conclusion of the time referred to in paragraph 3 [the child] shall live with the mother:
(a)Each alternate week from 3:30pm or the conclusion of school Friday to 3:30pm or the conclusion of school the following Friday;
(b)For half of each term school holiday and in default of agreement the first half;
(c)Such further or other times as the parties may agree.
6. That for the purposes of the long summer holidays time shall be suspended, with the underlying pattern of care maintained each year between 12:00pm 1 January and 12:00pm 28 January. During this time the child shall spend time with each parent each year as follows:
a) Each odd numbered year:
(i) With the father from 12:00pm 1 January to 12:00pm 14 January; and
(ii) With the mother from 12:00pm 14 January to 12:00pm 28 January;
b) Each even numbered year:
(i) With the mother from 12:00pm 1 January to 12:00pm 14 January; and
(ii) With the father from 12:00pm 14 January to 12:00pm 28 January;
7. [The child] shall spend time with each parent on special occasions as follows:
a) Christmas:
(1)In 2017 and each alternate year thereafter with the father from 3:00pm Christmas Eve until 3:00pm on Christmas Day and with the mother from 3:00pm Christmas Day to 3:00pm Boxing Day; and
(2)in 2018 and each alternate year thereafter with the mother from 3:00pm Christmas Eve until 3:00pm on Christmas Day and with the father from 3:00pm on Christmas Day to 3:00pm on Boxing Day;
b) On each of the parents' birthdays from 3:30pm or the conclusion of school to 9:00am or the commencement of school the following day
c) For 3 hours on [the child's] birthday if the child is not otherwise living with the parent that day and in default of agreement from 6:00pm to 9:00pm.
d) On Father's Day and Mother's Day each year with the relevant parent in default of agreement between10:00am and 5:00pm on the day;
8. [The child] shall otherwise live with the father.
9. That all handovers that do not occur at [the child's] school shall occur as the parties may agree but in default of agreement at the front of [Business K] in [Suburb I].
10. Each parent shall be at liberty to communicate with [the child] by way of telephone, or Skype between 7.30 p.m. and 8:00 pm each Wednesday and Sunday, with [the child] to be free to communicate with the parent with whom he is not living at any reasonable time.
11. That the mother be restrained from requesting [the child] to engage in communication with her by way of emails, diaries and electronic and text messages, mobile phone or skype communication outside of the previous order SAVE that if [the child] wishes to communicate with the mother outside of those times, the father will not unreasonably refuse him permission to do so.
12. That the parties ensure that at all times the child is known by his full name being [B Chapman Timms].
13. That the parties shall inform the other of any change in residential address or change in landline number not more than fourteen (14) days after any such change.
14. Each party shall keep the other informed at all times of all significant medical issues affecting [the child] including any significant injury or medical condition suffered by [the child] during such time and such periods when [the child] is in the care of each of them.
15. Each party shall authorise any medical practitioner upon whom [the child] may attend from time to time to communicate with the other in respect of [the child's] medical condition and/or requirements.
16. Each party shall be authorised attend all school functions at [the child's] school to which parents are normally invited, to receive all school reports, notices and school photographs and to engage in electronic communication with [the child's] school by such means as the school may provide to parents, including but not limited to the school's portal and emails.
17. Each of the parties are restrained from abusing , denigrating or insulting the other in the presence of [the child] or allowing anyone else to so do and from discussing these Orders or their effect with or in the presence of [the child].
18. Within 7 days of the making of these Orders the Independent Children's Lawyer or such therapist as she may recommend shall explain to the child in person the meaning and effect of these Orders.
The ICL’s proposed orders
The orders proposed by the ICL were set out in a document that was provided to the Court and the parties on the final day of hearing and which was marked as Exhibit “ICL 2”. Those proposed orders, with additional amendments made during the course of oral submissions, noted in bold, were as follows:
1. The mother shall have sole parental responsibility for the child [B] born … 2003 in relation to the following long-term issues:-
a)The child's education (both current and future);
b)The child's health;
on condition that:-
c)The mother will contact the father in writing and provide her views about any such issue;
d)The mother shall consult with the father with regard to any such issues
e)The mother and father will make a genuine effort to come to a joint decision about any such issues; and
f)If no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of the decisions.
g)That notwithstanding Order 1(b) of these orders the parties be restrained by injunction from organizing, or other allowing or permitting the child to be engaged in personal counselling without the prior written consent of the father.
h)That notwithstanding Order 1(a) hereof the parties be restrained by injunction from changing the child’s enrolment of [Z School] without the prior written consent of the father or by court order.
2. In all other respects the parties shall have shared parental responsibility for the child.
3. The father shall spend time with the child during school terms as follows:-
a) Each alternate weekend from 4.00pm on Friday (or 4.00pm if not a school day) until the commencement of school on the following Tuesday (or 9am if not a school day);
b) During each of the three mid-year holidays for one week to commence at 9am on the first Saturday of the said holiday and to conclude at 6pm on the second Saturday;
c) From 3pm on Christmas Day to 3pm on Boxing Day in 2014;
d) Forone week commencing 3pm New Year's Day 2014 to 3pm on 8 January 2015;
e) From 10am on Saturday 17 January 2015 to 3pm on Monday 26 January 2015;
f) As and from the 2015/2016 long summer holidays, for one half of the said summer holidays at times to be agreed and in default of agreement for the first half of the said holiday period commencing 2016/2017 holiday period and in each alternate year thereafter PROVIDED that in any year the holidays will be calculated from the first Saturday of the school holiday period being the first day and the Saturday immediately preceding the commencement of the new school term shall be the last day of the holiday period.
g) As and from 2015, from 3pm on Christmas Eve until 3pm on Christmas Day and each alternate year thereafter and in 2016 from 3pm on Christmas Day to 3pm on Boxing Day and each alternate year thereafter;
h) On the father's and the child's birthday each year for three (3) hours (if a school day) with such time to commence immediately after school if the child is living with the mother on each of those days;
i) On the father's and the child's birthday each year for four (4) hours (if a non-school day) and in default of agreement such time to commence at 10am if the child is living with the mother on each of those days;
j) From 9am until 5pm on Father's Day should that day not fall during the father's time with the child.
…
5. That the father's time with the child shall be suspended during the following periods:-
a) On Mother's Day from 9am to 5pm each year;
b) From 3pm on Christmas Day to 3pm on Boxing Day in 2015 and each alternate year thereafter;
c) From 3pm on Christmas Eve to 3pm on Christmas Day in 2016 and each alternate year thereafter;
d) On the mother's and the child's birthday each year for three (3) hours (if a school day) commencing immediately after school if the child is spending time with the father on each of those days;
e) On the mother's and the child's birthday each year for four (4) hours (if a non-school day) commencing 10am in default of agreement if the child is spending time with the father on each of those days/
6. Notwithstanding the foregoing provisions the child shall spend such further and other time with the father upon such terms and conditions as the parties may agree in writing.
7. That the operation of paragraph 3 (a) shall be suspended during all periods of school holidays.
8. That the child live with the mother at all other times.
9. That all handovers that do not occur at the child's school shall occur as the parties may agree but in default of agreement inside the [Suburb I] Library.
10. That the parties shall take all reasonable steps whilst the child is in their care to ensure that the child communicates with the other parent by telephoning the other parent's land line between 6.30pm and 7.30prn on each Wednesday and Sunday (as applicable).
11. That the father be restrained from requesting the child to engage in communication with him by way of emails, diaries and text messages, mobile phone or skype communication outside of the previous order SAVE that if the child wishes to communicate with the father outside of those times, the mother will not unreasonably refuse him permission to do so.
12. That the parties ensure that at all times the child is known by his full name being [B Chapman Timms].
13. That the mother and father forthwith do all things necessary to reengage in family therapy with [Ms M] or [Dr FF] or her nominee (the therapist) and ensure that the child and the parties attend as directed and at the discretion of the therapist save that the period of the therapy shall be limited to a period of six months from the date of this order unless it is extended with the consent of the parties upon such recommendation by the therapist with the cost of the therapy to be shared equally between the parties.
…
14. That the parties shall inform the other of any change in residential address or change in landline number not more than fourteen (14) days after any such change.
15. Each party shall keep the other informed at all times of all significant medical issues affecting the child including any significant injury or medical condition suffered by the child during such time and such periods when the child is in the care of each of them.
16. The mother may authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other in respect of the child’s medical condition and/or requirements.
17. That the mother shall authorise the school at which the child attends to:
(a) provide the father at his expense copies of all school reports, NAPLAN results, school notices and order forms for school photographs:
(b) permit the father to attend for parent/teacher interviews (separately to the mother and in the absence of the child)
(c) permit the father to otherwise meet with the child’s teachers or school authorities to discuss the child’s education and welfare subject to such meeting taking place outside school hours
And service on the school with a copy of this order by the mother shall be taken to stand as authority for the purpose of this order.
That save as provided for in Order 17 and save for delivering the child at the school gates at the conclusion of his time on Tuesdays hearing the father is otherwise restrained from attending at the child’s school unless there is agreement reached between the mother and father on this issue with the assistance of the therapist engaged pursuant to this order.
18. Each of the parties are restrained from abusing, denigrating or insulting the other in the presence of the child or allowing anyone else to so do and from discussing the proceedings with or in the presence of the child.
19. That the parents are at liberty to provide a copy of all Family Reports and the Therapy reports, Court Judgments and Final Orders prepared in this proceeding to the therapist engaged pursuant to this order.
…
20. All previous parenting orders be discharged.
21. All applications are hereby dismissed and removed from active pending cases list.
22. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled "Parenting orders - obligations, consequences and who can help", a copy of which is annexed to these Orders.
23. That in the event that the child is over held by either parent at the commencement or conclusion of any live with or spend time with order here in the other parent shall have liberty to seek to list this matter before a judge of the family court on an urgent basis for a recovery order.
24. That the father be restrained from leaving the child unattended overnight during his time with the child.
Moderation of the Parties’ Positions
At the conclusion of evidence, the parties significantly modified their positions. Most significantly, the father did not pursue his application for orders that the child spend a period of four months exclusively in his care. The mother indicated she did not pursue her application for the child’s surname to be changed to remove reference to Timms. The parties were also able to resolve an issue that had prevented the parties applying for a passport for the child. The parties and their legal advisors are to be commended for the parties moderating their positions.
The father’s proposed orders were contained in Exhibit F5 which was tendered during the course of the father’s submissions on 11 August 2017 and read as follows:
1. Parties shall have equal shared parental responsibility for [the child] save that the mother shall have sole parental responsibility for [the child’s] education.
2. The mother hereby be and is hereby restrained from changing [the child’s] school from [Z School] without the consent in writing of the father.
3. The parties shall attend with the child upon [Dr FF] for therapy such as she may recommend, the cost to be shared equally between them.
4. [The child] shall live with each parent week about during school term, and half of each school holiday period.
5. ‘Special’ days as per ICL’s minute of proposed orders.
6. Handovers to take place at school, and if not school day, at the home of [Ms and Mr BB].
7. Orders as per nos. 12, 13, 14, 15 + 16 of father’s outline.
8. That in the event [the child] does not present for the commencement of any live with Order herein the parent with whom that time was to commence shall have liberty to list this matter before a Judge of the Family Court on an urgent basis for a recovery order to issue to return [the child] to the care of the parent with whom [the child] was meant to live.
Unfortunately, counsel for the mother did not have the opportunity of preparing a detailed minute in response to the orders proposed by the ICL, however, the mother provided a document titled “Concept of mother’s spend time and other orders”. The document was marked Exhibit W13 and was as follows:
Time:
1. Fortnightly spend time with the father from 3pm Saturday, pick up from [Suburb I Library, …, Suburb I] until 8am Monday morning when the father shall drop the child off at [Z School] gates.
1.1 Time to increase at child’s wish.
1.2 If [the child] is not present at the [Suburb I] Library, at pick up time, father must communicate with the mother via text within 30 minutes of the scheduled time.
1.3 The father must not enlist the aid of Victoria police to enforce spend time should the child resist pick up.
2. The father to respect the child’s wishes if [the child] says to him he does not wish to spend time with him and not use any force upon [the child] or make repeat contact with the mother regarding [the child’s] expressed wish.
Holidays & Special Days
3. School holiday time from 3pm Friday until 3pm the following Friday of the first week of each end of term school holiday period.
4. Special days (father’s, child’s birthdays, Father’s Day, Christmas Day and Easter Sunday) 3 hours from after school on a school night or from 11am – 2pm on the weekend should that day fall on a weekend day.
School functions
5. The father is at Liberty to attend [the child’s] Parent teach learning discussion interviews (Parent teacher interviews)
Celebration (speech) night
Graduation dinners
6. The father be at liberty to obtain a copy of each of [the child’s] school reports at his own cost (Same as current).
7. No ordered phone calls, emails or any digital media by the father to [the child].
7.1 [The child] to communicate with the father by telephone whenever he wishes.
7.2 Father or others on his behalf are restrained from contacting [the child] by phone or any other means, digital or otherwise, [the child] to initiate contact.
OTHER ORDERS
Non denigration of the other parent and family while [the child] is in their care.
In addition, the mother indicated that she had no opposition to a number of orders proposed by the ICL. Those orders which were not opposed were orders 10, 11, 12, 14, 15, 16, 18, 24 as well several other non-controversial orders relating to procedural matters.[6]
[6] Transcript of proceedings dated 11 August 2017 at pages 499-502.
The mother opposed proposed order 17(c) as result of tensions that have occurred in the past. As the ICL pointed out, however, that the proposed order would apply in circumstances where the child would not be at school.
The mother also agreed that there should be some counselling but, for reasons that will be discussed below, opposed that counselling being provided by [Dr FF].
Evidence and witnesses
The mother relied upon the following documents:
a)Affidavit of the mother dated 1 August 2017 (filed in Court on 7 August 2017);
b)Affidavit of the mother affirmed on 8 May 2017 and filed on 9 May 2017. This affidavit was originally sworn on 8 May 2015 filed on 17 June 2015 and appears to have been re-sworn and filed again for the purpose of these proceedings;
c)Affidavit of the mother affirmed on 16 June 2017 and filed on 23 June 2017;
d)Affidavit of Mr HH Chapman sworn 3 May 2017;
e)Affidavit of SC DD sworn 28 June 2017;
f)Affidavit of Ms II sworn 18 June 2017;
g)Affidavit of Ms JJ sworn 3 May 2017; and
h)Affidavit of Ms KK sworn 4 May 2017.
The father relied upon the following documents:
a)Affidavit of the father sworn and filed on 8 June 2017;
b)Affidavit of the father sworn 28 July 2017 (filed in Court on 7 August 2017);
c)The father was also cross-examined in respect of the content of his affidavit sworn on 30 May 2017. The father indicated, however, that that affidavit had been superseded by his affidavit filed on 8 June 2017. While there was substantial overlap between the two affidavits, the father was cross-examined in respect to several areas of difference; and
d)Affidavit of Ms BB sworn 21 July 2017.
The ICL relied upon the following documents:
a)Two reports of Ms M dated 21 August 2015 and 19 July 2017; and
b)Affidavit of Dr FF affirmed on 13 July 2017 with annexed report dated 28 February 2017.
credibility of witnesses
There were aspects of both the mother’s and father’s evidence that were unsatisfactory. There were also aspects of evidence provided by the father’s sister, Ms BB, which I also found to be unsatisfactory. I discuss those instances below in respect to the findings I make. I do not, however, make any general findings regarding the credibility of any witness in these proceedings.
parenting matters
The Law - Concepts and Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[7] Article 12 of the Convention provides:
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[7] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (section 43(1)(c)).
The presumption of equal shared parental responsibility
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, section 61DA(4) provides that the presumption “may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child of the child’s parents to have equal shared parental responsibility for the child”.
The father agreed to the mother having sole parental responsibility in respect to the issue of education but not in respect to other issues. That concession was, however, on the basis that the parties would be restrained from changing the child’s current school without the consent of the other party. That restraint was agreed to by both parties.
The father’s opposition to the mother having sole parental responsibility in respect to other matters was primarily motivated by a concern that the mother may take the child out of the jurisdiction.[8] However, the father has not presented evidence that satisfies me that there is a risk of the mother removing the child from the jurisdiction. In those circumstances, the father’s concerns are, in my view, adequately addressed by section 65Y of the Act which relevantly provides:
[8] Transcript of proceedings dated 11 August 2017 at page 458.
Obligations if certain parenting orders have been made
(1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
Penalty: Imprisonment for 3 years.
Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).
(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
The parents have been engaged in litigation for six years which is nearly half of the child’s life. I accept the evidence of Ms M that the level of animosity between the parents is such that it would be impracticable for them to exercise shared parental responsibility. I am satisfied that it would not be in the child’s best interests for that to be the case.
As there will not be an order for equal shared parental responsibility, the pathway set out in section 65DAA does not apply and, in those circumstances, the Court is required to make such orders that it considers to be in the best interests of the child without being constrained by the presumption that the child should spend equal or substantial and significant time with each parent.
Paramount consideration in making parenting orders
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in section 65DAA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations are set out in section 60CC(2). Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).
Additional Considerations
Section 60CC(3), sets out additional considerations in determining what is in the child’s best interests. I will discuss those considerations in greater detail below. Those considerations can conveniently be grouped under the following topics:
· Issues relating to the children – their views, level of maturity, culture and relationships.
· Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility.
· Issues of family violence.
· Effect of change.
· Practical difficulty of implementation of orders.
· Avoiding further proceedings.
· Other relevant matters.
Applying Section 60CC Considerations
Primary considerations
Meaningful relationship
In this matter, both parties acknowledged that it is in the child’s best interests to have a meaningful relationship with both parents in terms of section 60CC(2)(a). I accept that to be the case.
In McCall & Clark[9] the Full Court accepted that an appropriate interpretation of the concept of “meaningful relationship” was provided by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at paragraph 26, where His Honour said:
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. (emphasis added)
[9] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
While it is clear that, at the present time, the child does not have a meaningful relationship with his father, the Full Court in McCall & Clark (supra) at paragraph 117, referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
The Full Court in McCall & Clark (supra) continued at paragraph 122:
… No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In this matter, Ms M suggested that in the short term it may be kinder to relieve the child from the pressure of having to re-establish a relationship with his father. Ms M summarised the dilemma as follows:
The dilemma is that while it might be kinder to [the child] to allow him to sever his relationship with his Father as [Dr FF] notes, to do so comes at a risk of losing a relationship and family connections which have much to offer; and at the risk of future psychological harm.[10]
[10] Family Report of Ms M dated 19 July 2017 at [53].
On the other hand, both Ms M and Dr FF expressed the view that it is in the long-term interests of the child for him to have a meaningful relationship with both parents.
In that context, at page 18 of her report, Dr FF stated:
I’m concerned that [the child’s] future psychological health will be adversely affected by his regrets and remorse at his actions and decisions at this point in time when time and development will likely give him greater perspective.
In her 2015 report, Ms M stated that “Children who are denied being with a parent, have a high risk of being emotionally and psychologically damaged and issues arise in adult life”.[11]
[11] Family Report of Ms M dated 24 August 2015 at [44].
The issue before the Court is, therefore, one of balancing orders that are likely to create short-term stress and anxiety for the child in compelling him to see his father, contrary to his stated wish, as against the child’s long-term best interests of having a meaningful relationship with both parents.
In Finton and Kimble,[12] Walters J said that, in seeking to discharge the Court’s broader obligation to make orders that are in the best interests of the child:
…the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship: see Mulvaney & Lane (2009) FLC 93-404 at [89] and Champness & Hanson (supra) at [103]. As the Full Court said in Jurchenko & Foster [2014] FamCAFC 127 at [123]:
… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.
[12] [2017] FCWA 106 at [37].
As will be discussed, the child has unequivocally stated that he does not wish to spend time with his father. However, both Dr FF and Ms M question whether the child’s stated views reflect his actual wishes. The position is best summarised in the oral evidence of Ms M where she said:
I think a big – a significant factor for [the child] is that he feels that he doesn’t have the – the consent of his mother, the support of his mother, and so what I’m hearing from him, the reasons that he gives don’t seem to be substantial or reflect his actual lived experience. So overall, I think, you know, there are some positive elements of his relationship with his dad. I think they do enjoy doing things together. He may not say that – in fact, he would deny that – but I don’t think that is actually the case. I think there are things that he enjoys with his father, and I think that there is ample opportunity to be able to share things together. You know, if he spends time with his dad, I’m sure there’s ample things that they can share together which they have done in the past.[13]
[13] Transcript of proceedings dated 10 August 2017 at page 404.
In considering the amount of time that the child should be ordered to spend with his father, it should be borne in mind that “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.[14]
[14] Godfrey & Sanders [2007] FamCA 102 at [36]; Moose & Moose (2008) FLC 93-375 at [70]; [2008] FamCAFC 108.
In Cotton & Cotton,[15] Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:
…that desirability only operates when there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contacts sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
[15] (1983) FLC 91-330 at 78,252.
I agree with that qualification.
Both parties ultimately accepted the opinion of the experts in this matter, that it is in the long-term interests of the child for him to have a meaningful relationship with both parents and, most relevantly, his father. I propose to make an order with a view to achieving that outcome. Whether the child actually benefits from the order depends upon whether the parents can fundamentally shift their mindset from focusing on the bitterness of their own dispute to one that focuses on the long-term interests of the child.
The following statement by Ms M succinctly states the reality that:
… [the child] will not be able to connect and have a meaningful relationship with his Father unless he has unequivocal support from his Mother; after which it will be incumbent on [Mr Timms] to ensure he responds appropriately to [the child’s] needs and not risk their relationship.[16]
[16] Family Report of Ms M dated 19 July 2017 at [46].
In the circumstances of this matter, it may be the case that, as result of their own conduct, the child will never have an optimal relationship with either parent. The immediate task is to make orders in an attempt to restore the child’s relationship with his father without exposing the child to further psychological harm as a result of being caught in the middle of his parents’ conflict. That would occur, in my view, if a situation arose where coercive force was utilised to enforce these orders. I am therefore of the view that the orders should provide for the child to spend a relatively limited amount of time with the father with the provision to facilitate that time increasing on a graduated basis if and when the child’s relationship with his father improves and the parties are able to reach agreement.
The alternative approach of making orders for the child to spend a substantial amount of time with the father to take effect from or shortly after the making of these orders is, in my view, likely to be a futility, as the child is unlikely to comply with any such order. As I have indicated, the circumstances of this matter are such that it would be quite inappropriate for coercive force to be applied to enforce the orders and force the child to spend time with his father.
Unacceptable risk
Determining whether a child would be at an unacceptable risk in spending time with a parent involves a balancing exercise. In B and B,[17] the Full Court described the task as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access” and specifically whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
[17] (1993) FLC 92-357 at 79,778.
As noted, in this matter, both Dr FF and Ms M expressed the view that the child will experience short-term distress and anxiety in being compelled to spend time with his father. Despite that, however, both of the experts advised that it is in the child’s long-term interests. The position was succinctly summarised by Dr FF in the course of giving oral evidence in the following terms:
That’s why I say in my report that it might be kinder, might be kinder to discard that relationship with his father in lots of ways because it is quite a traumatic thing that we might be asking [the child] to do in those circumstances.
Albeit that it may be kinder, is it in his best interests?---I don’t think so in the long-term. Maybe in the short-term it would relieve some stress on him, he would probably do better at school, he would probably be more focused, he would probably feel more confident. In the long-term I don’t think it’s addressing this underlying psychological disturbance that he’s had over most of his life. His parents haven’t been able to resolve it for him. I think as he grows, he is likely to become more critical of his mother as he gets a broader perspective and I think that relationship is at great risk because he will understand from an adult perspective about some of the things that his mother might have said to him or told him and understand it with greater sophistication at that point. And adults in that circumstances generally start to question, challenge and then discard those parental relationships.[18]
[18] Transcript of proceedings dated 10 August 2017 at page 364.
I accept that there is a short-term risk in compelling the child to spend time with his father in that it will cause distress and anxiety. In fact, as indicated by Dr FF, it is likely to be quite traumatic.
Nonetheless, the longer term consequences for the child of permanently losing his relationship with his father justifies making orders for the child to spend time with his father despite the clear expression of his wish not to do so.
Section 60CC(3) Considerations
Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
I have some concerns with the mother’s assertion that on the Friday prior to the commencement of the hearing, she found a note purportedly written by the child in the boot of her car. That note was entitled ‘What Makes Me Scared of My “Dad”/[Mr Timms]’ and read:
[Mr Timms] makes me so scared, I don’t even feel safe, yes [Dr FF], you’re probably wondering how and why he makes me feel unsafe, that’s because on parent teacher interviews he just waltzed up to the school without anyone doing anything until I noticed he was there! So I have this fear of going to school every day living with the possibility of him showing up and either stealing me, hurting me or hurting someone that supports me. I feel so scared I can’t even do well at school, I am failing important tests because of him![19]
[19] Exhibit W3.
The mother asserted that she sought to rely on that handwritten note in order to place “[The child’s] words and his voice” before the Court.[20]
[20] Transcript of proceedings dated 7 August 2017 at page 9.
The mother agreed that the reference to [FF] is a reference to the single expert Dr FF.
In circumstances where the child had not seen his father since 27 October 2016, it is, in my view, implausible that the mother would have recently discovered the note. I am also concerned that the handwriting on the note is in two distinct sizes which raises an issue as to whether it was written in one sitting.
While the evidence is not such that I can be satisfied that the note was a contrivance, I place no weight on it as representing the current wishes of the child.
Nevertheless, the child has stated to both Dr FF and Ms M that he does not wish to see his father. In that respect he advised to Ms M that “Mum doesn’t want me to and I don’t want to”.[21]
[21] Transcript of proceedings dated 10 August 2017 at page 406.
At paragraph 34 of her affidavit sworn on 8 May 2017 the mother stated that on 2 June, 2015:
At [the child’s] insistence, as he said “can I see the police because I need them to protect me”. I took him to the [Suburb CC] Police Station where he spoke to Leading Senior Constable [DD] for 45 minutes. The child said he needed protection from his father and said to Constable [DD], in my presence, he is “scared that his father will lock him up in the house and he was scared he would – his mother.”. The child spoke with Constable [DD] about his fears of physical abuse and that he was left alone in his father’s house from Friday night until Saturday morning.
During cross-examination, the mother stated that, as a result of concerns that the child had expressed about being left unattended on Friday nights at his father’s place and concerns that he had expressed about his father’s aggressive presentation including in exchanges with a neighbour, that “[she] decided to take him to see the youth officer for a chat”.[22]
[22] Transcript of proceedings dated 7 August 2017 at page 55.
The statement taken by Constable DD relevantly records:
4. My notes reveal that [the child] then spoke to me about what he said had been happening at his father's house. [The child] was not prompted by his mother at all and spoke on his own behalf. His mother was present, but [the child] spoke for himself. I recall he was articulate and spoke well. He seemed like quite a smart boy.
5. He said he goes to his father's house every second weekend. He doesn't enjoy the time with his father for a few reasons, his father swears a lot, he swears at the neighbours. He said his father and his family "bag" his mother and "her side of the family" all the time and says they are manipulative and racist. He says he is intimidating and his family gang up on people.
6. [The child] said he is kept up late at his father's house as they go out visiting people and get home very late and he gets tired.
7. [The child] said to me he is left alone by himself overnight which makes him scared.
The father contends that it was inconceivable that the child, of then 11 years of age, would make such a momentous decision to exclude his father from his life if he had not been subject to concerted pressure by his mother with a view to bringing about that situation.[23]
[23] Transcript of proceedings dated 9 August 2017 at page 214.
The child’s outward display of reluctance to spend time with his father was most graphically demonstrated at an event which occurred on 27 November 2015 when the father attended a graduation ceremony marking the end of the child’s period in primary school.
Ms KK is the mother of another child who attended the same school as B and was in attendance on that evening. In giving evidence in these proceedings, she agreed with the propositions put to her by counsel for the father that, in circumstances where the child had been advised on the day before the event that his father was going to attend, that he displayed signs of fear and anxiety and distress prior to his father’s arrival. Ms KK stated that the child’s “eyes were flicking in a nervous way around the room” prior to his father’s arrival and she agreed with counsel for the father that the child appeared to be in “pain”.[24]
[24] Ibid at 197.
The mother and Ms KK contended that the child’s visible distress was due to his concern about the impending arrival of his father. The father contended, however, that the child’s distress related to the fact that he had been placed in a position where he was facing a “test of loyalty”.[25]
[25] Ibid at 198.
Shortly after his father arrived on 27 November 2015, the child unequivocally stated his views when he approached his father, who was sitting on a table with another group of parents, and advised his father, in front of those other parents, that he wanted his father to leave. The child stated to his father “please stay out of my life”.[26]
[26] Ibid at 292.
The father confirmed that the child was emotionally distressed at the time and when he was speaking to his father the child was “shaking”.[27]
[27] Ibid.
A further attempt at reconciling the child’s relationship with his father occurred on 9 March 2017 when, through their lawyers, the parties agreed that they would arrange for the child to sleep over at his father’s home on that evening. In accordance with those arrangements, the father attended the child’s school at 3.30pm to collect the child. Unfortunately, the child refused to go with his father and requested to be taken to the Deputy Principal’s office in the presence of a school counsellor to wait for his mother to collect him.
Despite the child’s statement that he is unwilling to spend time with his father, Dr FF has observed that the child has a pleasant relationship with his father. For instance, at page 8 of the report Dr FF observes in respect to one therapy session:
The session between [the child] and his father was pleasant and [the child] rejected overtures to discuss any problems and issues with his father. As usual, [the child] scowled on his return to his mother appeared to be attempting to provide a different impression to her.
There is evidence that the child modifies his presentation in respect to his father when he is in the company of his mother. In that respect in her report, Dr FF records an event on 27 October 2016 in her consulting rooms where she described that “[The child] was belligerent and angry when in the presence of his mother”. Dr FF subsequently described that:
After I asked [Ms Chapman] to leave the room in order for me to speak to [the child] alone, [the child] calmed down immediately and I had a frank discussion with him about manipulation of both parents that we’ve seen over therapy.[28]
[28] Report of Dr FF dated 13 July 2017 at page 9.
In her report of 28 February 2017 Dr FF also makes the following observations that occurred in her first session with the child in February 2016:
[The child] was adamant that he did not want to see his father. He argued in a highly articulate way, but gave superficial and unconvincing arguments for his position and showed high levels of anxiety.[29]
[29] Report of Dr FF dated 28 February 2017 at page 6.
Dr FF reported that in subsequent sessions “The child argued in front of his mother that he did not wish to see his father, but when he then consented to see his father, the sessions with his father were calm, friendly and relaxed”.[30]
[30] Report of Dr FF dated 13 July 2017 at page 6.
In her report of 19 July 2017 Ms M notes that the child’s “responses and comments about his father were largely rehearsed”.[31]
[31] Report of Ms M dated 19 July 2017 at [26].
At paragraph 17 of the report Dr FF observed:
The conclusions of the reportable counselling are that both parents are inclined to manipulate the child and, as so eloquently discussed by [Ms M], the child appears to have resolved the problem of not being able to have a relationship with both of his parents by forming an alliance with his father in the first instance some years ago and now with his mother. That both parents have allowed this to happen does not reflect well on them.
I accept that observation as being an accurate summary of what has happened in this case.
Despite the child saying that he does not wish to see his father, I am satisfied that he has not closed his mind to the prospect of his relationship with his father being restored. In that context, I note the child’s comments to Ms M regarding the therapy that he attended with Dr FF that she was “okay” and that the child thought “she would solve the problem.” It can reasonably be inferred that the “problem” referred to by the child was his severed relationship with his father.
As noted, both experts are of the view that, as result of the manipulative conduct engaged in by both parents, the child has adopted a protective mechanism of aligning himself with one parent so that he is not constantly caught in the middle of his parents’ conflict fuelled by their mutual disdain for each other.
Both experts cautioned, however, that while the child’s decision to align himself with one parent was, from his perspective a legitimate and understandable strategy, it was not in his long-term interests. In that respect, I have earlier referred to the opinion of both experts, which I accept, regarding the potential adverse long-term psychological consequences for the child as result of disengaging from his father at this stage of his life.
In that context, in the course of giving oral evidence Dr FF said:
I think there’s some danger in listening to those wishes [that the child does not want to spend time with his father] as well because I don’t think they’re true, I don’t think they’re true for him. I’ve seen huge contrasts in his behaviour between what he says and the way he behaves. I think he’s a very mixed up boy and I think he will live to regret expressing those views and I think there’s very limited opportunity for any sort of intervention for this child and the outlook is so worrying for him that there’s very few opportunities left.[32]
[32] Transcript of proceedings dated 10 August 2017 at page 363.
Dr FF also reported that the child has been far more intense in expressing his opposition to spending time with his father when he has been in the presence of his mother. Moreover, the child’s reasons for not wanting to spend time with his father are relatively trivial. These are set out in Exhibit SMC1 to the mother’s affidavit filed on 23 June 2017 and also in Exhibit W3. Exhibit SMC1 is an email sent by the child to Dr FF on or 10 July 2016 setting out the reasons “I don’t want to see my dad” and reads as follows:
To [Dr FF],
The reasons I don't want to see my dad and get everything else I want done are:
He Is An Absolute Idiot, he is stupid. He Is uncaring.
He is a bad parent and general person.
He is nasty, he is an asshole, moron, and a typical liar!
I want my passport signed but he won't sign it without him being the emergency contact but he can't be the emergency because if something happens I go right back to him and that will create problems for me and him.
I want my name legally changed to [B Chapman].
When I lived with him I was scared, felt like was under threat, spoilt, became fat, he forced me to play games I hated like Call Of Duty (MA15+), Grand Theft Auto 5 (Rl8+), Watch_Dogs(R18+), Battlefield 4 (MA15+). His family is pushy, unhygienic, mean, nasty, immature (example: They swore, gambled, racist, sexist, and were nasty about my mother.) His house was cold never having real heating. He has 53 pictures of my face around the house. (Extremely creepy). It was dirty, dusty, smelly, he once bought me a SWORD. All around an exorbitantly horrible place to be. I dreaded those 5 days I was with him.
I've been telling you and everyone else about this for more than a year, so please, the reason why I'm writing is because I need my name changed, my passport signed, for him to NEVER go close to school grounds or look at my online things, and finally, to NEVER EVER see him again unless I want to.
Kind regards,
[B Chapman]
On the other hand, in an interview with Ms M, the child expressed the view that his father was “lying” and Ms M noted that “at the conclusion of the interview, he asked the writer to pass on a cautionary note to the judge, “don’t fall for his tricks”.[33] The report of Ms M does not refer to the context in which the child accused his father of lying, however, at paragraph 29 of her report dated 24 August 2015, Ms M notes that she challenged the child in respect to his assertion that his father had left him on his own on Friday nights into early Saturday morning as result of the father attending the Suburb BB markets to establish his weekend stall. Ms M noted that the child insisted that it was he and not his father who was telling the truth. For reasons that I set out below it is my view that the child is in fact being truthful in respect to that matter and his father is not.
[33] Report of Ms M dated 19 July 2017 at [31 - 32].
Accordingly, it is not possible to simply dismiss the concerns that the child has expressed about his father’s character flaws as being views which are not genuinely held by the child.
In summary, I accept that the child has overstated his reluctance to spend time with his father and I accept that there is some prospect of his relationship with his father being restored. On the other hand, it would, with respect, be naive on the part of the father to attribute the entirety of the child’s reluctance to spend time with him to the actions of the child’s mother. In short, the father should have his eyes open that there will be a need for him to mend some bridges with his son and he should allow a period of time for that to occur.
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
The father also showed some capacity to be child-focused when, despite some reluctance, he agreed with the recommendations of Dr FF that he should give the family dog to the child to live with him at his mother’s house.
The father also showed capacity to be child focused in agreeing that the child would continue to attend his current school at Z School for so long as the child is happy to attend at school.[84]
[84] Transcript of proceedings dated 10 August 2017 at page 341.
It is also to the father’s credit that he accepted the validity of criticisms of his behaviour that were included in the decision of Berman J to which I have earlier referred. Specifically, the father acknowledges that his behaviour was “inappropriate” but he states that he has now “rectified” that behaviour.[85]
[85] Transcript of proceedings dated 9 August 2017 at page 224.
Finally, and most significantly, in respect to parental responsibility, the father acknowledged that steps are required to protect the child from continuing to be involved in the disputation between his parents. In that respect the father responded to a question from the ICL as follows:
ICL
But I’m talking to you about him where the experts have indicated that the changeover is – where it’s difficult for this little boy. You both being involved equally in his life, in terms of having to deal with him on an equal basis week by week, and having to deal with him – deal with his schoolwork, and deal with excursions, and assessments, and extracurricular activities, all those things that require an enormous level of cooperation and communication between you and his mum, for that sort of thing to work, to put him in that situation where there’s no prospect of that relationship improving significantly really could be potentially very damaging for him. Do you agree?
Father
Look, I agree. I agree. It’s – it’s a difficult – like I said, we’re on the crossroads now with this little boy.[86]
[86] Transcript of proceedings dated 10 August 2017 at page 346.
I accept that, since that the decision of Berman J, the father has not engaged in the same level of manipulation of the child as was identified by his Honour, and, indeed, there are indications that he is making a positive effort to change. Nevertheless, it is clear that the father continues to engage in some manipulative conduct that adversely impacts upon the child. In that context, Dr FF referred to a therapy session in which the father spoke to the child about the recent death of his uncle and that his uncle had died in circumstances where he had wanted to but had been unable to see the child. Dr FF described the impact of the conversation in the following terms:
And then we had the meeting with [the child] and his father, and his father spoke about his uncle [Mr PP] who had died and wanted to see [the child] and [the child] became upset. And I talked with [the child] that it was really unfair of the way his father had done that to make him feel sorry for him. And it was quite manipulative and I challenged [Mr Timms] about it.[87]
[87] Ibid at page 384.
In short, as I have previously indicated, both parents have engaged in conduct that can only be described as grossly irresponsible in circumstances where they have been on notice as to the impact that their conduct is having on the child. It is, however, encouraging that during the course of the proceedings, both parties have significantly modified their positions of entrenched conflict.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
Counsel for the mother submitted that this consideration “is not going to be a consideration your Honour takes into account as a current consideration” but, rather, that his client “says in the residual part of her case, namely, when she lived with the father it was an abusive domestic violent relationship” and, further, that there were occasions where the child witnessed that conduct.[88]
[88] Transcript of proceedings dated 11 August 2017 at page 511.
In that respect, the mother asserts that during the course of the parties’ relationship the father engaged in coercive and controlling conduct that amounts to family violence. The mother does not allege that the father physically struck her but alleges that he used his physical presence in an intimidating way.
The father denies the mother’s allegations that he engaged in controlling and coercive conduct or otherwise engaged in acts that would constitute family violence.
In an affidavit affirmed by the mother on 8 May 2015, the mother gave evidence alleging that the child was in fear of his father including having a fear about physical and emotional harm. However, that affidavit does not contain any reference to any particular incident of physical violence perpetrated by the father.
In the course of giving oral evidence, the mother appeared to withdraw from her assertions that she and the child had been subject to physical violence perpetrated by the father. In that respect the mother stated that “I’m not saying physical assault … I’m saying he threatened me. He chased me around the house”.[89]
[89] Transcript of proceedings dated 7 August 2017 at page 37.
The mother asserted that that prior to swearing her affidavit on 8 May 2017, she has not previously provided particulars of incidents where the father has been violent because she wants to protect the child from “ever reading the stories” of her relationship with the father.[90]
[90] Ibid at page 23.
At paragraph 7 of the mother’s affidavit sworn on 8 May 2017 under the heading ‘Brief History of Relationship with the Respondent’ the mother asserts:
…not long into our relationship, the respondent started behaving aggressively and sometimes violently towards me, often physically abusive.
The mother further asserted:
He often pursued me around the house, chasing me and would “trap” me in the bedroom or kitchen, this was common behaviour … he would pursue me until I would cry or be “broken” in some way. I often felt frightened and concerned, particularly after [the child] was born, in case he saw what was happening.[91]
[91] Affidavit of the Mother filed 8 May 2017 at [7.1].
The mother stated that “[The child] did in fact observe the respondent’s behaviour towards me, and as he got older, he also became a target of the Respondent’s anger”.[92]
[92] Ibid at [8].
The mother further stated that “on occasions, [the child] hid under the bed to avoid the respondent’s furious anger. He was also exposed to the Respondent’s aggression and bullying”.[93]
[93] Ibid at [8.1].
However, when pressed to identify instances where the father had been physically violent towards the child the mother stated:
The level of violence that [the child] has experienced is the manipulation, the requirement in everything that he does to show his dad that he hates me and he hates the life with me and he hates his school and he hates my family and he hates everything about everything he does when he’s with me. He had to do that all the time.[94]
[94] Transcript of proceedings dated 7 August 2017 at page 30.
Under cross-examination the mother clarified that she has “never described the child as going off to his dad’s as a situation of physical danger”.[95]
[95] Ibid at page 39.
The mother also responded, in the affirmative, to the question posed by counsel for the father that, even though the mother contended the child had hid under his bed and was often exposed to aggression and bullying, that, in the period immediately following separation, she “sent him off to see his father and he went quite happily”.[96]
[96] Ibid at page 36.
Under cross-examination the mother was asked to explain why, in her affidavit sworn on the 8 May 2017 she included her allegations that the father had engaged in acts of family violence. Specifically the mother was asked:
The reason they’re there is, your painting a picture that he’s a violent, unpredictable terrible man. That’s why you have got all that stuff in your affidavit; do you accept that?
The mother responded:
Yes. He is.[97]
[97] Ibid at page 40.
The mother’s allegations of the father having engaged in conduct that constitutes family violence are very general. In the absence of evidence of specific events, I do not make a finding that the father has engaged in acts of family violence against the mother and this issue is not relevant to my consideration of appropriate parenting orders.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
I have referred to the Interim Intervention Order made on 4 June 2015 against the father, on the mother’s application, with the child named as the ‘Affected Family Member’.
That application is more relevant to the fact that it is the outcome of the child’s expression of concerns regarding his father to Constable DD. I do not place any weight on the order in terms of it evidencing that the child is at risk in his father’s care.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Requiring the child to spend time with his father will represent a significant change for him because, other than in therapy, he has not spent time with his father since June 2015.
Nonetheless, at the conclusion of proceedings, the parties accepted the view of the experts that it is in the child’s long-term interests to commence spending time with his father.
However, in the context of the parties’ acrimonious relationship and the strong expression by the child of his desire not to spend time with his father, I agree with the submission of counsel for the mother that the orders should facilitate the child spending time with his father on an incremental basis. Accordingly, the orders will specify a minimum period of time that the child will be required to spend with his father but facilitate the parties reaching agreement for the child to spend additional time with his father as he becomes more comfortable and in circumstances where the parties are able to agree that it is appropriate.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Both parties agreed that this consideration is not relevant on the facts of this matter.
Avoiding further proceedings
Section 60CC(3)(l) requires the Court to consider 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 child has spent half of his life caught in “no man’s land” between his litigating parents. As evidenced by the following exchange between counsel for the mother and Dr FF, this has been a disaster for him:
Let me put this to you. What would happen if there was further litigation in this case, that’s to say some further application by one or other of the parties for breach of orders? How would that affect [the child]?
--- It would be terrible because his parents have been litigating most of his life. Yes. It would be a disaster for him, wouldn’t it?
--- It’s one of the factors in a terrible situation.[98]
[98] Transcript of proceedings dated 10 August 2017 at page 374.
The parents in this case are both driven people. To date they have failed to appreciate the impact that their obsession with their own dispute has had on their son. In light of that history, it is quite possible that there will be ongoing litigation between these parties. If that were to occur it is likely that the child will suffer further psychological injury. Indeed it is not simply possible - it is entirely foreseeable.
While it is not directly relevant to my decision, it is my recommendation that if the parents embark on further litigation, the ICL should advise the child of his right to have his own separate representation and to facilitate the child obtaining advice as to any additional rights that he may have.
Other relevant matters
Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
With the assistance of their legal advisors, the parties reached an agreement in March 2017 for the child to spend an overnight with his father. The mother insisted that the point of changeover be the child’s school. Under cross-examination the mother stated that the reasons for her insisting upon the school being the point of changeover was that, in circumstances where the child had not seen his father for some time, she thought it was appropriate for the child to “have people around him who he trusts”.
Counsel for the father, however, contended that the mother acted “manipulatively and dishonestly” in insisting on the school being the point of changeover. It was suggested, to the mother, that in circumstances where her brother was a director of the child’s school and that her family had had a long association with the school that the mother proposed the school as the point of changeover for the purpose of obtaining evidence to use in the litigation against the father.
It is commonplace for the Court to make orders for the point of changeover to be at a child’s school. However, in the particular circumstances of this matter, I am of the opinion that there is a real risk that the child will not accompany his father if the father attempts to collect the child from his school.
As previously indicated, there was a significant incident where the child has been distressed by his father arriving at school. The incident concerned the father’s attendance at the formal event to mark the end of the child’s attendance at primary school on 27 November 2015. While the father had given notice to a teacher that he intended to attend the formal, it would have been preferable for the mother to have been informed of the father’s intended action and for the parties to have discussed the possible impact on the child.
A child is entitled to have their school as a safe haven from their parents disputation and, in the context of parental conflict, it can be quite unsettling for a child for a parent to turn up at their school unannounced.[99]
[99] Ibid at pages 389 – 391.
In those circumstances, I agree with the ICL that it is appropriate for there to be restraints in place to restrict the parents from attending the child’s school in circumstances other than where parents could ordinarily be expected to attend as result of a formal event or invitation or to collect the child from school.
The parties agreed that it will be necessary for some ongoing therapy to restore the child’s relationship with his father. The mother contended that therapy should be minimal. The father contended the therapy should be indefinite and ongoing. The father further contended that the best person to provide the therapy is Dr FF.
In my view Dr FF is the best person to provide therapy with a view to restoring the child’s relationship with his father. However, in circumstances where Dr FF’s husband has previously acted in property proceedings on behalf of the father it would not be appropriate for me to make an order mandating that therapy be provided by Dr FF. Instead, I propose making an order that therapy is to be provided by a person agreed between the parties and, in the absence of agreement, with the mother providing three names of potential therapists and the father having the opportunity of choosing one of those three therapists has proposed by the mother.
Orders in the context of section 60CC considerations
I am satisfied that the child has been the subject of manipulative conduct on the part of both parents aimed at distancing him from the other parent.
In the father’s case, this primarily occurred prior to 19 May 2014 when Berman J delivered his judgment detailing the impact of the father’s conduct.
While the mother’s conduct has not been as blatant as that which had been engaged in by the father, she has nonetheless subtly undermined attempts to restore the child’s relationship with his father.
The child’s statements that he does not wish to have a relationship with his father are clear. However, I accept the views of both Dr FF and Ms M that those views are not genuinely held and that there is a prospect of restoring the child’s relationship with his father.
Requiring the child to spend time with his father will, in the short-term, be quite distressing for him and may even be traumatic. Nonetheless, I am satisfied that there are significant adverse long-term psychological and social consequences for the child if attempts are not made to restore the relationship with his father.
I am therefore satisfied that orders should be made for the child to spend time with his father. It is to the credit of both parties that, ultimately, after hearing the expert evidence in this matter, they both agreed that that course of action was appropriate.
The question becomes, however, how much time should the child be required to spend with his father and when that should occur.
Neither expert was prepared to be specific as to the amount of time that they recommended. Ms M disagreed with the father’s proposal in respect to a shared care arrangement. Her views were expressed in the context of the father’s original application for the child to spend a period of four months in his exclusive care, however they are nonetheless relevant and are as follows:
Separating [the child] for four months from his Mother as [Mr Timms] proposes, will have limited benefit principally because of [the child's] age. He is old enough and determined enough to stand his ground. At the conclusion, he will be exposed to the same toxic influences and environment. The week about proposal has little advantage for the same reason but also as it ignores the fundamental factors necessary for shared care including but not limted (sic) to co-operative and aligned parenting, effective communication, close geographical distance, etc.[100]
[100] Report of Ms M dated 19 July 2017 at [54].
Dr FF expressed the view that the amount of time the child spends with his father should be significant. In that respect she said:
Long periods of time with each parent so that that psychological divide is not, you know, a revolving door of emotional rollercoaster of moving between parents and having this parental conflict to the fore of his mind as much as possible. So if he was spending significant time with both parents, he would have time to relax with both parents.[101]
[101] Transcript of proceedings dated 10 August 2017 at page 369.
I agree with Ms M that a shared care arrangement would not be appropriate in these circumstances and I also accept the validity of Dr FF’s opinion that ultimately, it would be in the interests of the child to spend long periods of time with each parent. However, I am of the view that will only be achieved, in the longer term, if it is consistent with the wishes of the child. As Ms M notes “he is old enough and determined enough to stand his ground”.
In particular, I am concerned that if orders are made for the child to immediately commence spending a substantial amount of time with his father that he simply will not go. In that respect Dr FF said:
I think there will be a lot of noise around getting him there. Because he will be resistant. What worries me is the emotional fragility I saw in that last session when I wanted to have a very frank session with both parents and [the child] at that session and he was really fragile, really fragile about that. And I worry about making that conflict too hard for him.[102]
[102] Ibid at page 370.
Further, I note that the child has expressed concern that his father has previously left him unattended on Friday night into Saturday morning as result of the father attending the Suburb BB markets to set up his stall for the Saturday. That concern has been expressed by the child to Constable DD, Ms M and his mother. As I have discussed above, I accept that it is probably the case that there have been occasions when the child has in fact been left on his own in the early hours of Saturday morning. In those circumstances, it is reasonable to accept that the child would be quite concerned that his father has denied that to be the case.
The mother has expressed the view that requiring the child to spend time on his with his father on a Friday night will create an additional difficulty in inducing the child to spend time with his father.[103] I share that concern and I am not satisfied that providing an order requiring the father not to leave the child unattended on evenings will placate the concerns that the child has expressed.
[103] Transcript of proceedings dated 11 August 2017 pages 493 – 494.
As I have previously indicated, the most concerning aspect of this case is the child’s psychological fragility. Both experts have stated that requiring the child to spend time with his father will be quite traumatic for him. In those circumstances the orders should be reasonably conservative in terms of both the amount of time and also in not requiring the child to spend time with his father on a Friday evening.
As I have previously indicated, I would be very concerned if coercive force was required to compel the child to move into the care of his father.
Further, having regard to the events that occurred in March 2017 when the father attended the child’s school with a view to collecting him, I am satisfied that there is less likelihood of the child moving into his father’s care if the father is required to collect the child from his school either at the commencement of the spend time period and if there is a school day during the period that the child spends time with his father.
As I will make an order for the child to commence spending time with his father from 9.00am on a Saturday morning, it is necessary to identify an alternative point of changeover than the school.
The father submitted that an appropriate place for changeover would be at his sister Ms BB’s place. This was opposed by the mother who, through her counsel noted that, in giving evidence, Ms BB was indicative of continuing ill will between Ms BB and the mother. In that respect, I note that Ms BB unjustifiably accused the mother of coaching the child to make a false statement about having been left on his own of a Friday evening into Saturday morning.
Accordingly, I accept the proposal by the ICL, which was supported by the mother, that, in the absence of agreement, the appropriate place for changeover is the Suburb I library.
In considering the amount of time that the child spends with his father, I have been influenced by the criteria suggested by Dr FF in response to a question from the ICL which was as follows:
Dr FF, you won’t be drawn in terms of issue of times, that’s fair enough, but you indicated there were some principles, and apart from the principle that you have already indicated about perhaps minimising changeovers, and you have also indicated that perhaps there’s a principle of being enough time to counterbalance the narrative in the other home, what are the other principles that this court might be guided by?---I think they’re the main ones. I can’t think of anything else.[104]
[104] Ibid at page 400.
Ms M also agreed that it was appropriate to apply those principles in this case.[105]
[105] Ibid at page 403.
The orders I make will provide for the child to spend every second weekend with his father from 9.00am Saturday until 9.00am, or the commencement of school, on Monday morning.
I note that all parties consent to an order restraining the father from leaving the child unattended on evenings when the child is in his father’s care. In light of concerns that the child has previously expressed about that possibility, I am satisfied that such an order is appropriate.
As I have indicated, while I am satisfied that it would ultimately be in the child’s long-term interests to spend a longer period of time with his father including block time in school holidays, it is my opinion that progression to that point will only happen if the child is willing for that to occur.
Accordingly, I propose making orders for there to be a period of therapy. However, I agree with the advice of Dr FF that the commencement of time should not be deferred until there has been a period of therapy. In that context, in response to a question from the ICL Dr FF stated:
I think [Ms Chapman] used the therapy to delay time and to contain it and to undermine it all the way, so I think there’s a real risk of that. So I think time has to start and therapy has to start and that’s what has to happen.[106]
[106] Ibid at page 401.
Therapy is nonetheless important to accompany the introduction of the child spending time with his father. However, I do not propose to require that therapy to be on an indefinite basis because that, in itself, will adversely impact upon the child in the context where, at age 14, he has spent approximately one half of his life being caught in the litigation between his parents. This has, in turn, resulted in him being required to attend various periods of counselling.
In those circumstances, the mother proposes that there should be a three month limit on the period of counselling. In the circumstances of this matter, however, I am of the view that counselling should be in place for a period not exceeding six months as proposed by the ICL.
The mother conceded that it is appropriate for the child to spend additional time with his father during school holiday periods and proposed that additional time should be for a period of one week at the conclusion of each school term. In the circumstances of this case, it may be challenging for the child to spend more than a period of one week with his father during the forthcoming Christmas holidays. However, if the parties can give effect to these orders, in the short term, there is no reason to adopt a pessimistic approach in respect to subsequent school holiday periods. I will therefore adopt the recommendations of the ICL in respect to school holiday periods subsequent to the forthcoming Christmas school holidays.
The parties were generally comfortable with proposals by the ICL in respect to more mechanical aspects of the parenting orders relating to obligations to inform and communicate respectfully and also for the child to spend time with each of the parents on special occasions. I accept, however, the mother’s submission, that given his age and maturity, the child should be permitted, but not compelled, to contact his parents as and when he wishes.[107]
[107] Transcript of proceedings dated 11 August 2017 at page 498.
Accordingly, in this matter I propose making orders consistent with those proposed by the ICL with the modifications that the child will be required to spend time with his father from 9.00am on Saturday mornings until 9.00am or the commencement of school on Monday and, further, in the forthcoming 2017/2018 Christmas school holidays, the child will only be required to spend one week in the care of his father. The orders will, however, still require the parties to ensure that the child spends time with his father every second weekend during that period in accordance with the underlying structure of the spend time with arrangements.
The Act and the Family Law Rules 2004 (Cth) (“the Rules”) facilitate either party obtaining an enforcement order should that be necessary. If such an application was made, it is appropriate that the judicial officer hearing any such application consider the background of this matter and the potential impact on the child if the assistance of the Victorian Police was to be called upon to enforce the orders. In those circumstances, I do not propose making the order sought by the ICL or the father to provide for the parties having liberty to apply in respect to enforcement. Instead, it is my view that the parties should comply with the requirements of the Act and the Rules in respect to making a formal application for an enforcement order.
Given the concerns expressed by the mother as to the appropriateness of therapy being provided by Dr FF, I propose providing for the mother to nominate three potential therapists and for the father to choose one of those therapists.
For these reasons I make the orders as set out at the commencement of these Reasons for Judgement.
I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 4 December 2017.
Associate:
Date: 4 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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