Chisholm and Andrews

FAMILY COURT OF AUSTRALIA

CHISHOLM & ANDREWS

[2009] FamCA 193

FAMILY LAW – CHILDREN – with whom a child spends time – where one child has refused to spend time with the father since January 2005 but the other child has done so – where it is unclear what led to the child ceasing to spend time with the father – whether views are child’s own or have been influenced by the mother – best interests of the child in circumstances where there is no evidence of whether a relationship with the father would be in child’s best interests – whether relationship can be resurrected – need to attempt re-establishing relationship between father and child – orders for counselling appointments and for child to attend contact service to see father at same times as other child

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA

R v R (Children’s Wishes) (2002) FLC 93-108

APPLICANT:

Ms Chisholm

RESPONDENT:

Mr Andrews

FILE NUMBER:

ADF

3680

1996

DATE DELIVERED:

13 March 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

13-16 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs West

SOLICITOR FOR THE APPLICANT:

Andrew Swift & Co

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Michael Hegarty & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER::

Alderman Redman Lawyers

ORDERS

That paragraph (3) of the order made on 8 July 1998 be discharged.
That the parties be restrained and an injunction is hereby granted restraining each of them from:
(a)denigrating, abusing or rebuking the other party or members of the other party’s family to or in the presence of the children S born … July 1992 and J born … July 1995;
(b)discussing with or in the presence of the said children any court proceedings concerning either of the parents or the said children.
That the mother forthwith arrange counselling appointments for the said child J with Dr O once each month for a minimum of six [6] consecutive months and facilitate the said child’s attendance at such appointments, for the purposes of allowing the said child to discuss matters generally including any personal problems and concerns and when deemed appropriate by Dr O to discuss the issue of the said child re-establishing her relationship with her father and spending time with him.
That the costs of the counselling with Dr O be paid equally by the parties.
That the mother facilitate the said child J attending at the Children’s Contact Service at M to see the father at the same time as the said child S attends for handover to spend time with the father.
That within fourteen [14] days of the date of this order the Independent Children’s Lawyer forward to Dr O all letters and gifts from the father to the said child J held by her.
That the order made by Mead FM on 14 March 2005 appointing the Independent Children’s Lawyer be discharged.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
That all applications and responses be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3680 OF 1996

MS CHISHOLM

Applicant

And

MR ANDREWS

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for parenting orders in relation to the child J born in July 1995. The parties have another daughter S born in July 1992 but on 16 November 2007 I made orders by consent providing for her to continue to live with her mother and to spend time with her father.
The mother filed an Application for Final Orders on 2 March 2005 and at the time of trial sought that paragraph 3 of the orders made on 8 July 1998 be discharged as it relates to the child J. That paragraph provided for the father to have contact with both children each Saturday.
The father filed his Response on 11 March 2005. At the time of trial though the father sought the following orders:
“1. That the mother’s application filed on 2 March 2005 be dismissed.
2.That all previous orders be discharged.
3.That the children [S] born […] July 1992 and [J] born […] July 1995 live with the mother.
4.That the children shall spend time with the father each Saturday from 10:30am to 4:30pm and at such other or further times as may be agreed between the parties.
5.That the father communicate with the said children by telephone on two occasions each week.
6.That handover for the father’s time with the children take place at the Children’s Contact Service at [M].
7.That the mother be restrained and an injunction be granted restraining the mother from changing the residence of the said children from the State of South Australia.
8.That the mother shall give written notice to the father at least thirty (30) days before it is intended to change the school that the said children attend.
9.That the mother advise the father in writing of any serious health issues involving hospitalisation or accidents relating to either of the said children together with contact details for any relevant medical practitioners noting that the father is thereafter at liberty to make reasonable inquiries of such medical practitioners as to the relevant child’s state of health or treatment.
10.That the father be at liberty to contact the said children’s school principals to arrange for parent/teacher interviews at such times as same are effected by the schools noting that same are to be in the said children’s absence and out of usual school hours.”
Of course, to repeat, the position of S was dealt with in the consent order made on 16 November 2007.
In the Independent Children’s Lawyer’s outline of case document presented at the commencement of the trial she indicated that her preliminary view was that the child S should continue to spend time with the father pursuant to the order of 8 July 1998, but that the order in so far as it provided for J to spend time with the father be discharged.
The consent order made on 16 November 2007 provided as follows:
“1. That the children of the marriage [S] born the […] day of July 1992 and [J] born the […] day of July 1995 live with the mother.
2.   That the child [S] shall spend time with the father each Saturday from 10:30a.m. to 4:30p.m. and at such further or other times as may be agreed between the parties.
3.   That handover for the father’s time with the child take place at the Children’s Contact Service at [M].
4.   That the mother be restrained and an injunction be granted restraining the mother from changing the residence of the said children from the State of South Australia.
5.   That the mother shall give written notice to the father at least thirty (30) days before it is intended to change the school that the said children attend.
6.   That the mother advise the father in writing of any serious health issues involving hospitalisation or accidents relating to either of the said children together with contact details for the relevant medical practitioners noting that the father is thereafter at liberty to make reasonable enquiries of such medical practitioners as to the relevant child’s state of health or treatment.
7.   That the father be at liberty to contact the said children’s school principals to arrange for parent/teacher interviews at such times as same are offered by the schools and the father to be at liberty to attend such interviews noting that same are to be in the said children’s absence and in the absence of their mother and out of usual school hours.
8.   That the father communicate with [S] by telephone on two occasions each week on Monday and Wednesday at 7:30p.m. provided as follows: -
a)     That the father provide [S] with a mobile telephone;
b)     That such mobile telephone be of the type known as the “Gekko” or similar which limits the number of phone numbers which can be called using the telephone;
c)   That the costs of the telephone and the payment of accounts be borne solely by the father;
d)     The children can telephone the father at any time on the said telephone.
9.   The father is at liberty to attend school events to which parents are ordinarily invited provided that he gives the mother written notice at least forty-eight (48) hours before the school event.
10. …”
Thus, the issue for my determination is the time the child J is to spend with the father.

Factual Background

The father was born in January 1951 and is now aged 58 years.
The mother was born in December 1964 and is now aged 42 years.
The parties commenced cohabitation in 1987 and married in February 1988.
The parties’ first child S was born in July 1992 and is now aged 16 years. She is autistic.
The parties’ second child J was born in July 1995 and is now aged 13 years.
The parties separated in April/May 1996.
The mother commenced proceedings in the Family Court on 26 June 1996 seeking parenting and property settlement orders.
On 9 April 1998 a divorce order was made which became absolute on 10 May 1998.
On 8 July 1998 final parenting orders were made by consent as follows:
“2. That the wife do have the residence and the sole responsibility for both the long term and the short term care, welfare and development of the infant children of the marriage namely [S] born on the […] day of July 1992 and [J] born on the […] day of July 1995.
3.That the husband do have contact to the said infant children each Saturday from 10.30am to 4.30pm with handover for such contact to take place at the […] Child Access Program (CAP).
4.That the wife be restrained and an injunction is hereby granted restraining the wife from changing the residence of the said infant children from the State of South Australia.
5.That the wife shall give written notice to the husband at least thirty (30) days before it is intended to change the school that the said infant children attend.”
On 14 December 1999 the father filed a Form 7 Application for Final Orders seeking orders with respect to handover arrangements and contact with the children on his birthday.
On 24 January 2000 the father filed an Amended Application for Final Orders.
On 12 May 2000 the father filed a Further Amended Application for Final Orders seeking that the orders of 8 July 1998 be discharged, that the children live with the father and for the mother to have contact as agreed, or in the alternative that he have contact from 4:00pm Friday to 5:00pm Sunday each alternate weekend and such further contact as agreed. The father also sought orders with respect to the children’s schooling and health issues.
The mother filed a Response on 24 July 2000 seeking to maintain the orders of 8 July 1998 and that the children continue to live with her, that she have sole parental responsibility for them and that the father have no contact with the children.
On 17 October 2001 an order was made that the children be separately represented.
On 6 June 2002 Dawe J made orders discharging the appointment of the Child Representative and her Honour struck out all applications.
According to the mother J refused to spend time with the father following an incident in January 2005. The child allegedly told the mother that the father said to her that he was leaving the country, that he would not be spending any time with either child, and that she was to pick up her and her sister’s belongings the next week. He said he was doing this because J would not agree to increase the amount of time that she spent with him. Upon returning from spending time with the father on the next occasion, J had a plastic bag which she stated contained all of her and her sister’s belongings. According to the mother J also said that the father was pressuring her to “hate” her mother and maternal grandparents. The mother says that J had made complaints prior to 2005 regarding the father and his behaviour.
The father last spent time with J pursuant to the order of July 1998 on 29 January 2005.
On 2 March 2005 the mother filed an Application in the Federal Magistrates Court seeking final orders that paragraphs 3 and 4 of the orders of 8 July 1998 be discharged, and in the interim that paragraph 3 be suspended and a Child Representative be appointed.
On 11 March 2005 the father filed a Response seeking an order that the orders of July 1998 remain in place, orders with respect to access to the children’s medical and school records, and an order for telephone contact.
On 14 March 2005 Mead FM ordered the appointment of a Child Representative.
On 28 April 2005 Mead FM made orders pursuant to s 62F(2) of the Family Law Act 1975 that the parties and the child J attend confidential counselling with Centacare in an attempt to resolve their differences.
On 8 July 2005 Mead FM made orders to facilitate the orders of 28 April 2005 by providing for the father and child to attend at the rooms of Dr O, psychologist, and for Dr O to provide a report and any recommendations with respect to future contact between J and the father. The parties were also restrained from discussing the proceedings with the children.
On 18 July 2005 Dr O provided her report. Dr L made the following recommendations:
“[J] should be encouraged by all related adults to enjoy contact with her father;
[J] should feel free to let her father know of any concerns she has with their relationship;
[The father] should take notice of [J’s] needs and should learn to anticipate them;
A communication book should be used routinely by the parents;
[The father] should take steps to learn more about the language comprehension of children;
Both parents should rescue [J] from many of her voluntary responsibilities towards [S];
[J] should be referred to the School Counselor or other neutral advisor;
No adult associated with [J] should discuss family conflicts that are properly the province of the adults.
Neither party should denigrate the other in the presence of the child.”
On 22 July 2005 Mead FM suspended the order providing for contact between J and the father, save and except that J be at liberty to attend on contact with S if she requested to do so. Orders were also made for J and the father to attend further meetings facilitated by Dr O, with Dr O to provide a further report and any recommendations regarding future contact between J and the father.
On 4 August 2005 J refused to see the father at Dr O’s office.
On 18 September 2005 Dr O provided her second report. Dr O made the following recommendations:
“1. [J] should receive counselling.
2.   [J] should not be forced to attend contact at present, but should have this aspect of her life fully explored within a safe counselling situation.
3.   Father should be encouraged to make contact with [J] by writing to her and assuring her of his best intentions towards her and his commitment to her.
4.   Father should receive information about [J’s] school progress and her health information.
5.   Mother should encourage [J] to contact father by writing or by phone and to respond to him when he makes verbal contact. Non verbal contact will not succeed.”
On 28 September 2005 the child J telephoned the Independent Children’s Lawyer, stating that she had seen the recommendations of Dr O. J informed the Independent Children’s Lawyer that she did not need and would not go to counselling, that she did not want any contact with the father and did not want him to know anything about her school progress or health.
On 11 October 2005 Mead FM transferred the proceedings to the Family Court. Orders were also made restraining the mother from showing the children any court documents and for the mother to inform the father regarding the children’s health issues. The father was given liberty to attend parent/teacher interviews and to write to the child J, care of the Child Representative.
On 1 November 2005 the child attended upon the Independent Children’s Lawyer for the purposes of collecting a gift and letter the father had left for her, as provided by the order of 11 October 2005. J accepted the gift but refused to read the accompanying letter.
On 19 December 2005 and 15 February 2006 the child attended upon the Independent Children’s Lawyer and again accepted gifts sent by the father. On both occasions the child did not want the letters to be read to her and the Independent Children’s Lawyer paraphrased the letters. On both occasions J agreed to take the letters with her, stating she intended to throw them in the bin. On 15 February 2006 the child indicated a “wish list” of gifts she wanted the father to be informed about.
On 21 March 2006 the child attended upon the Independent Children’s Lawyer. On this occasion J accepted the father’s gifts but again refused to read the letter. On 29 March 2006 the Independent Children’s Lawyer was informed by the mother that the child later burned the letters from the father.
J attended at the office of the Independent Children’s Lawyer on 13 April 2006. On this occasion she refused to take the father’s letter, and although she was eventually convinced to take Easter eggs he had left for her they were later found in the reception area of the Independent Children’s Lawyer’s office.
According to the Independent Children’s Lawyer the child was visibly distressed when she attended at her office on 23 May 2006. Following this the Independent Children’s Lawyer wrote to the father’s solicitors requesting they consent to varying the order. No response was received.
The child again attended at the Independent Children’s Lawyer on 27 June 2006 to collect the father’s letters and gifts of 28 May 2006 and 18 June 2006. The child accepted the gifts and letters, but ultimately left behind the letter of 28 May 2006.
On 8 September 2006 when the child attended at the office of the Independent Children’s Lawyer, the Independent Children’s Lawyer read through the father’s letters with J. J kept the gifts from the father but did not retain the letters.
On 19 October 2006 the child attended at the Independent Children’s Lawyer’s office and the contents of the father’s letter were conveyed to her. The child accepted the gifts but refused to take the letter.
On 25 October 2006 when the child attended at the offices of the Independent Children’s Lawyer she refused to accept a letter and photographs from the father.
On 21 December 2006 the child accepted gifts left for her by the father but again refused to take letters, the contents of which were conveyed to her. J only agreed to accept one photo of a new baby cousin that the father had left for her.
On 28 November 2006 the father filed a Form 2 Application in a Case seeking that the Independent Children’s Lawyer facilitate a meeting between J and himself with Relationships Australia.
On 2 January 2007 Forbes JR dismissed the father’s form 2 application and made orders for Dr O to provide an updated report.
On 10 March 2007 Dr O provided an updated report in which she made the following comments and conclusions:
“[J] has made it clear that she cannot adjust her thinking to agree to see her father at this time. At only ten years old, [J] has very strong convictions about her dysfunctional relationship with her father. [J] had some long held, rather mild complaints to make, of the kind that would mostly be forgotten or tolerated in normal family settings. However, she has not been able to manage her grief and stress about what she understands is her father’s attitude to her mother, and her belief that she is expected to hate her mother.
She also remains deeply shocked at her remembrance of father’s threat of leaving permanently and his direction to her to clear her possessions from his house, which would confirm his intention to desert her. This must have damaged the relationship, faulty as it seems to have been, beyond early repair, unless father had made strong efforts to reassure her. She does not believe that he has made any such effort, as, in her mind, he has not acknowledged that he has caused this harm.
[J’s] presentation strongly suggests that she has little faith in her father’s positive attitude towards her. She discounts the many letters he has written to her, expressing his love for her and his wishes for her happiness. This is clearly not what she needs to hear. Rather, [J] needs father to admit what she perceives as his fallibility, and to make amends for what she understands as an attitude of father’s hate towards her beloved mother. She also suffers from the memory of his threat of permanent desertion because she would not bend to his will and stop over with him on access at a particular time in their history. If [J’s] perception is faulty, her father might be advised to explain to her how this came about.
… She does not appear to be reacting from any coaching or suggestive influences from another person. She does appear to be trying to express what is in her belief system, apparently built in by her own experiences. She is an unusually determined child who will have much difficulty in allowing a change of attitude.
Finally, [J] did not appear to believe that never in her life would she refuse to associate with her father, but she obviously cannot imagine how any such reconciliation might take place. This might only be accomplished in the long run by knowing that her father does not hate her mother and that he would never willingly give her ([J]) up. [J] is a deeply saddened child who requires understanding and an approach that is aimed at believing her fears and consoling her.”

The current circumstances of the parties

The mother

The mother lives with the two children at P.
The child J was attending B Primary School at the time of the trial. She was in Year 7. It was anticipated that she would attend T College from this year, 2009.
The child S attends C High School. At the time of the trial she was in Year 9. She of course is autistic and she receives assistance from a teacher’s aide for 25 hours each week. A specialist pathologist also works with her. The mother spoke of having her attend a special education unit in the future, but apparently the waiting lists are quite long and the mother was not sure that this could be achieved.
The mother does not work and she cares for the children on a full time basis.

The father

The father lives alone at G.
The father suffers from Chronic Fatigue Syndrome and he receives a pension.

The issues in dispute

The issue for my determination is whether the child J should spend time with the father. The mother says that the child does not want to spend time with the father and that wish should be respected. On the other hand the father says that there is no justification for the child not spending time with him and she should be required to. His counsel did provide an alternative to this in his final address but I will refer to this later in these reasons.
In the context of this dispute the following issues have emerged:
55.1What led to the child ceasing to spend time with the father? What precisely was said by the father and when?
To repeat, the mother claims that the child had previously made complaints to her about the father and his behaviour, and in January 2005 the father told her that he was leaving and never returning and required her to remove her possessions as well as those of her sister which upset and distressed her to the point where she decided that she did not want to see him.
The father denies the allegations about his behaviour and denies that he said anything to the child which would have had the effect on her that is claimed. He says that the child has been manipulated and influenced by the mother against spending time with him. He says that she has “alienated” the child. The mother denies this.
55.2Given the seemingly entrenched views of the child J, and the fact that she now has not spent time with the father since 29 January 2005 save and except during the course of a session with Dr O on 13 July 2005, what can be done to resurrect the relationship between them?
The father claims that if there is no order providing for time to be spent then that will never occur because there will be no pressure on the mother to do anything. The mother says that leaving the order in place will just maintain the pressure upon the child and leave the mother open to contravention proceedings. The Independent Children’s Lawyer says that the order should not remain but supports the recommendations of Dr O.
The nature of these proceedings provided the opportunity to the parties to raise many other issues including the alleged complaints that the child J had of the father’s behaviour over the previous two years and the history generally of the bitter conflict between the parties, but I did not permit the parties to stray from the issues that I need to consider in reaching a decision about whether and if so on what terms the child should spend time with the father. In that regard I was able to extract an important concession from the mother at the commencement of the hearing that, “until January 2005…the children appeared to have a good relationship with the father and contact proceeded regularly and relatively smoothly and since then the older child has continued to have a good relationship with the father and spend time happily with him each week”.
This then avoided the need for the father to call one of his witnesses and avoided the need for at least three other witnesses to be cross examined.

The principles to be applied to the issues in dispute

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act. The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(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. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order 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. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The evidence

The mother was represented by Mrs West. She relied on her affidavit filed on 15 March 2007. She gave evidence and she was cross examined.
The father was represented by Mr Childs. He relied on his affidavit filed on 3 April 2007. He gave evidence and was cross examined.
The father called one witness, namely Ms N who filed an affidavit on 23 April 2007. She gave evidence and was cross examined.
The father relied on the affidavits of his brother who filed an affidavit on 23 April 2007, a friend Mr X who filed an affidavit on the same day, and another friend Mr L who also filed an affidavit on the same day. None of these three witnesses were required for cross examination.
The Independent Children’s Lawyer was represented by Ms Horvat. She called one witness, namely Dr O. Dr O filed an affidavit on 20 March 2007 to which was annexed the three reports that she prepared in this matter, namely those reports dated respectively 18 July 2005, 18 September 2005, and 10 March 2007.
The Independent Children’s Lawyer also relied on the affidavit of Ms D, the coordinator of the Children’s Contact Service filed on 27 June 2005, and the affidavits of the Independent Children’s Lawyer herself filed respectively on 28 April 2005, 19 October 2005, 9 June 2006 and 1 February 2007. Neither of these two witnesses were required for cross examination.
The mother gave her evidence reasonably well. She spoke confidently, and overall she gave the impression of being genuine and of attempting to assist the Court. However, there were some aspects of her evidence that concerned me and which would have no doubt fuelled the father’s belief that she has manipulated and influenced the child against him. For example:
74.1In paragraph 7 of her affidavit the mother deposed to J keeping “a diary of her feelings about visits to her father”. J provided copies of some pages from this diary to the Independent Children’s Lawyer on 27 April 2005, and they are annexed to the Independent Children’s Lawyer’s affidavit filed on 2 May 2005. It was put to the mother in cross examination that she had either written some of the diary or at the very least that she had assisted J in keeping this diary. The mother denied that she did either. I accept that none of it is her handwriting, but I do not believe that she has not played a role in the keeping of the diary. It is difficult to assess the extent of her role but I have no doubt that the mother encouraged J to keep a diary and that she discussed the contents of the same with her. I consider that many of the complaints about the father’s behaviour set out in the diary have their genesis in things that the mother has said to or in the presence of J, and J has taken on board what she thought her mother wanted to hear.
74.2The sequence of events deposed to by the mother in her affidavit of evidence in chief is instructive. In paragraph 11 she deposes to the conversation between J and the father which appears to have happened on 8 January 2005. Then she says that she asked Ms D from the Children’s Contact Service to speak to the father about this on the next weekend when J was there, namely on 15 January 2005, which Ms D did. She then deposes to the next occasion of time spent which would have been on 22 January 2005 (although it in fact was 15 January 2005) when J returned home with a plastic bag containing her and her sister’s possessions from the father’s house, and she was distressed and allegedly made complaints about the father including that he was “playing games about abandoning her”.
Now, importantly, in the very next paragraph the mother says this:
“16 After the abovementioned incident [J] refused to spend time with her father. She had weeks of nightmares and cried a lot about ‘not having a daddy’. She said he was her biological dad but ‘not one that cared’. [J] appeared depressed and looked physically ill…”
However, what in fact happened and what the mother did not depose to in her affidavit is that J did not stop seeing the father until 5 February 2005. In other words, she spent time with him as usual on 29 January 2005. Now, the objective evidence from the Children’s Contact Service is that there were no difficulties between the father and the children at handover not only on 15 January and 22 January, but also on 29 January. The notes kept by the Service describe that “both girls generally ran to their father, receiving hugs from him and, [J] in particular responding with a hug, kiss…”, and this was consistent with what had been happening over the previous years.
74.3Then there are the clear inconsistencies between the affidavit of the mother filed on 2 March 2005 and her affidavit of evidence in chief filed on 15 March 2007. In the former affidavit the mother said this:
“6Contact proceeded relatively incident free until about the 9^th day of January 2005. The arrangement is that my parents deliver and collect the child on occasions of contact. When the children were returned to me on that day [J] complained of headaches and stomach aches. She had nightmares on that evening and on several evenings since. [J] has not attended on contact for some three (3) weeks past. I have obtained medical certificates relative to her non-attendance true copies of which are annexed hereto and marked with a letter ‘D’.
7I was concerned that the cause of this unusual behaviour and [J] eventually advised me as follows:
a.    That on occasions of contact she and her sister are obliged to make coffee with boiling water and serve it to [the father] in his bed;
b.    That on a number of occasions they have both been left unsupervised;
c.    That on a number of occasions they have been left with strangers.
[J] then and now has indicated that she just does not wish to attend for contact with [the father] any more.”
The first thing to note is that there is nothing in this affidavit about J telling her mother of the conversation with the father which apparently so distressed her that she later told Dr O that this was the “main reason” for her not wanting to see the father.
The second thing to note is that the mother describes contact as having proceeded “relatively incident free”. This is certainly not the tenor of her affidavit of evidence in chief. However, she then lists three topics of concern that J “eventually” advised her about. Yet in her affidavit of evidence in chief the mother claims that J had been complaining about “aspects of” the father’s behaviour in the two years prior to January 2005 and she then went on to list 12 topics of complaint that the child had allegedly told her of prior to January 2005.
The mother was cross examined about this but she could not satisfactorily explain the inconsistencies. Given the alleged significance of these events it is concerning that the mother cannot present a consistent version of the events and their correct sequence to this Court, and consequently I am deeply suspicious of her evidence in this regard.
74.4When the mother took J to see Dr O for the first time on 13 July 2005 she provided her with “a large illustrated book”. Dr O says in her report that:
“She opened the book and concentrated her whole attention on it, explaining the details like an expert. It was difficult to draw her attention to anything else for a considerable time. It seemed clear that she was intent on using her interview time to avoid having to face the prospect of discussing the purpose of the visit or of seeing her father.”
I consider that this was a deliberate ploy by the wife to frustrate the proceedings and the interview with Dr O.
74.5Despite that inauspicious start, on 13 July 2005 Dr O was able to bring about a positive interaction between J and her father, and significantly this was achieved in the absence of J’s mother. However, this should be contrasted with what occurred on the next occasion in Dr O’s rooms. Orders were made for periods of contact at her rooms and everyone was aware that this was to occur. However, on 4 August 2005 J was brought to Dr O’s rooms by her mother. She was exhibiting distress and clinging to her mother, and she refused to see her father. This significant change of position could not be adequately explained by the mother in her evidence.
Two other aspects of the mother’s evidence that I need to mention are as follows:
75.1In examination in chief the mother said that although contact had been missed over the years it was generally made up. She was responding to a claim by the father that make up time was not in fact provided.
The mother’s evidence though should be compared with the unchallenged evidence of Ms D, the coordinator of the Children’s Contact Service. In her report she lists the occasions when contact had been missed, and then she said this:
“Although attempts were made by the service to organise ‘make-up’ contact for the children (eg on a Sunday) [the mother] refused to do this stating ‘[S] couldn’t manage; he’s not taking care of them, coming back dirty, with dog shit on their shoes; two days too much for [J] – he’s a smoker.”
Thus, I am sorry to say that the mother has lied to this court about this issue.
75.2It was put to the mother in cross examination that because she “dislikes” the father she has not encouraged J to spend time with him. The mother denied this but I am satisfied on all of the evidence before me that again she was not telling the truth.

The father’s presentation and manner of giving evidence was extremely disappointing. He spoke softly, slowly and deliberately, exuding an air of feigned superiority. He treated counsel and the Court with disdain. He was condescending, facetious and supercilious. He was vague in his responses when he wanted to be and he was not averse to making up things as he went along. He was fixated with the concept of alienation and in my view that clouded his judgment. He was also evasive in responding to questions about the a fathers’ advocacy group, its purposes, and his involvement in that group.
An example of the father making things up as he went along arose when he was being cross examined about the conversation he had with the child on 8 January 2005. He was reminded that he told Dr O that he had told J, “that her mother might not want to keep the children if he had more time with them”, and he confirmed that he said this to J. However, he then realised the effect of that statement and tried to suggest that he was only using the mother’s own words from her “documents”, but he could not identify precisely where. I consider that he was making this up. He also denied saying anything to the effect that he would not be seeing the child any more. However, that can be compared with what he told Dr O when first interviewed by her. He said that he asked her if she felt it might be easier for her if she did not see him on access and he realised later that J had taken this to mean that he did not want to see her again. Now, if that is correct then I consider that his response in cross examination was not truthful.
The father said that he had seen Dr O’s first report of 18 July 2005 but claimed that he was not sent the second report by his solicitor, and he was not told of her third report. He says he did not see either of them until June or July 2007. Importantly he puts this forward as a reason for not being involved in the third assessment. However, I do not believe him. The solicitor of whom he complains did not commence to act for him until after the second report was presented, and in any event the father attended the hearings of this Court along the way when these reports were ordered and referred to. He conceded in cross examination that he was “told something in passing by his solicitor about the third assessment” but incomprehensibly he did not follow it up. Similarly he suggests that he did not receive three letters sent by the Independent Children’s Lawyer or one of her affidavits, and again I do not believe him.
I also wonder at the father’s motives in running this case. One of the prime issues was what he said to the children and particularly J on 8 January 2005. There were different versions in the affidavits and in what J told Dr O, yet in cross examination the father revealed for the first time that he had taped the conversation on that day. Now if that was correct he could have sought to present that recording and this issue would have been clarified once and for all. However, he did not and he contended that he could not now present the recording because “it’s actually held by a politician and I have got it under parliamentary privilege”, whatever that means.
Finally, I do not accept the father’s claim that he did not discuss his feelings about the mother in the presence of the children. Given the depth of those feelings, and the extent of the conflict between them running over many years I have no doubt that he made the children well aware of those feelings.
Ms N said she was an experienced social worker, but her evidence was of little use to me and it is clear that she had her own agenda to promote. Significant parts of her affidavit were struck out as being inadmissible and that left very little evidence of any contemporary relevance to the issues that I have to determine. She, like the father, considered that the child has been the subject of alienation, but she did not want to allocate blame and in response to a question from me she had to concede that it could even have arisen from behaviour of the father. She said that she and the father had had a role in forming the fathers’ advocacy group and that she had supervised the father’s contact previously at the father’s request in order to avoid any claim of sexual abuse.
Ms N also made it clear that, like the father, she did not agree with the methods or views of Dr O.
She said that she was aware that the father was taping the conversations that he had with the children during contact, and she saw nothing wrong with this at all. Indeed she said that this was usual practice in the circles that she moved in. I found this extraordinary and I will be commenting on this later in these reasons when considering the attitude of the father to the child and to the responsibilities of parenthood.
With the father’s brother, he was not required for cross examination. Significantly he was present during the contact visits on 15 January and 22 January, and for the first part of the visit on 29 January. He describes both children as being “happy and affectionate towards their father on these occasions”. This evidence is unchallenged, and I accept it.
Similarly there is the unchallenged evidence of Mr L with whom the father and the children spent most of 29 January 2005. Mr L says the children were no different than on previous occasions when he had observed them together with the father, namely, they were “happy and affectionate”. I accept this evidence.
Next, there is the evidence of Mr X. He also was not required for cross examination. He is a social worker who has counselled the father over the years. However he has not met the mother or the children and thus his evidence is of little or no value to me except in attempting to understand the concerns that the father has had over that period of time.
Dr O is the expert witness instructed in this case by the Independent Children’s Lawyer. She is an experienced psychologist whose reports and evidence have assisted me greatly. Her reports are insightful and her recommendations sound, and significantly her involvement has been over time rather than at one specific point in time. Thus her assessment has been able to be developed over a relatively lengthy period of time, and her evidence provides far more than just a snapshot of the parties and the child. Thus, I attach great weight to what she says.
Initially Dr O was requested to undertake a mediation session with the child in the presence of the father. She did this on 13 July 2005 and she was successful in bringing J and the father together. The mother was not involved in this process. Dr O’s summary is as follows:
“It is clear that [J] is positively attached to her father, but appears to have developed a fear of expressing her natural acceptance of him. Given the opportunity to relate to the estranged father, she took it very cautiously, as if she did not feel permitted. She may not be able to say, for some time to come, what exactly has inhibited her. It did not appear to be fear of the father. She had built a system of worrying beliefs that seemed to relate to aspects of everyday life that most children might take in their stride. She presented as a conflicted child.
Perhaps the one really important factor that interfered with the ongoing contact was a confused version of a conversation with her father, who probably assumed a comprehension beyond the child’s scope. This related to the confusion about whether or not the father wished to continue to see [J]. The child was clearly offended and perhaps frightened by this threat of abandonment.
It does appear that too much has been said to [J] about adult conflict and history and she appears to remain the pawn in an ongoing bitter feud. This must end. [J’s]right to love each parent as best she can must be the focus of any future consideration.
It was of concern to the writer that there was no opportunity to interview [J’s] mother, as such an interaction may have had at least two important effects: mother may have been able to clarify some issues; [J] may have been consoled that the situation could have been more equal.”
As a result of that positive outcome an order was made for contact to take place between the child and the father in Dr O’s presence, and for there to be a further report. However, to repeat, this was not a successful exercise. On 4 August 2005 the mother attended with the two children and J would not leave the mother. Then, on 15 August 2005 J was brought to Dr O’s rooms by the mother and all she would do was talk to Dr O.
Although lengthy I consider it necessary to set out in full Dr O’s assessment following these sessions. She said this:
“It does seem that the attachment between this child and her father has been seriously damaged and that there may be no immediate remedy. [J] has made it clear that at present she cannot tolerate the idea of spending time with her father. She has lost faith in him and her resolve to impress this on him has hardened. [J] did not appear to be consciously denying her father contact as a signal of revenge for her distress, but rather as a means of escaping stress and further confusion and because she does not find him caring or reliable, with regard to her emotional needs.
It could not be brought home to [J] that there might be a way through the problem, as no argument in father’s favour was acceptable to her. It does seem that the current attempts to mend the relationship have been initiated too later, despite her earlier response, when she allowed herself to spend time with him and the writer. In that meeting, [J] admitted to her father that she loved him, and under the influence of his attention, suggested that she would return to her contact visits.
The argument still really revolves around the perception on [J’s] part that her father meant to abandon her because she would not agree to spending more time with her. It is possible that [J] had been frightened by father’s request, as it could have represented a signal that father had plans to claim her. This has not been stated to the writer. However, if [J’s] interpretation of father’s reaction to her rejection of the offer is correct, (i.e., that he would go away), it is not surprising that she felt severely threatened and had become destabilized.
[J] further believes that her father objects to her loving her mother and her grandmother ([the father’s] mother), an extremely serious and damaging situation, if true. True or not, the idea is entrenched in [J’s] belief system. This would also be an insurmountable problem for [the mother], who does not feel able to offer her child any reassurance against her negative beliefs. Thus, [J’s] resentment is reinforced.
It may have been possible to mend the relationship between the father and child immediately after [J] registered shock at father’s apparent plan to desert her. Instead, [J] had time to gather resentment, and to add to this other facets of her time with father that she perceives as unjust and unfair. The impression that [J] has given is of a child who was building antagonism against her parent and, finding no positive change in his behaviour and no argument against her attitude from a powerful parental influence (her mother), has progressively hardened against him.
[The father] would no doubt consider that [J’s] mother has been a guiding influence in the child’s negative attitude towards him. [The mother] certainly did not give any hint that she disagreed with [J’s] assessment of the father. Rather, mother expressed her anxiety about [J’s] disappointment and grief reactions. [The mother] apparently believes [J’s] histories of the interactions she has described and sympathizes with her. She expressed this in terms of the pain she feels that [J] suffers and her natural reaction in wanting to support her child and protect her. Her own history with [the father] was clearly unlikely to help her to provide [J] with strong arguments against the child’s assessment of her father. [The mother] appears to be in a helpless position.
It was not possible to determine exactly what was [the father’s] comprehension of his daughter’s reactions against him. He appears to have a fixed opinion, relating to his conviction of the mother’s purposeful attempts to poison [J] against him. This has obstructed his need to come to a helpful understanding of [J’s] attitude. He has faithfully offered to continue contact, and suffers grief because it does not seem possible to redeem the programme of contact that that had been ongoing for several years. Unfortunately, the quality of that contact had never been investigated. By [J’s] account, it must be assumed that the system was breaking down over a significant period. It is not clear whether the mother was fully aware of this or whether she might have been able to make attempts to remedy the situation. It appears that the father was not conscious of the child’s mounting antagonism.
Early in the current process, when first discussing the situation, [the father] had hinted that he had thought he might give [J] a choice about the amount of time she might spend with him. The situation is unclear, but it might have been that some incident (as yet unrecorded) could have triggered the train of events. [J] clearly sees the interaction as hostile on the part of her father. Given the opportunity to meet [J] with the writer, the father did not raise the topic at a time when it might have saved the situation. Later, the possibility that father might have written to [J] to explain the confusion and to modify her feelings, was not realized. To my knowledge this has still not happened. A non-verbal message – the giving of a bracelet – was offered. [J] clearly needs a much stronger incentive.
[J] had not returned to her emotional statement in which she appeared to feel the need to take responsibility for the breakdown in contact. In her private discussion with the writer, she attempted to describe what she believes are her legitimate disappointments with her father. Some of these are critical to any further relationship with him and require speedy repair. [J’s] attachment to her father has been damaged. It is only possible to cause it to be mended by having her experience full parental understanding.”
Dr O concluded that “there appears to be no immediate solution to this contact problem”.
Then, in 2007 Dr O was requested to provide “an updated report with recommendations as to the time the child [J] should spend with or communicate with the husband, if any”. The mother and the child attended the appointments on 15 February 2007 but the father did not seek an appointment. To repeat, he initially claimed that he was unaware that this was occurring, but I do not believe him.
I have set out Dr O’s conclusions from these interviews in 2007 in paragraph 47 above.

Section 60CC of the Family Law Act 1975

I turn now to the factors that I must take into account in determining what is in the best interests of the child (sub-section 60CC(2) and (3)).

The primary considerations

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

This is highly relevant to the circumstances in this case. J apparently had a good relationship with the father prior to January 2005, despite the alleged complaints, and the child continued to spend time with the father pursuant to the order. It could be said that J benefited from this relationship. However, since January 2005 the nature of the relationship has been unclear although certainly it has suffered. The question though is whether there is a benefit to the child in the circumstances that now apply of having a meaningful relationship with the father.
There is of course no need to enquire as to the benefit to the child of having a meaningful relationship with the mother. The focus is on her relationship with her father.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in s 60B. One object is to ensure that the best interests of the 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;” (Paragraph 60B(1)(a))
Further, one of the principles underlying the objects in s 60B is that (except where it is or would be contrary to a child’s best interests):
“(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” (Paragraph 60B(2)(b))
Thus, the best interests of the child is still the paramount consideration, and it is a question of whether the benefit to J of having a meaningful relationship with the father can be achieved consistently with her best interests.
The child is not seeing the father and does not want to have anything to do with him. To achieve any benefit then the relationship would have to be re-established, and in passing I note that no-one in this case has the answer as to how that can be achieved. Is it though in the child’s best interests to re-establish that relationship? It is here where the issue becomes somewhat circuitous. In other words, there can be no benefit unless the relationship is re-established, but is that in the child’s best interests.
The mother perhaps does not accept that the relationship should be re-established because there is no benefit to the child in doing that given her alleged feelings about the father. However, the mother’s view is driven by her personal dislike of the father and she would be quite happy if the status quo continued. The dilemma is though that that is not necessarily in the child’s best interests. That brings me back to a consideration of the question in paragraph 98 above.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

Each party makes allegations about the other which if true would point to a need to protect the child.
The mother puts forward the complaints of the child recorded in her diary, and what she told the mother in January 2005, and what she told Dr O in her interviews. There are no allegations of physical violence though and they are in the category of neglect and psychological harm.
The father denied the allegations although he did concede that on two occasions in total when the children were with him he did lie down for a couple of hours because of his Chronic Fatigue Syndrome. He said though with the most recent occasion that his brother was there at the time and he made a cup of coffee which J insisted on bringing to him.
There are a number of questions surrounding these alleged complaints by the child and I have already raised some issues in relation to them. For example, I have expressed concern about the diaries and what input the mother might have had to that. I have also referred to the inconsistencies between the affidavit filed by the mother in March 2005 and her affidavit of evidence in chief. It is also important to appreciate that none of the alleged complaints were thought important enough to justify an application by the mother in relation to the ongoing time spent by the child with the father, and further, in looking at the child’s stated position to Dr O it was not these complaints which caused her to decide not to see the father, but rather what he allegedly said to her on 8 January 2005.
There may be some element of truth in the alleged complaints but I do not consider that they provide any basis for putting in place an order to protect the child. They are certainly insufficient to justify discharging the order of July 1998 providing for the child to have contact with the father.

For the father’s part his submission is that the mother has alienated the child, and to discharge the existing order would result in the father never seeing J again. Now, I have no doubt that the mother has influenced the child in relation to the alleged complaints, and equally I have no doubt that the mother did not actively encourage the child to spend time with the father once the opportunity arose in January, February and March 2005 to cease the contact, but not because of any necessarily legitimate concern about the safety or welfare of the child, but rather primarily because of the mother’s personal feelings towards the father.
However, given that the best interests of the child are paramount, this cannot simply mean that the order should continue regardless of the circumstances that have developed. The child is adamant that she will not see the father, and it would be counter-productive to do nothing more than continue the order. Yet, that was the father’s primary submission. What needs to be done is to first try and re-establish the relationship between the child and father, and it was not until I challenged the father’s counsel in his address that the father put his mind to what could be done in this regard.
Finally, I cannot leave this topic without raising what I consider the child does need protection from, and that is exposure to the conflict that exists between the parents. They clearly do not like each other and that has dictated their stances in relation to the child. The mother will not encourage and support the child spending time with the father and the father will not act on the logical and sensible suggestions of Dr O including to the effect that he apologise to the child for what he said to her in January 2005. He preferred to take the position that he had nothing to apologise about despite it being as clear as day that the child took his comments to mean that he did not want to see her anymore if there was not an increase in his time with her.
In any event, there is no order that I can make that will eliminate the conflict, and that can only come from the parties themselves. However, I suspect that the bitterness and anger is so entrenched that it may practically be impossible for the parties to do that and thus the child will continue to suffer.

The additional considerations

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

This raises perhaps one of the most contentious issues in this case, namely, whether J’s views are genuine and come from her own experience or whether they are the subject of influence and manipulation by the mother.
Historically, since the orders of July 1998, and prior to January 2005, with one exception there was no evidence of the child outwardly having any other view than wanting to spend time with the father. The one exception was in about March 2002. The father “was concerned that ([J]) may be visiting against her will”, and he asked Ms N to make a “discreet enquiry” of J about her feelings towards him and the contact arrangement. Ms N says that in her discussion with J she made it “abundantly clear how much she loves him and that she does not feel unsafe or unhappy in his company”.
Now, for reasons already expressed I do not put much weight on what Ms N says in this case, but it is interesting that the father should feel that J may not have been wanting to see him.
In any event, that was the external position. Inwardly though there were complaints that J had about the father’s behaviour and which she wrote about in her diary, and it seems, told to her mother. However, the mother did not consider it necessary to either raise these issues or bring any application to this Court in relation to them.
I have already set out my views about these complaints and the role the mother had in recording them and in bringing them to the fore.
Dr O believed J and considered that she was speaking from her own experiences. However, in this instance I feel that she got it wrong, although she did say that she did not accept that these things were happening all the time and some of them could be one off events.
Then we come to January 2005 when although the mother claims that after 15 January “[J] refused to spend time with her father” that was patently incorrect. The child continued to spend time with the father on 22 and 29 January and on the unchallenged evidence of the father’s witnesses she enjoyed this time with the father.
J did not attend for contact during February but that was because of sickness, or so the mother says. In March there is no evidence as to what was happening prior to 19 March. On that day Ms D says that J told her at the Children’s Contact Service that she did not want to go with the father. After that she attended at the Children’s Contact Service with her sister for a time, but consistently refused to go on contact or even talk to the father. On 22 July 2005 the order for contact in relation to J was suspended.
After the Independent Children’s Lawyer was appointed she spoke to J and then filed an affidavit setting out what the child told her, namely that she did not want to attend contact. She provided the Independent Children’s Lawyer with copies of her diary and she reiterated a number of the complaints that she had made about the father’s behaviour.
On 28 April 2005 an order was made that Centrecare conduct a mediation, but it was unsuccessful because J refused to come into contact with the father. I note the mother refused as well.
The child first met with Dr O on 13 July 2005. J told her that she did not want to see the father and she provided her with copies of the pages of her diary. However, by addressing J’s concerns and obtaining the father’s reaction to them Dr O was able to bring them together with hugs and kisses and J sitting on the father’s lap talking to him. Indeed J even “offered” to attend on “access” the next Saturday. After they parted Dr O said this in her report:
“I escorted [J] up the hall. Halfway up, she froze and stopped me, saying: ‘I didn’t really want to do that’. I assured [J] that she had behaved beautifully. We entered the room where mother was waiting and [J] flew into mother’s arms. Mother reassured [J] by telling her that she knew I was a kind lady. At the front door, [J] hugged me and said goodbye directly.”
Remember of course that this was the occasion when the mother ensured that J brought a book with her to keep her occupied and the mother asked Dr O for an assurance that J “would not meet [the father]”.
Given the success of this occasion orders were made for periods of contact to take place in the presence of Dr O at her rooms. However, as referred to already, something occurred between 13 July and 4 August because on the latter date which was the first occasion of contact the child J clung to the mother and cried and refused to see the father. I confirm that this change of position could not be explained adequately by the mother and clearly raises the spectre of influence and manipulation by her. On 15 August, as a result of the child again refusing to see the father, she discussed the issue with Dr O. She repeated the complaints to be found in her diary as well as her perception of the conversation with the father in January 2005, namely that he told her he was going away because she had said that she did not want to increase her time with him.
Dr O found that the mother did not disagree with the child’s views about the father and indeed she sympathised with her saying that the solution was in the father’s hands. Now I consider that this is being too generous to the mother and I have no doubt that the mother has had a role in the child forming the negative views that she has about the father. However, the father too has to take some responsibility for that situation being allowed to develop. I have no doubt that he has made his feelings about the mother known to the child as well as creating an impossible situation for J such that she has in effect turned against the father and adopted the position of the mother, being the parent who has the most influence over her. Dr O described this as the child “escaping stress and further confusion”. She also said that:
“The impression that [J] has given is of a child who was building antagonism against her parent and, finding no positive change in his behaviour and no argument against her attitude from a powerful parental influence (her mother), has progressively hardened against him.”
In September 2005 J saw the report of Dr O including her recommendations. She informed the Independent Children’s Lawyer that she did not need counselling, that she did not want any contact with the father and she did not want him to know anything about her school progress or health. The mother tried to explain how it was that J saw the report, and she claimed that it was accidental. She says she left it on top of the refrigerator. However, I am not convinced that the mother did not intentionally leave the report for the child to see.
Over the next 18 months there was no contact and the father sent letters and gifts to the child via the Independent Children’s Lawyer. J kept the gifts but refused to read the letters or have most of them read to her by the Independent Children’s Lawyer.
In February 2007 Dr O interviewed J again, and spoke with the mother and the father’s solicitor. J had not changed her views and she still did not want to see the father. Dr O said this:
“[J’s] presentation is in part a repeat of her last interview, earlier reported. She does not appear to be reacting from any coaching or suggestive influences from another person. She does appear to be trying to express what is in her belief system, apparently built in by her own experiences. She is an unusually determined child who will have much difficulty in allowing a change of attitude.”
However, it must be remembered that J had continued to be under the influence of the mother and there would have been no encouragement to change her views. The father has also continued to refuse to apologise to J for what he said to her in January 2005 suggesting that he had nothing to apologise for. That position continued until the trial.
The problem now is that the child’s views are entrenched, and there is no obvious solution to re-establishing the relationship between J and the father, particularly whilst the parties remain in conflict.
Dr O says that J’s views should be respected, and the submission of the Independent Children’s Lawyer is that they should be accorded great weight, with the result that J should be left to make the decision whether to see the father or not. In this context though Dr O makes the point that J has not said that she never wants to see the father. Indeed, Dr O put this to her during the last interview and J did not appear to have considered that at all. In cross examination Dr O also said that J appears to be giving herself space to see if things get better. Thus, it could be said that J does in fact want to see the father but she has made a number of complaints and she has put herself in an awkward position. Her way out is to look for the father to now do the right thing. However, the dilemma still is what process should be embarked upon and what medium should be used to attempt to re-establish the relationship, and that dilemma does not go away by stating, as the father’s counsel did, that although a Court must take the child’s wishes into account the Court is not bound by them. In this regard the father’s counsel cited the well known Full Court authority of R & R (Children’s Wishes) (2002) FLC 93-108. However, that case can clearly be distinguished given that unlike here the father in that case could not be said to have done anything whatsoever to provide a basis for the child’s views.

(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

There is no issue about the nature of the relationship between the child and the mother save and except that it is unclear as to the level of influence that the mother wields, and the impact that this has on J and her relationship with her mother. It may be that this becomes a problem in the future but for now the real issue is that the relationship between the child and the father is problematic.
To repeat, they appeared to have a good relationship prior to January 2005, but as a result of certain things that the father said and which the child appears to have taken to heart, and with the background of the child having a number of complaints about the father’s previous behaviour, the child ultimately refused to see the father, and apart from when she was interviewed initially by Dr O she has not spent any time with the father since. She professed not to want to see him, and I find that the mother has not done anything to change that view, and the father has added to that by for example refusing to apologise to the child for what he said to her in January 2005.
Certainly the relationship between the child and the father is fractured but it cannot be said that it has been completely severed. That much comes out of the latest report of Dr O, and Dr O said in cross examination that she considered that J loved the father but she was looking to escape from being in a conflicted position when with the father. However, it is also apparent that if both parties maintain their views about each other and continue to expose the child to their conflict then there is little hope of re-establishing the relationship.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

This is also a significant issue in this case. I find that each party is able to facilitate and encourage a close and continuing relationship between the child and the other parent, and despite some hiccups, they have demonstrated that in relation to S, but in the case of J neither party is necessarily willing to do so.
It might appear odd that the parties were apparently able to put aside their differences sufficiently for J to have regular contact with the father prior to January 2005. However, it seems that all was not as it appeared, and it came to a head in January 2005, and then led to both children initially, but J on a continuing basis, ceasing to spend time with the father as from 29 January 2005. For all of this time the parties continued their conflict and I find that they exposed the child to their negative feelings about each other. The signs of discontent were clearly present, and for example I refer to the mother’s attitude to make up time if a contact occasion was missed.
Dr O expressed it this way in her report:
“The impression that [J] has given is of a child who was building antagonism against her parent and, finding no positive change in his behaviour and no argument against her attitude from a powerful parental influence (her mother), has progressively hardened against him.”
and further, in the same report she said this:
“[J] has a complex life. She has grown with the knowledge of a high level of enmity between her separated parents. She has learned to consider herself a second carer for her older handicapped sister, whose future cannot be predicted. She is approaching adulthood, a factor that may be unconsciously influencing her to question her rights. [J] clearly needs time to come to terms with her feelings. She realizes that she loves her father, but does not believe that he can or will meet her needs.”
The father is concerned that the mother has alienated the child against him but he overlooks his own conduct and behaviour to which he has exposed the child. Likewise the mother blames the father but overlooks the role that she has played in the child forming the views that she now holds.
Until the parents realise that the problem lies with them, and that their child needs a close and continuing relationship with both of her parents I am concerned that nothing positive can be achieved in this case. As the mother said in evidence when asked how was it that she was able to get J to still attend contact at the end of January but allegedly she could not do this in February, March or at any time thereafter she said she simply “gave up trying”.
Now, in my view, that is completely unacceptable, but of course it begs the question of whether she wanted to “try” at all. I am not convinced that she did.
At the trial the mother had no suggestion to make as to how the relationship could be re-established. Further, when it was put to her that third parties could be used to facilitate the process she rejected all of the persons mentioned yet came up with none of her own. She has made the point to J that if she went on contact S would be there to support her, but that did not change J’s mind. Unfortunately I do not accept that the mother did enough to encourage this option.
For the father’s part, to repeat, he simply has no time for the mother and considers that she has poisoned J against him. Indeed, it was not until his counsel’s final address when I queried what proposals the father had to re-establish the relationship that any constructive suggestion was put forward. I will refer to this again later in these reasons.
On the topic of alienation it is convenient for me to say something briefly about that at this point. I do not accept that the mother has alienated the child against the father. I have found that the mother has influenced the child by exposing her to her feelings towards the father and by taking a positive role in the child making complaints in a diary, but the clear evidence is that contact took place on a regular basis for many years and the mother was able to ensure that the child went on contact on 15 January, 22 January and 29 January 2005. The child was clearly taken aback and effected greatly by what the father said to her on 8 January 2005 even limiting it to his version of the discussion, and it is likely that the child is not spending time with him as a means of escaping stress and avoiding further confusion given that he has failed to acknowledge that her concerns are real.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of the parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child) with whom the child has been living;

For some time the child has not been spending any time with the father. The mother wants that to continue but the father wants to resume seeing the child. The issue that arises is what will be the effect of that change? There is no specific evidence before me addressing that topic but there is evidence from Dr O to the effect that it is important to respect the views of the child, that it would be counterproductive to simply force the child to see her father, and that any further attempts to re-establish a relationship should be undertaken cautiously and with the assistance of appropriate counselling. The suggestion has been made to have J see the school counsellor or even again use the services of Dr O. Apart from this there is the issue of whether the father should apologise to J in order to break the ice, and there is a suggestion on the table to use a third party to try and re-establish contact.
It seems that everyone except perhaps the mother is keen to attempt to re-establish the relationship but the issue is how to achieve that without driving an even greater wedge than there already is between the father and J.

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

Given the high level of conflict and animosity that exists between the parties, if time spent is able to be reintroduced then there would also need to be a resumption of handovers occurring at the Children’s Contact Service.
There is in place an order that provides for the father to write and send presents to the child care of the Independent Children’s Lawyer. Unfortunately that has been problematic in that the child has taken the presents but refused to take the letters or allow most of them to be read to her. Thus, if time spent is not able to be reintroduced, or until it is, should this arrangement continue? Only the wife’s counsel really addressed this, and her submission was that there should still be letters but the giving of presents should cease. The evidence is that J has really adopted a mercenary approach to the presents and to continue to provide them would appear to be sending the wrong message. I accept this evidence.
With the letters, in my view it became somewhat pointless given the attitude of the child in not reading them, and I am inclined to not allow that to continue when instead it can be used as a tool in conjunction with counselling to encourage the child to see her father again.

(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Given the issues for determination I do not need to address whether the mother is able to meet the physical needs of the child. However, the father’s capacity in that regard has been put in issue, and that arises in the form of the list of complaints that the child had about the father’s behaviour and which she set out in her diary and in her conversation with her mother, and in her interviews with Dr O.
However, I do not propose to traverse these complaints and make findings as to each of them one way or the other. The father responded to the complaints in his evidence in chief and there was some cross examination of him about them, but neither party sought to address them with a view to me making findings about them. Indeed, in her final address the mother’s own counsel described the complaints as being “trivial excuses” put forward by the child as her “way of escaping from her father’s behaviour” and to find “a way out of the high conflict between her parents”.
In any event there is their uncertain status given my findings about the role that the mother had in the child making these complaints. Dr O said that she believed what the child said to her about them, but she did not accept that they happened all of the time, and she considered many of the complaints to be about one off events. She said that in some instances the child was “over exaggerating”.
In all the circumstances I am not prepared to find that the father does not have the capacity to meet the physical needs of the child. Indeed it must not be forgotten that there is a consent order in place in relation to S which entails him caring for her in circumstances where she needs particular attention given her autism.
In relation to attending to the child’s intellectual needs neither party raised any issue about that. However, with the emotional needs of the child I consider that both parties have failed to meet those needs. For the father’s part there were his comments made in January 2005 about leaving and not seeing the children again because J would not agree to extending the amount of time that she spent with him, and requiring her to collect her belongings and those of S. The father disputes that he said what J reports he said, but even on his version, in the context of discussing an increase in the time that she spends with him, he “asked her if it would be easier if she did not see (him) due to the fact that she felt people might pressure her”. Now that was a completely inappropriate question, and if this was the question put then it is still no wonder that she reacted in the way that she did.
The effect of this upon J has now been compounded by the father’s refusal to apologise to J for what he said on the ground that he has nothing to apologise for. In addition there is concern over the child’s revelation that the father had put pressure on her to hate her mother and her maternal grandparents. Again the father denied this but given the history of the matter, and the depth of feeling that the father has about the mother, I am prepared to accept that this was said. Now, this is completely unacceptable behaviour by the father and demonstrates an appalling lack of appreciation of J’s needs.
In addition there is the father’s unacceptable conduct in taping conversations that he had with the children over a period of 8 years, purportedly so that he could protect himself against any allegation that might be made by the mother.
Even with these examples it is quite apparent to me that the father has little or no appreciation of the emotional needs of J.
For the mother’s part there is her exposure of J to her negative feelings about her father, conduct of which the father is also guilty. The mother though, and particularly from February 2005 has not looked to encourage the child to maintain her relationship with the father and at times has positively discouraged it.
Nevertheless, the crucial issue is the continuing antagonism between the parties and the high level of conflict that still exists. In exposing the child to this they have put aside her emotional needs to pursue their own agendas. The visible effect of this on J is the sad circumstance that she is not seeing her father, but undoubtedly the behaviour of the parties has put at risk her future emotional development.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant;

Perhaps the only issue arising under this heading is J’s maturity, given that that is relevant to any assessment of her views and the weight to be attached to them. However, there was no specific evidence directed to this issue, and I can find no comment about it in Dr O’s reports or oral evidence. Dr O did though put some store in her level of understanding and her ability to communicate which indicates an age appropriate level of maturity, and that is the basis on which I propose to proceed.

(h) if the child is an Aboriginal child or a Torres Strait Islander child;

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant factor here.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Unfortunately, in this case, there is very little evidence of any positive attitude, and the negative attitudes of both parties are overwhelming.
In relation to the mother I highlight the following:
159.1There is the mother’s role in the recording by the child of “complaints” about her father’s behaviour, and in respect of which I have already made findings. I do not need to repeat what I have said, but it demonstrates a poor attitude by the mother to the child and to her responsibilities as a parent.
159.2As referred to above there is the involvement of the child in adult issues, the exposure of the child to the negative views that the mother has about the father and to the high level of conflict between the parties. The mother played as much a part in this as the father. I refer for example to my finding that the mother allowed the child to read Dr O’s first report and to the inappropriate questioning of the child about what happens when she is with the father. As Dr O said in her first report, “too much has been said to [J] about adult conflict and history and she appears to remain the pawn in an ongoing bitter feud”.
159.3There is the mother’s failure to encourage the child to spend time with and communicate with her father. In this regard she has put her own strong views about the father ahead of J’s need to have and to enjoy a positive relationship with her father. A particular example of this is her refusal to allow make up time when contact did not take place for some reason, and a telling piece of evidence is her admission in cross examination that she has “never” said to J that her father loves her.
159.4The child spent time with the father on 29 January 2005, but in February 2005 there was no compliance at all with the order of the Court. The mother says that J was unwell and she took her to doctors and obtained certificates, but she did not communicate at all with the father and tell him why not only J was not attending but also why S was not attending.
159.5The mother also claims that she did not have the capacity to get J to spend time with her father in February 2005. However, I do not accept that given her subsequent evidence that she “gave up trying”.
In relation to the father I highlight the following:
160.1I have referred already to what the father said to J on 8 January 2005 and the impact upon her. Although there is no concession about precisely what was said that does not matter because on either parties’ version it demonstrates an inappropriate attitude on the part of the father to the child and to his responsibilities as a parent.
160.2I have mentioned it on a number of occasions in these reasons, but perhaps the major failing of not only the father but the mother as well is the exposure of the child to the negative feelings that each party has towards the other and to their ongoing and unrelenting conflict. Unfortunately, there are many examples of this, but for the father’s part there is the taping of conversations between himself and the children over a period of 8 years and the pressure placed on J to hate her mother and her maternal grandparents.
160.3The father to his credit persisted with writing letters to J and generally he refrained from touching on inappropriate issues in those letters, but in a letter written on 23 July 2006 he could not help himself, and based on what S had allegedly said to him he claimed that what J had been told by her mother was not true.

(j) any family violence involving the child or a member of the child’s family;

I addressed this issue when considering the primary considerations, and I do not need to repeat what I said there.

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

This is not a relevant factor here.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The father’s primary position is to lift the suspension and have the order for the child to spend time with him put back in place. The mother’s primary position is to either discharge the suspended order or vary it so that it is subject to the child’s wishes.
If the father’s option was put in place there would be a serious risk of further litigation in that if the child did not spend time with the father contravention proceedings might be brought. On the other hand if the mother’s option was put in place there could very well be further litigation about establishing the child’s true wishes and dealing with claims of influence by the mother. Thus, neither option per se provides the path that is the least likely to lead to further litigation. The crucial issue though is that orders are put in place to provide the greatest opportunity to enable the relationship between J and her father to be re-established.

(n) any fact or circumstance that the court thinks is relevant;

Neither party nor the Independent Children’s Lawyer raised any issue under this heading.

Section 60CC(4) of the Family Law Act 1975

As referred to above, pursuant to this sub-section the Court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibility as a parent. I have considered this important issue when addressing paragraphs 60CC(3)(c) and (i) of the Act, and there is nothing further that I can say. I also note that no evidence was presented as to either party’s involvement or lack of involvement in making decisions about major long term issues in relation to the child, or as to any fulfilment or failure to fulfil a parent’s obligation to maintain the child.

Parental responsibility

Neither party sought any order about parental responsibility. The order of 8 July 1998 provided for the mother to have “the sole responsibility for both the long term and short term care, welfare and development of the children”, and the mother did not seek to change that. However, the father sought that “all previous orders be discharged” which of course would include the above order, but he did not seek any order in lieu of that order.
No evidence was presented on this topic and no submission was made by anybody, however the counsel for the Independent Children’s Lawyer did make submissions to me as to the applicability of s 61DA of the Act. Thus, I suspect that the father was not intending to put parental responsibility in issue, and I am comfortable to not make any change to the existing order.
However, because of the unnecessarily strict wording of s 61DA of the Act, even though no issue was raised by either party I am still obliged to apply, subject to certain exceptions, a presumption that it is in the best interests of the child for the parties to have equal shared parental responsibility. None of the exceptions seem to apply per se, but it is nonsensical in a case like this to apply the presumption. Accordingly, I have to try and construct an argument around sub-s 61DA(4), namely that there is evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her. In my view the evidence does establish this, given that there has been an order in place otherwise since July 1998 and neither party sought to substitute a different arrangement.

Conclusion

The child J has not spent time with the father under the current suspended order since 29 January 2005, and the evidence is that she does not want to do so.
The alternatives presented to me at the commencement of the hearing were as follows:
171.1The mother said that the order of 8 July 1998 in so far as it provided for the child J to spend time with the father should be discharged. Then, when and if the child expressed a desire to see her father at any time in the future the mother would facilitate that.
171.2The father said that the order of 8 July 1998 in so far as it provided for J to spend time with him should be reinstated.
171.3The Independent Children’s Lawyer supported the mother’s position.
In her oral evidence Dr O proffered the opinion that it would be pointless to simply reinstate the order. That could very well entrench J’s views and she may become ill again from the stress of it all. However, equally Dr O felt that discharging the order was not the solution. She said that J may be relieved at first, but then wonder if she was right and whether or not her father wanted to see her. Alternatively she may think that her father has abandoned her.
Dr O also considered that making any order subject to the child’s wishes would not be successful either if nothing is done to change her views first.
It is quite apparent that the real issue is how to re-establish the relationship. In her evidence Dr O canvassed what could be done in that regard, namely ensure that the child has counselling, have the father apologise to J for what he said to her in January 2005 so that she understands that he did not mean what he said and that “they got their wires crossed”, try to open up a line of communication through a friend from the past, in other words have this person contact J initially and then later bring in the father, and have the mother tell J that her father loves her and that she wants J to see him. With the counselling Dr O indicated that she would be happy to do that if it was alright with J.
However, it was not until final addresses that the parties through their counsel seriously considered a way forward with this issue as an alternative to the orders they each sought at the commencement of the hearing. The father proposed as follows:
175.1That a mutual injunction be put in place restraining the parties “from denigrating, abusing or rebuking the other or members of the other’s family or from discussing any court proceedings concerning either parent or the children”.
175.2That “the mother positively encouraged [J] to have a relationship with, spend time and communicate with her father”.
175.3That the mother “genuinely endeavour to communicate with and arrange for the child to spend time with [Ms N], [Mr L] and/or other relatives or friends of the father”.
175.4That “the mother arrange counselling appointments for [J] with Dr [O] once a month for a minimum of 6 months, and facilitate [J’s] attendance at such appointments; the purpose of such appointments being for [J] to discuss matters generally, including any personal problems or concerns and, if and when deemed appropriate by Dr [O], to discuss the issue of [J] spending time with and having a relationship with the father, with the costs of such appointments to be shared by the parties”.
175.5That “the Independent Children’s Lawyer shall, within 14 days of the date of this order, arrange for all remaining letters and gifts held at the office of the Independent Children’s Lawyer to be forwarded to Dr [O]”.
175.6That “the father shall be at liberty to forward written communication to [J] via Dr [O], with Dr [O] to provide such communication to [J] as deemed appropriate by Dr [O]”.
175.7That “at the conclusion of the involvement of Dr [O], all further written communication by the father to [J] shall be forwarded to [J] care of her school counsellor or such other person as may be agreed between the parties”.
175.8That “within 6 months of these orders, both parents shall enrol in and complete a parenting course which addresses issues including cooperative parenting, understanding children’s needs and methods of appropriate communication about children and to children”.
Importantly this alternative was put to the Court on the basis that the existing suspended order would be discharged.
For the mother’s part, in cross examination she indicated that with the third parties suggested she either did not know enough about them or she did not consider them sufficiently independent to agree to their involvement. Then, in her counsel’s final address she provided the mother’s instructions on the proposal put by the father’s counsel. In summary she agreed with the first suggested order, she was concerned about the enforceability of the second suggested order, she considered that it would not be helpful to J for her to be involved with the father’s friends who would not be independent, she was suspicious of the father now wanting to have Dr O undertake the counselling given his criticism of her methodology and her recommendations in this case, she opposed the suggested order in relation to the remaining letters and gifts, she would only agree to letters being sent through the Children’s Contact Service or the school counsellor, she was not attracted to the seventh suggested order, and with the last suggested order her position was that there was no evidence that she needed to attend a parenting course.

Nevertheless, on instructions, her counsel did submit that apart from the order that the wife did want, namely a discharge of the existing suspended order, there could be an order that the mother facilitate J attending at the Children’s Contact Service to see the father at the same time as S attended for the purposes of handover, and if J requested this.
In my view the existing suspended order of 8 July 1998 needs to be discharged, but only on the basis that orders like those now suggested by the father are put in place. Unfortunately, the mother’s stated position does not fill me with any confidence that the child’s relationship with the father can be re-established, but the attempt simply has to be made in the best interests of J. However, not all of the proposed orders by the father are appropriate. There should be the mutual injunctions, the mother should take J to see Dr O for counselling with the costs to be shared by the parties and the remaining gifts and letters should be sent to Dr O. There cannot be an order to the effect that the mother should encourage J to have a relationship with the father, because enforcement of such an order would be impossible. However, I would expect the mother to do this without there being an order. There also cannot be any order that the third parties proposed by the father be involved. They are not sufficiently independent and as Dr O warned, it would be damaging to J if they for example denigrated the mother to her or in her presence. Next, there should not be an order providing for further correspondence from the father, and that should be left to Dr O to arrange if appropriate. However, if the father truly wants to establish a relationship with J then he will forward a letter of explanation and apology to J through Dr O in relation to what he said to J in January 2005, and generally.
I would encourage the parties to undertake parenting courses as proposed by the father, but an order to that effect would be inappropriate given that the parties need to undertake such courses voluntarily in the context of wanting to better understand their child and her needs.
Finally, given the mother’s proposal there should also be an order in relation to facilitating J’s attendance at handover if she requests it.
Apart from this I urge the parties once again to put aside their conflict and place the needs of J ahead of their own.

I certify that the preceding 182 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 13 March 2009.

Associate

[2009] FamCA 193

13 March 2009

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