Conroy and Jones

FAMILY COURT OF AUSTRALIA

CONROY & JONES

[2008] FamCA 7

FAMILY LAW – CHILDREN – With whom a child lives – Separation of siblings – Best interests of the child – Entrenched conflict – Emotional abuse – Child’s name

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238

APPLICANT:

Mr CONROY

RESPONDENT:

Ms JONES

INDEPENDENT CHILDREN’S LAWYER:

Stephen Tester & Associates

FILE NUMBER:

BRC

4051

2007

DATE DELIVERED:

11 January 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Coffs Harbour

JUDGMENT OF:

Murphy J

HEARING DATE:

10 – 12 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Theobald

SOLICITOR FOR THE APPLICANT:

Crane Butcher McKinnon

COUNSEL FOR THE RESPONDENT:

Mr Priestley

SOLICITOR FOR THE RESPONDENT:

Susan Green Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Tester

ORDERS

The mother have sole parental responsibility for the child … born … February 2000, save that the father shall be responsible for making day to day decisions with respect to the child when the child is spending time with him.
The said child shall live with his mother.
The said child shall spend time with his father at all such times as might be agreed between the parties in writing and failing any such agreement as follows:
3.1On not more than three weekends during each school term and for such duration between after school Friday and before school Monday (or Tuesday if Monday is a public holiday or pupil-free day) as the father can arrange consistent with his work rosters and the exigencies and expense of travel, and:
3.1.1The father shall give the mother not less than three weeks notice in writing of the date/s and times of any such weekend time;
3.1.2The dates and times so nominated shall be the dates on which, and the times during which, time with the child shall occur;
3.1.3No alteration to any such date or time shall be made by either party save in the case of unforeseen, genuine emergency which shall be notified to the other party in writing (which shall include e-mail and/or SMS text) as soon as possible after it becomes known.
3.2During gazetted school holidays as follows:
3.2.1For the whole of the Autumn holidays each year;
3.2.2For the first half of the Winter holidays in 2008 and each alternate year thereafter and for the second half of the said holidays in 2009 and each alternate year thereafter;
3.2.3For the second half of the Spring holidays in 2008 and each alternate year thereafter and for the first half of the said holidays in 2009 and each alternate year thereafter;

3.2.4For the first half of the Summer holidays in 2008/9 and each alternate year thereafter and for the second half of the said holidays in 2009/10 and each alternate year thereafter with Christmas to be spent with each parent as it falls in accordance with that sequence;
and each such period of contact shall commence and conclude at 4.00pm Saturday.

3.3The mother shall be at liberty to telephone the child on one occasion during the holiday times provided for at orders 3.2.1, 3.2.2 and 3.2.3 and twice during the holidays times provided for at orders 3.2.4.

Changeovers to facilitate time spent with the father shall occur:
4.1In the event that time commences or finishes on a school day at usual school start or finish times, then at the school;
4.2R Contact Centre, H, when it is open and available;
4.3Otherwise at McDonalds at H.
Each of the parents shall do all such things as might be necessary so as to facilitate the said child communicating with his father at all such times and in each such manner as might be agreed between the parties in writing and failing any such agreement as follows:
5.1By letter or card at any time;
5.2By e-mail at all such times until 8.30pm as the child and the father might choose;
5.3By telephone on Tuesday between 6.30pm and 7.00pm with the father to initiate the call.
The father be restrained and injunctions are hereby granted:
6.1Restraining the father from referring to the said child in any context by the forename “[E]” and/or the surname “[Conroy]”;
6.2Restraining the father from permitting any person in his presence or hearing from referring to the said child in any context by the forename “[E]” and/or the surname “[Conroy]”;
6.3Requiring the father to refer to the said child in each and every context by the forename “[K]” and the surname “[Jones]”;
6.4Requiring the father to use his best endeavours to ensure that each person in his presence or hearing refer to the said child in each and every context by the forename “[K]” and the surname “[Jones]”.
The parties shall each do all such things and sign all such documents as might be necessary to give effect to order 6 and further:
7.1For the child to be known in each and every respect and context formally as K JONES and by the forename “[K]” and the surname “[Jones]”;
7.2For the child to be referred to at all times by the parties and by all such persons in the presence of the parties as “[K]”;
7.3To request and encourage each and every person with whom the child has acquaintance to refer to him as “[K]”.
So as to give effect to orders 6 and 7, the parties shall each do all such things and sign all such documents as might be necessary for there to be, at the father’s expense, such “naming ceremony” and/or other process as might be recommended by Ms T, psychologist, or other similarly qualified professional, so as to facilitate the child being known hereafter as “[K]” rather than “[E]” and his coping with any psychological or emotional issues consequent upon that change.
The father provide to Ms T (and any other similarly-qualified professional contemplated by order 8) a copy of the Reasons for Judgment in this matter and the parties be at liberty to provide a copy of the Reasons to any appropriately qualified psychiatrist, psychologist, social worker or similar health professional providing treatment to either of the parties or the child.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
10.1Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
10.2Any school which the child attends;
10.3The Director of any extra-curricular school or other activity in which the child is involved;
to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.
Each of the parties shall advise the other and keep the other advised of:
12.1Their residential address;
12.2Telephone numbers at which they and the child can be contacted;
12.3Any email address to which the child can have access and shall notify any changes in any such details within 48 hours.
Neither party shall denigrate, or cause or permit other persons to denigrate the other in the presence or hearing of the child.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Murphy delivered this day will for all publication and reporting purposes be referred to as Conroy & Jones.

FAMILY COURT OF AUSTRALIA AT COFFS HARBOUR

FILE NUMBER: BRC4051/2007

Mr Conroy

Applicant

And

Ms Jones

Respondent

REASONS FOR JUDGMENT

For virtually the whole of the child’s life his parents have been in conflict about him.
They separated in August 1999, about six months before the child was born in February, 2000. Proceedings were commenced in 2001 and a consent Order was initially made in July 2001 that the child live with the father.
Over six years later, the parties are still litigating, culminating in these proceedings before me.
The child spent his first 18 months with his mother. In July, 2001 he went to his father’s where he stayed for a month before the father relocated with the child to the North Coast of New South Wales. The mother followed.
Thereafter, as a result of various court orders and the actions of the parties, the child has lived for six months with his father; in Department of Community Services respite care for a month; with the mother for two months; with the father for just on four years and now with the mother for about 18 months immediately preceding this trial.
Against that background, it is a tragic irony that Dr W – a consultant child psychiatrist called in these proceedings by the Independent Children’s Lawyer and who has produced four reports in 2003, 2004, 2006 and 2007 - opines in his most recent report that: “[The child] is not a boy who adapts very well to change and he has been caught between his parents for a number of years now with significant adverse consequences for his emotional state”.
A similar theme pervades Dr W’s earlier reports. In 2006 he said the child is “a very emotionally vulnerable child and also the intensity of his parents’ stubbornness about his two names and transparent conflict that they have about that over him is an additional and reversible source of problems in his life”.
The particular reference to the child’s name is a recognition of a long-standing dispute between the parents. The father refers – and from when the child was about 18 months apparently has always referred – to the child as “[E]” and has also used the surname “[Conroy]”. The mother refers, and always has referred, to the child by his birth certificate name, “[K Jones]”.
The parents have been intractable in their respective positions on the issue of the child’s name and remained so until day three of the trial.
Greater complexity is given to the child’s position, and the issues confronting this court, by reason of a number of additional factors.
First, the child has a brother, D. D is about 3 ½ years older than the parties’ child. He is the child of the mother and Mr M, whom D sees regularly and who is not a party to, nor a witness in, these proceedings.
D lived with the parties’ child, and therefore shared the parenting history of these parties just outlined, until 23 September 2002 when they were separated (by agreement and despite a Court Order of the same day) with D going into his mother’s care and the parties’ child to his father.
D and the child, then, shared a household until the child was about 2 ½, were in separate households for about 3 ½ years and have been together in the mother’s household for about 18 months preceding this trial.
The second significant complicating factor is that the child suffers from a number of behavioural or developmental difficulties. These have been diagnosed or described in different ways, specifically, Oppositional Defiant Disorder; ADHD and Asperger’s Syndrome.
For the purpose of these proceedings, the exact diagnosis or description matters less than the recognition that, whatever be that precise diagnosis or description, both parents accept that the child’s problems manifest themselves in a number of significant behavioural and educational challenges and that specialised interventions/monitoring at school, and generally, are necessary.
The third complicating factor is that, in about December 2005, without notice to the mother, the father moved with the child to Sydney from regional NSW where they had been living and where the child was attending school. The father and his new wife and her adult children continue to live in Sydney. Geographic distance and the ramifications that has for the relationship of each party with the child (and for the child with D) and the ability of either party to spend regular and significant time with the child, are significant issues.
In terms of the parties’ proposals, the central issue for determination is with whom the child should live. Each proposes that the other parent should spend time with the child.
As will emerge, an additional, and crucial, further central issue arises: do the child’s best interests demand that he be placed into the care of one parent with there being no time spent with the other parent and no active communication with that parent.
That such a proposal should be considered by the court emerges primarily as a result of the oral evidence of Dr W, and the mother, at trial.
It is important to consider that evidence in some detail, but before doing so, it is also necessary to make clear that my determination about orders that best accommodate the child’s best interests is conducted cognizant of, and bound by, the mandatory pathway and principles now enshrined in the Act.

RELEVANT PRINCIPLES

The decision in respect of the child’s best interests is to be guided by the paramountcy of those best interests.
However, that issue is not left at large by the Act, but rather signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are additional.
I consider that the “primary considerations” have particular importance but, as the word “additional” implies, they are to be considered in conjunction with the “additional considerations”.
Each such consideration represents not an end point, but a pathway (albeit a mandatory pathway) to determining the best interests of a child, consistent with the overall objectives of the Act. The statutory Objects are given light and shadow by the statutory Principles underlying them.
Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
Those Objects and Principles are given further statutory specificity by:
a)directing a court to presume that equal shared parental responsibility is in a child’s best interests; and
b)requiring, consequentially, a court to consider whether an equal time order is in the best interests of the child; and
c)if not, requiring the court to consider whether a child spending “substantial and significant time” (as defined) with each parent is in the child’s best interests; and
d)requiring a court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period.
The issue of “equal” or “substantial and significant” time is governed, in turn, by a consideration of whether either is in the child’s best interests and whether each is “reasonably practicable”.
The determination of reasonable practicability is, also, not left at large but circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements and capacity for the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant.
In introducing the 2006 Amendments to the Act, the legislature is both presumed to have known the provisions of the previous legislation and to have intended the words used in the new provisions to have real clarity and meaning[1].
[1] See generally: Cross on Statutory Interpretation (2^nd ed, 1987) 169-172.
It is, in my view, significant, then, that the court is, for example, required, as part of its mandatory considerations, to consider the benefit to a child of a “meaningful relationship” with both parents and the willingness and ability of parents to encourage a “close and meaningful” relationship and to consider the difficulties created by distance and the like effecting a child’s right to maintain “personal relations” and “direct contact” on a “regular basis”.
Parenting, let alone “appropriate”, or “adequate”, or “good-enough” parenting – is a multi-faceted concept. It is the combination of a plethora of rights, duties and responsibilities “many of which”, as has been observed, “last a life-time”.[2]
[2] Per Callinan J in U v U (2002) 211 CLR 238.
Importantly, it is also a product of parental past experiences, psychological health, attitudes, philosophical beliefs, and commitment.
Where parental conflict (to one degree or another) or the characteristics or idiosyncrasies of one or both parents mark adversely the parenting relationship, the pursuit of those aims – statutory or otherwise – must, almost by definition, become problematical. Differences in approach, belief systems, attitude and the like are thrown into sharp focus.
It is in that context that courts must bring a consideration of the statutory matters to a practical and enforceable conclusion in the individual circumstances of the conflicted parents who, by definition, cannot agree, and the individual needs, desires, health and aspirations of the child the subject of those orders.
Into that context fall the specific issues that mark out the conflict between the parents in this case and the ultimate determination of the child’s best interests.

CENTRAL FINDINGS

It is possible to make a number of findings by my acceptance of the evidence of Mrs H, the school principal at the school where each of the child and D attend.
In his oral evidence, Dr W (who I gave leave to give evidence by telephone) said he thought that reliable evidence from the child’s school should allow a picture to be painted of whether the mother has evidenced an acceptable level of judgment in and about her parenting of the children.
Mrs H was subpoenaed to give oral evidence by the father. I listened carefully to her evidence and observed her closely in the witness box.
I found her evidence cogent and compassionate. I assess Mrs H to be an honest, reliable witness.
Mrs H’s evidence indicates to me that she properly prioritises the interests of all children in her charge, including the child and D. She struck me as a caring and thoughtful educator who has given considerable thought to the child’s special needs and to what is best for him.
U school has just over 40 children. Ms H said that she thought there were some advantages to a small school, including that it can do things as a whole which, relevantly, included establishing peer support for children, including children like the child who have special needs.
Judging differences between schools and their asserted advantages and disadvantages is fraught: what is a “good” school and what is not? To what extent is any such judgment a value judgment as distinct from a factual finding?
The father argues that facilities at the B school, at which he and His wife have made enquiries for the child, are likely to be better at meeting the child’s special needs or, if not better, certainly easier to access, than in and around a small hinterland town on the NSW Central Coast.
In respect of the latter matter, cross-examination was directed toward the fact that the possible[3] future special programme for the child, if he remains with his mother, will involve a 45-minute road trip each way four days per week (described by Mrs H as a half day and by Dr W as being more like a full day once disruption is taken account of) and a consequent disruption to his usual school routines.
[3]The child had only just started on a trial of dexamphetamine under supervision from his doctor. It was agreed that this would be trialled before the interventions which required the 45-minute trip would be undertaken.
I am convinced that each of the mother and the father would seek to avail the child of all facilities reasonably available in their respective geographic areas. As Mrs H was, in my judgment, endeavouring to point out, some advantages exist in circumstances that might, to other reasonable minds, be perceived as disadvantages.
There is no precise evidence about exactly what arrangements would be in place for the child if he was to attend B school; they are, after all, prospective. It is clear that the father and his wife have appropriately sought particulars of the sort of care available and the school has outlined those facilities.[4]
[4]I note that Ms T, the father’s counsellor, appeared impressed with the account she received of B School’s facilities.

There is little doubt in my mind that any such facilities would result in less travel (and consequent disruption) than in arranging specialist care from the NSW hinterland. However, to my mind, that is by no means the only consideration, the advantages that Mrs H, at least, seeing in a small school being another consideration.
I don’t consider that I can make a judgment on the evidence before me that one school, or proposed special-need arrangements or circumstances, is “better” than the other or more suited to the child. Each come with advantages and disadvantages just as living in the western suburbs of Sydney and living in the NSW hinterland have other advantages and disadvantages.
It is possible to make a number of additional findings readily because they relate to matters that were either admitted or could not seriously be challenged.
I make the following findings which are central to my ultimate decision:
·The parties have been locked in intractable conflict, and litigation flowing therefrom, for more than six years;
·There has been no noticeable improvement in the parties’ relationship during that time;
·There is no trust between the parties and each is highly suspicious of the other’s motives and actions;
·Even though it is over eight years since the parties separated, they have erstwhile exhibited no current meaningful capacity to co-parent;
·The mother currently suffers from a psychological condition probably most accurately described as an “anxiety disorder”. She additionally has personality frailties, arising from a very compromised upbringing, but they now fall short of a psychiatric diagnosis of “borderline personality disorder”;
·The parents have so far exhibited no capacity to make joint decisions affecting the child;
·Until early this year, the attitude of the father toward the mother was that he wanted the mother out of the child’s life. His past behaviours, including contraventions of orders for contact to the mother and the failure to tell the mother of the “where and when” of the child’s first day of school are manifestations of that;
·The father works shifts on a rotating roster. Those shifts include “afternoon shift” (2pm -10pm) and night shift;
·The father has remarried. He commenced residing with his now wife in December 2005 and they married in April 2006. The father’s wife has two adult children who live with her and the father. She has not cared for the child on a full-time basis or during the week in school terms;
·The father’s evidence that the child “seems to have split himself into an identity in each household” is an accurate description of how, at least in some respects, this troubled young boy has attempted to cope with the conflict between his two parents;
Relying principally upon the evidence of Mrs H:
·The child and D have, as she said, “a normal sort of sibling relationship” and their relationship “has developed as they have had more time together”;
·The child has formed a group of friends at school with whom he socialises outside of school;
·The child and D have attended U school for about 18 months. Its small size, makes it easy to maintain contact between the school and parents as, Mrs H explained, the principal can catch parents when they drop off and pick up children;
·Mrs H has no concerns that the mother is less concerned than she should be in attempting to meet the child’s (and D’s) needs;
·The child’s social skills have improved since he has arrived at the school;
·The child has not been suspended in the last six months and his unacceptable behaviour has been lessening somewhat over time;
The sad history of this case does neither parent any credit. I accept the opinion of Dr W that “neither party is a particularly capable parent”.
That is particularly so in light of the evidence of Dr W – which I also accept – that it is difficult for him to assess how much of the child’s behavioural and educational difficulties are due to constitutional factors (i.e. factors relating to the child’s “constitution”) and how much was due to the conflict between his parents.
I also accept Dr W’s opinion that “some” of the problems were due to constitutional factors but “a significant part” of the difficulties were due to the ceaseless conflict between the parties.
The history of conflict speaks ill, in particular, of the respective capacities of each parent to put the child’s interests ahead of their own and, accordingly, their capacity to provide for the child’s needs, including his emotional and intellectual needs; their “willingness to facilitate and encourage, a close and continuing relationship between the child and the other parent” and the responsibilities of parenthood exhibited by each.[5]
[5] Each of which are, of course, s 60CC considerations.

PARENTAL RESPONSIBILITY AND PRESUMPTION

At the conclusion of the trial, neither counsel for either of the parties nor the Independent Children’s Lawyer made submissions relating to the presumption that equal shared parental responsibility[6] is in the child’s best interests.
[6] s 61DA Family Law Act 1975 (Cth).
However, that presumption of law is a central plank of the Act and the court’s powers to make parenting orders. In particular, its application is the catalyst for a number of mandatory considerations. It is necessary that I address it.
Neither party nor the Independent Children’s Lawyer sought orders that the parties have equal time or “substantial and significant” time as defined. Nevertheless s 61D(2) in my view requires me to consider whether any orders I make should expressly make provision about responsibility.
Further, the application or rebuttal of the statutory presumption dictates the process upon which I must embark in arriving at an ultimate decision about the child’s best interests.
With that in mind, after completion of the trial, I requested each counsel and the Independent Children’s Lawyer, Mr Tester, to direct written submissions to that issue.
Those written submissions were received on 14 December 2007 (the mother), and 17 December 2007 (the father and the Independent Children's Lawyer).
Each party and the Independent Children's Lawyer contends that an order for sole parental responsibility should vest in the parent with whom the Court decides the child should live. The reasoning process is also virtually identical: the parties have effectively no capacity to co-operate or communicate.
The legislation defines “parental responsibility” to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[7] Absent a court order, each parent has parental responsibility[8] and, conversely, parental responsibility is only removed to the extent that an Order expressly provides[9].
[7] s 61B Family Law Act 1975 (Cth).
[8] s 61C Family Law Act 1975 (Cth).
[9] s 61D Family Law Act 1975 (Cth).
Specified aspects of parental responsibility can, then, be removed by the provisions in orders of some aspects of the relevant “duties, powers, responsibilities and authority”. For example, an order that a child live with a parent removes the right of that parent to decide where and with whom a child should live.
The effect of sections 61C and 61D of the Act is such that, in some cases, no specific orders are needed, or warranted, that make direct reference, in terms, to “parental responsibility”, the effect being that each party has all of the rights, powers responsibilities and authority of the subject children save as other parts of the orders provide.
However, the fact that, save to the extent that those same features are specifically removed by other orders, each party retains all of the remaining “duties, powers, responsibilities and authority,” individual co-parenting relationships can demand that a specific order is made.
In my judgment, this is such a case.
The incapacity of the parents to reach a compromise on a name for this child is, as Dr W points out, an example of their incapacity to communicate and reach agreement about the most basic aspects of their child’s care and nurturing.
Further, in my judgment, Dr W is right when he describes that issue as a metaphor for the on-going dispute between them and their apparent utter incapacity to co-parent or accord to each other the requisite trust and respect necessary to meaningfully co-parent.
The retention by each party of parental responsibility will in my judgment only serve to further divide this young, needy boy’s life into “[K] World” and “[E] World” – a dichotomy representative of likely future emotional harm.[10]
[10] The evidence in respect of this is addressed subsequently.
I am clearly of the view that it is not in the child’s best interests for his parents to have equal shared parental responsibility within the meaning of s 61DA. The statutory presumption is, accordingly, rebutted.
For completeness, I should also record that, within the meaning of s 61DA, each of the parents has, in my judgment, engaged in emotional abuse of the child in the sense referred by Dr W in his evidence and that this, too, rebuts the presumption in this case.
Accordingly, it is not mandatory for me to consider whether the child should spend equal, or substantial and significant time with his parents. Further, as observed, neither party contends that I should.
I am, though, obviously enough, obliged to consider the Objects and Principles and what amount of time, if any, with each parent best promotes the child’s best interests.

EVIDENCE DURING THE TRIAL

Aspects of the evidence of each of the father, the mother and Dr W at trial are, in my view, crucially important to a determination of what orders achieve the overall statutory aim.

(a) Evidence of Dr W

Early in his oral evidence, Dr W – who is an experienced psychiatrist and report writer in this Court – said that this case presented a very unusual situation. He said he could not recall a case which had been litigated as long and with as many reports, but with so little change in either parent.
He said “a couple of things were very clear cut”, including that “in the course of seven years, the parties relationship had not improved at all, not a bit”.
Dr W made particular reference to the dispute about the child’s name: he said there was a “staggering level of stubbornness” which (from the child’s point of view) had been “going on long enough” and “neither [party] has given an inch”.
He said that the dispute about this issue, represented, in essence, a metaphor for the whole problem between the parties.
Dr W then gave this evidence: he said, in effect, that he would need convincing that things had not got to the point now where it was time for the child to live with one parent and where spending time with the other parent was unsustainable. He underlined that opinion by saying that “the days of [the child] having two families are probably over”.
Neither party’s proposal contemplated cessation of time with the other parent in the event the child lived with them[11].
[11]This court is not bound by the proposals of the parties. The child’s best interests are the paramount consideration and the court has an independent duty to fashion orders in the child’s best interests if the proposals of the parties do not, in the court’s judgment, properly accommodate same – see eg U v U (2002) 211 CLR 238; AMS v AIF (1999) 199 CLR 160.
Dr W’s evidence as to the reasoning behind this opinion was that if the conflict is taken out of the child’s life he was “likely to cope better and make more progress” and, given the sorry history of this matter and the fact that previous reports and interventions appeared to have made little difference, the only way to eliminate that conflict was in the manner suggested.
He went on to say that every form of direct contact is turned into grist for the mill for further conflict between the parties and further harm to the child.
Support for that last conclusion can be seen by reference to one – in my view, instructive – example in the affidavit of the father filed on 13 June 2007. This details evidence in respect of issues emanating from 16 contact occasions dating from March 2006 (comprising paragraphs 42 to 70 of that affidavit) and, additionally, makes specific reference to what did, or didn’t, occur on 45 telephone contact occasions.
And, there is no doubt in Dr W’s mind, that the conflict, and the spilling over of that conflict to the child, amounts to emotional abuse of the child. It may not be conscious emotional abuse, but emotional abuse doesn’t need to be conscious to be harmful.
This last consideration is exemplified by poignant evidence in the father’s wife’s affidavit. She swears (less than a week before trial) that:
“When we are turning into our street after picking [E] up for school holidays [E] says:
‘Yes, I am in [E] World”
That clear reference, together with the evidence of the father to which I have already referred (that the child “seems to have split himself into an identity in each household”), struck me as troubling from the point of view of the child’s psychological or emotional health. In answer to my question to that effect, Dr W agreed that I was right to be troubled.
Dr W was of the view that, if the child was to benefit from a “time order”, assuming a “live with” order in favour of the other parent, the orders would need to be associated with an appropriate change of heart and not such as likely to be further cause for disruption.
In re-examination, Dr W said that he thought two specific things needed to occur if such orders were to be genuinely beneficial to the child: there needed to be uniformity about his name and there needed to be a change in the way the parties dealt with each other.
Dr W was, though, it is fair to say, pessimistic about either prospect. He pointed to the fact that, he had prepared four reports in five years, and said words to the effect that: “ the issues have been there in black and white for all to see and neither has budged an inch”.
Further, the Doctor emphasised that the child’s perspective needed to be centrally borne in mind. He said: “even if the parents do change, [the child] will take some convincing”.

(b) Evidence of the Father

In the light of that evidence by Dr W, evidence by the father of what he says is a significant change in his attitudes and outlook becomes very important.
I will refer to that evidence shortly, but, it is first necessary to refer to the father’s evidence as to his erstwhile attitude to the mother and her role in the child’s life given in response to questions from me.
In his affidavit sworn on 6 December 2007, the father swears[12]:
“I know that at times [the mother] is a good mother. I know she is not the demon I used to think she was.”
[12] At paragraph 18.
The father attributes what is clearly a change in attitude to his employment and his therapy with Ms T which, the father deposes, “has given me an understanding of myself and my own situation”.
The father gave similar evidence in the witness box. He said he started to change when he started to take on board the counselling. He said the counselling had been going on for some months and commenced early in 2007.
The father also deposes to the fact that, as a result of a change in his employment in the justice system, he has “input in developing Case Plans in partnership with a multi-disciplinary team which includes counsellors and psychologists in an environment that has a therapeutic focus”.[13] The father attributes this work, in conjunction with his own therapeutic experience with Ms T, to have been significantly beneficial. Dr W, in his evidence, was very praiseworthy of Ms T’s expertise and experience with which he said he was well familiar.
[13] Father’s Affidavit sworn 6 December 2007, paragraph 17.
The father was questioned about some examples of his past attitude towards the mother. He told counsel for the mother that he couldn’t recall if he informed the mother of the child’s first day of school[14]. He conceded that he possibly didn’t tell the mother about that extremely significant event. At about this point, I asked the father whether it was fair to summarise his attitude towards the mother at that time by saying that he wanted her out of the child’s life. He responded that it was.
[14] The child was living with his father in regional NSW when this occurred.
When questioned further by counsel for the mother, he agreed that, in about 2002-2003 when he presented “papers” to the mother, with a view to having the child’s name changed to E, he had it in mind to exclude the mother from the child’s life.
However, he said that as a result of the factors to which I have earlier referred, including, in particular, his therapy with Ms T, that attitude does not continue now.

(c) Evidence of the mother

When counsel for the father put it to the mother that “nothing had moved” in the previous five years, the mother could point to only one phone call (occurring in 2002) where she had made an attempt to facilitate communication with the father. She gave evidence of that conversation breaking down and that nothing had occurred since.
She told counsel that she didn’t know anything she could do to improve the situation. She indicated that there was a complete breakdown in trust and that trust is earned and there was “no trust at the moment”. She had no suggestions as to how that might improve.
After some time in the witness box, the mother said that if any order was made by this Court that the child live with the father, she would “walk away”. She said the reason for that is, that the child would “always be known as [E] and the conflict wouldn’t end”.
When pushed on this, the mother indicated that the child doesn’t like change and didn’t like swapping and all that goes with it (by which the mother meant changeovers between the parties and the interaction between them, necessary to arrange the father spending time with the child).
I suggested to the mother that, logically, those reasons would tend to suggest a conclusion that, if the child lived with her, given that the changes and the swapping and all that goes with it would also be present, it followed that she was really suggesting that the child should not see his father in the event that the child lived with her.
She responded that she was “very torn”. She said she only wanted what’s best for the child. She said that one part of her recognises that the child loves his Dad. That same part said that if his father didn’t see him, the child may not understand. She said that was particularly true because D’s father saw him regularly and the child would start questioning why D’s father saw him, but his didn’t.
She told the Court she was also torn because she doesn’t believe the father when he says he has changed for the better. She said that part of being torn comes from the fact that the child was happy and excited to see his father, but when he came back from visits with his father he was upset. She said: “I don’t want to deny him seeing his father”.
It seemed that the mother considered that a significant part of the problem was the father’s adherence to calling the child “[E]”. The mother said that she had no real confidence that the father will use the name K even if he was ordered to do so by the Court and even if he said he would.

(d) Evidence of father with respect to the child’s name

On day three of the trial, after Dr W had given evidence, but before Mr Theobald, counsel for the father, cross-examined, Mr Theobald requested that I stand down so that he could obtain instructions from the father. There being no objection, I did so.
Having done so, Mr Theobald applied to reopen his client’s case so as to call additional evidence from the father. I required Mr Theobald to open the evidence that the father would give if leave was granted to reopen.

Mr Theobald indicated that the father would give evidence that, having heard the evidence of the mother and, most recently, the evidence of Dr W, he would give an unequivocal undertaking to use the name K and use all best endeavours to ensure other people in his household at all times used the name K in respect of the child.
Secondly, Mr Theobald indicated that his client would have a “naming ceremony” in a form recommended by Ms T, or other competent qualified professional, with a view to facilitating, in the best manner possible for the child, the permanent change of name.
Mr Theobald indicated that his client would give evidence that this was his position irrespective of with whom the child was ordered to live.[15]
[15]The father’s position as per his application was, consistent with the recommendation of Dr W, that the child be known by the name of the household into which he was placed by Court orders.
Mr Priestly, who appeared for the mother, did not require the father to give evidence and accepted Mr Theobald’s outline as if it was evidence (although he reserved to the mother the right to make submissions with respect to the timing of, and the circumstances in which, that concession was made by the father).

FINDINGS - EVIDENCE AT TRIAL

Dr W’s evidence exhibited, to my mind, significant exasperation and frustration at the fact that, despite such a long period of time, the parties had not advanced at all. He was very clear about the detrimental effects of that on the child and was equally clear the child’s best interests demanded that it had to stop.
Dr W’s evidence was, as I made clear during the trial, consistent with my own feelings, and my own clear impression gained from reading the affidavit material and listening to the parties, that a continuation of this long-standing battle between the parties was significantly detrimental to the child.
I have no reason to doubt or reject the evidence of Dr W in so far as his opinions relate to any of the issues which I need to determine in order to arrive at the best orders for the child. I accept his evidence in its entirety.
Dr W pointed out that, despite his somewhat pessimistic prognosis, with respect to the possibility of change in either of these parties, he had not seen them for some time, and that the Court had the advantage of seeing and hearing the parties in the witness box.
I would add to that, the fact that, if, as the father asserts, there has been a significant change emanating principally from the therapy conducted by Ms T, that therapy, and any such change, have each occurred in the period since Dr W last saw the parties.
Mr Priestly argues that the father has had a “conversion on the road to Damascus”. The timing of that alleged change of approach, is, he says, very convenient, and comes at a time when he is, as it were, on the brink, in that there is a possibility that he (like the mother) may end up spending no time at all with the child.
He points to the long history of the father’s attitude, including, for example, admitted contraventions of Orders by the father, including contraventions a short time after Orders were made in 2004. He points to the father’s material which, he alleges, is redolent of the same attitudes historically exhibited and, in particular, in relation to the issue of the child’s name.
Obviously enough, he points to the fact that, despite the fact that there have been four reports by Dr W, and in particular many months since the last report was released, it is passing strange that, on day three of the trial, the father should have now made a decision with respect to the child’s name, and have this Court believe that it will be a permanent change.
Mr Priestly also points to the evidence of Dr W that, even if the father is sincere, it will be incredibly difficult for him to use the name K. To use Dr W’s words, it will require, on the father’s part, “an extraordinary act of self-discipline”.
I am more sanguine. Although conscious of each of the matters raised validly by Mr Priestly (and although conscious of the fact that it could well be the triumph of hope over expectation on my part), my impression is that the father was sincere.
I observed him closely and listened to him closely. It is, of course, relatively easy for him to make the admission earlier described in respect of his attitude to the mother. It might fairly be said that, in effect, the admission spoke for itself, given what I consider to be a significant body of evidence to that effect.
Yet, the admission was an important one. I gained the strong impression that it was as a result of a process of change that commenced, probably, with the process conducted by Ms T.
Mr Priestley argues that the report by Ms T[16] refers only to prospective counselling. However, the father gives evidence, which I accept, that, consequent upon those interviews conducted prior to the report of April 2007, he has in fact been attending sessions with Ms T, which he has found particularly useful.
[16] Affidavit of Ms T, filed 13 June 2007, annexing report dated 14 April 2007.
The impression I had from the father’s evidence, was that he, too, had reached the point where he knew something had to occur to break this long cycle of conflict, allegation and counter-allegation. But, although he had reached that point intellectually, he needed the catalysts referred to – the work with Ms T and his further exposure to therapeutic processes at work – in order to find the means to allow that to occur.
I also do not underestimate the influence of his now wife, in that respect. Ms T says:[17]
“[The father’s wife] impresses as a level-headed, rational and essentially sensible woman, who is quickly able to calm [the father] and helped him to refocus on his son. I noticed that she was able to discuss issues in a reasonable and balanced way, and that [the father] responds to her comments in a positive manner.”[18]
[17] Page 4 of her report.
[18]Dr W was of a similar view with respect to the father’s wife, and I have already indicated that my impression of her in the witness box was favourable.
I also note that Ms T was of the view that the father and his wife “work well as a team”.[19]
[19] Report, page 3.
I have already referred to the fact that Dr W gave evidence that he values Ms T’s expertise and experience highly. I think it is significant that Ms T’s report indicates that she made it clear to the father and his wife that:
“… in the event of contact [by the father] being so frequent that I consider [the child’s] well-being to be chronically undermined, then I would have to withdraw my services (after outlining reasons for this). I have indicated to [the father and his wife] that my primary focus would be [the child’s] overall welfare.
I have also explained to [the father and his wife] the confusion for [the child] having two names and the long term negative consequences for him.
… I have indicated to [the father and his wife] that I believe it is in [the child’s] interests for him to be known by the name familiar to him at the home where he will reside…”
In my judgment, not only has the counselling/therapeutic process engaged in by Ms T been beneficial, but also, as part of that, it has served as somewhat of a “reality check” for the father.
For all of those reasons, and after considering the report of Ms T and the evidence of the father and his wife as a whole, I find that:
·The father has commenced a process of therapy/counselling with Ms T;
·The process is ongoing;
·The father is sincerely committed to that process, and it is likely to have been beneficial for him;
·The continuation of that process is likely to be beneficial for him into the future in dealing with issues relating to the child;
·The process has, in fact, provided the father with some insight into the difficulties created for the child by the continuing conflict between he and the mother;
·It is highly likely that the father’s erstwhile attitude toward the mother and, in particular, the role of the mother in the child’s life is in the process of change;
·This current attitude is likely to be significantly more positive than that revealed by the evidence up until approximately early 2007;
·The process of change in attitude is likely to require further therapeutic intervention and is likely to evolve over time.
The expression by the mother of a “walk away” option in the event that the child was ordered by this Court to live with his father, might be seen as an attempt to, as it were, hang a sword over this Court: “the consequence of making an order that [the child] live with his father is that I will withdraw from his care”. I specifically raised that in argument.
As with the father, I carefully observed, and listened to, the mother in the witness box.
Again, I was left with the strong impression that this was a sincere expression of the dilemma which confronts the mother. She is, I find, genuinely “torn” as she put it. I find she has been torn between wanting to continue to be in the child’s life on the one hand, and, on the other, seeing no way out of the continual conflict which her spending time with the child would, as she sees it, inevitably entail.
I think the mother is sincere when she says she wishes to see a relationship between the child and his father. But, by reason of a confluence of issues, personality traits and what is now, in my view, almost a habit of mistrust and suspicion, she has been unable to conceptualise how that might take place.

PRIMARY CONSIDERATIONS

The “primary consideration” expressed at subparagraph (2)(a)of s 60CC is at once odd; the statutory mandate is to consider something which the paragraph asks the Court to presume. Consideration is, it seems to me, the antithesis of presumption.
The subparagraph does not ask the Court to give primary consideration to whether there is benefit from the expressed relationship. On the contrary, it asks the Court to presume a benefit. Yet, in many cases – and this is one – the existence, or not, of such a benefit is a matter for a finding by a court if established by the evidence.
It is difficult to see how a court gives primary consideration to benefit from a relationship with both parents in circumstances where the evidence points to clear findings of fact that, absent change, a relationship with both parents may well be doing the child emotional harm.
Here, I find that, absent change, a relationship with both parents would likely continue to promote the “[K] world”/“[E] world” dichotomy in the child’s mind which Dr W (and I) consider to be harmful to the child. Put another way, whilst such a dichotomy exists (and whilst the conflict and mutual mistrust and suspicion underpinning it continue) there could be no relationship with both of the child’s parents that would not do him harm and, thus, there would be – obviously enough – despite what the subsection says, no benefit to consider.
In terms of s 60CC(2)(b), the continuation of parental conflict – expressed, for example, in the dichotomy to which I have just referred – is, as Dr W’s clear evidence makes plain, to continue to cause psychological harm to the child from being exposed to emotional abuse.
In those contexts, then, falls Dr W’s specific question: has the time come for one of these parents to neither spend time, nor actively communicate, with the child?
What is clear from s 60CC(2)(a) and the Objects and Principles which underpin it, is that such a step by a Court should not be taken lightly: it is, of course, antithetical to the participation by both parents meaningfully in a child’s life.
Whilst accepting the evidence of Dr W, which is entirely consistent with many of my own observations and conclusions with respect to the parents and their erstwhile attitudes towards the child and the discharge of their parental responsibilities, I am satisfied that there are reasons to provide the child with the opportunity to be actively loved, cared for and nurtured by both parents.
I make that finding notwithstanding that such care will take place in different geographic places and, as a result, the child will spend the large majority of his time with one parent.
It also needs to be said that I make that finding notwithstanding what will obviously be differing parental styles and attitudes in each household.
I reiterate my earlier findings that each of the father and the mother are sincere and honest in their evidence and, in particular, about the future role each wishes for the other in the child’s life.
I also find that the parents post-trial, co-parenting relationship can, and likely will be, marked by:
·The child being known consistently by one name and a genuine attempt by the father and his household to refer to him by that name at all times. The change in the father’s evidence in that respect came late, but I nevertheless consider that it was sincere and that he deserves significant recognition of it as a signpost for his future attitudes;
·The father continuing with a process of counselling / therapy;
·Such counselling / therapy being likely to assist in the father becoming more child-focused and better able to interact with the mother in a child-focussed way;
·The continued helpful involvement in the father’s evolving attitudes and responsibilities by his wife;
The mother is mistrustful of any asserted change in attitude by the father, including in respect of the father’s position with respect to the child’s name.
Pessimism over that change and for the mother’s acceptance of that change having occurred are factors weighing in favour of an end to one parents involvement as Dr W moots.
I don’t think it is possible to overstate the importance of the issue of the child’s name in the history of the dispute between these parties. It is a metaphor for the conflict, but it is also, I think, a symbol for the individual psychological issues applicable to each of these parties and their mutual mistrust.
Despite her expressed mistrust, the mother was, at this trial, hearing first-hand evidence of change by the father for the first time and, in particular, his evidence in respect of the name for the first time.
The father contemplates a “naming ceremony” consistent with advice from Ms T and/or other appropriately qualified experts. It seems likely that the mother would be integral to any such ceremony or process – even if not necessarily present at the same time as the father. That should reinforce the evidence of the father for her and to underscore it becoming a reality.
I think it highly likely that the father will receive further advice and assistance from Ms T as to the day to day issues, if any, for the child associated with the “ceremony” and name change. That, too, may involve the mother – although, again, not necessarily in face to face interaction with the father. That, too, should give the mother a degree of reassurance.
In summary, in terms of the two matters of most concern to Dr W: (a) I think there is likely to be continuity of name; and (b) I think there has been a process of change commence in the father and I think the mother may begin to trust in that change.
In those circumstances, and for those reasons, I am not prepared to give up on the child having each of his mother and father in his life, despite the direct evidence of Dr W and his expressed pessimism about the future.
Expressed in statutory terms, I am sufficiently satisfied that those changes and adherence to one name can, over time, ameliorate harm and engender the possibility of a meaningful relationship with both parents.
I am not prepared to exclude, effectively, one parent from the child’s life in the light of those findings. Such a course is, in my judgment consistent with the statutory Objects and Principles and the primary consideration engendering, if possible, a meaningful relationship for the child with each of his parents.

ADDITIONAL CONSIDERATIONS

It will be obvious that many of the findings made and issues already discussed have direct relevance to specific “additional considerations”.
Examples are: the nature of the relationship of the child with each parent and other people; the willingness and ability to facilitate and encourage a close and continuing relationship with the other parent; the practical difficulty and expense of the child spending time with his parents; the capacity of each parent to provide for the child’s emotional needs and the responsibilities toward parenthood exhibited by each party.
I am not prepared to make findings, in the conflicted, highly-charged and volatile circumstances of this post-separation, co-parenting relationship that one or the other parent has failed to take the opportunity to participate in decision making or to spend time with the child. The seemingly perpetual series of allegations and counter-allegations and court actions of one sort or another in my judgment render virtually meaningless the underlying purpose of sections 60CC(4) and (4A) in this case.
I turn now to consider other issues arising from the evidence which I consider to be crucial to my ultimate determination of appropriate orders in this case and which also have resonance in s 60CC.

(a) The Child’s Statements – the child’s “Views”

Whilst, perhaps, not strictly speaking “views” in the sense used in s 60CC(3)(a), this nearly 8-year-old boy should be heard in these proceedings.
I have already referred to what I regard as a plaintive expression of the conflicted position that the child’s parents have put him in: “[K] world” vs “[E] world”.
Mr and Mrs B gave evidence on the father’s behalf. They each refer to things said by the child which, they consider, should be heard by this court.
Mrs B gives evidence that she has “not ever interviewed [E] but [has] had many conversations with him over several years”. She deposes to a particular conversation on 7 October 2007[20]:
“[E] was still in his room a short time later when my husband and I were leaving. We went into his room to say goodbye to him. My husband, […], and [E] had a conversation in my presence. [My husband] later made notes of that conversation. We said goodbye to [E] then went to say goodbye to [E’s] step-sister […] who lives in a small flat attached to the house.”
[20] Affidavit of Mrs B, filed 30 November 2007, paragraph 14.
There then follows what appears to be an asserted verbatim account of a conversation which continues over almost three pages of affidavit. A similar, apparently verbatim, account is given of a conversation which occurred on 8 October 2007.
As the result of these conversations Mrs B made a report to the Department of Community Services regarding a statement by “[E]” that “[M][21] hits him”. Mrs B deposes that “I also contacted [H] district office to advise the case worker involved of my additional report and reiterated my concerns not only for “[E]” but also for his brother [D]”.
[21] A friend of the mother’s with whom she had previously conducted a relationship.
Mrs B attended the contact centre at which changeover was to occur. Again a verbatim account is given of “[E]” saying “I talked to Mum and told her that I just want to stay with her for ten days and then live with Dad”.
In oral evidence Mrs B said that she was aware that “[E]” had his own lawyer but that “none of those other people are a statutory body charged with investigating” complaints and, therefore, she complained to the Department of Community Services.
Mr B, too, deposed in his affidavit to conversations, again expressed in apparently verbatim terms. Including among the account recorded by Mr B of “[E’s]” words was “[E]” saying “…I haven’t got any friends” at school. When asked “who do you play with at school?”, “[E]” replied “I don’t play with anyone. I just play with [E]. The other kids won’t let me play with them. They call me a jerk.”

Mr B acknowledged in cross-examination that he had no first hand knowledge of the matters about which “[E]” was speaking.
The child’s account to Mr B is at odds with the evidence of Mrs H who said in the witness box that the child’s “social skills have improved since he arrived” at the school and that the child was “sociable” and “plays happily” in the sand pit with other children. She said that she had not noticed that the child had been particularly unsociable.
Mr B also records the child saying “words to the following effect” that:
“Because if I told her [the mother] I haven’t got any friends she would not be happy. I don’t want her to be unhappy. She would send me to my room for two days. When she sends me to my room for two days I can’t come out for anything”.
Mr [B] then asked “not for anything?”. The child replied: “No. She puts my food through the door and then shuts it again. Only school. I can come out for school, then I have to go straight back in”.
The mother denied that she engaged in any such behaviour towards the child. I believe her.
Mr B then gave evidence of “an imagination game” that he played with “[E]”.
Listening to oral evidence of this when Mr B was in the witness box, it appeared to me that the “imagination game” in fact had a purpose which was to elicit from the child any concerns that the child had.
He said to the child “imagine a magpie”. (This was chosen by him “because we have a pet magpie at our home” and the child enjoyed feeding it.[22])
[22] See Affidavit of Mr B, filed 10 December 2007, paragraph 9.
The child said “the magpie is pecking its eye out. The guts are coming out.” Mr B then said words to the following effect: “[E], make up a picture of your own and describe it to me”.
Mr B records:
“[E] said in words to the following effect:
“There is a green car going past an aeroplane – a big one. All the people are coming out and ch ch ch ch ch ch”
I said: What’s that?
[E] said in words to the following effect:
“That’s a machine gun. [K] is killing them all”.
Mr B gave evidence that he was extremely concerned about these comments from “[E]”. When I asked him why, he explained that the graphic nature of the “imaginations” that “[E]” had described were of real concern to him.
Yet, I was struck by the similarity in the evidence of “imaginings” by the child described by Mr B and a similar “imagining” described by Dr W in his must recent report dated 16 February 2007. Dr W reports:
“Initially I spoke with [the father and his wife] about basic current details about the family. They referred to [the child] as “[E]” and he responded to this name without any evident hesitation or discomfort. [The child] immediately started playing quietly with the blocks and was using them to extend an aeroplane. When I took a back seat to enable observation of [the child] with his father and stepmother, [the father and his wife] quickly became engaged with [the child] who seemed happy to have them playing with him. He told his father about the aeroplane and [the father] helped him to stabilise what he was building. [The child] put a number of small figures on the plane and they went for a trip. [The father] was quite active and responsive in extending this play. After about ten minutes, [the child] seemed to become quite excited and converted the passenger plane into a war plane with accompanying sound effects. [I took these sound effects to be similar to the ch ch ch sound described by Mr [B]]. He seemed to become increasingly occupied with shooting, although [the father’s wife] was able to distract him into a quieter activity without very much difficulty or reluctance from [the child]. He seemed to be enjoying himself. He and his father were laughing and giggling”.
Dr W expressed no concern about any alleged graphic nature of such play, including “converting the passenger plane into a war plane” and the making of machine gun noises. So, too, it is noted that the father and child were “laughing and giggling” during the “imagining” with Dr W. A picture is there presented of father and son happily enjoying an “imagining”.
Quite why a very similar incident (as it seems to me) should cause Mr B so much concern is not apparent to me. The interpretation of events is often in the eye of the beholder. On no view of it could Mr and Mrs B be said to be objective observers or reporters.
The child is an almost eight year old boy, who, on any view has significant behavioural difficulties and psychological issues. Attributing credence and meaning to comments made about one parent to another adult when the undisputed evidence is that both parents have been at war for a number of years and where there is good evidence that the child copes with that conflict by dividing himself emotionally between the two parents is, in my view, dangerous at best.
Dr W appears to agree. He is clearly of the view that the child is aware of the conflict between his parents. Moreover, with specific reference to the issue of what the child says, or doesn’t say, to each of his parents, Dr W said in oral evidence that “[the child] says things which fuel the fire” (referring to the conflict between the parents). The doctor went on to say “I don’t know if they [the parents] interrogate him or whether it is just him saying things to curry favour”.
It seems to me highly likely that a troubled child acutely aware of the conflict between his parents who divides his psychological world into two compartments is likely to have felt “interrogated” by either or both parties (even if that wasn’t the adult intent) or to simply say things to “curry favour” with the parent with whom he is currently residing.
I think it is highly likely that the child says things which “fuel the fire” between the parents. Again, even if said without that purpose, the very highly-charged environments in the households (and, in my view, extended family) of the parents, add the fuel necessary to give words and actions meaning which they did not necessarily possess.
In an evidentiary sense, by reason of the factors just referred to, I consider it would be unsafe to place reliance on the words of an eight year old boy even if I could be confident (which I am not) that they were obtained in a “pure”, “non-leading” manner or that I should attach (which I am not inclined to do) any sinister import to a game of imagining by the child when with Mr B.
Further, all those matters notwithstanding, I am disinclined to place weight on the “evidence” of this particular boy, given his age, level of maturity and the other factors unique to him which I have earlier described.

(b)Willingness and Ability to Promote Relationship

Understandably, perhaps, in a case marred by so much conflict and competing allegations, the issue of whether either parent actively promotes a relationship with the other parent was a live issue between the parties.
I have already alluded to the frank admission by the father that he actively did not promote the relationship with the mother and he accepted that earlier contraventions of orders by him were a manifestation of his attitude toward the mother, which was that, effectively, he wanted her out of the child’s life.
The mother made no such frank admission. However, I find that she is “torn” between an intellectual appreciation that the child having contact with his father is in the child’s best interests but perceiving that he was upset and unsettled when he returned and that this was somehow due to actions of his father (and the father’s new family), including the father putting pressure on the child to live with him.
The Mother did admit in the witness box she “personally hadn’t seen the need” to ensure that the child telephoned his father when telephone contact had been missed for any particular reason. She said that “in hindsight” this was a mistake. When asked why, she said it was because she was “not actively promoting” the relationship between the child and his father.
This is a good example of evidence that leads me to find that the mother understands at one level – essentially an intellectual level – that the child needs and benefits from a relationship with his father but, on the other hand, has been, on a practical level, unable to bring herself to actively promote the relationship.
I find it is likely that the father’s attitude in respect of the promotion of time spent with the mother is likely to be better than the mother’s toward him in the short and medium term.
But, while much focus has been directed towards a description (and implicit condemnation) of each party’s failure to properly promote and encourage a meaningful relationship with the other party, less attention has focussed on what I consider to be an equally important consideration, also referred to in the relevant subsection, namely the “ability” of each party to do so.
At the current time, I assess the father has a greater capacity than the mother to organise and deal with the trials and tribulations which will undoubtedly occur in organising time with the child when a significant geographic distance separates the parents.
Conversely, it is of significant concern to me that the mother’s capacity to do so in the short and medium term may be so compromised, that if I make an order that the child lives with his father, there is a good prospect that the mother will find herself unable (for whatever combination of emotional, financial and practical reasons) to organise, carry out, and sustain, an ongoing relationship whereby she spends periods of time with the child.
I consider her absence from the child’s life would be very damaging for him.
I assess the father as having a greater ability (emotionally, financially and practically) to organise, carry out and sustain a relationship with the child if he continues to reside with his mother for the majority of the time.
In particular, and within the confines of the father’s current shift work impediments, a weekend in the region of once a month can be sustained by the father in a way which will allow the time to be meaningful and enjoyable for the child.
Importantly, I assess him as better able to do so if the path to regular time with the child is not smooth, particularly initially.

(c)Capacity to Provide for Needs

In terms of the capacity of each of the parents, I have already made mention of the evidence of Dr W that neither party is a particularly capable parent – an assessment with which I agree.
Further, in that specific respect, Dr W gave evidence that, of the three adults involved in his assessment he considered the father’s wife to be the most capable of the adults and the person with the most appropriate perspective on the child’s needs.
Whilst I don’t disagree with that assessment, the father’s wife has not had the day to day parenting responsibility for the child during term time and the dynamics of the relatively new family unit, which includes her two adult children, has also not been tested in that context.
Moreover, it seems to be accepted by the father and his wife that, by reason of the father’s shift work, a significant degree of day to day care at varying times would fall upon the father’s wife. Necessarily, that would involve another significant carer in the child’s life and a change to the person who has been his primary carer for the last eighteen months and a change in the nature of predominant care in the three and a half years prior to that.
There have clearly been issues relating to the child’s behaviour at school and periodic issues relating to his attendance at his current school. However, it is by no means clear that either of those issues were any better for the child when the father had primary care of him and he was attending Public School in regional NSW. Exhibit ICL1 refers to the child having:
“demonstrated anti-social behaviour on many other occasions that have lead to his removal from the activity he was participating in. He is not progressing in his academic learning and his anti-social behaviour has regressed considerably”.
A specific earlier occasion referred to by the then Deputy Principal of the school indicates:
“He has throughout the year on occasions been physically violent towards other students where he has without reason stabbed another student with a pencil, screwed there (sic) arms hard enough to leave marks. He has also hit one teacher on two separate occasions, and to receive a twenty day suspension attacked another teacher with a stick”.
I have already alluded to the fact that I am not persuaded that I can come to a conclusion about whether facilities at the B School in Sydney are any better than a small school which also has, as I (and Mrs H) see it, some advantages for the child.[23]
[23]This is irrespective of how impressed Ms T – or I – might be with the described facilities and pastoral care and the efforts of the father and his wife in sourcing such potential facilities.
I am not persuaded that the father’s household offers a significantly “better” placement for the child based on a greater capacity of the father (and his household) to care for the child’s day to day needs and effect in him changes of behaviour and the like.
It is submitted on behalf of the mother that, since the child has returned to her full time, there is no substantive evidence of lack of parenting capacity except, possibly, the evidence of absenteeism at school.
In that respect, it is argued that the evidence of Ms H is to the effect that whilst there were concerns about that issue based on the apparent decisions of the mother to organise appointments and the like in a manner that involved absence from school, Ms H gave evidence that absenteeism was not such a concern as to involve the specific absenteeism officer and, in any event, she pointed to issues arising from the mother being a single parent, the difficulties in attempting to organise appointments and the like.
Mr Priestley also argues on behalf of the mother that D has been with his mother for over five years and there is no evidence that D is not parented adequately.
Moreover, the evidence of Ms H indicates that there has been some progress on the child’s part albeit that, with a child with his special needs, the steps are small and gradual.
I should also mention in this context the evidence of Dr L, a reporting psychiatrist who examined the mother, prepared reports and gave oral evidence before me.
Dr L suggests that the evidence of Dr W can be questioned and Mr Priestley submits that the evidence of Dr W with respect to the mother’s frailty in personality is unreliable. I disagree.
However, I do note that Dr W did not appear in his oral evidence to disagree with Dr L that the only psychiatric condition from which the mother currently suffered was an anxiety disorder and that this, obviously enough, was at least in part related to the current situation between she and the father with respect to the child and these longstanding proceedings.
There is insufficient evidence to persuade me that any specific psychiatric or psychological condition in the mother impairs her parental capacity so as to preclude the child living with her.

(d)Changes for the child

I reiterate in this context the evidence of Dr W which is contained in the introduction to these Reasons.
Any order made in respect of where the child lives or the time spent by him with his parents needs, in my view, to take account of the fact that “[the child] is not a boy who adapts very well to change…” as well as his “emotional vulnerability”.
Moreover, although it is undoubtedly the case that there have been difficulties in the child spending time with his father, nevertheless contact has, overwhelmingly, occurred.
A move to the father’s effective full-time care will involve for the child, a change in the person who has been his full-time carer for the last eighteen months; a change in family dynamics; a change in school; a change in friends and peer relationship; a change from a small country school to a suburban Sydney school; a change from a semi-rural environment in the NSW hinterland to a suburb of Sydney.
Mr Theobald argues that there were significant changes for the child when he moved from his father’s care to his mother in 2006 and he (the child) accommodated those changes such that, within a relatively short period of time, there has, apparently, been some improvement in him.
He also argues that the father and his wife are well placed to deal with the changes, in particular the calm and steadying influence of the father’s wife is particularly important in that respect. He additionally points to the fact that the child is not moving to a totally foreign environment – he is well familiar with it from extended periods spent in his father’s household on holiday contact and the like.
Each of those points has merit. However, the comment by Dr W that all other things being equal, a preference would be for there not to be a change in the child’s environment accords with my own judgment about the child’s best interests.
Dr W’s evidence was caveated by the significant reservations that I have referred to earlier. However, I have found a sincere position by the father in respect of the change of name and that this is likely to impact favourably on the mother. These are matters that, in my judgment, I should take into account.
If possible, I consider that I should not make orders which would effect what I consider to be significant changes in the child’s life. The move to his father’s care in Sydney, in my view, falls into that category.

(e)Sibling Relationship and Separation

I am bound to consider the effect of the separation of the child, not only from either of his parents but also other people significant in his life. In that context, looms an issue which I consider to be of crucial importance in this case.
Mrs H gave evidence that the relationship between the child and D was a “normal sort of sibling relationship” and that the relationship between them had “developed as they’ve had more time together”.
Under cross-examination from the Independent Children’s Lawyer, Mr Tester, the father said that the child had been separated from D before and “contact never missed a beat”. In my assessment, the father underplayed the significance of the sibling relationship for the child in his day to day life.
In the midst of the conflict to which continual reference has been made, the relationship with D is vitally important, in my view. This is primarily because, as Dr W said, “sibling relationships are the relationships that we carry through our whole life”.
Dr W said that an attempt should normally be made to sustain that sibling relationship throughout childhood for that reason. However, Dr W again caveated that evidence with the qualifying phrase “all else being equal”. Again, this was for the reason that he considered that the conflict between the parties to be the overwhelming, crushing issue in this case.
However, even within that context, he considered that the “principle advantage” of the child residing predominantly with his mother is that D lives with her. He said, however, that this was “not an overriding consideration” and noted that the boys had lived separately in the past.
It is, of course, true that the brothers have been separated in the past. That does not mean it was in either of their best interests. Equally, it may be true to say that contact “did not miss a beat”. That, though, occurred when the child was in “[E] World”.
In my judgment, not only is it vital that the “[K] World” / “[E] World” dichotomy disappear, it is vital that D be an important, day to day part of the child’s life.

ADVANTAGES / DISADVANTAGES and CONCLUSIONS

In looking at the advantages and disadvantages of each party’s proposals (and any alternative proposal considered by the court to be more appropriate), it again needs to be observed that neither party’s proposal is in the child’s best interests unless he is known by the one name in both households and each party takes all steps possible to eliminate the K World / E World dichotomy to which reference has been made.

As a result of the father’s position outlined during the trial (which I have accepted as honest and sincere), it is possible for me to make orders to effect a uniformity in name which, in my judgment, are likely to be effective, and I will do so.
Equally, no “live with / time with” proposal is likely to be in the child’s best interests unless each of the parties actively promotes a positive relationship for the child with the other and a relationship of at least basic trust can develop between them.
The achievement of those aims is not so amenable to effective orders. But, if these parents are sincere in their expressed love for the child, they will seek such expert assistance as they can muster and begin the difficult journey to achieving those outcomes.
For the reasons given earlier, I reject the conclusion reached by Dr W that one parent should be excluded from active participation in the child’s life.
I find that it is in the child’s best interests that his parents seek to achieve, through Orders made by this court, a co-parenting relationship.
Within that context, I have carefully considered whether an order that the child live with his father (and the father’s new family) in Sydney or an order that the child live with his mother (and his brother) in central New South Wales better promotes his best interests.
I have said that I agree with Dr W that, historically, neither parent has been a particularly capable parent in caring for the child’s psychological and emotional needs – in particular by allowing their conflict to so dominate his life that he divides his emotional or psychological world in two.
I cannot conclude on the evidence before me that the facilities (using that expression in a broad sense) catering for the child’s special needs are any “better” in Sydney nor that the proposed school in Sydney is “better” than his current school. I think there are advantages and disadvantages associated with each.
I cannot conclude on the evidence before me that the parenting environment is better in one household or another. Again, each parent brings an environment and personality and psychological characteristics that has advantages and disadvantages for the child.
I have come to the conclusion that the child’s best interests are best served by him living with his mother and brother. I reach that conclusion primarily because:
·I do not consider that either party is a “better” parent than the other or, put in statutory terms, that either party has any greater capacity than the other to provide for the child’s needs, including his emotional or psychological needs;
·The father’s new family provides a new and untested full-time care regime involving a change in family dynamics;
·The child is a child with special needs who does not adapt well to change;
·Predominant care in the father’s household involves for the child a change in: the person who has been his full-time carer for the last eighteen months; a change in family dynamics; a change in school; a change in friends and peer relationship; a change from a small country school to a suburban Sydney school; a change from a semi-rural environment in the NSW hinterland to a suburb of Sydney and the day to day absence of his brother.
·The child needs to spend time with both parents; he needs to see the parent with whom he is not living as regularly as school and other routines and geographic distance will reasonably permit;
·I consider there is a real risk that, if the child lives with his father, the mother will not sustain an on-going relationship with him and this will have significant detrimental effects for the child and for his brother, D;
·I consider that, in any event, the father is more capable of organizing and sustaining regular time with the child than the mother;
·It is, in my judgment, vital for the child to have an on-going, day to day relationship with his brother D and for that relationship to continue to develop. They have been separated once, and for a significant period of time, but I do not consider that is a pointer to doing so again being in his best interests; indeed, if anything, I think it is a pointer to the contrary;
For the reasons given earlier, I consider it in the child’s best interests that the mother has sole parental responsibility for the child.
As is obvious, I have also come to the conclusion that the father should spend time with the child as regularly as his routines and the difficulties of geographic separation permit. If, as the father promises, the child will be known by one name, there can be no doubt that a process of adjustment for him will be required. I consider it important that such a change occur within an environment where he is seeing and communicating regularly with his father and the father’s family.
It seems to me axiomatic that both parties would benefit enormously from a therapeutic or counselling process that involved them separately and, hopefully in the future, together. Perhaps the “naming ceremony” and the expert input in an around that could be a catalyst for that.
I doubt, however, that I could pronounce meaningful or enforceable orders to that effect. If nothing else, after such a long period of hostility, mistrust and conflict, any such steps – however humble they initially might be – should come from the parties themselves.
However, I will order that either or both of the parties be at liberty to provide a copy of these Reasons to Ms T or other similarly-qualified professional working with either party and/or the child.

I certify that the preceding two hundred and fifty three (253) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 11 January 2008

[2008] FamCA 7

30 January 2008

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies