Conte & Lachner
[2024] FedCFamC2F 1220
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conte & Lachner [2024] FedCFamC2F 1220
File number(s): BRC 7596 of 2022 Judgment of: JUDGE WILLIS AM Date of judgment: 11 September 2024 Catchwords: FAMILY LAW – PARENTING – where the subject child is almost 12 years old – where the child suffers anxiety – where the father seeks to have the child live with him full-time in circumstances where the child has never lived with the father nor had overnight time and has expressed anxiety and fear at the thought of spending overnight time with father – child feels unsafe with the father – child has suffered from further anxiety upon mother being diagnosed with life threatening illness –father’s lack of insight - child to live with mother – spend no time with the father Legislation: Family Law Act 1975 (Cth) Part VII, ss60CC, 61CA, 64B Cases cited: Momcilovic v The Queen [2011] HCA 34 Division: Division 2 Family Law Number of paragraphs: 131 Date of hearing: 15-16 May, 12 June 2024 Place: Brisbane Solicitor for the Applicant: Self-represented litigant Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Wilsons the Family Lawyers Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: VM Family Law ORDERS
BRC 7596 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CONTE
Applicant
AND: MS LACHNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All previous Orders and Parenting Plans be discharged, save for the appointment of an Independent Children’s Lawyer.
Parental responsibility
2.The mother shall have sole parental responsibility for the child X born in 2012 (“the child”) and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.
Living arrangements
3.The child is to live with the mother.
4.The father is to spend no time with the child or communicate with the child, unless in accordance with the child’s wishes as expressed by the child through the mother.
International Travel
5.Pursuant to s65Y of the Family Law Act 1975 (Cth), this Order is sufficient authority for the mother to remove the child from the Commonwealth of Australia or agree to the child travelling outside of the Commonwealth of Australia for the purpose of a holiday or educational reasons, at dates and for such duration as determined solely by the mother.
6.Pursuant to s.11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child be issued with an Australian travel document.
7.Pursuant to s.11(1)(b)(ii) of the Australian Passports Act 2005 (Cth), the child be permitted to travel outside the Commonwealth of Australia using an Australian travel document.
8.Within seven (7) days of a written request, the father will sign any passport application or relating document such that Australian passports may be issued for the child.
9.Should the father fail to sign any document contemplated by order 8 above, the requirement for the father’s signature of the passport application for the child be dispensed with, and an Australian passport is to issue for the child, notwithstanding the father’s failure to sign the passport application.
10.For the purposes of any overseas travel:
(a)The mother will not travel with the child to a country that is not a signatory to the Hague Convention or the Civil Aspects of International Child Abduction (hereafter referred as a Hague Convention Country), unless such travel is for the sole purpose of a scheduled lay-over enroute to a Hague Convention Country, and during the layover the child will not leave the airport; and
(b)The mother will not travel with the child to a country which holds an alert level on Australian Government Travel Advisory Index of Level 3 – “Reconsider your need to travel” or Level 4 – “Do not travel”.
Additional Orders
11.The mother will comply with any reasonable request of the Independent Children’s Lawyer (“ICL”), to allow the child to meet with the ICL (either in person or via electronic means) for the purpose of the ICL explaining the Orders to the child.
12.The father be restrained from providing copies, whether electronic or hard copy, of any subpoena material to any other person.
AND THE COURT FURTHER ORDERS THAT:
13.The Independent Children’s Lawyer is discharged 28 days from the making of these orders or such further appeal period.
14.All outstanding Applications are otherwise dismissed and removed from the list of cases awaiting finalisation.
NOTATION:
A.The Court has considered that it is not in the child's best interests to spend any time with or communicate with the father, nor is it in the child's best interests to have any further supervised time with the father or for the child and father to undergo any reunification therapy, as explained in the judgment.
B.The Court has explained in the judgment, that if the child wishes to spend time with or communicate with the father, that such request is to be made through the mother, and the Court is confident, that the mother will use her best endeavours to support the child spending time with or communicating with the father after accommodating the child’s emotional needs.
C.Pursuant to s.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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE WILLIS AM
In this matter, the father, Mr Conte (“the father”) is seeking orders in relation to the child of his relationship with Ms Lachner (“the mother”). The child of that union is X born in 2012, currently aged 11, turning 12 this year (“X” or “the child”). The mother and father were in a relationship for only about two years and separated when X was only 12 months of age. X has lived with his mother since separation and has had limited time with his father, which has never gone beyond day visits with both parents present.
Unfortunately, X suffers from anxiety and this issue is explained further in this judgment. The parties are not able to agree upon X's care arrangements. The father initiated these proceedings on 24 June 2022 relating to parenting matters only. Interim Orders were made by Consent at the first return on 8 August 2022 for X to live with the mother and spend time with the father at the contact centre at B Centre in City C at times agreed but failing that once a month. A temporary protection order was made in mid-2022 (prior to the father filing an application in this court) and in late 2022 a final domestic violence order was made, with the mother as the aggrieved and the father as the respondent and that domestic violence order was issued for a period of five years.
A statement in these reasons represents a finding of fact, unless indicated otherwise.
BACKGROUND
The parties commenced their relationship and began living together in or around 2011. At the time they started living together, the parties lived in Western Australia. The parties were in a short relationship of only two years, and separated on a final basis in about 2013. The mother describes her relationship with the father as being one characterised by domestic violence and says this was the ultimate cause of their separation. She alleges that the father's behaviours became progressively worse during her pregnancy and more frequent once X was born. In about 2023, the mother left Western Australia with X, who was then only 12 months old, to live with her own family and to keep X safe.
The mother has always been the primary carer of X and she was responsible for all of the day-to-day care requirements for X. The mother has set out in her material the difficulties she had following the birth of X, which happened by way of an emergency C-section and added to that unexpected medical emergency, X became an extremely fussy and difficult baby, had trouble sleeping and required constant care around the clock. She explains in her affidavit that in 2012 when the mother attended upon a paediatrician due to X's sleeping problems that X was diagnosed with crying baby syndrome.
At the time of that attendance by the mother upon a paediatrician in 2012, the paediatrician noticed the mother's mood deteriorating and recommended she stay in a ward for observation overnight. The mother claims that she did not wish to do so as her own mother was present at the time and assisting her, however, she claims that the father did not provide any support at that time and was quite absent. The mother says she felt extremely isolated at home.
Following that interaction with the paediatrician, the mother attended upon her own general practitioner and was prescribed medication to manage her anxiety. At that time, the mother claims that the father would consume alcohol and drink most nights. The mother says his mood and irritability was often heightened due to his alcohol consumption and, similarly, the effect upon him was that he did not have any desire to assist with the care of X who was a new baby. The pressures involved in that scenario often led, according to the mother, to violent and abusive behaviour by the father towards the mother. She relates in her material that Mr Conte was impatient with X and, if he would not stop crying, the father was very irritable and would often yell and say words to the effect to the mother, "Get him to fucking shut up".
On occasions, the frustrations of the father would be seen with the father hitting mattresses and slamming doors to make X stop crying in his cot. Whilst the father in this matter has initially denied any domestic violence, he has admitted that in about 2012 while the mother was pregnant, as she alleges, the father punched the windscreen of her vehicle with such force that the windscreen smashed (the mother annexes a photo of the damage to her affidavit, MSL-17). That was on an occasion when the mother had gone to pick up the father from a friend's place where he had been drinking, and the father saying he did not really want to come home and instead wanted to stay drinking.
She recalled another incident in 2012 when the father returned home drunk and where the mother asked him what was wrong and the father said, "Don't even start. If you're not careful, I'll stab you and him", referring to their then unborn baby. The mother understood that to mean the father was going to stab her and the baby. She spent the night terrified in a separate bedroom downstairs. On another occasion, the mother recalled the father throwing the furniture around the room and, ultimately, she said that when X was only 12 months old, "I fled from Western Australia to Queensland to be closer to my family for support".
The father, whilst accepting that the mother moved to Queensland, accuses the mother of lying to him about what she was going to Queensland for and denies that she had to flee domestic violence. The mother says she told the father she was leaving, and she was taking baby X with her. She accepts that she packed all of her belongings into shipping containers, along with her car, and told the father that she was going for a one-month holiday. The mother said that this was a temporary plan to get herself and the baby back to Queensland and that, once she got there, while she was supposed to return for X's birthday, she decided not to return as she feared for her own safety and that of baby X.
She said at the time the father was ringing her regularly and saying all the things that she wanted to hear, and that they could be a family again and also that he was going to start Court proceedings to get baby X back. Once the mother returned to Queensland in 2013, X continued to live with her and there was sporadic and inconsistent time with the father. The father continued to live in Western Australia, and he also lived in Country D for a short period. In 2024, the mother relates that the father visited X in City E for two or three occasions, City E being where the mother moved to, to live closer with her family.
The mother says that she also paid for a few of Mr Conte's flights and accommodation to City E as she wished to try and facilitate a relationship between X and his father, and she wanted X to spend time with the father though in a safe environment. In 2015, two years after the mother had left for Queensland, the father himself moved to Queensland, however he did not move to City E. He moved to Brisbane which is approximately 360 kilometres away from City E. This presented significant problems in terms of the father's suggestion that he moved to come back to Queensland so he could have a relationship with his son.
Once he returned to Queensland, the father would spend time with X approximately once every three or four months when the father travelled to City E. Given the long periods of time in between these very sporadic visits by the father, the mother says that she remained present to ensure that X felt secure and not exposed to any abusive behaviour by the father. The mother said she wanted to assist X to deal with any separation anxiety as X had never spent any extensive periods of time away from her. Those visits where the father visited every three or four months would happen for a couple of hours at public places. The mother said that X did not wish to spend overnight time with the father and exhibited quite severe symptoms of anxiety when presented with the option to go away and spend the night with his father.
In 2015, the parties had a mediation, and following that the father's time continued to be somewhat irregular. There was a parenting plan put in place, however, the father did not adhere to the agreed arrangements saying he could not afford to see X as he was not working or, alternatively, that he was only on one income. It seems after the mediation that the father did Skype X regularly. The mother sets out a summary of the time that the father spent with X prior to filing his application, as below:[1]
[1] Affidavit of Ms Lachner filed 26 April 2024, para 62.
(1)In mid-2015, Mr Conte, Ms F (the father's then partner) and G (the child of that relationship) came and spent some time with X in Town H and City E while on their holiday in Town H. I would meet them accordingly at parks/venues and stay with X.
(2)In mid-2015, Mr Conte came and visited X in City E where we took X to a cafe and park.
(3)In January 2016, I paid for a return flight from Brisbane so the father could see X as he could not afford to come to visit him. My dad helped supervise during the visit. A copy of the plane ticket is attached to the mother's affidavit.
(4)In February 2016, the father sent a message to the mother about meeting in Town J. However, a visit did not ultimately proceed from this exchange.
(5)In April 2016, the father requested to see X on the upcoming Saturday, however, the mother could not make this work as she did not have enough notice from the father.
(6)In 2016, Mr Conte, Ms F and G came and celebrated X's birthday with Mr K (the mother’s ex-partner) and the mother.
(7)In or around late 2016, Mr K and the mother met Mr Conte, Ms F and G at a park for the day.
(8)In about 2017, Mr Conte split from Ms F and there was very little communication from Mr Conte in relation to coming to visit X.
(9)In January, the mother recalled Mr Conte asking what her plans were for Australia Day. She said they were going on a short trip, but he could come up to spend time with X on the Wednesday instead. The father said “next time”.
(10)In March, the mother took X down to see the father, so he could spend time with the father in Suburb L.
(11)Tentative arrangements were made August 2017 where the father asked if he could stay with Mr K (as the mother and Mr K were separated) in City E. The father later told the mother not to worry about it as he decided it was not appropriate to stay with Mr K so, therefore, this visit did not take place.
(12)In late 2017 the father asked if X could fly down to Brisbane on his own and stay with the father in Brisbane for a week. The mother declined this arrangement as she did not feel it was appropriate for X (then aged five) to fly on his own or stay a week with the father as he had not yet spent even an overnight with him.
(13)In late 2017, the mother offered to do another weekend in City E where the father could bring G along. At that time, the father told the mother he had a few busy weeks ahead but would let her know. No agreements were made.
(14)On or around 10 October 2017, the father messaged the mother and said that she should move to Brisbane so that he could have X the same week as he had G. He then said he was just joking, but he would visit a lot more often.
(15)On 28 October 2017, the mother recalled a visit was supposed to take place, but due to the father not being able to afford accommodation, he cancelled these plans on 22 October.
(16)On around 7 March 2018, the father messaged and requested if X could come down to Brisbane and spend a week or so over the Christmas break with him and G. The mother declined this request and asked the father that he take small steps in relation to re-establishing his relationship with X. She attached a message to that effect, and at this time the child still had not had his sixth birthday.
(17)In June 2018, the father was trying to arrange a date in June to spend time with X. The mother messaged the father and said they needed to talk. At this time, the mother was diagnosed with a medical condition and was not able to attend visits.
(18)Around 17 October 2018, the father messaged the mother and asked if he could come to Town M for a night or two. The mother declined this request due to her receiving treatment for her medical condition.
(19)Around 28 November 2018, the father asked if he could see X during the Christmas/New Year period. The mother replied that, "We could make something work in early January".
(20)On or around 3 January 2019, a visit took place in the afternoon (after the mother had finished her medical treatment) between Mr Conte, Ms N (the father's current partner), G and X.
(21)On or around 7 October 2019, the father asked if he could come up on the weekend or in three weeks or so. The mother told the father that in October they had something planned each weekend for the rest of that month, but they could make other arrangements. This was when X was seeing Ms O (a therapist) and the mother says she was taking on her recommendations.
2022 – Medical Diagnosis
In around mid-2020, the father contacted the mother seeking further time with X. At that time, the mother had just finished treatment for her various medical conditions (the mother had a two-year history of medical conditions) and was still recovering. This diagnosis was a significant life threatening diagnosis and event in the life of the mother and child. The mother says that X was struggling immensely with his anxiety including his fear of losing his mother due to her illness. This resulted in him self-harming and having suicidal ideations, hurting others and being incredibly aggressive, as she describes in her affidavit. The mother explained that these behaviours arose during the course of the mother becoming seriously ill. Subsequently, it was recommended by Ms P from the Region Q Health Centre, being X's treating health professional, to limit any new stimulus or experiences as much as possible to ensure X's health and wellbeing. The mother said at that time she was aware of the importance of the relationship between the child and the father, however, her priority has always been X's health and safety. The mother also knew how her own ill health was troubling X. When the mother did raise the idea with X of spending time with the father at that time, (shortly after the father had contacted her in July 2020), the mother reported that X responded, "incredibly negatively" and began exhibiting elevated symptoms of anxiety and was "incredibly upset by this conversation". The mother then sought further advice from X's treating medical professionals, who advised her to seek further assistance from R Centre, which was an organisation assisting those living in City E affected by domestic and family violence. That is an organisation that the mother had previously attended upon and provided her history of her relationship with the father and her subsequent relocation to Queensland.
In or around August 2020, the mother says X was having difficulties in school. At this stage, he was eight and was on a behaviour card for being in a further three fights in the period of one week. The mother said that X had made disclosures to her that he believed his behaviour had "caused my illness" and that he was jealous of S having two dads and two households of toys to play with. The reference to S is the mother's child from a subsequent relationship in 2015/2016. Despite all of the behavioural difficulties and X believing he caused his mother’s illness, the mother said she sought to make sure that X had an appropriate relationship with Mr Conte, and that the father and X would video call occasionally. As per the parenting plan, those calls lasted only about five minutes.
Whilst X continued to struggle with his anxiety, the mother was implementing strategies as advised by treating medical professionals, including calming strategy cards, using a relaxation script and deep breathing, and working on a book about X and his family. In this period, which is subsequent to the mother having been diagnosed with a medical condition and undergoing treatment, X disclosed to the mother that he was concerned that she was going to die. The mother subsequently made a book with photos of herself to assist X and got him to draw a picture of the mother in future events as well as construct a family tree. I accept the mother’s evidence regarding all of the events which have occurred to both herself and X as a result of her medical condition, and the deepening anxiety experienced by both herself and X.
In 2020, the mother and father again attended mediation and they entered into a parenting plan that provided for the father to spend time once a month on a Saturday and Sunday, for five hours or so each day. As X was embracing the coping strategies recommended by his treating specialist, the mother said that the mental health team discharged X in or about mid-2023. At the time of discharge, the mental health team noted that X's anxiety could be exacerbated by in-person contact with the father, noting that this would be a new stimulus.
At that time, X was already utilising the coping techniques described above when calling the father. The mother continued to ensure that X had access to support through a psychiatrist and a paediatrician. The mother was very concerned how X would respond to time with the father as had been agreed to in the parenting plan. However, after receiving assistance and support from the mental health team, the mother said she was hopeful that the techniques and strategies they had learned would assist to soothe X during this time.
Shortly after the parenting plan was made in September 2020, the father changed his employment and then the agreement within the parenting plan did not line up with his work roster. A further agreement was made in the following year in May 2021 for X to spend time with the father every second month to align with his work roster, and also to coincide with his parenting plan for his daughter G in Town J with whom the father had a shared care arrangement. That contact between the father and X was to happen in addition to weekly video calls.
The father again raised the issue of him having overnight time with X around that time, and the mother says that this request caused X immense anxiety and distress. The mother says she and the father attempted to consult with X as to how he felt spending further time with the father and that X was "incredibly against the idea" and would "shut down when the conversation arose".
In September/October 2021, the father sought to increase the time he was spending with X and voiced that he wanted to come to Town M to see X and spend overnight time with him. When the mother discussed this with X, she observed an increase in his symptoms of anxiety, including X disclosing that he was having thoughts of ending his own life. The mother also then saw cuts on X's legs with items he had in his room, including a sharp object, with which he was lashing out more and more being aggressive.
The father confirmed in his evidence that he had seen big scratches on the child's leg caused by an implement. The mother further explained that before and during phone calls with the father, X would punch or kick his wardrobe and break the slats, and on one occasion he even threw his study chair at the wall/cupboard during one of the calls causing further damage. Given X's reaction to his calls with the father, including his elevated symptoms of anxiety, the mother said she was incredibly hesitant to agree to any such arrangement prior to consulting with X's medical team. I accept the mother was acting in an extremely child focused manner in this decision.
In early 2022, X was again referred to the Region Q Health Service mental health team as a result of his anxiety. His symptoms were once again heightened, and the mother could not soothe him with strategies they had previously been implemented. X was having tantrums, episodes of panic and separation anxiety, experiencing nightmares and was quite often fearful. The mother observed that these symptoms were elevated when he was required to spend time with the father and he was voicing suicidal ideation and significantly thoughts of harming his father. X stated to the mother such things as:
•he was going to take a knife to the overnight visit and kill [Mr Conte] while he sleeps;
•that he was going to kill himself if he had to attend these visits, and
•he was going to run away if he was made to stay at [Mr Conte]'s place.
The mother said that at this time X, then aged 10, begged and pleaded not to have to sleep over at the father's as he did not feel safe. The mother was concerned about his behaviour and sought further assistance for X from his mental health team as how best to support the relationship with the father whilst ensuring his mental and physical health, his being X's.
In early 2022, X and the mother attended a session with Ms P, and in that session X disclosed that he was worried about the father taking him and him never seeing his mother again. X was struggling to sleep as he was occupied with thoughts of the father taking him away. Under cross-examination the father has accepted that he suggested to X as a “joke” that he might kidnap him and take him to Brisbane.
In an attempt to assist X, the mother gave him an amount of melatonin to assist him with sleeping. This was after consultation with X's mental health team. As will be seen elsewhere in this evidence, the father is extremely critical of the mother for taking this advice, and he very much has his own views obtained through his research through “Dr Google” about melatonin.
After some extensive sessions with X's psychologist, psychiatrist and mental health nurse, and after implementing all of the coping strategies recommended to the mother, in early 2022, X was prescribed medication to assist with his symptoms of anxiety. The mother says that during all of the course of X's treatment, she continued to update the father with respect to the child's progress and mental health. Initially, the mother would update him via phone as the father seemed to prefer to discuss this over the phone.
However, she changed to communicating messages when the father became critical of the mother and her parenting as she was relaying to the father the decisions that had been made. The mother said that she was often met with a hostile attitude from the father, and that he would ridicule her and also the decisions of X's medical team. The father did not agree for X to be placed on medication for the treatment of his anxiety and he often told the mother that the symptoms were fabricated and that X did not struggle at all. This attitude of the father has been well demonstrated by the father's evidence during the trial. The father is a self-appointed “expert” on medical and other matters which he researches on the internet.
The mother said that she trusted the medical team looking after X and sought to support X as best she could, and she proceeded with the recommendations made by his psychiatrist, being the prescription of medication at a low dosage. I accept that the mother has sought and followed the advice of X’s treating professionals.
In or around April 2022, X became very distressed when he was required to spend time with the father that month and following which he was required to be calmed down for a substantial period.
The mother says that X became quite paranoid that he could see the father and started having hallucinations. She said on one occasion X thought he saw the father through the front windows of the house and subsequently his anxiety heightened in general, and his nightmares became a lot more realistic and frequent about the father taking him away from his mother, or Mr Conte having to sleep over at his father and not being allowed to come home. X was becoming more physically rough towards his half-brother S and was hitting/kicking him and showed a short fuse and became quite angry at S and other children at school.
At this time, the mother explained that X was hurting himself a lot more regularly and that included behaviours such as punching himself. Additionally, in a week prior to an arranged visit, X disclosed to the mother that he thought he saw Mr Conte and he was visibly frightened. The mother became most concerned with X's behaviour and sought support from his psychiatrist as she thought it may have been an adverse reaction to his medication.
At the consultation upon his psychiatrist shortly afterwards, X seemed quite happy and engaged with the session with the psychiatrist until he was required to talk about time with the father. X was asked to complete a sheet and he was asked how this time was proceeding, to which he replied that he was still concerned that the father was going to "take him". To try and ease X's anxiety, the mother purchased X a watch that he was able to communicate through, which also had a location device on it, so that he knew that the mother was aware of his whereabouts when he was spending time with the father. This initially appeared to ease his anxiety.
April 2022 Incident
However, following another visit with the father in April, X exhibited very concerning behaviours, being distressed, withdrawn, requiring reassurance, including ensuring that the mother locked all the doors and turned on the security alarms. At that time, X relayed to the mother that the father had told X that when X was born he had "held him first as a baby" as opposed to the mother. The father also said that the mother was crazy, and the mother did not want him and also that X would have to spend a month with the father. X also told the mother that the father had asked him constantly, "Why don't you like me?”, “What is your mother saying to you?".
The mother knew at this time that the father was recording his time with Mr Conte and that the father was questioning the mother's parenting style and all of the medical support she had organised for X. Once the mother learned of the disclosures about the father's discussions with X as relayed to her by X, she requested an appointment with X's treating team to try and further understand and support X through the time he spent with the father. Those sessions continue.
Then on a video call between the father and X in April 2022, the father made a comment to X saying that he was excited for the upcoming match X was playing in Town J. Shortly after the call, X requested that he not play in the match and that he be pulled out of the team. This was very concerning for the mother as prior to that he thoroughly enjoyed playing sports and was looking forward to the match. When the mother spoke with the father, he told her that he was not attending the game and even though the mother assured X that he would be safe, X said he only wished to play once the mother said that the father would not be attending.
At this time the mother observed X's overall mood and demeanour was improving, following him being prescribed his medication to assist with his anxiety. The mother records that X still exhibited immense stress and irritability when the father's name was raised or when he was required to spend time, and X engaged in punching himself. However, he was playing more team sports and enjoying his weekend activities much more than before that. X was, however, still not able to sleep and required melatonin. The mother said that X would tell her he was having nightmares and would often see images of the mother being hurt by the father, or him being taken away, or the mother becoming sick again.
All of these attempts to have X have a relationship with the father ceased in or around mid-2022 following an incident in mid-2022 where it seems the father was physically intimidating and aggressive towards the mother and to X. The mother sets out the incident where the parties met at T Park in City E at around 8.30 am in order for X to spend time with his father. In accordance with the parenting plan, the mother was present. During that visit, the father asked the mother if he could have a word with her and they stepped away from X.
The father has then said to the mother, "What type of parent do you think you are raising your kids that it's okay to lie?" This conversation began to escalate when the father started to accuse the mother of being controlling and manipulating X, so that X did would not want to spend time with the father. The father told the mother that all of X's anxiety is fabricated and then later stated that she was the one causing X all of these anxieties and stresses. The mother refers to a message the father sent her on Friday, 1 April 2022 via a messaging app at 7.01 am. It reads[2]:
It is important to note that every single anxiety he has has been created by you. You're the one raising him and it's your environment that's harmed him. You're the one that's destroyed him mentally. You're the problem. You're the one that needs help, not [X].
[2] Affidavit of Ms Lachner filed 26 April 2024, para 156.
The father followed up that message by another one at 7.34 in the same day, saying:
But a bit of luck for him and myself, it will help him get over the anxiety of coming to me which has only come from you. You're the reason he has the anxiety. Nobody else has done it to him.
And on 4 April, the father sent the following message:
You need to wake up and realise the pain and damage you're doing to myself and [X] because your own needs and fears (or whatever it is you're scared of) and don't kid yourself with [X]'s anxiety nonsense because you've done that to him, not me.
The mother reports that whenever she would report any medical issue to the father and contact the father to tell him, that the father would respond with things such as, "My family don't have those issues, so it must come from your hick breed side", or "Do you even feed him properly? Because if you did, he wouldn't get sick all the time" or "You're a head case so he must get it from you".
In relation to the mother's own history with the father, I have no doubt that when she was diagnosed with a medical condition, the father has made remarks to her which the mother considers hurtful and callous, such as, "You weren't even that sick”, “You played on it to gain some benefit". The mother also explained that when she commenced a relationship with her husband, Mr U, that the father had seen a photo of her and her husband together, and when he phoned to speak with X, he changed the subject to abuse the mother and make the following comments:
You're a fucking gold digger. Ew, your boyfriend's ugly as fuck - don't ever compare me to him.
On 24 June 2022 the father commenced proceedings in the Family Court seeking that the child live with him and spend time with the mother as agreed or ordered by the Court.
COMPETING POSITIONS
The father
At the time of trial, the father sought to rely upon his Initiating Application filed 24 June 2022 seeking that the parents have equal shared parental responsibility, the child live with the father, spend time with the mother as agreed or ordered by the Court, and for special occasions.
The father further sought to rely upon his affidavit filed 27 March 2024, an affidavit of his current partner, Ms N, filed 27 March 2024, an affidavit of his mother, Ms V filed 27 March 2024, psychiatric assessments by Dr W filed 8 March 2024, Family Report of Dr Y filed 24 January 2023, subpoena material produced by Region Q Health Service and the s60I certificate.
A lawyer was appointed for the father through a grant of Legal Aid under the s102NA scheme, however on the morning of trial, Counsel and the solicitor appointed for the father withdrew for professional reasons. The father sought an adjournment on this basis, however for the reasons given, I declined the adjournment. Those reasons included the very dire emotional wellbeing of the child and the necessity to bring the proceedings to an end, along with the considerations in Aon Risk Services Australia Ltd v Australian National University[3]. As such the trial proceeded with the father self-represented.
[3] [2009] HCA 27; 239 CLR 175.
The mother
The mother sought to rely upon her Further Amended Response filed 27 March 2024 whereby she sought sole parental responsibility of X and that he live with the mother, spend no time with the father and international travel authority. The mother also sought to rely upon her affidavit filed 26 April 2024 and an affidavit filed by her husband, Mr U filed 29 April 2024.
The Independent Children’s Lawyer
X was represented by Ms Manby as Independent Children’s Lawyer (ICL) at the trial, who was in agreement with the mother’s proposed orders. I thank Ms Manby for her efforts in putting the evidence before the Court in her role as an Independent Children’s Lawyer.
THE LAW
Orders in respect of children are regulated by Part VII of the Family Law Act (“the Act”). A “parenting order” is defined at section 64B of the Act. The Court may make such parenting order as it considers proper[4].
[4] Subsection 65D(1). And within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration[5].
[5] Sections 60CA and 65AA.
The Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2).
I will now turn to consider the evidence and the relevant considerations.
THE EVIDENCE
Domestic Violence
In reference to paragraphs 124 to 159 of the mother’s affidavit, I am satisfied that in this matter the father has committed acts of family violence towards the mother. I accept he has been verbally abusive and made threats to her, including threatening to kill her. There was a recording played at the hearing after the father denied making such threats and in that recording the father can be heard drunk and saying to the mother, "I’ll kill everyone, I’ll kill the whole fucking world if I have to”.[6] That was after the father said in Court "I haven't been threatening towards the mother" and that the suggestion was a load of rubbish. I suggested to the father that he had a lot of work to do with his own anger management after that recording was played and he said he had past traumas with his aggression, but it is not anger related.
[6] Recording, at 2:39:20 (15 May 2024).
The father during his cross-examination became angry at various occasions very quickly when it was suggested to him that the child had said of his relationship with the father that he finds his dad scary. The father said, "What a load of rubbish" and he didn't recall reading it in the family report. The father was very quick to fire back answers. The father refused to believe that the mother was someone that was in fear of him. The father had a quick answer to the suggestion that she was in fear of him by saying it could not be right, "Otherwise, why did she try and pay for me to fly over and spend time with my son?" and it was suggested to him that the mother did that to facilitate a relationship between the father and X, which I accept.
In relation to the issue about the father's behaviour in the park in which he became very angry with the mother, and which the father said on quite a few times he “didn't understand where the child would get fear from”, it was suggested to the father that the child is frightened of his (the father’s) behaviour. However, there was no real acceptance or understanding of that from the father. Most of the questions about the father's anger and the effect upon the child were answered in somewhat of a cycle with the father denying that the child would be afraid, saying he did not know why that would be so, and adding that he had not had a chance to make a bond with the child. It is clear that the father is in deep denial and has no insight into the extent of his own tendency to become very angry very quickly and therefore very unpredictable.
During cross-examination, even when Mr Taylor, Counsel for the ICL, explained slowly to the father that the child had seen him being very angry to his mother, and that this coupled with all of the child's existing anxiety and the child's deep fear that his mother was going to die and that the father had made threats to take him away from the mother, unfortunately, the father showed no sign of any insight into how his own behaviour has affected the child. The father instead has been extremely critical of the mother to the point of regularly querying any medical decisions she has made. His challenges are based upon his “Dr Google” research which he prefers to rely upon rather that the opinions of the child’s treating medical and psychiatric experts. The father has decided to create a distraction and launch into criticisms of the mother rather than understanding X’s emotional conditions.
The father has researched medical matters himself on Google and has become somewhat of a self-appointed medical expert. During his evidence the father spoke about medications and causation as if he has been practising medicine for years. The father has a very black and white view of a lot of matters and very little sensitivity. He criticised the mother for taking the advice of the doctor at a point that X needed to have a medical procedure. Medical records show that after his surgery that, on further observation by the doctors, which was not possible until the after the surgery, it was determined that he likely had a slightly different condition which may or may not have required surgery, but that was not known by the doctors until the medical procedure.
The father adopted the position that he did not understand why the doctor said later that this typically, did not require surgery, but he had asked his own daughter's doctor later about this issue. The father tried to develop this narrative to demonstrate that the mother had, effectively, permitted an operation to occur which should never have happened and, therefore, that was her fault. The father then developed that into explaining that it is quite likely that the mother had fabricated a medical condition and that the mother had a condition called “factitious disorder”. The father said this was his biggest fear. The father said that it could have been the case that the mother has made up the symptoms and the child has had this operation, and, further, that this was the cause of the child's anxiety. I am satisfied this theory of the father is a baseless allegation devoid of any medical evidence but put forth by him to demean and undermine the mother. The father also alleged that the mother found a doctor willing to give medication which is not necessary to X.
The father was aggressive in the witness box and would not stop talking over Counsel when being asked questions. The father has a basic narrative that he does not know where conflict and fear come from in terms of his relationship with X, that X has never had a reason to be scared of him. He believes that the child is being told something about the father that is not the case and says that he has not scared the child. The father has stated that the child is in a cycle in which he is being brainwashed. The father also states that he has never been able to be established as a human and a father in the eyes of the child.
The father also referred to the relationship between the mother’s husband and X as "paedophilic" (in reference to the age gap between the mother and her husband) and otherwise criticised her marriage in a malicious and spiteful manner. The father’s hostility towards the mother is deeply troubling particularly in terms of the effect that this hostility would have on X and his ongoing relationship with his mother
The father’s partner, Ms N
The father’s partner Ms N gave evidence that effectively there was nothing about the anxieties experience by X that could not be resolved by X living with the father. She went on to say that Mr Conte is an excellent dad and that once the child settled in with them, that they would be able to handle him and take him for some more help. Ms N, gave evidence that although never having had any children of her own but helping the father look after G, she will be the mother figure for the baby that she is going to have later this year and the two other children from the father's other relationship, X and G. Ms N was an extremely confident witness and, unsurprisingly, fully supportive of the father’s position and very critical of the mother.
Ms N believed that the mother had a fascination with death and that this accounts for the child being worried about death. She also said she did not realise that the report said he was suffering from separation anxiety. She said he would be sorry about leaving his mother, however she said of the mother "This woman would be impacting our home and setting us up for DV". She described the mother as being a cold and evil person. Ms N has it seems got all her information from the father. She was critical of the meeting that the parties had at the park and accused the mother of being very outspoken and said she was very uncomfortable when the mother turned up at the park in a bikini, which she thought was “quite inappropriate”.
My impression of Ms N is that, not even having had her first child yet, she has an extremely and concerningly naive view of the serious conditions suffered by X. I have serious reservations with her ability to manage or accommodate all of X's anxieties. There is a belief and theme that comes out in her evidence and the father's that there is nothing that they could not cope with, and that it would not take X long to settle into their family. What the proposal of the father involves is that Ms N would be the primary mother figure in X's life.
Ms N lacks any ability to understand X’s anxieties and I am satisfied that X’s mental health would deteriorate to dangerous levels in her care, noting she will also be coping with their new baby that is coming in a few months and G when she is there.
I am also satisfied that, if the child was living with (or spending time with) the father and Ms N, X would experience the full blast of their loathing of the mother whilst living with or spending time in their household. This would inevitably affect X’s close relationship with his mother and cause him significant distress.
As I have said, I think Ms N has an enormous amount to learn and to experience as a parent before she is in any position to have any views and make criticisms of the mother. Her criticisms I considered were unwise, totally misconceived and rather immature. There is no evidentiary basis to her wild and uncensored criticisms of the mother.
The Supervised Contact Centre
After orders were made in this Court, X was ordered to have supervised time with the father. The records of the supervision have been provided. At the father's insistence, an officer of the contact centre was called and made available for questioning. The records really speak for themselves. Essentially, the child wanted to discontinue the contact time.[7]
[7] Exhibit ICL1.
It is a schedule of time spent between September 2022 and April 2023. There were two sessions which were intake and orientation. The first visit started in October 2022 and finished 30 minutes early, so did the second visit on 26 November 2022 at the child's request. The third visit in December 2022 was cancelled by the centre. The January 2023 visit at the contact centre was finished after 40 minutes. The February 2023 visit was finished after 40 minutes. The April 2023 visit was finished after 40 minutes and, ultimately, in April 2023 the contact centre suspended any further visits.
On 24 November 2022 the mother informed the Contact Centre that X had become increasingly anxious in the week leading up to the visits. There was a discussion about providing food and activities. On 26 November 2022 (X’s second visit), the report notes:
the team leader spoke to [X] on arrival about asking to go to the bathroom if he is wanting to leave, or just have staff check in with him. Throughout the visit, [X] looked at the clock regularly, however, he was engaged in play and eating. From 10am, [X] was fidgeting with his [game] and becoming more withdrawn. At 10.20, [X] signed five minutes to the team leader and a message was sent to Mum who arrived at 10.30.
The next visit was on 24 December cancelled by the centre due to staff issues. Then it started again on 21 January 2023.
[X] came in and sat on the lounge. Barely acknowledging the father, [X] answered some questions about his holidays, but turned his body away from Dad, refused to engage in any activities, and fidgeted constantly with [a game]. The father asked him if he wants to know what he had been doing, wanted to play, or wanted food, but [X] said no. When Dad asked why, [X] said he did not want to be here. He was scared and he does not want to talk about it. The father reassured [X] he was safe and he could share how he was feeling. The father remained calm. [X] requested to leave after 30 minutes. At the pickup, Mum said [X]'s medications had been changed and that they had not. [X] had told Dad he was car sick.
The mother contacted the centre in between times in relation to the next visit and what she could do to help make X more comfortable or provide video games. On February 23, X was more relaxed and got involved in a board game with his father and the team leader. After one hour he asked to leave. On 11 April 2023, the mother rang to confirm and check times and she mentioned that she is going to bring the child's cat to the visit to try and make him feel more secure.
On the next visit in April 2023 the contact centre recorded:
[X] brought the kitten as discussed. [X] spent several minutes inside the cage with it. There was some discussion between the father and child about holidays, [X] gave short answers and refused to make eye contact. The father and team leaders suggested some activities and asked [X] what he would like to do, but [X] refused. The father asked why he did not want to, and [X] told him he does not ever want to see him, he hates him, he doesn't want to be here, and he wishes [Mr Conte] was not his father. The father told [X] he is allowed to feel that way, but he is sorry he does. The father asked if there was a reason or anything he could do to make it easier. [X] said there is reasons, but he did not elaborate. [X] said repeatedly he wants to leave and he does not want to see [Mr Conte] again. The team leader called the mother to come and collect him. When the mother arrived, they told her that the kitten did not help and that [X] refused to play or engage. The mother was teary and apologised, saying she hoped it would have been better with the kitten and she does not know why this is happening. The team leader reminded the mother to reassure [X] that he has done nothing wrong and she could call if she needed to after the visit.
The team leader spoke to the father after [X] left. The father said he felt as though the visits are only getting worse and he is not sure what else to do if [X] will not give any reasons why. The team leader suggested the case will be reviewed. The father said that there was a Court date coming up in July.
In April 2023, the team leader phoned the ICL regarding the child's lack of engagement and voicing during the session that he no longer wants the visit to continue. The ICL agreed with a temporary suspension and will subpoena the files.
The Family Report Writer
The family report was written at a time when that supervised contact was in progress. At that time, family report writer, Ms Y, a very experienced report writer, her working as a family consultant for the court from 1995, and then being involved in various court reports, counselling, social work and so forth, as set out in her resume, made a recommendation that an Independent Children's Lawyer be appointed, that X have supervised time with his father ideally monthly. This report was prepared just as the supervised time was commencing.
Much of the father's annoyance and irritation at the mother has been directed to the fact that he says she did not ever complete the required amount of counselling, as was recommended. I am satisfied that she did. The mother gave evidence that she had had two sessions, and she was told she did not need any more. The other irritation and anger that the father holds is directed to the fact that there should be now some therapeutic counselling, and he quizzed the family report writer about the reasons that she had recommended that. I have to say at the outset that it is not as black and white as the father would have the court believe.
The recommendation about joint therapeutic counselling was couched as something that might be given consideration to for the purposes of improving the child's relationship with the father, and it was on the proviso that the father engaged in at least five additional sessions with his individual counsellor, and provided the idea of joint counselling is supported by his counsellor and the treating team at Region Q Health Service. That is the child's treating team. The facts are that the child did not get past the point of having supervised time with the father.
That was cancelled because of the non-engagement, the child making it very clear to the father he did not wish to engage, the validity of the child's views and the lack of utility of any continuation of that time. Having read all of the subpoenaed material and about the child's grief and the child's fear that his mother was going to die, that he was going to be removed by his father, that the father was going to take him away for a month to Brisbane and kidnap him, and that the mother might get sick again, and that the mother's illness was somehow caused by X, the consideration (not direction) of any family therapy was no longer recommended by the family report writer.
In acknowledging that the supervised visits were just starting when her report was prepared, Ms Y said that she accepted that there was nothing inappropriate that the father did in those visits, having read the notes, however, she no longer recommended that there be reunification therapy. Ms Y said that any type of therapy is only going to be successful if there is a willingness for the parties to participate. Ms Y said that the information that she has gathered from the subpoenaed material and her own observations is that the child is not wanting to participate in family therapy with his father, nor is he even attending counselling any further, that the child is up to his ears with counselling.
Ms Y considered that given the child is coming up to 12, that he is highly anxious and that being made to sit in a room with his father would not help at all. Ms Y said when she made the recommendation, she was hoping things would take a different turn, hoping that there would be more confidence in the supervised setting. Ms Y stated unequivocally that it is going to be counter-productive to force any reunification therapy upon the child. She acknowledged that the child has expressed a wish not to see his father in her report and said he did not feel safe with the father. I have taken this evidence into account and given it significant weight when considering the child’s views.
Ms Y acknowledged that the child did not appear to describe that the father was physically abusive, but that the child had heard his parents arguing and that he did not feel safe. He has heard criticisms by the father of his mother, and he said that he feels unsafe around the father. There is comment made at paragraph 129 of the Family Report where the father has said to the child's sister that his mother is crazy which he overheard. At paragraph 137 the child had said about spending time with his father that, "It's always a drama" and that the father treats his mother like dirt and sometimes he even yells at her.
Ms Y confirmed that the child is talking about his emotional safety and that she agreed the child does not feel emotionally safe with the father. She referred to paragraph 160 of her report where the child said that he finds the father scary, and that she thinks he has a fear his father would forcibly remove him from his mother and that, even though the father said that he has made a joke perhaps that he would steal him and take to Brisbane and the father said he wasn't serious about that, this alleged joke was made to a child who has serious anxiety and who has little confidence in the father and that in that context the child does not get the joke. I accept that the child did not regard the father’s words as a joke and I consider that the father’s words are completely in line with the child’s expressed fears that the father is going to force the child away from the mother and into the father’s care. Further, I do not accept that what was said to the child by the father was as a joke. Such a comment entirely fits with the father’s unrelenting push to have the child in his care despite any negative affect this may have on X.
Ms Y said the child's emotional security is based in his relationship with his mother and that is not unusual as the mother has primarily cared for the child since birth. The father has been coming and going and absent for long periods. The child has an anxious personality, and he has been exposed to the conflict between his parents and, therefore, X is more dependent than most children would be with his mother. Ms Y said that the child would receive the comments made by the father negatively attacking the mother as being terribly threatening as the mother is the sole source of his security.
It also would be experienced by X in his mind that in the father seeking to have the child live with him, he is not validating or accepting the choices that the child has made, and that the father thinks that the choice is wrong, and, therefore, where does that leave the child if the father basically is not going to acknowledge that the child has a reasonable perspective. When asked what the father could do to demonstrate he can be emotionally safe to the child, Ms Y said that there is a limit to what he could do to show his love for his son, she said there is no doubt that the father has plenty. However, the father needs to listen to what the child is saying, accept how he feels and back right off.
Ms Y thought it could be open to the father to send some communication from time to time and that X could respond when he wants to, but she did not think this should be an expectation or pressure and that the best way the father could show that he loves the child was to show the child some respect and show that he respects the child's decision. Ms Y said:[8]
maybe as he grows older and he sees that you’re respecting his wish and showing him love that way – which to you may feel like, “Oh, I’m giving up on my son,” but it’s not that, and no one is doubting how much you love him and why – why you’re pursuing this, but you need to understand where he’s coming from. And this is not about punishing you; this is about, “Let’s – what’s – do what’s best for this little boy so he can grow up and to be a beautiful young man, and then maybe he will have a relationship with Dad one day.”
[8] Transcript of proceedings (12 June 2024), p 16.
The father pressed the family report writer by suggesting that he would get professional help to help the child transition to live with him, and Ms Y said that the child does not even know those therapists yet. They may or may not be able to help him adjust to some of his life, but in making him live with the father, which is what the father is seeking, it is like taking away his main source of security and it would not assist.
The final recommendation of the Family Report writer was that the child keeps living with his mother and that the child be given space to have his wishes respected. Further that forcing the child to live with the father would be effectively saying to the child, "We're not listening to anything you want". In relation to the proposed issue of family therapy, Ms Y said that it is not the time to have family therapy and it is likely to make the child dig his heels in even more. I accept the evidence of the family report writer.
In relation to the father's questions as to what the “root cause” is, it was explained very carefully and thoroughly by the Family Report writer that this was a complex issue and there was no single cause. The father was oversimplifying the situation by saying there has to be one single thing that has caused it and that he wants to get to the bottom of the problem. The child has also been exposed to family violence between the father and the mother, and the child had every reason to feel the way that he was feeling.
The Family Report writer did not accept the father’s theories that the mother did not go to enough counselling and, therefore, somehow the father was deprived of a relationship with his son. The Family Report writer said that there was nothing to “get to the core of” and that where the issues for the child come from are a multitude of factors that are to do with the child's personality and makeup and experiences, and that this is not like a bug that you could just get to the bottom of.
The Family Report writer tried to explain to the father that it is much more pervasive. It is about who the child is. It is about his experiences, about how he experiences life, and that if the father really wanted to have some hope of a relationship with the child into the future, the best thing he could do is to respect the child's wishes and show his love that way, and that on that basis once the child realised that the father was no longer pressuring the child, that there would be some hope for the future.
In terms of all of the suggestions by the father to the family report writer that the mother had engaged in parental alienation citing a range of issues, there was nothing about the mother's behaviour that the family report writer accepted showed alienation. Quite the contrary was the case. She said she believed that the mother had pulled out all stops over a significant period of time to try and make the time between the child and father occur whilst trying to accommodate the child's anxiety. She considered that the mother had gone above and beyond, including travelling to a place, taking her own accommodation and remaining close by in order to make the time work. I accept this opinion as it accords with the evidence and my own views.
The report writer said that nothing had worked, that no supervision is recommended any further, that that will cause more harm. No therapy is recommended, that will also cause more harm, and that any question of the child spending time with the father must come from the child when the child is ready and that may be in a few years or some later time. My impression overall was that Ms Y had an excellent grasp of the child's anxiety, its organic nature, which seemed to happen initially with the intermittent time that the child spent with the father. Added to this the father is then seen to be making quite unreasonable requests for the child to simply come with him for a week or more, seemingly on the belief that because the child is his he will immediately adapt to his absent father.
I do not accept that there is any evidence to support the father’s theories at all of the mother cutting off the child's relationship with the father. The father has a strong and unshakeable belief that this has happened. What has happened is that the father has been absent, he has had another life, he has had other partners, he has had another child. He has not maintained a close relationship with the child by doing something like moving to City E. He has moved geographically a significant distance away, necessarily resulting in less frequent time occurring with large gaps in between. He has not been mindful of the child's own experience. The father has shown no insight into the fear and grief experience by X facing the prospect of his mother dying or X’s anxiety generally. He does not genuinely acknowledge the child’s anxiety and completely rejects the views expressed by the child.
Even to the last submission, I saw no suggestion that the father had any insight into how this child has experienced his father's coming and going and absences, the effect upon the child of the father’s criticisms of the mother and the genuine fear the child has developed towards the father. I have watched the father become very angry at the bar table, shouting at Counsel, his angry retorts to the bench and his angry answers in the witness box. I have no doubt that when the father is angry, he is scary, as described by the child. Ms Y accepted that there is not one sign of the father showing insight into the plight of this anxious 12-year-old and how that has come about. I accept her evidence. It accords with my own observations and the rest of the evidence.
The father has been determined in his prosecution of the mother to prove she is a bad mother. He has tried to portray the mother as a mother who has not sent her child to school properly. According to him, she is a mother who has factitious disorder and, therefore, has been seeking out remedies for conditions that the child does not have. As I have said, the father is a self-appointed expert on medical matters and found himself wallowing deep in Google information, which was completely illogical and at times farcical, including his allegation that the mother had fictitious disorder. He purported to know all about medications to the point that he would know more than the prescribing psychiatrist or doctor, which I reject.
The father is angry at the situation he finds himself in and he refuses to look to himself as being in part responsible for the current situation. He has not genuinely accepted the mother's illnesses. He has tried to pass that off as something the mother has exaggerated, whereas in reality she actually had a life-threatening illness which required her to undergo treatment and all that goes with that. The mother was also diagnosed with a medical condition. It would have been obvious to the child that his mother was extremely unwell and that she was in a precarious and life-threatening situation. The father has minimised that and every now and then he has said words to the effect that, no, he accepts that was a real illness and the child would have been frightened, but I am not convinced by these concessions because he always returns to his evidence that the mother has been faking it, or exaggerating, or the root cause of the child's problem is the mother's problem.
I accept the recommendation of Ms Y that it would be horrific and traumatic for this child to be removed from his mother's care as proposed by the father. It fortifies my belief that the father has no insight into the child's condition in asking for orders that the child be removed from his mother as a simplistic cure to all of the child's conditions, despite the father being told that the child has self-harmed and contemplated his own death. The father has again said a couple of times in his evidence that he does believe that the child was self-harming because he has seen it, but in other questions he has asked people, "Have you ever seen any scratching?”, “Have you ever noticed any self-harming?" and that tells me that he does not believe it.
As to the allegation that the child has fallen behind in his education, there is no evidence that in all of the circumstances, including the child’s illness and the mother’s illness and the distance required of the mother and child to travel to specialists, this child has fallen behind to any extent that the Court would be alarmed. This is just another issue about which the father, who was absent for years and who had no indication or concern about the child's education now raises. He has left it entirely to the mother to accommodate all of the child’s educational and medical needs. However, once he decided in or around 2022 that he was going to start having time with the child, he started being critical of the mother. His criticisms are unwarranted. There is not a shred of evidence of alienation, and the father needs to rid his thinking of any suggestion that all he is facing alienation caused by the mother. That is too simple an explanation and, in any event, it is not substantiated by any evidence. The father would be wise to adopt the suggestions of the family report writer to listen to what the child is saying. As painful as it might be to hear that the child does not feel safe with him and does not want to see him, the best course would be for the father to respect the child’s views and not see him during this time of his life if there is to be any hope for the future.
I am satisfied that the father has significant failures in his capacity to parent and that he lacks any understanding of how to provide for the child’s emotional wellbeing.
ASSESSMENT OF THE CHILD’S BEST INTERESTS
The Safest Arrangement
Pursuant to subsection 60CC(2)(a) the Court must have regard to that arrangement which would promote the “safety” of a child and those who have care of the child[9]. “Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning.[10] The Oxford English Dictionary[11] defines the noun ‘safety’ as ‘[t]he state of being protected from or guarded against hurt or injury; freedom from danger’.
[9] Whether or not a person has parental responsibility for the child
[10] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at [56]
[11] Definition of `safety, n.’. In M.Proffitt (Ed.), Oxford English Dictionary. Oxford University Press. >
The court is drawn towards the view that ‘safety’ of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury or danger, but rather making such Order as affords the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence Order previously or currently in place.
Capacity
The capacity of a parent to ensure the safety of a child, is a consideration under subsection 60CC(2)(d) of the Act, requiring as it does consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
Having regard to the father’s conduct towards X, I am satisfied that he does not have the parental capacity to understand the emotional needs of X. The father has in the past and still at the time of trial, completely unrealistic expectations of X. His expectations that X would spend a week with him in the past were utterly misplaced and represented the father pushing his own needs on to the child, rather than taking account of the actual state of his relationship with X and X’s emotional needs. The father’s proposal that X be removed from his mother at the time of trial, speaks volumes about the father’s lack of ability to understand X’s emotional wellbeing let alone his anxieties and fears. Whilst I have no doubt that the father loves X, the father’s lack of insight and understanding of how X has experienced his own relationship with his father and the fears genuinely held by X about being taken from his mother by his father (which is precisely what the father is planning to do in the Orders he seeks) has a profoundly negative effect on the father’s capacity to parent.
X has said that the father does not listen to him. I accept that this is the case. I have watched the father listen to none of the experts. The father has challenged all of the experts on the basis of his own beliefs, which he holds to very strongly in preference to understanding or accepting the observations of the mother, the Family Report writer or the child. The father has shown he has black and white thinking. Unfortunately the father shows no ability to understand the complex nature of the child's cause of anxiety and what that means in terms of the child’s ongoing emotional safety. The father does not have the insight or capacity to identify the complex issues which have caused the current strong resistance of X to spend time with him. The father has indicated that he has no intention of complying with the recommendations of the single expert, nor does the father have respect for the mother’s position in supporting X through his anxieties and fears.
The mother has the capacity to provide for the child’s developmental, psychological and emotional needs taking into account the child’s anxiety. To the extent that the father and his partner accuse the mother of being the cause of the child’s anxiety and depression, I reject these ill-informed opinions as being baseless. The child does not feel safe with his father and he has valid reasons and experiences for the views he has expressed. Conversely, he only feels safe with his mother. I give this issue significant weight.
The child’s view
By virtue of subsections 60CC(2)(b), (c), (e) and (f), the Court must have regard to:
•The views expressed by the child;
•The developmental, psychological, emotional and cultural needs of the child;
•The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
This child is old enough to express a wish, which the family report writer says is a genuine and valid view based on the child's experiences. Overwhelmingly he does not wish to spend time with his father. When given the chance to spend time with the father, the child has not wished to proceed with the time and explained to the supervisors that he does not like his father, he hates him, he does not wish to spend time with his father, and he is in fear of his father. I give significant weight to the child’s views given the length of time he has been expressing the views and his age and maturity and his negative experiences with the father. I accept that the child’s views are his own and reject any suggestion that the child is just repeating what the mother has told him to say.
In light of the strongly held views of the child, I am not satisfied that there is any evidence that supports any orders for reunification counselling. I accept the expert evidence which is that that to engage in further attempts at re-unification, will cause the child to dig in even further, and he will realise that the father is still not listening to him and that will actually jettison any future hope for the possibility of some reunification into the years ahead when the child matures and understands and has a chance to reconsider his position. I certainly do not intend to make any interim orders. There is no purpose in doing so, and I am satisfied that to continue this litigation would cause further emotional harm for the child. As I said at the commencement of this trial, this matter needs to come to an end.
Parental responsibility
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration.
The orders of the Independent Children's Lawyer seek that the mother have sole parental responsibility for making long-term decisions. In this matter, there is a complete lack of trust of the mother by the father. The father has been prepared to challenge and make allegations against the mother that are unwarranted and without any evidentiary basis. The father’s partner shares his views.
The father has shown a complete disregard for the mother’s views and for the efforts she has made for years to try and facilitate a relationship between the child and the father. During the trial, the father has continued to misquote information and facts relating to the mother’s conduct. The father adopts s his distorted views of her conduct to accord with the narrative he wishing to press, which is that it is not his fault that the child does not wish to see him, it is the mother’s fault. The father has told others information about the mother which is untrue. The father has been unusually critical of the mother and her family. The father has no insight into life circumstances that have unfolded for X and the effect upon X of the mother’s possible terminal illnesses. There is no mutual trust between the parents. I do not have sufficient confidence in the father’s capacity to be able to make pragmatic child focused decisions based on medical evidence in relation to the child. The father wishes to challenge the medical advice and treatment obtained by the mother and apply his own ideas about medical matters based on his internet research. This would make for quite an intolerable position for X in requiring the mother to try and get agreement to long term or short term medical or other long-term decisions for X.
I consider that is in the best interests of X that there should be an order for the mother to have sole parental responsibility for the major long-term issues in relation to the child. The mother is extremely child focused and well aware of X’s frailties and strengths. The mother has always placed X’s interests first and foremost.
EVALUATION
I have considered the proposal of the father that the child live with him and his new partner and their new baby and the half-sibling that spends week on week off with the father, and I am not satisfied that this provides any advantages for the child. I am satisfied, based on the Family Report writers evidence, that this would place the child in grave danger of a complete emotional collapse. He would be terrified. He would be frightened. As explained by the Family Report writer, the father’s proposal is unsafe for the child both physically and emotionally. The father’s proposal essentially removes all the emotional support that is known to the child. The father has never backed off from that proposal and he cannot see any problem with that proposal going into the future. In terms of the father's capacity, I am not satisfied he has the ability to accommodate the child's emotional and intellectual wellbeing. I find it extremely troubling that the father does not have the parenting capacity to understand X’s emotional needs, his strong attachment to his mother and his anxiety. The mother certainly does have the parental capacity to accommodate all of these significant issues and vulnerabilities experienced by X. The father just insists that the Court make Orders in line with the seismic changes the father proposes to the living arrangements for the child and that the child live with the father.
The father is oblivious to the real causes and experiences of the child's emotional wellbeing. Ms P, the child's mental health practitioner gave evidence at the trial. Ms P was a very experienced and wise child youth practitioner. Ms P explained she was employed as a clinical nurse in child and youth mental health. Ms P held qualifications in Mental Health Nursing, and a number of other qualifications. Ms P first saw X in mid-2020 and then again in February ’22 to around June ’23". When the father cross-examined Ms P whether she was able to identify where these violent patterns of thought behaviour came from in X, Ms P responded that “Self-harm is very difficult to – and emotional dysregulation is very difficult. It’s one of the things that we manage daily, and it can come from a place of great distress and a young person may not be able to articulate exactly where that comes from, and I’m not able to say exactly where that came from for [X]”.[12]
[12] Transcript of proceedings (16 May 2024), p 225.
Ms P went on to explain the holistic condition and functioning of X and also how self-harming is caused by a multitude of factors and not by any single factor. The father has a very simplistic view that there is a single problem with X and that he is determined to get to the “root cause”. This understanding was rejected by both Ms P and the Family report writer. The father unfortunately is not receptive to the advice of those practicing in child mental health.
I am satisfied the mother has made good choices in obtaining all of the medical support and psychological and psychiatric support that she has obtained and that there is no cause for criticism. The father and his partner are highly aligned, and they have an unshakable belief that the mother is faking all of the symptoms of the child, that she has obtained poor medical advice, and that they have the answer, which is that in no time at all, once the child settles in with them, it will all be handled. Their opinions are naive, and entirely inconsistent with all of the evidence of the child, from the mother and the independent evidence of the family report writer.
I am well satisfied that making orders as proposed by the father would be unsafe for the child and place him at an unacceptable emotional danger. Ms Y reiterated that this child has self-harmed, and he is a very fragile child, and the father's solution is to bulldoze through all of that and insist that the child live with him. This would likely have catastrophic effects on the child.
I have taken account of the domestic violence in this matter, and I am satisfied that the father has consumed too much alcohol when the parties were together and that he has been abusive and insulting towards the mother, that he has caused her fear and that he has made threats to kill in his angry outbursts towards the mother. The father can continue to pretend that these traumatic incidents did not happen and try and diminish them. However, I have given careful consideration to the context in which all of those incidents occurred. I have heard the recorded evidence of these threats. I accept the mother’s evidence as being entirely truthful. I am also satisfied that the father has been the perpetrator of family violence, and he has caused the mother and child to be in fear. This makes him a very poor role model and I am not satisfied that he has in any way addressed his anger issues. It has a profound effect on his capacity to parent. Whatever courses the father has completed, (the father told the Court he has done all the courses, therefore, he should be having time with the child) I am satisfied, having watched the father for three days, that he can still become very angry very quickly and that has been and is part of the fear that X has experienced, as has the mother.
This child's wellbeing has been harmed enough and to subject the child to any further litigation or rehashing of this decision in 12 months’ time or 18 months’ time, or have any further reports, or further reunification therapy as suggested by the father is completely unwarranted. There is no evidence that this would be of any utility. The evidence is in fact to the contrary. The Family Report writer carefully explained how this would further harm the child. In this matter, I am satisfied that this child has had very troubling experiences with the father, as explained by Ms Y whose evidence I accept without reservation. The father has been out of the child’s life for the child’s very formative years. The father over many years, has come and gone in and out of X’s life. The child has not had a consistent ongoing happy experience whilst spending time with the father.
The child has developed an anxiety, and this commenced when the child started spending infrequent time with the father. The time with the father was not regular enough for X to develop a dependency or close attachment with the father, such that he felt comfortable spending time alone with the father. The child always felt ill at ease in the father’s care, and the more that the irregular time continued, the evidence shows X’s increasing anxiety. Then a completely unexpected event occurred with the mother being diagnosed with medical conditions. The treatment took two years. The child was old enough to know that his mother was seriously ill. The mother was in the circumstances of this matter, the only parent X lived with. The mother simply was X’s world. The father was not in the child's life sufficiently for the child to have any genuine attachment with, or for the father to be able to appease the child or comfort the child during this difficult time.
The child’s relationship with his father has been a struggle, at many levels. The infrequency and unpredictability of their attempts at spending time together, have occurred in circumstances which have added to the child’s anxiety. The association between the child and father never reached the point of having wanted any one-on-one time alone with the father. That was nothing to do with alienation or alienating conduct by the mother. It has been a culmination of circumstances as set out in these reasons and which was fully explained by the single expert. The Court finds itself in a position of making an order which is the only order possible to consider and that is that the child will spend no time with the father. To do otherwise, I am satisfied, would place the child's own emotional wellbeing entirely at risk and likely cause further harm that the Family Report writer has predicted.
For the reasons set out herein, and after considering all of the evidence, I am satisfied that the proposal of the mother and the Independent Children’s Lawyer that the child continue to live with the mother has significant advantages for X’s emotional wellbeing now and into the long term.
I am satisfied that the mother has the requisite capacity to provide for the child's emotional wellbeing, his emotional safety, his psychological wellbeing and his intellectual and educational wellbeing. I have taken account of the child's wishes which are unequivocal, he does not wish to see his father and he is frightened of his father due to his own experiences. The proposal of the father, which the father pressed to the last submission, is entirely at odds with the single expert evidence. The father’s proposal will likely lead to a personal catastrophe for this child’s emotional wellbeing. I am extremely alarmed at the father’s willingness to just press on for the Orders that he wants, which is that the child live with him when there is such an abundance of compelling evidence as to why this would be entirely inappropriate, unsafe and dangerous for the child. On the evidence before the Court, I am satisfied that the father represents an unacceptable risk in terms of the child living with him or spending any time with him.
In terms of any time X should spend with the father, I am satisfied that the Orders sought by the mother and the ICL that there be no time spent between the father and child, has significant advantages for X, as explained by the single expert and through these reasons. I have considered the prospect of more supervised time, and I am not satisfied that such an Order would be tolerated by the child. The child has refused to attend any more sessions with the father, and I do not accept that there is any utility in making any further order for supervised time. It would be oppressive for X to be ordered to do so. Supervision has been tried and facilitated by professional supervisors and failed. I am further satisfied that if there is to ever be any further contact between the child and the father in the years ahead when the child is much older, that it is imperative that the child’s strong views not to spend time with the father be respected and implemented. This was the view of the independent Family Report writer, and I accept that this is the only hope for the future.
Overall in terms in the best interests of the child I am satisfied that the mother’s proposal as advanced by her Counsel Mr Alexander, and as supported by the Independent Children’s Lawyer that X live with the mother and spend no time with the father is in the child’s best interests. I am well satisfied that in the event X changes his position and wishes to have contact from the father or spend time with him, that the mother will facilitate this. The order proposed is that there be no time spend by the father with the child, other than as expressed by the child through the mother to the father. This position is supported by the Independent Children’s Lawyer. I accept the submissions of the ICL as they accord with the evidence and my own views. I thank the ICL for assisting the Court throughout this litigation.
ORDERS
I intend to make the orders that the father spend no time with nor communicate with the child unless it is initiated and requested by the child through the mother.
As I have said, I have every confidence that in the event the child asks to spend time with the father or start communicating with him, that the mother will continue to do all she can to make that happen. This has been her approach for years.
As to overseas travel, I will make the orders permitting the child to have international travel with the mother as I have no difficulty in accepting that she will always place the child’s interests first. There is no evidence at all that the mother presents a flight risk or that the child should be deprived of the opportunity to travel overseas with his mother or with a school group. The dates and times of travel will be as determined solely by the mother. Orders will be made for the passport to issue notwithstanding that the father has failed to sign the passport application.
I will make also an order that the father be prevented from providing copies, electronic or hard copy, of any subpoenaed material in his possession. I have already made orders for the father to deliver up all the copies he has of the subpoenaed material to the registry and to file an affidavit stating he has deleted those copies from the hard drive, which he has complied with.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM. Associate:
Dated: 11 September 2024
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