Danton & Lancaster - [2024] FedCFamC2F 1045

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danton & Lancaster [2024] FedCFamC2F 1045

File number(s): DGC 1527 of 2016

Judgment of: JUDGE JENKINS

Date of judgment: 6 August 2024

Catchwords: FAMILY LAW – PARENTING – family violence – alienation – 12-year-old with entrenched views – balancing of risks of psychological harm of leaving child with mother or changing residence – meaningful relationship – benefits of further family therapy – consideration of s 60CC factors prior to amendments – child moved to live with father – moratorium on time

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 65D, 65DAA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 8.15

Cases cited:
Carlson & Fluvium [2012] FamCA 32

Fox v Percy [2003] HCA 22

Grella & Jamieson [2017] FamCAFC 21

Isles & Nelissen [2022] FedCFamC1A 97

Lennon & Sanil [2020] FamCAFC 109

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 177

Date of hearing: 4 & 5 March 2024 and 3, 4, 5 & 6 June 2024

Place: Dandenong

Counsel for the Applicant: Mr Devries

Solicitor for the Applicant: Bowlen Dunstan and Associates

Counsel for the Respondent: Mr Ambrose

Solicitor for the Respondent: MSL Lawyers

Counsel for the Independent Children's Lawyer: Ms McNamee

Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law
ORDERS

DGC 1527 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LANCASTER

Applicant

AND:
MR DANTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

6 AUGUST 2024

THE COURT ORDERS THAT:
1.All previous orders with respect to the child X born in 2011 (“X”) be discharged.
2.The father have sole parental responsibility for X.
3.X live with the father.
4.X spend no time with the mother for a period of three (3) months from the making of these orders.
5.After a period of 3 months, X spend time with the mother for 3 hours per fortnight supervised by a paid supervised contact service, at the equal expense of both parties or if longer than 3 months, at the sole cost of the mother.
6.The mother and the father forthwith do all such acts and things to engage Ms C or Ms B or such other therapist (“the family therapist”) as nominated by Ms D for family therapy (“the family therapy”) for the purposes of:
(a)addressing X’s anxiety;
(b)supporting X’s relationship with each of his parents;
(c)improving communication between the parents; and
(d)supporting each of the parents with individual counselling.

7.The mother, father, and X attend upon family therapy for six months or as recommended by the family therapist and the family therapist be requested to continue to work with the family for a minimum of six months.
8.The parties provide a copy of this judgment to the family therapist and the family therapist be requested to read the judgment prior to commencement of therapy. The family therapist otherwise not be provided with any other documents.
9.After 3 months of supervised time and subject to the mother’s compliance with orders 6 and 7 herein, X spend time with the mother:
(a)each alternate weekend from the conclusion of school (or 3:30 pm) Friday until the commencement of school (or 9:00 am) Monday; and
(b)for one half of the school term holidays and long summer vacation as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years.

10.X otherwise spend time with his parents:
(a)for two hours on the child's birthday and each parents birthday if it falls on a weekday and for 4 hours if it falls on a weekend;
(b)on Mother's/Father’s Day from 5:00 pm the day preceding that day until the commencement of school on Monday;
(c)with the father in 2024 from 5:30 pm on Christmas Eve until 3:30 pm on Christmas Day in 2025 and in each alternate year thereafter and in 2025 from 3:30 pm on Christmas Day until 5:30 pm on Boxing Day in 2026 and in each alternate year thereafter;
(d)with the mother in 2025 from 5:30 pm on Christmas Eve until 3:30 pm on Christmas Day and in each alternate year thereafter and in 2026 from 3:30 pm on Christmas Day until 5:30 pm on Boxing Day in 2026 and in each alternate year thereafter; and
(e)as otherwise agreed in writing between the parents.

11.Changeovers occur:
(a)if X is at school, at school; and
(b)if X is not at school, at the mother’s home at the commencement of X’s time with her and at the father’s home at the conclusion of such time.

12.Pending the commencement of unsupervised time, the mother be restrained from contacting or communicating with X, other than in accordance with these orders, including but not limited to:
(a)attending at his school;
(b)attending the father’s home;
(c)sending text messages to, or replying to text messages from, X;
(d)telephoning X or answering telephone calls from him; and
(e)sending messages to, or replying to messages from, X on social media.

13.In the event that X attends at the mother’s home or workplace other than in accordance with these orders, or as previously agreed in writing between the parties, the mother forthwith:
(a)notify the father; and
(b)return X to him.

14.For 12 months from these orders all communication between the parents shall be via the parenting application AppClose or such other application as agreed between the parents.
15.The appointment of the Independent Children’s Lawyer be discharged.
16.A Court Child Expert at the Dandenong registry is requested to explain these orders to X.
17.All extant applications be otherwise dismissed.

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 JENKINS:

This a parenting matter concerning the one child, X, who is 12 years of age (“X”).
The parties agreed to final orders in June 2017, for X to live with the mother and spend time with the father on five nights each fortnight, during school holidays, and on special occasions (“the final orders”).
Time took place for the most part pursuant to the final orders, until September 2021 when X began resisting time with the father. The parties attempted supervised time in November 2022, but after only four sessions, all time ceased in December 2022.
The parties subsequently engaged in family therapy, but X refused to see his father during the sessions, or to be observed with him during a family report.
The mother says that X has been severely impacted by the father’s behaviour towards him and despite making every effort to get X to spend time with the father, X has steadfastly refused.
The father says that the mother has progressively alienated X against him and that the only choice now is for X to be placed in his care, and for there to be a moratorium on her time with X.
Despite the mother maintaining ongoing concerns for the father’s behaviour and the father’s failure to take responsibility for same, and although the previous family therapy had failed to progress matters, the mother proposed orders for yet further family therapy which was supported by the independent children’s lawyer (“the ICL”). In addition, both the mother and ICL proposed that regardless of whether the parties or X actually attend the therapy, or if any progress is made, that the final orders be reinstated in 12 months’ time.
BRIEF BACKGROUND
The parents were in a relationship from 2009, until they separated under the one roof in March 2016. The parties physically separated in mid-2016 when the mother obtained an intervention order, and the father was removed from the home.
The father has two daughters from a former relationship, Ms E who is about 23 years of age and Ms F about 19 years of age. Ms E and Ms F lived in a shared care arrangement with the father during the parties’ relationship.
The mother has one daughter from a former relationship, Ms G, who is 22 years of age. Ms G lived with the parties on a fulltime basis.
X is the parties’ only child together.
The mother lives in Town H, Victoria. Her home is described as a “semi-detached home, which is separated by a door.”[1] The maternal grandmother, Ms K lives in the other part of the property. The mother’s step-father also lives in a separate dwelling on the property. Ms G is studying in Queensland but returns home during semester breaks.
[1] Affidavit of Ms G filed 6 February 2024 at [2].
The father lives in Suburb J with his partner, Ms L. They have no children together.
The mother is a public servant who works part-time. The father was previously a professional but has been unemployed since being retrenched. He currently runs a small online business with Ms L.
It appears that after separation, X did not spend time with the father until interim orders were made in this Court in July 2016, which provided for alternate weekend time. Further orders made in December 2016 increased X’s time to three nights per fortnight and, in June 2017, the parties agreed to the final orders.
As a result of time ceasing in September 2021, the father filed a contravention application in March 2022.
Orders were made on 6 May 2022 for the parties to attend upon Mr M for a short form family report.
Following that report, further orders were made on 16 September 2022, suspending the time in the final orders and providing for supervised time at a contact service. The parties were also ordered to attend for psychiatric assessments with Dr N.
Supervised time took place on four occasions between 6 November and 18 December 2022. Sessions ceased due to X’s hostile and angry behaviour towards the father at the last session.
The parties and X subsequently attended upon Ms O for family therapy between March and September 2023, although X never had a joint session with the father. The sessions ceased when X refused to even have a letter read to him prepared by the father.
In July 2023, the parties attended upon Ms D for a family assessment. Ms D subsequently prepared a family report dated 10 September 2023 (“the family report”).
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
·her case outline filed 26 February 2024;
·her amended initiating application filed 20 May 2022;
·her trial affidavit filed 5 February 2024;
·the affidavit of Ms P, friend, filed 5 February 2024;
·the affidavit of Mr Q, friend, filed 5 February 2024;
·the affidavit of Ms K, maternal grandmother, filed 5 February 2024;
·the affidavit of Ms G, mother’s adult daughter, filed 6 February 2024;
·the affidavit of Ms R, neighbour, filed 6 February 2024;
·the affidavit of Dr S, clinical psychologist, filed 5 May 2022;
·the affidavit of Mr M, clinical social worker, annexing the Child Inclusive Memorandum filed 30 September 2022;
·the affidavit of Ms O, psychologist, annexing the family therapy report filed 20 December 2023;
·the affidavit of Mr T, solicitor, annexing the U Contact Service observational report filed 20 March 2023; and
·her notice of child abuse, family violence or risk filed 20 May 2022.
The father relied upon the following documents:
·his case outline filed 23 February 2024;
·his amended response to initiating application filed 23 February 2024;
·his trial affidavit filed 8 February 2024;
·the affidavit of Ms L, partner, filed 8 February 2024;
·the affidavit of Ms V, previous partner, filed 8 February 2024;
·the affidavit of Mr M, clinical social worker, annexing the Child Inclusive Conference Memorandum filed 30 September 2022;
·the affidavit of Dr N, psychiatrist, annexing the father’s psychiatric assessment filed 14 March 2023;
·the affidavit of Dr N, psychiatrist, annexing the mother’s psychiatric assessment filed 14 March 2023;
·the affidavit of Mr T, solicitor, annexing the U Contact Service observational report filed 20 March 2023;
·the affidavit of Ms O, psychologist, annexing the family therapy report filed 20 December 2023;
·the family report prepared by Ms D, family consultant, dated 10 September 2023; and
·the s 69ZW response prepared by the Department of Families, Fairness and Housing dated 3 July 2022.
The ICL relied upon the following documents:
·her case outline filed 29 February 2024;
·the affidavit of Dr N, psychiatrist, annexing the father’s psychiatric assessment filed 14 March 2023;
·the affidavit of Dr N, psychiatrist, annexing the mother’s psychiatric assessment filed 14 March 2023;
·the affidavit of Dr S, clinical psychologist, filed 5 May 2022;
·the affidavit of Ms O, psychologist, annexing the family therapy report filed 20 December 2023;
·the family report prepared by Ms D, family consultant, dated 10 September 2023;
·the affidavit of Mr T, solicitor, annexing the U Contact Service observational report filed 20 March 2023;
·the affidavit of Mr M, clinical social worker, annexing the Child Inclusive Conference Memorandum filed 30 September 2022; and
·the s 69ZW response prepared by the Department of Families, Fairness and Housing dated 3 July 2022.
In addition, the following exhibits were tendered in this matter:
·F1 – Family Report of Ms W dated 29 November 2016;
·F2 – Updated Family Report of Ms W dated 12 July 2017;
·F3 – Document presented by X to the father on 15 January 2022;
·F4 – Letter from the father to X prepared at the suggestion of Ms O;
·F5 – Email from school principal, Mr Y, to the father dated 6 December 2021;
·F6 – X’s school absence records dated 2021 to 2023;
·F7 – Text messages between X and the mother dated 2020 to 2021;
·F8 – Text messages between X and the father dated 2020 to 2021;
·F9 – Father’s photographs of X dated 2019;
·F10 – Father’s photographs of X dated 2020;
·F11 – Father's photographs of X dated 2021;
·F12 – Bundle of text messages between the parties 2016 to 2022;
·M1 – Mother’s affidavit filed 28 June 2016;
·M2 – Letter to mother from father’s solicitor dated 5 May 2016;
·M3 – Highlighted text of Family Report dated 29 November 2016;
·M4 – First page of father’s affidavit sworn 9 June 2016;
·M5 – Highlighted text of the father’s trial affidavit filed 25 May 2017;
·M6 – Text messages between parties dated 2012 to 2015;
·M7 – Interim Family Violence Intervention Order which names the mother, X, and Ms G as affected family members; and
·M&ICL1 – Minute of orders sought by the mother and ICL sent at 11:36 am on 7 June 2024.
THE EVIDENCE
I have had regard to the contents of each of the affidavits filed by the parties, save for any parts which were determined to be objectionable. However, I have not taken into account any annexures to affidavits or read any subpoenaed material, information provided by agencies such as the Department of Families, Fairness and Housing (“the DFFH”), or documents in tender bundles/court books, or otherwise emailed to the Court, which were not separately tendered into evidence as exhibits.[2] As the Court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.[3]
[2] See Rule 8.15 (3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
[3] Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53].
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.[4]
[4] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62].
Section 140 of the Evidence Act1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
Although some of the evidence was heard over Microsoft Teams, I am satisfied that this did not interfere with the fair conduct of the trial.
I accept that the parties gave evidence to the best of their recollections. There were parts of each parties’ evidence which were vague and lacking in detail. Other parts contained opinions and conclusions, the basis of which was not set out. Furthermore, the evidence of both parties was affected by their emotions and the outcome which they sought to achieve. That is not to say that I formed the impression that either party was deliberately dishonest. Rather, as observed by Kent J in Carlson & Fluvium [2012] FamCA 32:
…human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. [5]
[5] Carlson & Fluvium [2012] FamCA 32 at [165].
A number of factual assertions made by each party is disputed by the other. Demeanour is an accepted forensic tool to which I may resort to help resolve uncorroborated conflicts in the evidence.[6] However, as far as possible, findings will be made on the basis of the available contemporaneous material, objectively established facts, and the apparent logic of events.[7]
[6] Lennon & Sanil [2020] FamCAFC 109 at [20].
[7] Fox v Percy [2003] HCA 22 at [31] per Gleeson CJ, Gummow & Kirby JJ.
THE LAW
As the final hearing commenced in March 2024, the relevant legislative pathway requires me to firstly consider whether to make an order for equal shared parental responsibility pursuant to s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) as it then was. The parties all agree that it would not be in X’s best interests for such an order to be made. As such, I am at large to determine what orders are in X’s best interests.
Pursuant to s 60CA of the Act, the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper". In this regard, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21, has said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[8]
[8] Grella & Jamieson [2017] FamCAFC 21 at [18].
HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILDREN'S BEST INTERESTS?

Section 60CC of the Act sets out the matters to be taken into consideration when determining the children’s best interests. Prior to the amendments commencing on 6 May this year, section 60CC of the Act provided for the following:
Determining child’s best interests
(1)Subjection to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)     In applying the considerations in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
(b)the nature of the relationship with:
(i)        each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child):
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)       if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from that order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
…
THE PRIMARY CONSIDERATIONS
Risk of harm to X
The mother ran her case on the basis that X was at risk of harm, primarily psychologically, of being forced to spend time with the father against his will. The mother says that the father has yelled at X, smashed glasses in front of him, ripped off a watch from his wrist, dragged him into a car, and failed to allow X to contact her when staying at the father’s home. She says X has lost trust in his father, that X has been lied to and that the father does not listen to X. She says that as a result of this behaviour, X became more and more resistant to spending time with the father until September 2021, when he refused to go altogether.
Whilst it is common ground the parties consented to final orders in 2017 for X to spend time with the father, the mother’s evidence is that she was bullied into those orders and that she now regrets consenting to them. She says that she was exhausted at the time and, unlike the father who was bankrolled by his parents, she did not have the financial capacity to continue the proceedings.
The mother’s evidence is that the final orders never really worked, and that X began resisting attending time with the father shortly after they were made.
The family reports prepared by Ms W for the first set of proceedings, were admitted into evidence by consent and provide important context to the final orders.
Notably in Ms W’s first report, she made the following observations of the parents and X in November 2016, when X was 5 years of age:
[X] interacted with both parents in a warm and focussed manner. The parents engaged actively with their son chatting with him and assisting him in his play as required. Both parents demonstrated responsive and competent parenting towards [X]. They attended to his needs, before he asked for it.[9]
(Emphasis added)
[9] Family Report prepared by Family Consultant Ms W, 29 November 2016 (“the 2016 family report”) at [43].
Then Ms W opines:
In the company of his father, [X] stated several times that he missed his father and he continued to give kisses and cuddles to his father spontaneously and several times over. On his own accord, he stated to the father that he wished to spend alternate days with him. He also discussed activities he wanted to do with his father and his sisters during his next visit to his father. He stated that he could not wait to spend time with his father again.
When it was time to end the session with his father, [X] kept a sad face and did not want the session to conclude. He kept making excuses to lengthen the time spent with his father. There were many lingering hugs between the father and son and promises to meet soon again before they parted.[10]
(Emphasis added)
[10] The 2016 family report at [45] – [46].
However, by the time of the second report dated 12 June 2017 Ms W noted:
[Mr Danton] explained that [X] had recently started to address him as ‘[his first name]’ and it took him a half day before he went back to calling him as ‘dad’. He also observed that [X] seemed scared to express affection towards him at times, but clinging to him saying numerous times ‘I love you and I miss you.’[11]
(Emphasis added)
[11] Family Report prepared by Family Consultant Ms W, 12 June 2017 (“the 2017 family report”) at [12].
Furthermore, in that second report the mother was reported as saying she did not believe “the bond between the father and son was good… that [X] was not even enthusiastic about speaking to his father on the phone.”[12]
[12] The 2017 family report at [28].
Ms W noted further that the mother:
… expressed a view that there could not be any other reason for such disinterest in connecting with his father [with reference to ending phone calls early] except that [X] did not miss his father in his daily life and his bond with the father was not great”.[13]
[13] The 2017 family report at [29].
In regard to X himself, Ms W observed:
When asked if he wanted to get his mum or dad to play with him, he raced to the door saying ‘dad.’ He then stopped at the door saying ‘mum.’ He made a face and stated that ‘Mum won’t like it if I get dad.’ [X] stated that he felt ‘sad’ with a downcast face.[14]
(Emphasis added)
[14] The 2017 family report at [33].
Then Ms W opined:
[X] was next seen with his father. During this time, [X]’s behaviour suggested considerable inner conflict. He would hug his father voluntarily and then move away from him quickly once he became aware that the writer was observing them. When his father spoke about their recent trip to [Queensland] and about the fun activities they had enjoyed there, [X] seemed excited with a big smile on his face, but he pretended as if he did not hear what his father was talking to him about.[15]
[15] The 2017 family report at [35].
Ms W’s assessment was that:
[Ms Lancaster], although agreeable for [X] to spend substantial time with his father, seems incapable of accepting and appreciating [X]’s affectionate relationship with his father. This creates sizable confusion and ambivalence in [X]’s mind regarding his relationship with his father.[16]
The observed behaviour of [X] and his interactions with [Mr Danton] indicated that [X] seems to believe that his mother would be upset if she is aware of his love and allegiance with his father. He seemed to suffer from guilt and a sense of transgression if he enjoyed the time with his father. This could also be making him feel distressed when he returns to his mother’s care after spending happy time with his father.[17]
(Emphasis added)
[16] The 2017 family report at [47].
[17] The 2017 family report at [48]
The father says that in keeping with the second report, although the mother says she wants him to have a relationship with X, in reality, she has either consciously or unconsciously acted in a manner which has alienated X from him.
Furthermore, the father denies committing family violence,[18] says the mother has made up or embellished events, and that X did not appear impacted by the incidents that he agrees did occur. The father also points out that the events relied upon by the mother mostly occurred in or about 2018 or 2019, and that X continued to attend time for a further two years or so thereafter.
[18] Affidavit of Mr Danton filed 8 February 2024 at [75].
Nonetheless, the mother maintains that X was so affected by his father’s behaviour that it became progressively harder to get X to attend his father’s house. Her evidence is:
After the dragging incident [in late] 2019, [X] continued to reluctantly go with his father each fortnight. He was always anxious and depressed when he had to go. His mind set [sic] had changed from ‘I like seeing my dad, I just don’t want to go as much’, to ‘I hate my father and I never want to see him again’. I felt helpless as I did not know where else to turn, and [Mr Danton] could not be reasoned with at all.
[X]’s opinion of his father was terrible. It was hard to even get [X] to take a phone call from his father. If his father called, he would tell me he didn’t want to speak to him, and when I made him, it would generally be a very quick phone call with [X] saying he was busy and asking to go or he would simply hand up the phone.
By this stage there appeared to be nothing I could say to change [X]’s opinion of his dad. If I tried too hard, he would start getting angry at me. I could see that [X]’s mind was quietly ticking away about his predicament. I felt that eventually [X] would just flat out refuse to go, I didn’t think it would be quite so soon, but I feared it.[19]
[19] Affidavit of Ms Lancaster filed 5 February 2024 at [66] - [68].
However, the text messages from 2020 and 2021, between the father and the mother and between X and the mother, which were tendered into evidence, do not corroborate the mother’s version of events.[20]
[20] Father’s exhibit, F12.
Significantly, until September 2021, there is nothing in those text message exchanges indicating X is reluctant to attend his time with the father.[21] On the contrary, in late 2020, not only did X attend a trip with his father to Queensland, the texts from X to his mother appear to show he is excited about the trip. Furthermore, the mother conceded under cross-examination that there were no concerns raised during that holiday, although she now says that X said when he came back that he did not have a good time.
[21] Father’s exhibit, F8.
Nonetheless, following this trip, on 1 March 2021 X asks his mother for additional time:
Hey mum can I stay with my dad for two days next weekend cuz [sic] he’s going camping and I really wanna [sic] go.
(As per original)
Notably the mother, who maintains that X was reluctant to spend time with the father and that she was doing all she could to encourage it replies:
Maybe we could something nice like camping together
Followed by a later message to X:
Hi honey. I’m going to say no. I miss you too and want to have some time With you. Your dad can take you camping on his weekend if he wants. Love you.[22]
(Emphasis added)
[22] Father’s exhibit, F7, at p.8.
This suggests that it is the mother who is not coping with the time X spends away from her, rather than the other way around, and thus the mother’s ongoing complaint that X is not allowed to contact her when he is with the father.
It is also evidenced by the mother providing X with a smart watch, so the line of communication is open between them at all times.
In any event, it is not until 4 September 2021 that there is any reference in the communication to X not wanting to spend time with the father:
[X] is quite upset and crying and has told me he is refusing to go with you today. He says he has told you this.
Obviously we have a problem. Can you please call me so we can try to work something out. Perhaps we could try a three way chat.[23]
[23] Father’s exhibit, F12, at p.29.
The mother’s witness, Mr Q, also confirmed under cross-examination that he only became aware of X’s resistance after the Father’s Day weekend in September, despite Mr Q visiting the mother almost fortnightly for two years prior.
Although Ms K, corroborated the mother’s evidence that there were problems with X attending visits from 2017,[24] I am reluctant to place much weight on her evidence, as she clearly had a very dim view of the father. The examples Ms K offered in terms of his deficient parenting included such minor things as purchasing himself a drink and not getting one for the children.
[24] Affidavit of Ms K filed 5 February 2024 at [13].
Ms K said in evidence:
I don’t buy something for myself and not my children, that just shows a bit of selfishness and meanness.
Another example she gave was when the father was reading a book out loud to his daughter, Ms F, but she, the grandmother, knew he was really reading it “to the whole room”, implying it was just for show. Ms K was clear she saw right through him and in her view these whole proceedings were to please his parents. Ms K added that he was “not a very nice person” and “not a good role model” as a father. She also made it clear she did not personally think it was a good idea for X to have a relationship with his father at the moment, and maybe they could reconnect when he was older.
There was nothing balanced or measured about Ms K’s evidence and for this reason, I am of the view that I can place little weight on what she had to say in this matter.
Furthermore, in Dr N’s report, that was tendered by consent and went into evidence unchallenged, it appears that just prior to the alleged resistance by X on 4 September, that X had actually asked the mother (again) for more time. Dr N reports as follows:
When asked about the report that on the 1^st September 2021 [X] had requested more time with his father and having been sent to check whether that was alright with the mother the child returned indicating, “In what was seen as a rehearsed manner”, “I’m going to live with my mother and I want more time with my mother and less time with you.” According to [Ms Lancaster]’s recollection when the child asked if he could overstay by a couple of hours her answer was no because she had planned another activity for the family.[25]
(Emphasis added)
[25] Psychiatric Assessment of Ms Lancaster annexed to affidavit of Dr N filed 14 March 2023 at p.12.
Subsequently, on the following visit being 11 September 2021, the father says X also requested to spend more time with him. The father told X he should again call his mother and again, after that call, X had changed his mind. The father and X had a conversation at this point. The parties clearly have a different perspective on what occurred during that conversation however it appears to have been pivotal to what followed.
In regard to that conversation, the mother texted the father as follows:
[X] is so grateful that you have told him that you won’t come to get him anymore unless he says so. And now he feels safe that he can come back to me if he wants to if he’s at your house. This means the world to him.[26]
[26] Father’s exhibit F12, p.22.
The father responds to the mother denying this is what occurred, and says:
I simply agreed to [X] having the option to going back to [the mother] on Saturday if that’s what he wanted to do.[27]
[27] Father’s exhibit F12, p.21.
Given the totality of the evidence, it seems unlikely in my view, that the father would have said to X that he could live with his mother, and that he would not insist on X spending time with him.
It seems more likely that X misconstrued what was said, chose to incorrectly report it and/or was encouraged in this belief by the mother.
In any event, upon the father informing the mother that she had misunderstood the situation, the mother says in her affidavit:
I had no idea how I was going to approach this with [X], I knew it would destroy him. I tried my absolute hardest to explain it so he wouldn’t get mad at his dad. I needed to confirm what he had been telling me, and somehow tell him that his father had now re-negged on everything that he had told him on the 11 September 2021.[28]
(Emphasis added)
[28] Affidavit of Ms Lancaster filed 5 February 2024 at [99].
It is hard to understand why X would be “destroyed” by the father changing his mind, if indeed that is what occurred, when only 10 days earlier, he wanted extra time with the father.
Nonetheless, thereafter X became increasingly resistant to spending time with the father. This culminated in an unfortunate situation at changeover in October 2021 in which the father called the police. Following this, X refused to spend any more time with his father.
A constant feature of the evidence was X’s reporting that the father lies, does not listen to X, and has betrayed X’s trust. However, this was only reported to be an issue after what I will describe as the miscommunication arising out of the September conversation. Nonetheless, the notion that the father never listens to X, and therefore that there is a need for X “to be heard,” became an ongoing theme in the case.
However, in addition to this, the mother says that X stopped going to the father’s for a myriad of other reasons including that he was fearful of the father.
Although, it is again notable that the mother does not raise this as an issue with the father in her text communication until 4 September 2021.
Nonetheless, the evidence before the court is that since September 2021, X has been reporting to friends, family, and professionals, that he has been subjected to abuse by the father and that he is in fear of him. X has consistently recounted the same events, predominantly from 2018 and 2019, including smashing items, breaking his watch, dragging him into a car, and driving dangerously.

In addition, a number of the mother’s witnesses say they directly witnessed the father’s violent behaviour.
Ms K gave evidence of the dragging incident in 2019, in which she says the father grabbed X kicking and screaming, pushed him into the car and drove off in a “dangerous manner.”[29] For reasons already stated, I place little weight on this evidence from Ms K.
[29] Affidavit of Ms K filed 4 February 2024 at [20].
The mother’s daughter, Ms G, also attested to the father’s abuse. However, under cross-examination it came to light Ms G had not actually witnessed this abuse or actually seen the father yelling at X. In any event, I was of the view that I could not place much weight on her evidence either, given Ms G’s age during the relationship, her difficult relationship with her step-father, and her strong connection to the mother.
I do however accept the evidence of the mother’s friend, Ms R, that at two changeovers in September and October 2021, she heard the father yelling and slamming doors. It seems likely that the father was increasingly frustrated with the situation and it was quite possible he behaved in this manner. However, although Ms R described the father driving off dangerously, I am unclear what she meant by this, as this was never clarified.
The father in his trial affidavit denies he “ever committed family violence against the mother or [X].”[30] In his cross-examination, the father admitted dropping a glass on one occasion in frustration, however said X had not witnessed this.
[30] Affidavit of Mr Danton filed 8 February 2024 at [75].
In regard to X’s watch, the father says he went to remove it from X upon realising it had a GPS tracker, however X pulled his arm back and the band broke.
The father denies the mother’s version of the “dragging incident” and says it has been highly embellished, although, he agrees that he removed X from the mother’s arms and put him in the car.
The father’s evidence is that he never yelled at X, or yelled in X’s presence. In this regard, I note Ms W in the first family report made the following observation:
Nonetheless the historical information suggests that at times, [Mr Danton] has had difficulty expressing his negative emotions in an appropriate manner. The alleged incidents of [Mr Danton] losing his cool as stated in the affidavits such as assaulting a co-worker, elbowing the wall that created a hole or kicking the fence that caused it to break and having heated argument with the lady at the [store] does indicate that at times the father has difficulty containing and regulating his emotional responses. Although most of those actions were not directed at [Ms Lancaster] or the children, it could be considered as out of control and scary behaviour to the people around him, especially if witnessed by children.[31]
(Emphasis added)
[31] The 2016 family report at [59].
I also note the father admits other impulsive behaviour, such as kicking a neighbour’s front fence paling and dropping a glass in frustration. He also conceded he used to have a temper.[32] It therefore seems highly probable, in my view, that the father did at times yell and possibly throw things. Furthermore, it seems highly probable that the children, in particular Ms G, were afraid of the father at various times due to his size and intimidating manner, and that the father did not realise the impact of his behaviour at the time.
[32] Although I note Dr N’s assessed both parties as having a temper with a long fuse – see page 4 of both his reports.
In addition, the father admitted that he did grab X and put him in the car against his will during the changeover in 2019, which would by necessity have involved some force. Furthermore, although the father may have inadvertently damaged X’s watch when he went to remove it, he possibly could have foreseen that X might resist.
Given the broad definition of family violence in s 4AB of the Act, this behaviour, in particular yelling, damaging property and forcing X into a car, does constitute family violence. However, the main incidents X complains of occurred years before X resisted time with his father, and up until September 2021, X was asking for more time with him.
In addition, X’s reported fear is seemingly completely disproportionate to what was said to have occurred. The mother’s evidence under cross-examination was that X was “terrified” of his father. He was also variously described in other just as dramatic terms such as being “petrified” and at the other end of the spectrum as “catatonic”. X was also reported to have been fearful of being driven by anyone other than certain limited persons,[33] and to have hidden behind a rock at the bus stop for fear of being kidnapped.[34] Even if the court accepts X’s evidence in its entirety, these seem like extreme reactions which were only displayed some years after the events he says he is concerned about.
[33] Affidavit of Ms G filed 6 February 2024 at [21] - [22].
[34] Affidavit of Ms R filed 6 February 2024 at [39].
Furthermore, although X now says he was only comfortable with the father when his sisters were there to protect him,[35] X continued to attend for about four years after his sisters moved out in or about 2017, and X appeared more than happy to accompany his father on his own on the holiday to Queensland in late 2020/early 2021. Although I note that by the time of Mr M’s assessment in mid-2022, X stated he was “pretending to be happy”, so the father would not yell at him.[36]
[35] Affidavit of Mr Q filed 5 February 2024 at [3].
[36] Child Inclusive Conference Memorandum annexed to Mr M’s Affidavit filed 30 September 2022 at [29]. See also Supervised Contact Report annexed to Affidavit of Mr T filed 20 March 2023 (“Supervised Contact Report”) at [19].
Nonetheless, X did not present in supervised visits as fearful of the father nor was he distressed or upset. Rather he was defiant and confrontational.[37]Likewise, Ms D’s assessment was that X did not seem fearful but rather very angry.[38]
[37] Supervised Contact Report at [12].
[38] Family Report prepared by Ms D dated 10 September 2023 (“the 2023 family report”) at [26].
Ultimately, Ms D, who had the benefit of all of the material in this matter, including the psychiatric assessments, the DFFH material and X’s school reports, as well as speaking directly to the parties and X himself, was ultimately of the following view:
…the psychiatric assessments of both [Ms Lancaster] and [Mr Danton] and the supervised contact reports have revealed that overall, [Mr Danton] does not present as a protective risk, but that [Ms Lancaster] might be empowering [X] beyond his emotional/psychological capacity to resist the rebuilding of a relationship with his father.[39]
(Emphasis added)
[39] The 2023 family report at [64].
Ms D opined:
Emotionally, concerns are held for [X]’s wellbeing, particularly in [Ms Lancaster]’s care and with regard to his relationship with [Mr Danton]. [40]
[40] The 2023 family report at [69].
Ms D goes on to state:
[X]’s relationship with his father is ruptured and the resist/refuse dynamic has become chronic, a factor that is far from emotionally healthy for the child’s development and his later emotionally significant relationships.[41]
[41] The 2023 family report at [72].
Under cross-examination Ms D stood by her statement in her report that “repair of the psychological wound, rather than avoidance is the psychologically health direction for [X].”[42]
[42] The 2023 family report at [73].
Ms D also agreed under cross-examination that what she predicted in her report, namely that “avoidance and emotional cut off for [X] in the relationship with [Mr Danton] will only cement the anxiety that he demonstrates as anger and pseudo maturity,”[43] is what is currently happening. She added that it is “really important” for children to have a chance to repair significant relationships, like X’s relationship with his father. Furthermore, Ms D was clear about the risk to X if he remained living in an environment in which the father was “regarded with hatred and hostility,” stating as follows:
… we know that those polarized relationships and views that children are exposed to have an enormously negative impact on their emotional development, on their – on their psychological welfare, even on their intellectual development. And, for example, [X]’s trust in the security of later attachment relationships as he matures is going to be significantly compromised.[44]
A child of his age or any child, it would be very, very stressful to be hearing extreme negative views and experiencing the emotional intensity of those views and then to even contemplate that there might be another perspective, another reality about a parent who is significant. And yes, I’d be very concerned about the emotional impact on the child.[45]
(Emphasis added)
[43] The 2023 family report at [79].
[44] Transcript 7 June 2024, p.6, lines 17-20.
[45] Transcript 7 June 2024, p.7, lines 9-13.
In terms of the psychological risk of moving X to live with the father, Ms D was of the view that X had a certain level of resilience. Under cross-examination Ms D said as follows:
… in looking at the child’s temperament, his level of psychological resilience, he’s a very confident and articulate boy and I would expect that he has continued to develop and I haven’t heard anything that suggests he has not responded well to secondary school, which is always a challenge…. in terms of the child’s presentation to me and my understanding from all of the information that I was provided, and given that there was a significantly positive relationship for the child with the father in his earlier days, I think he would have the capacity to be able to manage the absence of his mother and the presence of his father.[46]
(Emphasis added)
[46] Transcript 7 June 2024, p.9, lines 12–20.
Ms D’s evidence was that although X would be affected, this could be mitigated with family therapy by an appropriately trained therapist. Ms D said under cross-examination:
Of course there would be a huge amount of emotional distress from everybody and the child. As I’ve already said, however, with significant and careful professional involvement at that time, I think the child would be supported to call on his psychological resilience to be potentially a bit more open about seeing his father from different perspectives.[47]
[47] Transcript 7 June 2024, p.12, lines 22–26.
Whilst Dr S gave evidence that X was likely to resent his father if he was moved to his care, and that this may have an ongoing impact on his relationship with the father, it is hard to see how that relationship could become any worse than it currently is.
Counsel for the mother urged the court to rely on Ms D’s written report which did not recommend a change of residence, rather than her oral evidence because it was asserted Ms D changed her evidence when nothing new had occurred. I do not accept that is a proper basis for rejecting her evidence. Matters were put to Ms D, and concessions were made. I found her answers to be balanced and considered, and supported by her own observations, as well as her knowledge and many years of experience as a family consultant.
I accept Ms D’s evidence that X would likely suffer psychological harm if he remains living with the mother and does not spend time with the father. However, I must also consider whether that risk could be ameliorated through further family therapy as proposed by the mother and the ICL.[48]
[48] See: Isles & Nelissen [2022] FedCFamC1A 97.
Given the failure of the previous therapy, I questioned during final submissions the utility of yet further therapy. Nonetheless, submissions were made on behalf of the ICL that in their view “the penny has now dropped” for both parties. It was also argued that if the orders provide for an automatic reinstatement of the final orders, this will provide additional incentive to make the therapy work.
The ICL’s submissions appeared to be based on the notion that each party blamed the other for the resist/refuse dynamic, but that the trial had somehow caused an epiphany for each party as to their own involvement. I firstly do not accept the premise that the parties equally blamed the other. In regard to the father, he did acknowledge his part in the situation. However, I cannot find in the evidence any point at which the mother concedes that she is in any way responsible.
My assessment of the evidence is that the mother maintains she has done everything “in her power” to promote the relationship between X and the father.[49] The mother does not accept X would be aware of any negativity on her part, nor does she appear to recognise any inner struggle for X. The mother’s view is that X has chosen to reject the father because of his own experiences of the father and that X remains at risk in his care. Her evidence in her trial affidavit, which was consistent with her evidence under cross-examination, was as follows:
[X] like anyone else just wants to feel safe and be around people that he trusts and feels safe with. At this point in time that is not [Mr Danton]. While I fully understand the need for a child to have a positive relationship with both parents, the relationship with his father is anything but. [X] just wants to extricate himself from a Family Violence Situation which should be his right regardless of age. He deserves to be protected. [50]
[49] Child Inclusive Conference Memorandum annexed to Mr M’s Affidavit filed 30 September 2022 at [24].
[50] Affidavit of Ms Lancaster filed 5 February 2024 at [200].
I repeatedly asked to be pointed to any evidence that the mother had begun to develop insight into her contribution. I was not directed to any.
Furthermore, I do not believe that the mother is genuinely supportive of further therapy. In her affidavit, she states as follows:
[X] is frustrated and feels that he’s not being heard as he keeps having to go over and over his reasons for not wanting to see his father. And yet is continually being forced to see agency after agency.[51]
(As per original)
[51] Affidavit of Ms Lancaster filed 5 February 2024 at [190].
In addition, the mother was so emphatic under cross-examination that during her evidence she would not sit in the same room as her abuser. It was only after becoming aware of the possibility that X may be moved from her care, that she reluctantly conceded she would attend therapy to avoid this situation which would be “catastrophic”. Whilst on one view this could be seen as motivation to attend therapy, I would be concerned that the mother would pay it only as “lip service” in the knowledge that if it ultimately fails, that the window to move X may have closed. For the same reason, I fail to see how self-executing orders reinstating the final orders would provide incentive. The mother is likely to again claim she is powerless to make X comply with those orders, with the full knowledge that X is a year older, making it more difficult for the Court to change his residence.
Furthermore, it is difficult to see how family therapy could be successful whilst X continues to reside in an environment which is hostile towards the father.
Even if the mother begins to develop insight into her actions, X will continue to live in close contact with his grandmother, Ms K, and be exposed to the attitudes of the mother’s other supporters.
In the end, I am not satisfied that family therapy would mitigate the risk to X of remaining the mother’s care, which I find remains an unacceptable risk.
On the other hand, I find that although X is at risk of psychological harm of moving to the father’s care, that this risk is not unacceptable. On the evidence, I am satisfied that the risk would be ameliorated by his level of resilience, his previous relationship with the father and through family therapy, which has a far greater chance of success if X is removed from the mother’s hostile environment.
Finally, I must consider the risk to X if he were to vote with his feet and run away. I accept this is a possibility, given X’s defiant attitude in the past and that he has not been afraid to confront his father and/or resist spending time knowing there are court orders in place. However, given X’s age and confidence, I am satisfied that he would not be at unacceptable risk of harm if he were to attempt to travel back to the mother on public transport.
Meaningful relationship
The father asserted that he wished for X to have a meaningful relationship with each of his parents. His evidence was that he was only seeking a change of residence as a last resort, which he acknowledged would be distressing to X. He was also reluctant to seek a moratorium on time between X and his mother, but believed it was necessary to ensure that his relationship with X was restored.
I accept the father’s evidence and find that he would make every genuine effort to ensure X has a meaningful relationship with the mother.
The mother also says that she wants X to have a relationship with the father and that she has done everything she can to encourage this to occur. She is supported in this regard by a number of her witnesses, including Ms R, who observed her “trying her hardest” to get X to go.[52] However, the evidence of these witnesses was coloured by their loyalty to the mother and their belief, almost without exception, that the father poses a risk to X.
[52] Affidavit of Ms K filed 5 February 2024, at [26]; Affidavit of Ms R filed 6 February 2024 at [35].
In addition, it was Ms D’s evidence that whilst the mother said the right things to encourage X to see the father, she gave up very quickly. Ms D said in her report:
While not overtly presenting as influencing [X] against his father, in discussions about issues such as [X]’s refusal to participate in an observation with [Mr Danton], [Ms Lancaster] presented as powerless to insist that this occurred.[53]
[53] The 2023 family report at [26(a)].
Under cross-examination, Ms D reiterated:
And although the mother verbally said that she would wish that the child spend some little time in the observation with the father, in the face of [X]’s very adamant protest she did not remain steadfast and she did not continue to say that she expected this to happen and this would be okay. She withdrew, reflecting the ambivalence that I’ve referred to…[54]
[54] Transcript 7 June 2024, p.6 lines, 37–42.
Whilst Ms O was of the opinion that the mother was supportive of the relationship, I can place little weight on her evidence in circumstances where she too, appears to have entirely accepted that the father had harmed X, and that it was the father’s behaviour which needed to be addressed. She was either unaware, or chose to ignore the more complex family dynamic at play, including the issues identified by Ms W, particularly, the mother’s reluctance to appreciate the importance of the father/son relationship.
In any event, having heard the mother’s evidence, I was not convinced that the mother truly believed that it was best for X to have a meaningful relationship with the father. Indeed, she said precisely the opposite under cross-examination – namely that she wished she had stopped time sooner. It was hard to understand, given the serious family violence allegations she made against the father and her assertion that X was fearful and not safe, why she would want X to have any relationship with the father, let alone a meaningful one.
For these reasons, I find that the only way X is likely to have a meaningful relationship with both parents, is if he lives with the Father.
ADDITIONAL CONSIDERATIONS
X’s views
Ms D states in her report:
… [X] said to tell the judge that ‘I don’t want to ever see my father again and I don’t want him to contact me, I only want to be with my mother where I feel safe … he’s broken my trust way too many times…
… I feel scared and anxious and I don’t trust that he will do things to me again, he smashes plates in front of me on the floor, he yells at me really really loud and it makes me scared … he swears a lot and pushes me sometimes …’[55]
(Emphasis added)
[55] The 2023 family report at [26(h)].

This is in keeping with what X told Mr M in 2022:
[X] informed the writer he had come to the assessment to "Help everyone understand what my feelings are and to be heard. Mum listens, dad doesn't listen, and he's done lots of things that make me scared''. When asked about his father's behaviour in relation to his comment, [X] recounted several historical incidents concerning his father ripping his watch off his wrist, grabbing him in the driveway to put him in the car, driving erratically and "recklessly", and an incident in which [Mr Danton] had aggressively smashed a cup in front of him.[56]
[56] Child Inclusive Conference Memorandum annexed to Mr M’s Affidavit filed 30 September 2022 at [27].
Dr S reports the following in an email sent to the parties:
[X] feels that he cannot trust his father...
…
For [X] there is an issue of trust with his father that needs to be addressed along with his concerns about the yelling he says has occurred. [X] needs to see that his father is able to manage his emotions and remain relatively calm. He needs to know that his father will listen to him and take his point of view into account.[57]
[57] Affidavit of Dr S filed 5 May 2022 at p.6.
Furthermore, under cross-examination Dr S gave evidence that X has been consistent in his views and of the events behind them “over a long period of time”. Although, in this regard, he was evidently referring to his work with X since late 2021 as he could not recall the nature of the counselling with X in 2019 and did not have access to notes from that time.
Ms O also confirmed her reports:
[X] has consistently presented as resolute in his refusal to spend time with his father. He indicated his understanding of the aims of family therapy – for a child to have a positive, meaningful and safe relationship with both parents. However, [X] presented as strongly doubtful that this could be achieved, based on his previous experience of his father. He described his father as “always angry at something or someone” and, “too scary to talk to”. He referred to his father smashing glasses and plates. [X] also referred to his father’s relationship with his mother – “I get really annoyed when he is rude to my mum.”[58]
(Emphasis added)
[58] Family Therapy Report annexed to Affidavit of Ms O filed 20 December 2023 at [19] – [20].
Whilst there is no doubt that X has consistently expressed a view that he does not want to see his father, the question is how much weight can be put on such views.
Having heard the evidence of the mother and her other supporting witnesses, it is readily apparent that X is living in an environment in which the father is viewed with hostility. X is not only exposed to these views, but several of the witnesses have spoken at length with X about his relationship with the father.
As was observed by Dr N, “there seemed to be a pseudo maturity in the language used by [X], expressions such as ‘walking on eggshells’, ‘bullying and harassing’ and ‘per se”[59] which is suggestive that he has been overly exposed to adult conversations.
[59] Affidavit of Dr N filed 14 March 2023 p.12.
There is also a similarity between the mother and X’s complaints about the father. For example, both mother and son repeatedly accuse the father of lying and of behaving differently at home than he does in public. Ms G likewise talked about the father “breaching [X]’s trust” as did X.[60]
[60] Affidavit of Ms G filed 6 February 2024 at [26].
Adding to this, is the message that X has been sent from his mother that he needs to be protected from his father. This is readily apparent in the supervision reports,[61] and the evidence of the mother’s witnesses, for example, Mr Q who gave evidence he attended changeover for X’s safety. Ms O likewise believed that X had been hurt by the father and Dr S conducted his counselling based on X’s perception that the father had abused him.
[61] See for example second supervised visit 20 November 2022 and third visit 4 December 2022 in the Supervised Contact Report.
Whilst the ICL was of the view that X’s apparent rigidity of thinking about his father was somehow suggestive of a personality type, I disagree. There does not appear to be any person in X’s world who has actively challenged his views or endeavoured to provide him with another perspective. As a consequence, X’s negative views of the father have been repeatedly reinforced by supporters of the mother and professionals alike.
Whilst a 12-year-old’s views would ordinarily be given significant weight; I have to factor in the aforementioned concerns. Furthermore, although there is the possibility that if X’s views are not followed that it may provide more fuel for his belief that he is not being “listened to”. Ms D also agreed that if his views are followed, academic literature confirms there is the risk X may grow up and question why decisions were made based on the views he had as a 12-year-old.
For these reasons, I cannot place significant weight on X’s expressed views.
The nature of the relationship between X and each of his parents
The demise of X’s relationship with his father has been documented over a number of family assessments, starting with Ms W in 2016 and 2017, followed by Mr M in 2022 and finally, with Ms D in 2023.
I accept the father’s evidence, which was corroborated by text messages and the concession by the mother that X spent time with him for three weeks in late 2020/early 2021, without incident and that X had a solid relationship with the father until September 2021.
However, by 2023, the relationship had deteriorated to the point where X would not even allow Ms O to read a letter written to him by the father or to be observed with the father in the family report interviews. The second last time X saw his father under supervision, in December 2022, he was asked if he had anything planned for Christmas, X responded, “for dad to be dead.”[62]
[62] Supervised Contact Report at p.20.
Nonetheless, there were small signs in the supervision reports that his views of the father were not completely fixed. During the second supervised visit, X appeared to let his guard down and react more positively to the visit. However, this was short lived as X doubled down on his resistance at the next visit, and as a result of X’s openly hostile attitude towards the father at the fourth visit, time ceased altogether.
The impact on X of a change to the parenting arrangements
I have already made a finding that X would not be at unacceptable risk of harm if he moved to live with the father. However, that is not to say that he would not be significantly impacted. The father acknowledged in his evidence, to his credit, that if X was ordered to live with him and not see his mother for a period of time that X would be “terrified, angry, rejecting, probably scared and very sad”. He also acknowledged he would “absolutely” miss his mother and, also Ms G. This is a matter I have given great consideration to.
The capacity of the parents to meet X’s needs
Little is known about the father’s current routine. At the time of the trial, he was not working aside from running a business online with his partner but I understand that he intends to return to work. His partner, Ms L, has professional qualifications.[63] Neither he nor Ms L commented on the hours they intend to work or how they plan to care for X in practical terms. Furthermore, Ms L has no children of her own and has never met X. It is not known what capacity she has to meet X’s needs.
[63] Affidavit of Ms L filed 8 February 2024 at [3].
However, X spent five nights per fortnight with the father for about four years as well as block time on the school holidays. I infer from this that the father was able to meet X’s day-to-day needs. In terms of meeting X’s psychological needs, I found the father’s own evidence on this issue quite compelling. He was quite specific about how he discusses things with X. He said he puts on his “gladiator suit” so X can tell him things and, in this way, feel heard. He also provided a detailed plan about how he would support X if he transferred into his care, which in my opinion, showed significant insight into X’s emotional needs, including animal therapy. Counsel for the mother attempted to attack the father for the type of therapy he proposed and tried to suggest that he knew little about it. I do not accept that. Whilst the therapy chosen by the father may not be the most appropriate, he did make enquiries, did go on the wait list, and did appear to know as much as he could without X having undergone an intake assessment. Otherwise, it was hard to see what else the father could have done or what else he could suggest at this time.
X’s maturity
It was evident from the mother and her witnesses that they viewed X as wiser than his years:
·The mother described X as “very intelligent.”
·Ms G described him as “a very smart young boy.”[64]
·Ms P described him as “precocious and intelligent.”[65]
·Ms R described him in cross-examination as “mature and truthful.”
·Ms K described him in her cross-examination as “incredibly intelligent- academically two or three years ahead.”
[64] Affidavit of Ms G filed 6 February 2024 at [36].
[65] Affidavit of Ms P filed 5 February 2024 at [15].
However, Ms D notes that in his school reports, X is in actuality, a “standard student.”[66]
[66] The 2023 family report at [38].
It is concerning that the mother and those around her appear to view X as more intelligent and certainly more mature than he actually is. The consequence appears to be, as noted by Ms D in her report, that the mother:
… has empowered [X] beyond his emotional maturity with a sense of agency about decisions such as reconnecting with his father.[67]
[67] The 2023 family report at [52].
The parents’ attitude to the child, and to the responsibilities of parenthood
One of the aspects of the evidence I found concerning was the manner in which X has been allowed to speak about and to the father.
A key example of this is the letter that was written by X.[68] This contained such statements as:
Eleventh ok so I do not care about the court order also the court order is for if we disagree but I don’t care about that and If you do not agree with these conditions I will not be coming to your place ever again
Twelfth you have to sign the conditions while I’m recording you sign it on MY PHONE NOT YOURS and even if you try to disagree and say you didn’t agree I will show you the proof that you did agree and the person that you tried to tell you didn’t agree and if you do try to say that you didn’t agree then I WILL NEVER COME BACK WITH YOU AGAIN.
(Emphasis added)
[68] See Father’s exhibit F3, at [11] – [12].
The mother was clear that she had read the letter and she told X that “he had done a good job.” Ms P’s evidence was that “I commended him on how well it was written and he told me that he was proud of how long he spent writing it.”[69] Ms P confirmed under cross-examination that she considered it appropriate. Ms P did not suggest to X to make it more balanced and for example, to tell the father he loved him. Ms G likewise gave evidence that she too thought the letter could have been helpful “if the father read it”.
[69] Affidavit of Ms P filed 5 February 2024 at [5].
It beggars belief that anyone thought this letter would be of assistance in the father/son relationship, or that it was in X’s best interests to confront his father with the letter in a restaurant whilst being watched by the mother and Ms P. This is even more concerning given the mother allegedly believed the father to be prone to anger and a risk to X. At the very least, it was likely to cause further damage to the relationship if the father did not accept the entirety of the contents. As it was, the letter ended up adding to X’s narrative that the father does not listen to him because the father, not unreasonably, decided not to read the entire letter in front of him.
The mother also fails to see how she was giving X almost complete agency at nine years old which X was at the time of writing of the letter, and the pressures that would place on him, nor how it gave X the message that this was an appropriate way to speak to a parent.
In addition, there are a myriad of examples of X being allowed to yell and scream at his father, without consequence.[70] Nowhere in the evidence of the mother or her witnesses, does anyone say to X that it is not appropriate to scream and yell at his father, or to wish that his father was dead.[71] The impression I took from the witnesses for the mother and the mother herself, was that they were proud of X for standing up to “his abuser” and speaking his mind.
[70] Affidavit of Mr Q filed 5 February 2024 at [13].
[71] Affidavit of Ms Lancaster filed 5 February 2024 at [148], [169]; Affidavit of Ms G filed 6 February 2024 at [27], [30].
Furthermore, the mother’s evidence is:
Of note over the years [X] started calling his dad father, then sometimes [his first name], then ‘that bully’ and other similar names. He even changed the name on his contacts list on his iPad to ‘[his first name]’ as well. [72]
[72] Affidavit of Ms Lancaster filed 5 February 2024 at [75].
She does not however add to this that she encourages X to call the father “dad” or that it is not appropriate to call the father “that bully”.
Family violence
The mother has made serious allegations of family violence against the father, including sexual assault. However, in the end, I was not asked to make findings in this regard. I was, however, requested to make a finding about family violence as, and between, the father and X (leaving aside family violence that X would necessarily have experienced if the mother was a victim of same). I have made that finding earlier in this judgment.
In terms of the father’s “reactivity,” Ms D’s assessment was that the father may need some assistance in this regard.[73] However, the father’s counsellor was not on affidavit or available as a witness to attest to any anger management counselling the father may have undergone. Nonetheless, Dr N’s evidence, which was not challenged, is that the father did not present with impulsivity and demonstrated appropriate grief.[74]
[73] The 2023 family report at [66].
[74] Psychiatric Assessment of Mr Danton annexed to Dr N’s Affidavit filed 14 March 2023 at p.11.
In addition, the evidence of the father’s s ex-partner, Ms V, and his current partner, Ms L, which were both unchallenged, is that they have not witnessed any anger or impulsivity. Ms L’s evidence was that the father was caring and loving to the children of friends who lived with him for about seven months and similarly towards Ms E when she moved back in with him for about 10 months. Ms L has never observed the father have outbursts of anger.[75] Likewise, the evidence of Ms L – who described the father as being caring and “observed the bond between [X] and his dad to be strong and loving.”[76]
[75] Affidavit of Ms L filed 8 February 2024 at [9].
[76] Affidavit of Ms V filed 8 February 2024 at [8].
I note also that the father was seemingly able to maintain his composure in a number of difficult circumstances, including when confronted with the letter by X and when being yelled and screamed at by X in supervised time. He has been attacked by X both verbally and in writing and he has not reacted, despite making no progress with his time.[77]
[77] Supervised Contact Report at p.20.
Furthermore, the father’s demeanour in the witness box did not lead me to believe he was prone to reactivity. He maintained a calm manner save and except when he broke down crying in the witness box, when asked questions about the loss of his relationship with his son. Whilst he responded a couple of times out of exasperation, I felt those responses were refreshing and completely appropriate. For example, when he was asked what he would do to assist X to transition into his care, he gave a list of things, including that X would be comforted by his dog. Counsel for the mother said, “are you saying that the dog would replace the mother?” The father, stated, “I can’t believe you asked that –that’s absurd!” which indeed it was.
The existence of any Family Violence Intervention Orders
I note the mother obtained an intervention order at separation; however, X was ultimately removed and the father has not been charged with any breaches of that order.
ANALYSIS
This case was run by the mother and the ICL on the basis that the main concern was the father’s behaviour towards X and that until the father addressed that behaviour, his relationship with X would not improve. Whilst the mother was within her rights to run this case, I do not understand why the ICL took such a position, when it was readily apparent from the expert reports that the situation was far more complex.
Whilst the father’s behaviour was in issue, so too was the question of the mother giving X permission to have a relationship with the father. This was first identified in Ms W’s reports over seven years ago and remained central to Ms D’s concerns. Dr N in his psychiatric report also identifies it as an issue.
Ultimately, I have found the father’s behaviour did at times constitute family violence and that he may not have recognised the impact on X at the time, but I do not accept the evidence shows that X was significantly impacted by that behaviour or that it was the reason for X’s refusal to see the father. Rather X appears to have chosen a side in the middle of the conflict, developed a narrative to support his position and been supported in that narrative by the mother, her supporters, his therapist, and the family therapist.
At the same time, the mother’s role in the resist/refuse dynamic has been completely lost in this process. There is no evidence that the issues identified by Ms W and Ms D, as to the mother’s capacity to encourage X to have a relationship with X, have been addressed or that she has attended therapy with a professional experienced in separated, high conflict parenting, as recommended in Ms D’s report.[78] Whilst the mother says she attended counselling at the Z Centre there is no evidence this was for the purpose of addressing these concerns or if it was that it made any difference to the mother’s attitude.
[78] The 2023 family report at [65].
In the end, I have found that X remains at unacceptable risk of psychological harm in the mother’s care, which cannot be mitigated through family therapy. As a result, I have determined that X should be moved to live with the father.
In making this decision, I have factored in the other considerations, particularly that the father will use his best endeavours to encourage X to have a meaningful relationship with his mother. However, ultimately the risk to X outweighs all of the other considerations.
In coming to this decision, I recognise the proposed orders go against X’s expressed views. X ought to be told I have heard his views but nonetheless, determined it is in his best interests to live with his father. I have also taken into consideration that although he currently has no relationship with his father, that less than three years ago, X had a loving relationship with him which has provided a strong foundation. It is not too late, in my view, to restore that relationship between X and the father, and X is owed that opportunity.
In terms of the impact on X of the move, I take comfort in Ms D’s evidence that in her view, X was both confident and somewhat resilient. I have also taken into account the evidence of the father as to how he proposes to support X in the transition including therapy, counselling at school, sports, and family support. In addition, whilst I accept that the father’s supports, such as his parents and daughters were not on affidavit, his extended family were present each day at court and very clearly an emotional support for him, albeit there is no evidence of what practical support they can offer.
In this regard, I have taken into consideration that the father has never been X’s primary carer, let alone sole carer. However, I accept the father has been able to care for X for significant periods. The father may take time to adapt to fulltime parenting, however it is likely in my view, that he will be able to meet X’s day to day needs. The father has also demonstrated insight into the impact on X, which gives the court assurance that he will be able to manage X’s psychological needs.

I also propose to make the orders suspending the mother’s time and any communication with X for three months.
As part of assessing the risks, I have considered the impact on X of being separated from his mother, to whom he has a very strong attachment, and of making orders that prevent any communication with her. However, the only way he will have any chance of being able to re-establish his relationship with his father is if X is completely free from any influence of the mother, the maternal grandmother or the mother’s friends.
Ms D gave evidence that although a moratorium on time:
… can be counter-productive … I think in this case, where the mother is so intransigent, I don’t think she would have the consistent capacity to be supportive if she was to have any communication with the child if there was a change of residence. So, yes, my view would be a moratorium would be helpful for this situation.[79]
[79] Transcript 7 June 2024, p.8, lines 40–44.
In terms of the length of the moratorium, I accept that Ms D was not definitive about this. I am not critical of Ms D for this, as it is not possible to know exactly how X will react, however, she suggested three months would be in his interests and I agree.
Thereafter, I accept the father’s proposal that the time needs to be supervised for a period of time, so as to ensure there are no inappropriate conversations or any other negative influences on X and to ensure he is returned to the father’s care. However, in my view, six months is too long a period and that three months should be sufficient, although I shall make the unsupervised time subject to the mother’s continued attendance upon the family therapy. Both parties should share the cost, as they should both be invested in the best outcome for X. However, if the supervision continues beyond three months because the mother has not complied with the orders to attend therapy, the mother should pay the cost thereafter.
I have considered whether the move should be delayed until family therapy is in place. Ms D gave evidence that X will need a great deal of support to transition to the father. However, the competing dilemma is the influence the maternal family may bring to bear if they have advanced notice of the outcome of these proceedings. On the balance of probabilities, I have determined that the move should occur immediately and therefore before such therapy is likely to commence.
I do not believe that X otherwise needs individual therapy. I agree with Ms D that this sends X the message that he is “the problem” and to date has only reinforced his entrenched views about his father.
I also note that despite asserting that X was “furious”[80] that the father had ended the therapy with Dr S in 2021, the mother herself put a complete end to it when the supervised sessions concluded.
[80] Affidavit of Ms Lancaster filed 5 February 2024 at [166].
In any event, Ms D agreed that X is just as likely to benefit from his friends, sports and being a teenager not involved in litigation for the first time in his short life.
I have also made the orders as proposed by the father for special occasions. Although the mother and ICL did not address the court specifically in relation to those orders, they are almost identical to the final orders which the mother and ICL propose be reinstated after twelve months. I infer from that that they take no issue with them.
I will also immediately discharge the order for the ICL. It was proposed that the ICL remain involved for six months to provide guidance as to the family therapy, but my orders provide for Ms D to recommend an alternate therapist if one is required.
Finally, I have ordered that a court child expert explain these orders in detail to X, which should occur if possible before he goes into the father’s care. X should also be told that his wishes have been considered but that the court has determined it is in his best interests to live with the father.
For all the aforementioned reasons, I make the orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.
Associate:
Dated: 6 August 2024

File number(s):	DGC 1527 of 2016
Judgment of:	JUDGE JENKINS
Date of judgment:	6 August 2024
Catchwords:	FAMILY LAW – PARENTING – family violence – alienation – 12-year-old with entrenched views – balancing of risks of psychological harm of leaving child with mother or changing residence – meaningful relationship – benefits of further family therapy – consideration of s 60CC factors prior to amendments – child moved to live with father – moratorium on time
Legislation:	Evidence Act1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 65D, 65DAA Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 8.15
Cases cited:	Carlson & Fluvium [2012] FamCA 32 Fox v Percy [2003] HCA 22 Grella & Jamieson [2017] FamCAFC 21 Isles & Nelissen [2022] FedCFamC1A 97 Lennon & Sanil [2020] FamCAFC 109 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Whisprun Pty Ltd v Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	177
Date of hearing:	4 & 5 March 2024 and 3, 4, 5 & 6 June 2024
Place:	Dandenong
Counsel for the Applicant:	Mr Devries
Solicitor for the Applicant:	Bowlen Dunstan and Associates
Counsel for the Respondent:	Mr Ambrose
Solicitor for the Respondent:	MSL Lawyers
Counsel for the Independent Children's Lawyer:	Ms McNamee
Solicitor for the Independent Children's Lawyer:	Melanie Wyatt Family Law

DGC 1527 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS LANCASTER Applicant
AND:	MR DANTON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	6 AUGUST 2024