Doolan and Nixon

FAMILY COURT OF AUSTRALIA

DOOLAN & NIXON

[2008] FamCA 946

FAMILY LAW – CHILDREN – Whether time and communication with the father in child’s best interest – Sole parental responsibility

APPLICANT:

Ms Doolan

RESPONDENT:

Mr Nixon

INDEPENDENT CHILDREN’S LAWYER:

Sue Macgregor

FILE NUMBER:

MLF

5020

2003

DATE DELIVERED:

16 September 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Watt J

HEARING DATES:

2 March, 9 March, 6 June, 16 August , 15 September, 9 October 2006, 29 April, 13 August 2008

REPRESENTATION

FOR THE APPLICANT:

Applicant in person

FOR THE RESPONDENT:

Respondent in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mrs Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Macgregor Solicitors

Orders

All previous parenting orders with respect to the child R born … November 1998 be discharged.
The mother shall have sole parental responsibility for the child R.
The child live with the mother, and she have sole responsibility for decisions as to the child's daily care.
The father may communicate with the child by sending the child letters, cards and gifts care of the address of the mother; and the mother shall keep the father informed of the child's address.
The family consultant shall meet with the child on a date and at a time to be agreed, to explain to the child the terms of this order.
I dispense with any requirement for the father to do any act or thing required to register the child's name as R Doolan Nixon with the Registrar of Births Deaths and Marriages AND I REQUEST the Registrar to give effect to the registration on the application of the mother alone.
The order for the appointment of an independent children's lawyer be discharged with effect from this day.
All extent applications be and are hereby dismissed.
Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help” a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2050 of 2003

MS DOOLAN

Applicant

And

MR NIXON

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The parties in this matter have been involved in proceedings since 2001- initially in the Federal Magistrates Court and then the matter was transferred to the Family Court in 2003 - concerning the parenting arrangements for their son, R, who is now aged nine.
The father, Mr Nixon, aged 45, is unemployed. The mother, Ms Doolan, is 36 years of age and works in community services.
The parties were in a relationship in 1998 and into the first half of 1999 but never cohabited. The child was born in November 1998 and has always lived with the mother. The father has another child, J, aged six, by his relationship with a Ms L. He has an arrangement with Ms L whereby he sees J on a regular basis.
Ms L swore an affidavit on 29 July 2008 in support of the father, but it has not always been the case that she has been supportive of the father, and at various times in the proceedings the mother has sought to rely on statements made to her by Ms L about the father and his conduct. At the hearing that concluded before me on 13 August 2008, however, Ms L was not called on to be cross‑examined. She has however made significant statements to the family consultant who prepared the family report.
The mother has another child, M, aged 13, who lives with her and R. Until recently, the mother’s former partner Ms D also lived with them. Although MS D and the mother no longer live together, they have maintained an amicable relationship and Ms D and R still see each other from time to time.
R has been diagnosed with attention deficit hyperactivity disorder, ADHD, and associated oppositional defiant disorder. I refer to the affidavit of Dr E affirmed on 4 October 2006. Dr E is the child's paediatrician, who has been treating him for a number of years. In the report annexed to his affidavit, he states:
[R] has attention deficit hyperactivity disorder with associated oppositional defiant behaviour. He has been taking stimulant medication to help reduce these impairing symptoms since 2003. His current prescribed medication is Ritalin 10 mg tablets, one tablet four times a day. …. His mother and teachers have consistently reported that he derives significant symptomatic benefit from this treatment, with marked improved impulse control, sustained attention and social interaction.

The proceedings before me

The matter first came before me for trial as part of the Children's Cases Program (CCP), the predecessor of the less adversarial trial process now enshrined in Division 12A of Part VII of the Family Law Act 1975, on 2 March 2006. At this hearing, both the parties were legally represented, and indeed continued to be legally represented for some time. An independent children's lawyer had been appointed and appeared on that and each subsequent occasion. A family consultant had been appointed, Mr A, and he was present at the first hearing before me.
In accordance with the process adopted in CCP matters, the parties and the family consultant were sworn in on this first day of the trial, and I explained to them that anything said in court from then on became evidence in the proceedings.
At that time, the mother's main concerns largely revolved around the father's drinking habits and what she saw as his intimidatory as well as physically and verbally abusive behaviour. An event at Christmas 2005, which involved the child R being present during a physical altercation between the father and the mother's brother, R’s uncle, was an important part of her concern. It was concerns flowing from that event that ultimately persuaded me on the next occasion when the matter was before me (9 March 2006) that I should suspend the then existing orders for the father to spend time with R. I will refer later to the orders I made on 9 March 2006 in more detail.
That was a relatively recent event at that time, December 2005 to March 2006, and it became clear through the issues report prepared by Mr A, and other evidence, that that event had had a profound effect on R and his capacity to feel safe in his father's presence.
The matter came back before me on 9 March 1996, 6 June 2006, 16 August 2006, 15 September 2006, 9 October 2006, 29 April 2008, and the trial concluded on 13 August 2008. I do not propose to recite the evidence that was received on each of those occasions in any detail at all. As an overview of those continuation hearings before the final stage of the hearing, a number of orders were made with a view to re-establishing the relationship between the father and R; but, sad to say, those attempts to re-establish that relationship were not successful in circumstances that I will describe further.
By the time of the final stage of the trial on 13 August 2008 - that is, the last day of the trial - the focus in the case was on the amount of time if any that the father should spend with the child. By that stage, both parents - who appeared in person - and the independent children's lawyer represented by Ms Hooper of counsel, made further submissions. The father and Ms Hooper also cross-examined Mr A. The father had filed affidavits by five witnesses, all of whom attested to his appropriate behaviour in the presence of his children and in particular J and his half-brother H and basically gave him good character references as a caring father. They were not required for cross‑examination. On that day I reserved my decision.
The family consultant saw the parties and R for the purpose of preparing an Issues in Dispute Report and two further reports in this matter. There were however a number of earlier reports that had been prepared in the course of the proceedings (both in the Federal Magistrates Court and this court) before the matter came before me, and both the family consultant and the parties from time to time referred to some of those reports. A report by Mr P was referred to particularly, and that was read by the family consultant, as were certain other family reports.
Mr P’s report became evidence before me, although he was not required to appear for cross‑examination. His report was dated 2 November 2005 and it was filed on 7 November 2005. Mr P’s report gave a background which is essentially the same as the background that had appeared in an earlier report by Mr U, and in the material and the oral evidence relied on by the parties. It identifies a history of concerns expressed by the mother about the father's alcohol consumption, and the father's denial that there was any concern justified by his consumption of alcohol.
That issue has been at the heart of this case. It was not the case then, nor before me, that the mother adopted the approach from the beginning that the father should not see R but that R should see him in circumstances of safety, particularly having regard to the issue of alcohol consumption. The father has consistently - and I repeat consistently - denied that there is any problem with alcohol consumption while he is with R, or indeed his other child J.
Because it has now been relied on by the family consultant in these proceedings and was mentioned by the parties at various stages, I will refer to the report of Mr U, just to give the father's attitude to this issue as he expressed it to Mr U in or about early 2004. This is paragraph 18:
[The father] claims that for part of last year -
that would have been 2003, of course -
the Salvation Army welfare agency (The Bridge) had been monitoring his drinking pursuant to orders made at the suggestion of the child representative. He would use a breathalyser there shortly before the beginning of his weekend contact, and they would keep a record of his readings. According to [the father], "all her accusations are unsubstantiated. She can't back them up. I do have a beer, and sometimes too many, but not when I have [R] or [J]. The use of a breathalyser makes you feel like a criminal, and it's an invasion."
It is quite clear from the orders that were made at about that time and subsequently, that the father ultimately accepted the breathalyser testing at the commencement and conclusion of times with R as a fact of life, and a number of orders were consented to by him which incorporated that requirement. There were, I will mention at this stage, two occasions when the father did register a reading at the time he was breathalysed, and those of course were of particular concern to the mother; and in keeping with his approach to the matter that there really is not a problem in that regard, the father saw them as quite insignificant.
I propose to move to Mr P’s report of 7 November 2005. There is a repetition of the identification of issues in that report that had been identified in Mr U’s earlier report. Alcohol was still a serious focus and a central focus of the concerns that the mother was expressing, and for the first time in that report one reads R’s views when interviewed on the subject. At page 7 of that report, Mr P states:
The issue of his father's alleged alcohol consumption was prominent in [R’s] presentation. He described his father as "very different when he is drinking; that is, ‘he is silly and bad and swears a lot’, that he calls his friends over and they all drink together, and that ‘he hurts [Ms J]’. In contrast, the description of his father when not drinking is that his father is "nice", that he plays with him, buys him things and they get on well together. [R] is not adverse to seeing his father, but told me, "it's good to see dad when he is not drinking beer … he’s nice and does nice stuff, and he doesn't call me bad names." In contrast, his description of visiting his father when his father is consuming alcohol is that, "…he’s different … he calls me bad stuff and he does bad stuff … he can't see me when he's drinking because he has a breathalyser."
In contrast, he described his mother in equivocally positive terms and conveyed a strong sense of belonging to the family unit comprised of his mother, his brother and Ms [D]. He conveys a sense of safety, dependence and reliance upon them, but also expressed a sense of uncertainty and unpredictability in his life, feeling he has little control, and recognising that he comes into conflict with people around him.
Mr P goes on to comment that that is not uncommon in children with ADHD.
There is no doubt that Mr P observed a positive interaction between the father and R, and he summarises his description of seeing R with his father:
[R] seems to have a good relationship with his father, enjoys the contact and relates warmly and well, but it is still very clear that there is a significant difference in his father's behaviour when his father has been drinking and when his father has not. This is fundamentally the view of [the mother]: that is, that [the father] is a risk to [R] when he is intoxicated because his behaviour changes so substantially, and she believes that [the father] has been aggressive and abusive, and that [R] has been subject to maltreatment, and that he has witnessed the maltreatment of [the father’s] partner [Ms L]. [The mother] made clear that she has no objection to [R] seeing his father, but on the condition that safeguards are put in place and that [the father] obtain assistance for his alcohol consumption.
That remained the position very clearly when the matter first came before me some months later. That is, the mother was not saying that R should not see his father, but clearly by that stage she was very concerned about the effect that the Christmas 2005 incident had had on R, that is, the physical altercation between R’s father and his uncle which, as I have found, took place while R was in the vicinity.
What Mr P identified as the difficulty in this matter is that:
[The father] denies categorically that he has an alcohol problem and instead maintains that the false allegations directed at him are part of a campaign on the part of [the mother] to prevent him from having a relationship with his son. It is unclear as to what might motivate [the mother] to do so, and even [the father] found it difficult to understand why she would choose to frustrate his relationship with his son, other than out of spite.
Mr P went on to comment:
On the basis of the information I have, I can comment confidently that [R] presents as a boy who wants to see his father, but is cautious and uncertain. He certainly made clear statements to me to the effect that his father had maltreated him, that his father consumes alcohol, and on those occasions his behaviour changes. It is of course possible that [R] has been coerced, that he is not giving a factual or accurate account of what has occurred, and that he is responding to what he has been told by his mother.
[The father] maintains that [R] is effectively being alienated from him, albeit that [the mother’s] motivation for doing so seems unclear.
This is an important observation of Mr P’s:
From my perspective, however, [the mother] does not particularly present as an alienating parent, and to the contrary maintains a healthy ambivalence in relation to [the father]. Her concerns are reasonable if in fact [the father] does consume alcohol to excess. He denies that this is the case. She maintains that it is a problem and has been throughout, and these concerns are supported and further substantiated by [R].
Mr P went on to say:
In the interim, it seems inevitable that whatever the contact, it needs to be somehow monitored and reviewed. Inevitably, given the nature of the allegations and the involvement of statutory bodies, a degree of supervision and caution must also be applied but I also note my own observation of [R] with his father as being very good, this of course being in accord with [R’s] presentation, description of his relationship with his father, the support of the contact by [the mother], and in keeping with the concerns harboured by both [the mother] and [R] about [the father’s] behaviour when drinking.
In summary, it appears to me that Mr P in his expert opinion did not regard the mother as an alienating parent, and experts in the position of Mr P have very extensive experience of that sort of parent and how to identify their behaviour, and how to identify their behaviour when it manifests itself in a child. He did not see her in that category, and he also thought that R’s own statements coming from him in the way they were expressed substantiated or lent weight to the mother’s statements about the father's drinking habits.
I mention at this stage that when Mr A first gave evidence before me in March 2006, being mindful of the concern which was clearly before me at that stage that the father had that the mother was in effect feeding R a poisoned line about his father, I specifically asked the family consultant if in fact he considered that this was taking place, having regard to the way R presented to him. He quite unequivocally answered that he did not see R as a child who had been influenced (by others) to say the things he was saying about his father.
Those background matters are of course significant in setting the scene. I intend to go back, however, to a history of the proceedings for the moment.
Following lengthy proceedings starting in 2001, final orders were made by Joske J on 25 November 2004. These orders provided for the child to live with the mother; the mother to be solely responsible for making decisions regarding the child's day‑to‑day care, welfare and development; but that the parties have joint responsibility for the child's long‑term care, welfare and development; the father was to administer the child such medication as may be prescribed by the child's medical practitioners; the father may on or before 1 April 2005 seek a second medical opinion as to the diagnosis made by Dr E; and detailed orders were made for the father to undergo breath alcohol analysis before, during and after each contact period.
The contact orders provided for a graduated increase in the time the child was to spend with the father. For the first four months, the father was to have contact with the child each alternate weekend from 10 am Saturday (11 am during the Little Athletics season) to 6 pm Sunday. Changeovers were at police stations. Breath alcohol analysis was to be undertaken. Further increases in contact were related to a sequence of clear readings. These included alternating weekends commencing 6 pm Friday to 6 pm Sunday and each alternate Tuesday from after school to 7 pm. The orders also provided for telephone contact, Christmas contact and various other periods of school holiday and other contact, which were to come into place once four months passed with zero blood alcohol readings. Those increases did not in fact come into full effect before the matter was brought back before the court.
Joske J also ordered that the child be known as R Doolan Nixon, and the parties be and are hereby restrained from using any other name with respect to the child; and that the parties do all such acts and things as may be required to register the child's name as R Doolan Nixon with the Registrar of Births, Deaths and Marriages. I pause to note at this stage that in fact that does not to this day appear to have been occurred, and the mother raised that issue in her amended application before me, seeking another order in the same times. I will return to that at a later time. That order has not been challenged by the father. The earlier order simply has not been put into effect.

Interim orders were then made on 16 December 2005 by Federal Magistrate Hartnett, varying the order made on 25 November 2004. The variation provided that:
Until further order and notwithstanding any other orders to the contrary, the child [R] born […] November 1998 have contact with his father as follows:-
(a)each alternate weekend commencing 7 January 2006 from Saturday 10am until Sunday 6pm; all changeovers to be at [K] Police Station at commencement and the [C] Police Station at conclusion.
(b)From 3pm on 24 December 2005 until 3pm on 25 December 2005;
(c)From 10am on 2 January 2006 until 10am on 3 January 2006;
(d)Each alternate weekend commencing 14 January 2006 from 10am until 6pm Saturday.
The orders also provided that with respect to all periods of contact the father was restrained from administering any form of physical punishment to the child and he was required to undergo breath analysis to assess his blood alcohol content at the commencement and conclusion of contact and where there was overnight contact, tests were also to be undertaken at 6pm Saturday and 9am Sunday. If any of the testing procedures produced a blood alcohol reading which was not zero the further contact was suspended pending further order of the Family Court of Australia. A notation to the court order provided:
AND THE COURT NOTES the father’s denial of the need for the restraints and ongoing testing but consents to same.
The matter was then before me on 2 March 2006. By then the matter had been taken into the Children's Cases Program, and I made orders giving effect to that. I summarise here the issues identified in the Issues in Dispute Report prepared by Mr A: the father's continued use of alcohol and the child's safety; the child's exposure to recent incidents of violence on Christmas Day; the child's experience of the father talking about his mother; the child's exposure to the mother denigrating the father in her home; parents unable to communicate in a meaningful and positive way about the child; the mother seeking to change the child's name and resolve child support issues were not a high priority. Another area of disagreement was the child's diagnosis and medication for attention deficit hyperactivity disorder.
The Issues in Dispute Report also made reference to the very serious injuries that the father had sustained when struck by a hit‑run driver in 2000, leading to an extensive period of hospitalisation and a long period of rehabilitation. In these circumstances, the family consultant considered whether that accident could have had an impact on the father’s cognitive functioning. His final recommendation in the Issues in Dispute Report was:
It is respectfully suggested that [the father] might consider the impact of his accident and consult with a medical practitioner to eliminate any likelihood that his accident has contributed to his current presentation or circumstances. It may also be appropriate for [the father] to discuss his use of alcohol with his medical practitioner.
The father did obtain a report from an appropriate expert about his cognitive functioning which showed that there are no adverse effects of his accident on him: see exhibit F1. The father clearly saw the fact that that test was requested, as in some way attempting to use the fact that he had had an accident to deny him contact with his son. I refer to page 1 of that neuropsychological report dated 24 April 2006, where the report writer says towards the bottom of the first page:
[The father] denied experiencing any cognitive changes post-accident. Despite the scan results and [the father’s] report of normal cognitive functions, his ex‑partner has proposed that an ABI -
(that is, an acquired brain injury) -
was sustained. In addition, this supposed brain injury has been used as a reason to deny [the father] access to his son.
I mention this at this stage because it is an important indicator, or was early in the proceedings before me, of the father’s belief - which continues to this day - that the mother is, notwithstanding her statements and behaviour to the contrary, attempting to prevent him seeing his son; and that that is the real problem in this case.
Mr P and subsequent report writers have identified a different problem, however, and that is the father’s unwillingness and incapacity to accept that the problem is in any way related to his failure to make R feel safe. That is something to which I will return.
Returning to the history of proceedings, the orders made on 2 March 2006 set the scene for the matter to be conducted in accordance with the Children's Cases Program, and adjourned the matter to 9 March 2006. It is important to note that the transcript of that day includes a description by the father of the event that took place in December 2005: that is, involving him and R’s uncle. It occurred in circumstances where the father was actually taking R to visit the mother's mother. There was apparently an estrangement between the mother and her mother, and the father took R to see the mother's mother. It turned out that the mother's brother was present in the maternal grandmother's home, and from the father’s description when the uncle “eyeballed him” the father said to him “what are you looking at dickhead” and then the uncle “took a swing” at him, and a physical altercation took place in which on the father’s own description the uncle came off second-best.
The only description of that incident I have is the father’s own. The mother was not present, nor was anyone else who gave evidence in the proceeding. So when I refer to the description of that incident, I am referring to the father’s description.
It was one - his description of the incident - in which he described himself as behaving in a way that he saw as totally appropriate: that is, responding with considerable violence to an attempt to provoke and involve him in a physical altercation. The father said “I was in a situation where I had no choice.” He gave no consideration whatsoever to simply withdrawing from the situation, even though someone had thrown a punch at him; and he demonstrated no insight whatsoever into the potential downside, the adverse effect on R of knowing that someone loved very much, his uncle, was in a fight with someone else he loved very much, his father.
As appears from other evidence in the case, the impact of that event on R was quite profound. Following that event, the mother took the child to a counsellor. That counsellor prepared a number of reports for these proceedings, and I will make some further reference to those. Her name was Ms M.
On 9 March 2006 the issues before me were quite clearly whether the contact that had not been taking place, but for which there was a current court order, should be reinstated. The concern was - and it was accepted by the family consultant as a very real concern - that R was displaying a level of discomfort around seeing his father as a result of the Christmas 2005 incident. I was sufficiently satisfied that there was a change in the circumstances since the orders had been made last granting the father time with R, to justify suspending those orders until the matter could be investigated further.
At that hearing, the father made it clear that he regarded his relationship with Ms L and their child as a very important one, and an important one for the court to know about in terms of reaffirming his view that he was an appropriate father and had an excellent relationship with R. One of the orders I made therefore was that the father use his best endeavours to arrange for Ms L to confer with the family consultant at a time nominated by the family consultant, and the family consultant was ordered to update his preliminary report with reference to this interview; but if Ms L did not attend for interview, the father was to file and serve an affidavit by Ms L setting out the history of her relationship and a number of very particular matters. Then the father was ordered to obtain a referral to the RBS clinic - that is the neuropsychological report provided to which I have made reference - and various other orders were made.
I reiterate that having regard to what was then before me about the effect on R of this incident at Christmas 2005 and the family consultant's concerns about R’s readiness to resume seeing his father at that stage, I suspended the existing orders.
As it turned out, Ms L did not contact the family consultant, nor was an affidavit filed. Various reasons were advanced for that in subsequent hearings. The real reasons why Ms L did not attend may - and I only say may - be evidenced in statements she later made to the family consultant in the course of preparation of a full family report, where she spoke to him by telephone. She did not attend for an interview, but she spoke to him by telephone and indicated to him that her relationship with the father was at an end and, to summarise the words that are clearly quoted in the family report, alcohol consumption was the genesis of the breakdown of that relationship according to Ms L- alcohol consumption by the father, and unsatisfactory conduct that that produced.
Notwithstanding that, Ms L still swore an affidavit this year saying that the father was totally appropriate as a father. That evidence has to be viewed extremely circumspectly having regard to her direct statements to the family consultant that are clearly set out in his report.
The next time the matter was before me was on 6 June 2006, and on that occasion, without going into the detail of the evidence on the day in any depth, I was satisfied that it was appropriate to resume contact on a supervised basis. I made orders and directions for that to happen, and at that stage I ordered a family report and a conclusion hearing, as it was then referred to - that is, the conclusion of the trial - on 5 and 6 October 2006. The family report was to be prepared in time for that hearing. I made a wide range of other orders intended to prepare the matter for trial in October of 2006.
Matters did not proceed entirely smoothly in those months, and although the family report was prepared there had been some - but by no means all - periods of contact that had taken place. In her recent affidavit, filed in preparation for the last stage of the trial in August this year, the mother set out a number of occasions on which contact had not taken place, and a number of matters relating to the history of events which had occurred, not all of which were in dispute.
The family report that I ordered for the intended October trial is dated 9 October 2006. It is a substantial document. The family consultant had spent considerable time reading a wide range of material on the court file, which is all clearly identified just under the preface. He had been in contact with Ms L, as I have mentioned already, by telephone. He had received a letter from R’s treating psychologist or therapist, Ms M. He had received a letter from the psychologist at B Primary School, and had read Mr P’s report and the report of Mr U, both of which I have referred to. He also saw both the parties, and of course saw R.
Turning to that family report for a moment, I mention that at all times until the second half of 2008 it was common ground that the parties should have equal shared parental responsibility for R. That is, they should share decision-making as to his long‑term needs. In paragraph 12 of the family report, however, Mr A said:
The capacity for equal shared parenting would seem to be problematic under the present circumstances despite the issues being solely about [R] spending time with his father. It is clear that [the father] and [the mother] are unable to communicate effectively about [R’s] needs.
I mention that at this stage as a matter of some importance because in his final report, which was much more recent - 10 July 2008 - the family consultant pointed again to the difficulties present in the relationship between the father and the mother, and the fact that this may not be a good indicator of the viability of equal shared parenting between them. “The court is likely to need to reconsider the viability,” he said, “of equal shared parenting between [the mother] and [the father].”
Ultimately, although she had earlier taken the view that equal shared parental responsibility was appropriate, in her last amended application filed on 23 July 2008 the mother in fact sought an order for sole parental responsibility, not equal shared parental responsibility. There are a number of matters in that context that I will refer to with some particularity; that is, apart from the family consultant's recommendation that that issue needs to be looked at again and the mother’s application.
The family report recites a number of historical matters which are of real significance in the case, and there were other sources of evidence about these both in terms of oral evidence given at various continuation hearings, and the affidavits filed. But in essence, there were firstly a number of occasions when the supervised time that the father was supposed to have with R did not take place; some because R refused to go, some because the father was not present, and some where R was ambivalent and ultimately did not go.
The evidence about those events comes not only from the father and mother (and is discussed by the family consultant) but also from Ms Y, the supervisor who supervised this contact at the Children's Contact Service. She reported on changeovers that took place on 15 July 2006, 23 July 2006, 2 September 2006 and 23 September 2006.
2 September was a significant event. To summarise the report and the other evidence, this was an occasion when the father turned up, the mother had brought R, but R wouldn't go with his father. His father spoke to him for some time, and I will read from page 4 of that report:
[R] spoke to his father. While [the father] made reference to the previous visit and the fun they had, [R] continued to say he was not going. After approximately 40 minutes of conversation, [R] said to [the father] that he did not want to go because he had something else to do with his mother. [The father] tried to negotiate with [R], but following this latter comment [the father] said to [R], "Okay, mate, I will see you next week," and left the play room.
That clearly was a very upsetting event for the father, and he left shortly after that. But what the worker goes on to say is that she spoke to the mother about R’s comment to his father about plans with his mother. The mother said they did not have anything planned, and that she had explained to R clearly that he did not have to attend Little Athletics that day. The mother agreed to go with the worker to speak to R. “[The mother] said to [R], ‘We don't have anything planned for today.’ The mother made reference to not knowing why he had made up this story. [R] then asked his mother about going to his uncle's house. Both parents have agreed to attend the next visit.”
What is significant about this affidavit is that it is quite clear that F expressed discomfort about seeing his father to the worker, and then after 40 minutes or so talking with his father gave an explanation to the father that the mother had organised something. The inference to be drawn from the report of that event is that in fact R had presented a reason to his father that was not in fact truthful. It appears quite clear to me that on that occasion, the mother had not in fact made some special arrangement, or on that occasion or any other occasion had not made any special arrangement for R, and in fact R was running out of room to move with his father, who was being very patient obviously in waiting for him, and ultimately R gave a reason that implicated his mother. But I am quite satisfied from that affidavit and from the evidence of the mother herself, which was also stated to the family consultant, that there was no arrangement that she had made for R and there was nothing that was going to interfere with the father being able to have R and R being free to go - free in terms of his mother's plans.
That simply confirms Mr A’s overall view, as expressed much more strongly in the most recent report, that R really has a serious reservation about going with his father. I will not read out the description of how Mr A comes to that conclusion in his most recent report, but it is very clear, and anyone who reads that report can see the description of Mr A attempting to persuade R to go to see his father, who was just in the vicinity, and of R giving indications that he did not want to go, and how the family consultant did not feel comfortable about compelling him.
In the middle of this history, there was the further incident concerning the involvement of Relationships Australia. When difficulties were experienced in setting up the resumption of time between the father and R, arrangements were made of quite an extensive nature for a certain worker, Ms C, a person with some qualifications in children's matters - to see R, see the mother, see the father and then design a program for the re-introduction of R spending time with his father.
This is summarised in Mr A’s most recent report, and the upshot was that after the mother herself attended, involving considerable travel time with R for the preparatory sessions, and after Ms C had set up a program whereby R had been told he was going to see his father on a particular day, his father was going to bring presents for him and his father was going to do various things to make it all work for R, the mother and R turned up, waited for some hours on the appointed day, but the father did not arrive. It was not until the following week that in fact there was any communication from him. So he not only did not turn up on that very important day for R, he in fact took a very long time afterwards to make further contact with the mother, and that further contact was simply a request for a re-arrangement of matters so that he could meet with R.
That was, I think, understandably refused, and by the time a further request was made to involve Ms C she was not available and had moved to another position; and indeed when the family consultant spoke to Ms C about this history of events, and it is all very clearly set out - that is, his discussion with her about this in paragraphs 35 and following of his most recent report - by then she considered it was not an appropriate case to be involved in further. In paragraph 38 it is reported that she stated to the family consultant:
Finally Ms [C] indicated the agency is not in a position to offer further opportunities to explore the above-mentioned issues, in view of both [the father’s] non-attendance and the resulting effect on [R].
It is very unfortunate to read the description of the distressed child which Ms C gave to the family consultant. It was a very significant let-down for R, and obviously in my view - and I think in the view of the family consultant - influenced R’s decisions about whether he wanted to be involved with the father further for the purposes of preparing the final family report, or at all.
The family consultant, in setting these matters out very carefully in his final report, clearly casts doubt on the father’s commitment to actually doing what R needs to feel comfortable about going with his father. In paragraph 37, Mr A - still talking about his conversation with Ms C - says:
Ms [C] considers that [the father] demonstrates no capacity for reflective function, by which to enable him to consider the impact of his behaviour on [R]. This would seem to be supported by [the father] blaming [the mother] and others for the current circumstances, and is consistent with the family consultant's experience with [the father].
In short, the family consultant expresses the view expressed in the earlier reports that I have referred to where the father is reported as seeing it as all the mother's fault that he is having problems seeing R, when he ought to be seeing himself as having not “demonstrated a commitment to making the necessary changes asked of him, in order to spend time with his son”. In fact he has demonstrated in numerous ways - and Ms C’s report to the family consultant is just another such demonstration - his inability to put R first in this sorry mess.

The recommendations of the family consultant in his final report are that R continue to live with his mother; R not be expected to spend time with the father until he is of an age where he expresses the wish to do so; the court reconsider the viability of equal shared parenting responsibility between the father and the mother; and consider the mother as having sole parental responsibility. The final recommendation was for R to be offered an opportunity to have any final orders explained to him by either the independent children's lawyer or the family consultant.
I have made reference to Ms M by name. I will mention that also in evidence - and this is evidence referred to by the family consultant - was a report of Ms M filed on 6 October 2006, a letter from Ms M undated but tendered before me on 16 August 2006, and also a neuropsychological report that I have made reference to already. There was also a letter from the child's general practitioner (Dr B) which was tendered on 16 August 2006 and became exhibit M1; and exhibit M2 was the report by Ms M also presented on 16 August 2006.
It is significant that R has been reported from several sources and on numerous occasions as wanting to feel safe. Ms M’s letter tendered on 16 August - and bearing in mind that Ms M was the one who was counselling R after the Christmas 2005 incident - is of particular relevance in my view. It states:
I am writing to support the decision of [the mother] not to allow [R] to have unsupervised contact with his father. I have taken this position because of the negative and traumatic emotions that [R] has displayed whenever meetings with his father are mentioned. During a recent consultation, [R] accused his mother of "not loving me enough to keep me safe". I also believe that if [R] is distrustful of his mother then that has serious implications for his future emotional and psychological wellbeing, as well as the mother-son relationship.
There are similar expressions of concern in the family report in October 2006. I make it quite clear that I am of the view, from all the evidence that I have heard and my observations of the parties, that the mother in this case has not sought to prevent R seeing his father. Whether she has been overprotective or not is a matter on which I am not satisfied; that is, I am not satisfied that she has been overprotective. She has certainly wanted to ensure that breathalyser testing was always there for R’s protection. To his credit, the father has gone along with that, although clearly from his first statements to Mr U he regarded that as an intrusion and an infringement of his liberties. But the fact is, he has gone along with it.
I regard the mother in this case as a parent who has shown an extremely careful concern for her son in these difficult circumstances; difficult because she has acknowledged on a number of occasions that the child would benefit from seeing his father, and has only put the qualification "in safe circumstances".
The father has consistently denied that there is any basis for R to be concerned about his own safety in his company - that is, the father’s company - and has, it seems to me, simply taken no steps to ask anyone with any professional competence what he might be able to do to improve R’s level of comfort. That is the difficulty is in this case: R is not comfortable about going with his father, he has been set up to be comfortable about going with his father by his mother on a number of occasions, and sometimes he has gone. But R does, it is clear to me, resent his mother's encouragement of him to go in circumstances where he is still feeling uncomfortable, and there is a danger that the continued coercion of R by his mother will not be for his benefit.
The matter that I am going to turn to now, however, is the issue of joint parental responsibility. The legislation that governs the determination of matters of this nature is Part VII of the Family Law Act 1975. Section 60B(1) identifies the objects of that Part, and the first object is:
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
There are others, but that is the first and perhaps the most clearly applicable in this case. The principles underlying the objects are set out in section 60B(2), and they are:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …
There are other principles that I will not read out. Those are the most relevant in my view to this case. Following those principles, the next relevant section is section 61DA(1). It provides that:
When making a parenting order -
and there is no doubt that what I am being asked to do is to make (or unmake, perhaps) a parenting order in relation to a child -
in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 61DA(2) sets out where the presumption does not apply, and section 61DA(4) states:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In this case, the family consultant has squarely drawn my attention to the need to reconsider this issue; and the mother has, by filing in her most recent application an application for sole parental responsibility, asked me to act on that recommendation to make an order that she has sole parental responsibility for the child.
There are a number of matters that emerge from the evidence before me that call for consideration in this context. Firstly, the parties do not and have not communicated effectively, or at all, in recent times, about R’s welfare. The capacity to exercise equal shared parental responsibility includes and requires a capacity to communicate, because parental responsibility involves decision-making; and while the father certainly believes that he can communicate effectively with the mother about R’s welfare, I have to look at that belief in the light of other things that it is equally clear that the mother believes.
It is very clear from the statements the father has made both to me, to various experts in the case, and the reports of the report writers, that the father's view is that the mother is continuously undermining his relationship with the child. This has been expressed by the father over a number of years now. It inevitably follows that any discussion of R’s long‑term welfare will be coloured from the father's perspective by this underlying distrust, and the father will see any position taken by the mother that does not accord with his position as trying to undermine him. There is therefore a fundamental distrust on the part of the father about the mother's motivations and actions which I consider would very significantly undermine and erode any ability that may still be there for them to communicate constructively about R’s long‑term needs.
There is the issue of the registration of R’s name in a form that is not as I understand it particularly contentious; an order was made a long time ago about this, but it has not happened yet. From the fact that the mother is complaining about it, I have to infer that the father has not done everything that needs to be done in order to give effect to the order. That is a matter about R’s long‑term welfare that has not been able to be put to bed by a consensual approach over a significant period now.
Another significant matter is the child's unwillingness to communicate with his father, as evidenced in the most recent report. It is difficult for me to say that the father should continue to be involved in making significant decisions about R, if R himself - whose age of course is approaching 10 - cannot discuss these matters with the father for himself.
As I have said, the family consultant has recommended that this issue be considered; and in the context of the relationship between these parents I am particularly concerned and influenced by the evidence of the family consultant in his report dated 22 September 2006 at paragraph 62:
It is apparent that for a significant part of [R’s] life his parents have been involved in ongoing conflict and litigation about [R]. Unfortunately, it is all too easy to become distracted by the allegations and counter-allegations offered in support of the various views being promoted by each party, notwithstanding that each genuinely considers they have a point of view about what should happen to [R]. It is important, however, to momentarily put aside this material and focus on the ongoing parental conflict as part of a bigger picture. Professional literature -
and there are certain sources quoted -
is unequivocal in its conclusions about the effect of unresolved and ongoing conflict on children of separated parents. Ongoing unresolved conflict is known to affect a child's development in a significant and all‑encompassing way. The effect on children includes the likelihood of compromised mental health, and is said to occur in a significantly higher percentage of children involved in ongoing conflict than that of the general community. It is this environment in which [R] finds himself, with his parents repeatedly making applications and counter-applications over a period of some five years. If present matters remain unresolved, the spectre of a further 10 years of conflict does not augur well for [R’s] mental health prospects. In attempting to assess this matter in a way which will be positive for [R], … it is clear that what [R] needs most is final orders which are indeed just that: final orders. Equally importantly, [R] also needs to be and feel safe.
I consider that that opinion expressed by the family consultant, which is I have to say consistent with other statements of opinion by similarly qualified experts in other cases, is that children need to be protected from ongoing conflict between their parents for their future welfare and for their future mental health. In this particular case, I am concerned that the father's distrust of the mother, and the fact that they have not been able to agree about things for many years now, would mean that the ongoing exercise of joint equal shared parental responsibility would create further potential fields of conflict and further opportunities for the parents' conflict to have an adverse influence on R’s welfare.
I therefore consider that for the reasons I have stated that it is appropriate in this case for me to find that the presumption in favour of equal shared parental responsibility is rebutted by the matters that I have identified, and that I should make an order for sole parental responsibility for R for the mother.
That then takes me to the question of ascertaining what further orders will advance R’s best interests, having regard to section 60CC(1), (2), (3) and (4). In that context, section 60CC(1) says that:
….in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Subsection (2) refers to the primary considerations being the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Those primary considerations are then followed by additional considerations set out in subsection (3).
Of the primary considerations I have this to say. In (a), the benefit of the child having a meaningful relationship with both of the child's parents can not be determinative where there are other matters that indicate that that is not going to be in the child's best interests; that is, will there be a benefit to the child, having regard to the other matters set out in the additional considerations? Those additional considerations are:
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;
Here there are very clear indications of the child's views. He has on occasions shown himself willing to engage with his father and capable of enjoying a good time in his father's presence. There is no doubt that the father and the child are capable of having a good time together. However, the child's views also extend to real reservations about whether he will be safe in his father's company on a more extended basis than those occasions that have been observed, which were of necessity relatively short and supervised. The child expresses concerns about his safety. They are concerns that have appeared in the reports over a considerable period now, and which various steps have been taken to try to address. Particularly, the Relationships Australia exercise was specifically designed to re-introduce time with the father in a safe environment where R could gain confidence slowly over time and gradually be eased back into an ongoing relationship which would no doubt have been to his benefit. But in fact that did not take place and the opportunity for that assisted reintroduction is no longer available.
In terms of the nature of the relationship with each of the child's parents and other persons, there is no doubt that R has a good relationship with his mother, and it is described by all the report writers as exactly that: a good relationship, a loving relationship and a close relationship. With his father, he is capable of having a close and loving relationship but clearly needs to feel safe.
Other persons relevant in this case of course include the father’s other child, J, who R has known since his birth; the half-brother that he shares his mother's home with; and Ms L herself is a person with whom he has had a relationship in the past, however given that the father and Ms L’s relationship is not ongoing that is unlikely to be a matter of any significance. There is nothing to suggest that that was not a good relationship. R also obviously had and continues to have a good relationship with Ms D, the mother's former partner.
The reality is that whatever order I made for the father to spend time with the child R would result in him having opportunities to pursue well-established existing relationships, and he would benefit from those.
The next subparagraph requires me to consider the likely effect of any changes in the child's circumstances. In this particular situation, the change that is proposed would not be from a time-with situation to a no-time-with situation, given the history of the matter and the time since R last spent time with his father. The likely effect of any changes has to be considered in the light of R again seeing his father. That change in my view is one which would rekindle R’s concerns and fears about his safety in his father's company. Concerns for which the father sees no basis and which he has done nothing to address.
The practical difficulty and expense of a child spending time with and communicating with a parent is not a significant consideration here. When the parties have in the past changed R over at various points, but principally at a police station or at a contact centre, the difficulty and expense involved has not been an issue and changeover has been able to be arranged.
Subparagraph (g) is not a matter that has any real application in this case. Subparagraph (i) is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. That is a matter of some significance in this case, because in my view the mother has demonstrated a responsible attitude to parenthood, to R’s upbringing and care, and has gone considerable distances with a view to ensuring that R’s relationship with his father is able to be maintained. Those efforts have not been reciprocated, however, by the father in accommodating R’s particular needs for an environment in which he, R, feels safe and secure. The father has not in my view been responsible as a parent, in that he has not gone out of his way to take up opportunities that have been present or to create opportunities by his own positive action in obtaining professional assistance to deal with the issues that R sees and R has identified, and have been clearly reported on in the various experts' opinions before me in this case.
In terms of family violence involving the child or a member of the child's family, clearly there was an incident of violence involving the child - not as a recipient of the violence but as a witness or a person in the vicinity when it took place. I can not say that the evidence before me establishes that there is any likelihood of that occurring again, or that that would be a determinative factor, if indeed everything else was in place that was needed to put R’s mind at ease. The relevance of the violence that occurred at Christmas 2005 is that it created a fear and an uncertainty in R’s mind that he still articulates to this day.
It is a fear and uncertainty about what might happen if he is with his father, which it is within the father's power to dispel in my view. It is within his power to dispel it by embarking upon a process of communicating with R in a way that could, by letter, by a chain of actions that would reassure R that there is no danger, his father is not going to be drinking when he is present, and his father is certainly mindful of the undesirable effect of any physical violence in the presence of R.
Communications to that effect from the father to R could have been encompassed in the program of letter writing that the person from Relationships Australia, Ms C, was trying to set up. They could have created a certainty, or a sense of certainty in R’s mind, that everything would be OK when he saw his dad. But these things just did not take place.
Subparagraph (l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. That is always very difficult to foretell, however, I have to say that having regard to the future of R and his need for certainty and finality, it does seem to me that in the atmosphere of uncertainty that R currently lives in as far as his relationship with his father is concerned, an order of the kind sought by the mother and supported by the family consultant and the independent children’s lawyer is least likely to lead to the institution of further proceedings in relation to the child.
Subparagraph (m) refers to any other fact or circumstance that the court thinks is relevant. In looking at those other matters, and not wanting to repeat matters I have already taken into account, I do place considerable reliance on the family consultant's evidence in this case. Mr A has had extensive involvement with R and his parents now over a significant period of time. He has identified very clearly for me the issues between these parents and the intractability of those issues.
In my view, R’s own clearly expressed uncertainties, fears and concerns about what might happen when he is with his father; (and, I would say inferentially, when he is with his father in unsupervised circumstances) are very significant.
Section 60CC(4) refers to the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent; here it refers to the extent to which a parent has taken or failed to take the opportunity to participate in making decisions about major long‑term issues in relation to the child.

In his most recent report Mr A spoke to R’s teacher of 18 months, who has never met the father. Education is one of the most important long‑term processes in a child's life at R’s age, and the father has not participated in the school or R’s education process to the extent that it is appropriate for parents to participate, at any time in the last 18 months. That in my view is a reflection on his inability to see what it is that is important in R’s life and to take the opportunity to participate in a major long‑term issue in relation to the child.
There were occasions when the father did not attend for the time that was scheduled for him to spend with R, and he has as I say failed to participate in that very vital process that was established by the Relationships Australia agency for the re-establishment of his relationship. All those, I am afraid, point to a failure to take the opportunity to participate in decisions about major long‑term issues in relation to the child. They, together with the contents of the family reports that have been put before me and the oral evidence from all sources, lead me to the view that for the time being it is not in R’s best interests for an order to be made for him to spend time with his father.
The sense of finality that R needs will be achieved by making an order that, for the foreseeable future, puts no arrangement in place for R to spend time with his father.
I note for the transcript that the father has left the court at this stage, and I do intend however to pronounce the orders that I was going to pronounce, and he of course will be sent a copy. I will direct that the independent children's lawyer arrange for service of a copy of this order upon the father.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate:

Date: 10 November 2008

[2008] FamCA 946

16 September 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness