Edwards and Edwards - [2016] FamCA 241

FAMILY COURT OF AUSTRALIA

EDWARDS & EDWARDS

[2016] FamCA 241

FAMILY LAW – CHILDREN – where parents have poor communication despite extant orders of some years standing – where application is made to vary both parental responsibility and time – where father seeks a change of residence to him and substantially reduced time to mother based on mother and daughter conflict – where expert opines that the problem is the parental conflict – where father exacerbates that conflict – where father found to have inappropriately manipulated daughter – reduced time by father ordered.

Family Law Act 1975 (Cth)

AIF v AMS (1999) 199 CLR 160
E (Children) (FC) [2011] UKSC 27
Goode & Goode (2006) FLC 93-286
Minister for Immigration and Ethnic Affairs v Teoh 91995) 183 CLR 273
MW v Director-General, Department of Community Services [2008] HCA 12
Runcorn & Raine (unreported [2008] FamCA 837
U v U (2002) 211 CLR 238

APPLICANT:

Ms Edwards

RESPONDENT:

Mr Edwards

FILE NUMBER:

CAC

1510

2008

DATE DELIVERED:

15 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

21, 22, 23 and 24 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE APPLICANT:

THE RESPONDENT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Trim

In person

Ms Mansfield

Victoria Legal Aid

Orders

All existing parenting orders are forthwith discharged save those made by consent of the parties on 24 March 2016.
That the mother has sole parental responsibility for B (the child) born … 2003.
That the child live with the mother.
Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:
(a) the nature of the decision to be made; and
(b) her views as to what should be done; and
(c)requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided in the foregoing order, the mother shall be entitled to make the decision without further consultation with the father.
That (failing agreement otherwise and save as otherwise provided in the court orders made on 24 March 2016,) the child spend time with the father as follows:
(a)during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning (or Tuesday morning if the Monday is a public holiday) commencing Friday 22 April 2016;
(b)During the long Summer Holidays for a period of 2 weeks commencing at 3 pm on 26 December 2016 and for a similar period in each year thereafter;
(c)For one half of each school term holiday period and in default of agreement, the first half;
(d)From 3 pm on 25 December 2016 until 3 pm on 26 December 2016 and for a similar period in each alternate year thereafter;
(e)From 3 pm on 24 December 2017 until 3 pm on 25 December 2017 and for a similar period in each alternate year thereafter.
That (failing agreement otherwise) the child remain with the mother at all times other than those set out in paragraph (7).
Paragraph (7)(a) does not apply to the period during any school term or long summer holidays and is suspended accordingly but shall resume in the next school term as if it had not been interrupted by holidays.
For the purposes of changeovers which do not occur at school, the provisions of paragraph (3) of the minutes annexed to the orders made on 24 March 2017 shall apply.
That the father be at liberty to communicate with the child by telephone only, on one night per week, on an agreed day, and failing agreement, at 5.00pm on Wednesdays.
That despite the mother having sole parental responsibility, both parents are at liberty to attend all school events and functions at which a parent would normally be entitled to attend UNLESS THE PRINCIPAL determines otherwise and at all times, both parents are entitled to all relevant information about the child and her educational progress.
The Independent Children’s Lawyer is entitled to provide a copy of this order to psychologist Ms C.
The Independent Children’s Lawyer is requested to explain the orders this day in age-appropriate language to the child and is otherwise thereafter discharged.
That all applications are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edwards & Edwards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CAC 1510 of 2008

Ms Edwards

Applicant

And

Mr Edwards

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

These reasons concern the child who is 12 years of age. She is the daughter of Ms Edwards (“the mother”) and Mr Edwards (“the father”). Their dispute is about whether:
(a)an order should be made for equal shared parental responsibility or sole parental responsibility of the child;
(b)B should live predominantly with one or other of the parents; and
(c)the non-“resident” parent should be limited in some way by time with the child.
The striking contrast was how the parties saw the problem and the solution to it.
From the perspective of the father, the core issue was that there is a serious conflictual relationship between the mother and the child which is long-standing and prejudicial to the child’s development and her educational progress. He sees it as affecting her happiness. The father points to the child’s expressions of desire to live with him which have been heard by every health professional involved in her life over the last three years.
From the perspective of the mother and the Independent Children’s Lawyer, the core issue was that the long-standing conflictual problem between the mother and father is entrenched and the child is exposed to that conflict. The mother’s case is that the father is deliberately denigrating her and manipulating the child to say and do things which are an attempt to alienate mother and daughter.
The father’s solution was that the child live with him and have significantly reduced time with the mother. The mother’s solution, supported by the Independent Children’s Lawyer, was an almost mirrored concept.
There is no dispute that the child has consistently, when asked by professionals, said she wishes to live with her father. Those professionals have differing views as to why those things were said and what they mean. These reasons explore them.
In final addresses, the parties canvassed not just the evidentiary matters, each party highlighting what they thought established their perspective, but also how parenting orders would best met the child’s needs.
The Independent Children’s Lawyer supported the mother’s perspective. Counsel for the Independent Children’s Lawyer submitted that the father failed to see the issues. I reject that. I find he does and very clearly; it is just that he rejects the assertions of the mother about having influenced, if not manipulated, the child. He sees the problem as the conflict between the mother and the child and no other.
Counsel for the Independent Children’s Lawyer then submitted that the father lacks insight into his behaviour and its effect on the child. With that submission, I agree entirely for the reasons that are set out below.
In his final submissions, the father succinctly put his views. He said that if the Court reduced his time with the child:
(a)      he would be very unhappy;
(b)      B would be very unhappy;
(c)      there would be a “psychological impact”.
In addition to the physical contact with the child about which there is a significant dispute, the parents also disagree about telephone communication. Because of the father’s denigration of the mother and his manipulation of the child, the mother wanted that restricted. The father described the mother’s submissions (and by obvious inference, those of the Independent Children’s Lawyer) about limiting his telephone contact as “petty”, out of touch with society (in respect of how children communicate with the world around them through so many different forms of media) and “clearly” not in the child’s best interests. He would have it that there should be unrestricted access by the child to him. As he observed:
I have been a marginalised parent for eight years.
A major cause of conflict has been the electronic communication between the father and the child notwithstanding orders from 2009. It is time to control what happens to the child to reduce the source of conflict. The father can be seen to be conscious of the child’s ability (like many children) to accept various social media and electronic communication. That wide variety was contemplated by the orders of 2009. They have not been successful because they have contributed to arguments. There was no consensus about how much was enough. For the reasons that follow, I think once a week ought be sufficient. If no agreement is immediately reached, it will be Wednesdays to give sufficient communication between physical contact.
B is a child who does not (like the majority of children) take childhood for granted. She shuffles around her parents to the extent that she describes them in metaphorical boxes. She knows by experience, the sensitive areas she cannot broach with one parent and the other. She was heard in a conversation with the father endeavouring to steer him away from such a subject. On the issue of manipulation, the evidence of the family consultant was telling: the child inappropriately gives in to her father. That has to stop so that she can approach adulthood with confidence.
This case also highlights the complex difficulty in the law grappling with social science. The findings required of the Court about parental behaviour somehow have to be linked to the pursued outcome of what is best for a child. By way of example so relevant here, if, as I find, the father’s manipulation of the child is subtle and ever present, how does a reduction in time alter or stop that? In the light of such a finding, is the father correct when he prophesised that a reduction of time will make the child unhappy and if so, what difference does that make? His own unhappiness was ever-present through the proceedings so his view that there will be dissatisfaction with a reduction in his time is not a surprise but what are the “psychological” consequences to which he referred? He could not (or would not) articulate them. Against that, the Court has of a very blunt and clear opinion from an expert family consultant that not stopping the exposure of the child to the conflict between the parents will lead to disastrous consequences into adolescence and adulthood in relation to self-esteem, peer relationships, mental health, educational success and so forth. I am satisfied that after eight years of conflict, it is unlikely to change.
As is apparent from the findings below, I am satisfied that it is the father’s incapacity to “move on” that is the problem. I have no specific criticism of the mother’s contribution to it.
As the family consultant said, there is no easy solution. One such solution proffered by counsel for the mother was that the Court order the father to go to therapy for ten visits over six months. Therapy would only be of benefit to the participant if he or she wanted to be there and saw a need for it. The father strongly articulated a rejection of that need because in his view, the problem in this particular case is with the mother. Counsel also submitted that a period of no contact between the father and the child might give some respite. Whilst I agree that I floated that question with the family consultant, she generally thought it a pointless exercise. I agree.
In this particular case, therapy, counselling, mediation and negotiation have all failed. It is time therefore to look solely at what is good for the child and to endeavour to make final and lasting orders that will meet the provisions of s 60B of the Family Law Act 1975 (Cth) (“the Act”). That provision reads:
(1) 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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(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 (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Having sought the link between time and conduct findings, I am satisfied that whilst a reduction of time:
(a)      will not stop the manipulation;
(b)      will not stop the conflict; and
(c)      will not make the father or the child initially happy,
what it will do is limit or reduce the exposure of the child to time with the father in a leisure-type period that will obviate the necessity for the father (at least for the foreseeable future) pressing the child about living with him for any significant period other than for holidays; that is, time will no longer be an unresolved issue. The Court will have decided it.
To maintain a more significant sharing arrangement would give rise to the potential for the father to say to the child that he has some more significant parenting role to play. It is serious to reduce the father’s parenting role and more importantly, his responsibility for decision-making, but the evidence in this case all points to the fact that those issues are causing disturbances for the child and have become a constant in her life. That is not in her best interest.
There were other issues between the mother and the father but they were resolved by agreement. Even there, the father made clear his reluctance and criticism of any restriction of his interaction with the child. Despite his vocal expressions, he still asked that the orders be made. For the reasons that follow, I find it is in the best interests of the child that:
(a)there should be an order for sole parental responsibility in favour of the mother but with requirements for limited negotiation and notice about major long term issues concerning the child;
(b)B should live predominantly with her mother; and
(c)the father’s time with the child be for three nights per fortnight and a sharing of the school holidays.

The hearing itself

In the proceedings, the mother was the applicant and the father the respondent. The father did not have legal representation throughout the final hearing but indicated he understood the Court’s process. He showed by his advocacy that he was accomplished in the tasks that fell to him.
He had typed notes from which he spoke. His cross-examination was concisely prepared, as he put it, following a pattern of dealing with his affidavit, the mother’s affidavit and then the report of the family consultant. His final address appeared to have been typed and he methodically dealt with his versions of the evidence.
During the latter stages of his submission the father proposed that the Court should speak to the child to find out about her. No application was made during the hearing nor was this a concept suggested to the family consultant. It had not been raised with the Independent Children’s Lawyer. Whilst courts sometimes do speak to children (and there is controversy about it) the child has been to a number of professionals, been interviewed by police twice and has come to the notice of the Department of Health and Human Services. It is time to stop the interviews of the child which I consider border on systemic abuse and allow her to settle into a routine of adolescence.
I am very conscious of the father’s statement that the child will not be happy about a reduction of time with him but it was the family consultant’s considered view that the child will just get on with things. I am satisfied that the father will not. For a judge to have spoken to the child, would have been pointless because whilst here views might have again been repeated, she will be told after these orders are pronounced what the Court’s determination is about her views.
There were occasions highlighted during the father’s cross-examination of the mother and in his own evidence, as well as his final submissions, that he had not presented all that he thought he could but he did not seek to adjourn the proceedings. One example was about the emphasis the Court should give to text messages between he and the mother which the mother had used in evidence to show the father’s denigration of her. He said she had used them selectively. I cautioned him about not pointing to the other (and surrounding) messages if he was accusing her of being selective. He had overnight to contemplate that but chose not to pursue the issue notwithstanding he apparently had every text message in printed form before him.
Another example of the father’s preparedness was that he expressed dissatisfaction with the family consultant. During his cross-examination of her, he asked whether she was biased. To the extent that this accusation related to a lack of objectivity (as distinct from a lack of expertise or professionalism) no suggestion was put to her other than that she had devoted more paragraphs to some issues prejudicial to his case than those relating to the mother. The father suggested that certain things had been left out of the report but at no stage did he suggest that they were critical to the opinion of the family consultant. At no stage did he suggest that her logic was flawed. It is perplexing to know what the father considered that the family consultant had overlooked. He methodically went through all of the statements that she had made and asked her questions about them but she did not waiver in her assessment. I find her opinion not only professional but well thought out. On the basis of the evidence I have heard, some of which was not available at the time of the interviews to the family consultant, her report and opinion are persuasive.

On the night prior to the family consultant giving evidence, I gave the father overnight to contemplate whether he would challenge the family consultant’s expertise. On the following morning, he said he would not. He preferred to rely upon an opinion which he considered was favourable to him from a Dr D whose evidence I refer to below.

The cause of the acrimony

This case highlighted years of conflict between the parents and whilst undoubtedly there were periods of calm, eight years has not seen the ending of that conflict and the child is well aware of it. When I pressed the father to indicate what he considered had been the cause of the acrimony so many years ago, he could only think of two answers. First, there was the disappointment of the ending of the relationship but when he thought about that, he agreed that the relationship had been poor well prior to separation. His second explanation was that he had gone to lengths to buy a home and with his “blood and sweat” renovated it in anticipation of it being a long term residence only to find the ending of the relationship.
To the extent that it matters, none of that would suggest any plausible explanation for the acrimony in this case. It is striking however, that it continues not only unabated but with vitriol. There was an air of resignation in the mother about it to the point that I am satisfied that she cannot deal with the father.

Some procedural background

This trial had been listed before Thornton J but her Honour’s unavailability meant it began on 21 March 2016 before me. Rulings were required in respect of evidence and in particular:
(a) the admissibility of certain electronic documents;
(b)the entitlement of the husband to rely upon the opinion contained in an affidavit by psychologist Dr D whom the parties had engaged before the proceedings began; and
(c)various objections to the evidence all of which had been raised by the father not the mother.
Rulings have been elsewhere published and are not repeated now.
The mother relied upon her two affidavits along with an affidavit of her husband, Mr E. The father relied upon his affidavit and the affidavit of Dr D.
The Independent Children’s Lawyer relied solely on the family report. The family report writer in this case was Ms F whose qualifications are in social work. Her report was prepared pursuant to an order made by Thornton J on 16 September 2015. That order was made under of s 62G(2) of the Act. Once such an order is made and the report prepared, it is a matter for the court to determine whether or not it should be admitted into evidence. In this case it became unnecessary to consider that because Ms F was required for cross-examination and she repeated that reported evidence without change.

The positions of the parties

The mother sought orders that she have sole parental responsibility for the child and that the child live with her. At the commencement of the hearing, she proposed orders that the father’s time with the child be from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week. At the hearing’s end, she altered that to Friday to Monday. She proposed a sharing of the school holidays on an equal basis. There is a dispute about telephone communication already mentioned and I shall return to that below.
Notwithstanding his views about the mother, the father’s position was that the parties have equal shared parental responsibility for the child but that the child live with him. He proposed that the child spend time with her mother from the conclusion of school on Friday until the commencement of school on the following Tuesday in each alternate week. He also proposed to sharing of the holidays and special days.
The father had not mentioned what should happen to the child in the event that the Court rejected his application detailed in his case outline. I asked him during his evidence what the Court should do if his proposals were rejected. He was hesitant but ultimately submitted that there should be a week-about arrangement.
The outline of case document on behalf of the Independent Children’s Lawyer proposed very similar orders to that of the mother but she too changed at the end of the case. The Independent Children’s Lawyer supported the mother’s proposals.
Whilst not bound by any person’s position, in my view, after considering all of the evidence, I find the position of the mother and the Independent Children’s Lawyer are in the child’s best interests. My reasons are now set out.
Unfortunately, because of the high conflict over a long time it is necessary to traverse the parties’ backgrounds.

Background

The father is employed in a profession and is aged 43 years. The mother is aged 41 years and currently engaged in the full time care of the two children born to her relationship with Mr E, She is married to him.
The parties married in 2003 and separated in 2009 and divorced. At the time of the separation, the child was five years old. She is now 12.
Proceedings were begun in 2008 with an ex parte application by the father filed in Canberra to prevent the mother removing the child from Adelaide where she was then living. The ex parte application was not an auspicious start.
Those ex parte orders were made on 30 September 2008 but interim orders were then made by the Federal Circuit Court in Melbourne on 24 November 2008. The volatility of the dispute can be seen in the orders whereby the parties consented to:
[14][The father’s] time with the child pursuant to these orders shall all take place in the greater Melbourne area.
[15]The mother consult the father in relation to the selection and enrolment of the child in Primary School.
[16]By consent, each of the parties be restrained and injunction (sic) do issue restraining the parties from denigrating the other or any member of the other parties’ family in the presence of the child.
and importantly, not by consent:
[17]Without admission, the father be restrained and an injunction is hereby granted restraining him from consuming any more than three standard alcoholic drinks, being either wine or light strength beer, in any 24 hour period of time the child is in his care.
One might question the efficacy of that order.
Apropos the current dispute, an order was made on 22 April 2009 under which the parties significantly agreed that:
(a) they would have equal shared parental responsibility of the child;
(b) B would live with the mother; and
(c)B would spend time with the father on Thursday in one week for some hours and in the alternate week from Thursday to Monday.
The parties agreed on holiday arrangements and ancillary orders that are not particularly relevant here save that their respective consents included:
[7]That the father and the mother shall be at liberty to take the said child from the Commonwealth of Australia for one overseas holiday to any country or countries which are party to the Hague Convention (or to any other country with the consent of the other party in writing or order of the Court) of not more than four weeks duration or unless otherwise agreed in writing...
[8]That the parties be restrained and injunctions are hereby granted restraining them from moving the child’s principal place of residence from the Melbourne metropolitan area.
[9]That the mother and the father consult with each other in respect of any future school at which the child may attend with any subsequent enrolment to be agreed between them but failing agreement the parties shall attend mediation to resolve any dispute. (My emphasis)
[10]That each party shall immediately notify the other in the event that the child is hospitalised or suffers from an illness requiring ongoing medication or treatment and that each party is at liberty to visit the child in hospital.
[11]That each party hereby authorises all medical, dental or other health professionals attended by the child to receive reports and information in relation to all such attendances and treatments.
…
[15] That both parties be restrained from denigrating each other in front of the child, or at all. (My emphasis)
And whilst the November 2008 order about alcohol was not by consent, this time, the following was:
[14]That without admission and by consent the father be restrained and an injunction is hereby granted restraining him from consuming two standard alcoholic drinks in the 24 hour period during any periods of time the child is in his care.
I suspect the draftsperson intended that to mean more than two.
Whilst the parties agreed with those orders, in his evidence, the father said that that was not what he wanted. He agreed to the orders under pressure from his lawyers and said that he had been told that the court would follow the recommendation of the family consultant and that he was wasting his time. He said that he had always wanted an equal sharing of time.
The order highlights the philosophical difficulty (if not absurdity) of an arrangement under which the parties agree that they have joint responsibilities for the care of the child and importantly, agree that they can work cooperatively to make long term decisions about her welfare, yet they required orders for restrictions on travel, restraint on movement from a particular urban area, a requirement for consultation about schooling and a requirement that they notify each other about illness. Most importantly, they require each to be restrained from denigrating each other. All of those matters ought be part of responsible parenting. All of the orders are indicia of a lack of trust.
It is the same issues that today underlie their respective substantive applications. It ought be obvious that the restrictions to which I have just referred are all about parenting skill and responsibility but the substantive issues here are about decision-making and the time between the parents and the child. Regardless of what orders are made by the court, a very significant problem is that respect and trust. I am satisfied that it is absent here.

The 2014 period

The proceedings began again in 2014. There were court appearances in July 2014, March 2015, April 2015, July 2015, September 2015, October 2015 and now this hearing. Some of those days were of a procedural nature but the point is that significant time and resources has been devoted to this parenting dispute. It does not auger well for cooperative parenting in the future.
On 28 July 2014, at an interim (and disputed) hearing, Senior Registrar FizGibbon imposed the regime which was extant when the hearing began. That is, he said that the child was to spend five nights per fortnight with her father. In his reasons for judgment, the Senior Registrar said:
[2]The parties’ relationship is very poor. It was poor then in 2009 and it is worse now. There have been intervention order proceedings. There is an order in place naming another child, which subsists until a date in October this year.
[3]The presenting problem is that there is an issue regarding [the child’s] expressed wish to see and spend more time with her father in the context of what the mother says has been an abusive relationship, emotionally, psychologically, and all of that over a long period of time, because the parties had separated when [the child] was not yet, I think, five years old, and that occurred in September of 2008.
…
[5](By reference to the report of [Dr D]) the report makes recommendation, now, that the arrangements, as agreed in the final orders, effectively be reversed with [the child] living with father and spending a similar sort of regimen of time with mother. That is what the husband and father urges of me today.
…
[8]This is also about multiple experts and it is about systems. There are matters that can be further explored, discussed and considered in that context. This is about a child who has been brave enough to express a wish and views, some of which, I suggest, are naïve, as she is just ten years old, and which the Independent Children’s Lawyer also acknowledges.
…
[15]I have interpreted what is underlying and motivating [the child’s] clear knowledge of longstanding conflict, fights, problems and perhaps having some things raised and discussed with her from time to time, perhaps quite inappropriately, I do not know, or overhearing adults and her awareness as a result. She is ten years old. The parties have been in conflict since she was four. She would know and observe that no parent talks to the other, it seems, unless there is something which imposes it and then it is terse at best, abusive at worst. And all of this must provide a really unpleasant environment for her and tension.
Those were prophetic words but they encapsulate what the dispute remains to be about. It is common ground that the parental relationship is conflictual. Counsel for the mother began his cross-examination by taking the father right back to the period prior to separation. He began to traverse disputes about arguments, alcohol abuse and road rage. As I observed in the course of that cross-examination, that evidence may very well be “background”, but it is significant that the parties agreed to the orders in 2009. It is important that the period from 2009 to 2014 was the metaphorical calm before the storm. It was the mother’s evidence that there has never been cooperative parenting between the parties. In my view, it is (and was) unnecessary to go back beyond 2013 as the parties agreed to disagree about things. It is instructive to look at only some of the disputes knowing that there were disagreements about parenting before these. The first is indicative of the state of the conflict in 2011 but the others show the two year period up to this trial. To the extent that one might expect an intervention order (and one was made here) to calm things, in this case, it did not.

The “child abduction” incident

In 2011 the child was involved in karate classes and the mother took her uniform to the father’s house where the child was staying. The father told the mother the child was ill and would not be going to school the next day but would not let her speak to the child. She asked to see the child and the father declined. The mother became aware that the child had vomited although the father denied that, but on any view, the child was ill. The father told the mother he was going out to get some groceries and the mother left his house but in the absence of the father, she returned and there met the father’s then partner. According to the mother, and undisputed by the father, there were polite introductions. The mother saw the child who was ill and then took her to the doctor. She was diagnosed with tonsillitis. The mother did not return the child to the father that night.
The cross-examination by the father epitomises the problem in this case. Apart from the fact that he described the incident as a “child abduction” which it clearly was not, he put to the mother questions about her doubt as to his capability of caring for the child when she was ill. The mother did not dispute his capacity. He did not indicate how he would have addressed the problem and did not say that he was going to take the child to the doctor. In cross-examination, he put to the mother that she “disregarded” the 2009 orders. That was a curious question in circumstances where the child was ill and on the evidence, it would appear the father was doing nothing about it.
It was not suggested by the father that his then partner had disagreed for the mother to take the child to the doctor. That partner was not called to give evidence.
In response to the father’s question, the mother said she did what she thought was best. On this evidence, I would have to agree as the child was ill. In taking the child to the doctor, the mother sent a text message to the father to indicate that was what she was doing. His response was that she had abducted the child. His focus was not on the child but on the mother.

B and piano, swimming and karate

The father’s evidence was that the mother cancelled the child’s piano lessons then stopped the swimming lessons and ultimately the same with the karate activities.
It was only when the mother’s affidavit in reply fleshed out what had happened, a better picture emerged. Much of what the mother said in evidence was not seriously challenged by any objective standard by the father.
In respect of the piano lessons in March 2013, there was communication with the father. The mother said that the child lost interest and the teacher ultimately relocated to Europe. In April 2013, the swimming lessons came to an end because of a commitment of the mother making her unable to take the child on the Fridays. The father said he would take the child and the mother made the necessary enrolment and payment commitments. The father did not take the child to swimming classes that term and no explanation was provided. There seemed to be a complete breakdown in the discussions between the parties as a result of that so the swimming classes ceased. Also in April 2013, karate came to an end. This clashed with calisthenics but the father’s description was far from comprehensive. The impression that I have gained is that the child lost interest in karate being more interested in calisthenics and when the mother enrolled the child and told the father about it, he decided not to take the child.
Children clearly have interests that fluctuate and there was nothing implausible about what the child was doing as described by the mother. The focus of the father’s attention however was that it was all the mother’s fault.

The Easter assault incident

At Easter 2013, the mother and a number of people went away to G Town for some days during which time a man by the name of Mr H was involved in some sort of play activity wherein the child was said by the father to be hurt. The mother’s evidence was that there was no impropriety in the action and that the child was not hurt. She said that there was no signs of physical injury.
B obviously told the father about it and he presumed the worst. He took the child to the police station and although it is not in evidence, it would appear that the child made a statement.
The mother subsequently received a telephone call from the police requesting that the child be presented for a further interview. Why that was necessary remains unclear but the mother described the child as nervous and teary and not talking. That is hardly surprising. the child was offered an opportunity to be interviewed alone but she declined wanting her mother and Mr E present. In cross-examination, it was elicited that the mother did not speak for the child at that interview.
According to the police file which is now in evidence and which corroborates the mother’s version of that interview, the police officer asked the child whether the particular incident was deliberate or accidental after first establishing that the child knew the difference. The child told the police officer that it was accidental.
The police file suggested that the reporting of the incident was malicious. It is not necessary for me to make a finding in respect of the father’s motivation but it is curious that the police seemed to indicate that the father said that photographs of the “bruising” had been taken but they had never been produced. If they had, they were never produced to the mother.
The Court’s focus is on the welfare of a child here and my concern is that the poor communication between the parents and the capacity of the father to interpret the worst in respect of something that the child says, precipitated the child being subjected to the criminal justice system unnecessarily. That is poor parenting. A responsible parent would have contacted the other parent to indicate that a discussion was needed to work out what exactly had happened. That could not have happened having regard to the trust and level of communication between these parents. On the mother’s version, nothing had happened at the Easter weekend at G Town that caused her concern. As the father was not there, he simply interpreted what the child had said to him but in the worst possible way. That combined with the other evidence that I now have in relation to the things that he says to the child in private conversation, cause me concern about his parenting responsibility.

Communications leading up to the intervention order in 2013

At various times between 17 April 2013 and 7 May 2013, the following messages were received by the mother from the father all of which were about contact arrangements:
·You shut up lying trash;
·You are gutless;
·You will penalise me for it?
·Look at you go [Ms Edwards]. I could not have any less respect for you;
·Don’t you understand clause 5? Yet another contravention.
·You will pay my legal costs until it sinks in; and
·Include phone and charger nut job. Otherwise I’ll be there Friday night to pick it up.
Whilst all conversations in evidence are contextual, the evidence of the mother was selective. In cross-examination, the father seemed to be critical of the mother for having selected the text messages that she did in her affidavit. I suggested he call for the total bundle which the mother had and it was then a matter for him to decide whether the context was selective and not representative. Having had the text messages available to him, he took the matter no further. That became important because of his criticism of the mother yet he produced no evidence to justify such a conclusion.
In her evidence, under cross-examination by the man who said these unpleasant things, the wife appeared calm and responsive. When she was challenged about being able to work out arrangements successfully, the mother said that she could not communicate with him and I have to concede I am hardly surprised.
There were further messages which seemed to have stemmed from the “Mother’s Day incident” to which I shall refer in a moment but the reality is that it all led to an application by the mother for an intervention order.
The mother’s application for an intervention order was lodged at the Suburb I Magistrates’ Court on 17 May 2013. It would seem from the documents that the court determined it to be sufficiently serious to put the application immediately before a magistrate who made an interim order. What followed was a string of events which are all part of the litigious narrative.
A contested hearing took place on 24 October 2013. The order was made. The order itself shows that the father did not agree with the order.
A clear bone of contention on the part of the father was that the order was made without him having an opportunity to cross-examine the mother on the facts that gave rise to the order. The law in Victoria seems to be that if the respondent is without legal representation, cross-examination of the applicant cannot occur. The father made it very clear that he had not been given an opportunity to test the evidence but even so, the magistrate made the order.
The father then appealed against the order to the County Court of Victoria but abandoned that by notice on 1 April 2014. That is significant because rather than the appeal lapsing by lack of prosecution, the father actually abandoned it. In discussion during this hearing, I observed that he might have a basis to be critical of the law in Victoria about his inability to cross-examine the mother but he could not get away from the fact that the order was made and significantly, that he abandoned his appeal in respect of it. His only observation, was that in hindsight, he should not have done that.
Even without the opportunity to test the evidence, I can understand how the order would have been made. The sort of language that was used in the text messages to which I earlier referred, was denigratory and unpleasant. It was the mother’s evidence that this created an atmosphere of fear. It was not just a case of pejorative language being part of the usual method of communication. This was targeted and unpleasant and needed to be stopped.
Whilst the father was obviously aggrieved that he could not cross-examine the mother in the intervention order proceedings, that same material was placed before this Court. He did not deny that he used the language nor did he dispute the context. He had the opportunity to put the whole of the conversations that might have put a different slant on the selective evidence of the mother but he did not do so.
I am very conscious that the mother had not provided the detail as required by s 60CC(2)(k) but I am satisfied having regard to the way in which both parties presented their evidence as to what occurred, there was a sufficient and justifiable basis for the intervention order being made.

The Mother’s Day incident itself

Logically, previous orders had provided for the mother to have the child on Mother’s Day. On 7 May 2013, the father who was then interstate and travelling long distances for his time with the child, wrote that he wanted to swap Mother’s Day and for the mother to have the child on the Thursday which would otherwise have been his time. The mother replied that it did not suit her but she then increased the intensity by asking the father to change the 9.00am to 6.00pm ordered time to 11.00am to 8.00pm. Mathematically, the amount of time makes no difference but the father’s response was:
Who gives a shit what [European] scum wants?
The parties were unable to reach an agreement about the variation of the orders. On the Sunday, the mother sent the father a text message to inform him that she would be home 30 minutes late but all that did was create explosive text messages from the father.
Indicative of the nature of the volatility, the conversation that follows indicates the problem. This is not a case in which one might think that the mother was being manipulative and being cautious about what she said because it might turn up in evidence in a future proceeding and conversely, the father oblivious, to that concept. These parties have long been involved in litigation and I have no doubt understood exactly what evidence was about. I am satisfied the father cannot restrain himself despite both the injunctive orders of this Court and the State Court.
The mother sent a text message asking for the return of a hair tie and other items when the child was to be picked up. The father’s response was:
Piss off.
The mother then wrote that:
She (and the child) would be home at 6.30.
That is, she would be 30 minutes late.
It will be recalled from what I have earlier said that the mother had wanted to alter the time from 9.00am to 6.00pm by two hours and that had obviously not fallen into favour with the father. She too then had fallen back to the orders. Here she was notifying the father, presumably as a matter of courtesy, that she would be 30 minutes late in relation to the ordered time. His response was:
Bull shit. You’ll be home at 6.00pm.
But if you want a massive scene be late.
It is unnecessary for me to set out what happened thereafter other than the fact that having heard the evidence of the mother, I can imagine and I accept, she was in fear. It is hard to understand how the father could justify his actions but secondly, it is indicative of the true nature of the problem of communication. Communication is an art form and in a parenting case, for a child’s benefit, it is critical that parents can communicate not just about major long term issues but also about day to day activities. These parents cannot.
When one goes back to the words of the Senior Registrar to which I earlier referred and the nature of the orders that have been made since 2008, the only conclusion open is that nothing has changed. A critical question is the contribution of the mother to the dilemma. Unlike the Magistrates’ Court on the intervention order, in this Court, the father had every opportunity to cross-examine the mother and he did so in a logical, well-prepared, way. Having seen that cross-examination and the testing of the evidence (having first explained to him how effective cross-examination worked) I am satisfied that there is little if anything, that I can criticize the mother about in respect of the communication issue.
In final submission, the father observed that the evidence of the mother about his conduct was dated. He observed there had been no suggestion of impropriety on his part. The flaw in that submission lies in a number of things. First, there was an intervention order in place. Open hostility was prohibited. Secondly, the number of opportunities for the parties to be near one another was limited but when it did occur, it was unpleasant. Thirdly, there have been extant proceedings in this Court so one would expect caution in respect of what was written let alone said. Finally, there is the evidence of the surreptitiously obtained recordings of the conversations between father and daughter which are telling in this case and are shortly covered in these reasons.

The after school mobile telephone incident

In May 2013, the father gave the child a mobile telephone. At various times, the child attended after school care and took the mobile telephone with her. It seems that the after school care organisation had a policy for children not to have mobile telephones with them not because of concerns about communication but rather about the organization being responsible if the telephone was lost. This issue was brought to the attention of the mother by the supervisor and it seems the mobile telephone was taken from the child. This upset the father.
The focus of the father’s attention in cross-examination was on the fact that the mother had taken the action to preclude him communicating with the child. I reject that proposition. The father produced correspondence between he and the agency but that did not assist. He produced a letter written to the after school care purporting to confirm that the supervisor had received a verbal instruction from the mother not to allow the child to communicate with him. By her affidavit in reply the mother said she had not objected to the father speaking to the child and she knew that he regularly did. She then noted that the carers discouraged “regular calls” but did not mind “occasional calls” but they were to be to their landline. As I observed earlier, their concern of the supervisor was about the loss of property.
The father wanted the Court to accept that the mother had done this deliberately. I do not accept that. The impetus came from the after school care. The mother handled it appropriately. It was when the father contacted the supervisor, the phone arrangement was continued. This is another indication of lack of trust.

Welfare check

In March 2014, the mother went to a conference one evening leaving Mr E caring for the child. At about 8.30pm, police attended. They said they were there for a “welfare check”. No-one appears to have anticipated that check. There is a clear inference that it was about a statement made by the child in relation to potential sexual impropriety by Mr E but the absence of any indication to the mother that such a check was going to occur, indicates the depth to which the trust and communication between the parents had plunged. Leaving aside the question of the enormous waste of resources of the state police in circumstances where there was no suggestion of any application being brought by the father to exclude the mother from the child’s life on the basis of her capacity to care for her, nor any suggestion of the intervention by the Department of Health and Human Services in Victoria on a protection application, the father’s actions were irresponsible. I make that finding on the basis of the impact upon the child having to deal with police officers talking to her (at the age of ten) at night and with the absence of her mother. The impact can be seen in the evidence of Mr E below but a similar incident occurred (and the impact can be seen) when the mother had to take the child to the police station based on an allegation made by the father.
In case it is thought that it is entirely one-sided, the mother too had arranged for the police to do a “welfare check” when the child was in the care of her father. That was in October 2013. This was also the subject of cross-examination. The father challenged the mother as to why she had done it. She said that the child had missed her usual activity and a bag had not been delivered as it would normally have been. She had left messages for the father and he had not responded. She described herself as concerned for the child’s welfare.
The two “welfare check” incidents are different. In the latter, the mother had endeavoured to contact the father to see why there had been no response. The former is puzzling.

Lack of communication about medical issues

In her affidavit, the mother referred to an asthmatic- like condition that the child had had for a number of years. The father disputed that it was a persistent cough and simply said that when the child was sick, he took her to the local medical practitioner where she was treated and he followed the doctor’s medical advice. Be that as it may, the mother’s complaint was that in January 2014, the child had been prescribed a nasal spray and when she returned to the mother at the conclusion of a contact period, she forgot to bring it home. The child then called her father to ask for its return but he responded that he would not and that the mother should buy her a new one. Leaving aside the inconvenience and the cost, including the necessity to get another prescription, it was puzzling to understand what the dilemma was. This led to a bizarre incident in which the police contacted the mother to say that the father had told them that she was driving whilst very close to giving birth and that the child was being held in the car against her will. Because the mother was driving at the time, the telephone call came in on the speaker system and the child heard it all. The nasal spray was returned 20 days later.

The father applies for an intervention order

In February 2014, as a result of being told by the child something about the mother’s husband Mr E, the father applied for an intervention order on behalf of the child. It is unnecessary for me to set out the details because I shall deal with the real complaint which involved Mr E below. Significantly, in his evidence, the father said that his application came before the same magistrate who had granted the mother her intervention order. The clear inference in his evidence was that the magistrate thought it was absurd to be granting the father one when he had already granted the mother one. For the reasons that are later set out in this judgment, it is hard to understand what the foundation was for the father’s concern particularly as he told the court in evidence that there was no issue (or more importantly, no evidence) about Mr E in terms of impropriety. It was the fact that the application was issued and no doubt involved service by police and a further waste of court resources.

The mother takes the child to a counsellor

In his evidence, the father said that in March 2014, the mother organised for the child to see a counsellor without first discussing it with him and it was brought to his attention by the child. Having regard to the father’s complaint about the relationship between the child and the mother, this accusation was perplexing. What it did highlight however, was the state of the relationship between the mother and the father which I accept at that point, was so bad that the mother could not communicate effectively with the father. In the context of the chronology, it can be seen that there was no communication in the months previously about the medical issues, the nasal spray and the father’s application for an intervention order. It was hardly surprising that there was no cooperation.

The video incident

On 3 April 2014, the mother delivered the child to the father. By misfortune, the child had the mother’s mobile telephone in her bag. The mother said she did not telephone the father because of the inability to communicate and, in her words, the father was not responding anyway. She went to the police who told her that she should just go and ask for it. The difficulty was, there was an intervention order against the father albeit one that he significantly disputed.
The mother went to the father’s house in the presence of two men, one of whom is her husband and when she was challenged in cross-examination why the men were there, she said she had a 12 week old baby and the child needed a carer. As for the other male, she said she took a person because of the need for a witness. One might reject that in circumstances where parties have a respectful communication but here, I am satisfied that it was needed. What the mother then saw, was the father filming her.
The mother asked for her mobile telephone and the father filmed the whole incident. The father did not hand the telephone back to the mother. He is heard saying that he would return it at the conclusion of the child’s holiday period with him. He ultimately returned it some days later albeit that the delay may have been caused by the post.
When the hearing began, it was the father who vociferously wanted the video not only in evidence but played to the court. That was not opposed by counsel. A film recording of this nature can really only be for two purposes. One is to corroborate the facts of what occurred. The facts however must be relevant to the issue in determination. Whatever spin either party puts on the facts of this case, they are hardly controversial. The mother asked for her telephone and the father declined to immediately hand it to her. The second reason for the parties wanting the video examined by the court went to the issue of demeanour. A better description might be for the court to assess the volatility of the situation. Having seen it, I consider the father’s behaviour poor. I do not make the same criticism of the mother.
During the filming, the father appears to speak to police. He was clearly agitated and the police suggested he resolve the impasse by simply giving the mother the telephone. My impression is that he rejected that advice.
When the father was pressed as to why he had made such a significant issue out of it, he responded by saying that he did not want to set a “precedent” by which I understood him to mean that he did not want these sorts of trivial things occurring from time to time. There is no doubt that he was angry and one might wonder why he made such an issue of it. The answer to that lies in the fact that this was around the time of the intervention order proceedings and as he correctly observed, he was the one affected by the order and yet here was the “person protected” within the prohibited zone. There is little merit in that argument. His anger and dissatisfaction with the system arises from the fact that in the intervention order proceedings, he felt hardly done by. But it was also because of his intense dislike of the mother.
Most disconcertingly and which was not abundantly clear from the written evidence of the parties, the child was present. The father was heard effectively dismissing the child from the scene. It would have been hard for the child to have missed his anger and I have little doubt she heard most of what went on.
One might ask what the big deal was about a mobile telephone but, in this case, I can understand the dilemma. The mother’s evidence which I accept, was that it contained all of the communications with her lawyers along with personal information that she did not want the father to have. The father no doubt was angry but the whole situation could have been avoided by him simply giving her the telephone.
As I observed during the hearing, the Court’s focus is on the child. On that day, the father’s focus was on the mother and he exposed the child to the conflict.

Dr D

Dr D is a psychologist to whom the parties were referred before the proceedings began in 2014. An affidavit (to which his May 2014 report was attached) was filed when the proceedings began in July 2014. It purported to indicate that Dr D was a single expert witness. He was not.

The father relied on this report as evidence and the mother did not challenge it although it was made clear she did not agree with its content. Dr D ended his report with some recommendations which rely upon his opinions. Those opinions were that this was a family with chronic hostilities. I agree with Dr D but I find the hostility emanates from the father.
Dr D then said that “cross-allegations” could not be “untangled” by him. Those seem to be:
(a)From the father’s perspective, he tried to communicate about important issues but was met with negativity;
(b)That the mother was hitting the child regularly;
(c)That in respect of the Mother’s Day incident, the father was agitated, had reacted poorly but the mother “pushes” his “buttons”;
(d)From the mother’s perspective, the issue was alienation of the child by the father; and
(e)The father’s care of the child was generally lacking or amounted to a misunderstanding of her parenting.
Dr D referred to the parties’ written documents which he said “May require findings of fact by the court”. Those same allegations (more or less) had formed the foundation of the evidence that the parties relied upon in these proceedings. I have accepted the mother’s version of most of the facts that were the allegations. Thus, the chronic hostility could not be a foundation for criticism of the mother. What is concerning however is the allegation referred to in (d) above. I accept the father did seriously undermine the child’s relationship with the mother. The evidence of that is the taped telephone conversations mentioned in a moment.
Dr D went on to say that the problems of the parties’ positions were “compounded” by the “allegations” made by the child against the mother’s husband Mr E. This was referred to as the “shower incident”. Details were contained in the father’s affidavit. He said the child told him that Mr E made her feel uncomfortable and he gave one instance where she said that Mr E walked into a bathroom whilst she was in the shower. By her affidavit in reply, the mother denied the incident. The evidence of Mr E referred to two incidents concerning the child and the bathroom and in respect of both, he denied any impropriety.
The father required Mr E for cross-examination. He specifically asked him whether he had been charged by police over an unregistered car incident and Mr E agreed. That allegation was in the same paragraph as that made by the father about the statement by the child about the bathroom. The father did not challenge Mr E’s version nor suggest to him that he had done anything wrong. Further, he did not suggest to the mother that she had acted carelessly with the child’s safety. He did not suggest to the mother that the child’s version had foundation. I have concluded that there was not only no substance to the father’s statements (indeed, he has accepted Mr E’s evidence) but also that he does not support the assertion of the child. That being the case, the “compounded” position described by Dr D must be seen to have been irrelevant.
As Dr D said, he could not untangle these allegations. On the balance of probabilities, I have; I do not accept there was any concern about Mr E.
With those allegations set aside, Dr D then dealt with what he described as the synthesising of his conclusions. These can be summarised by saying that both parents presented as frustrated and angry about the inability to resolve longstanding difficulty. I have not found the mother angry but she was justifiably frustrated.
Dr D then concluded that the mother described the child in complex and detailed terms. I do not know what he meant but in any event, I prefer the more recent evidence of the family consultant on that subject.
In the final stages of cross-examination of the mother, I asked her questions directed to the level of the maturity of the child. She responded that whilst there was recent evidence of development into adolescence, the child was still a child. She described the child’s affection and at the same time, was able to point to the occasions when the child used adult terms to criticise her such as that, as a mother, she was not “supportive” of the child. These were the same sorts of observations made by Dr D.
Dr D was critical of the mother’s incapacity for “self-examination” in relation to “her own conduct” with the child. I can only determine the facts with which I am presented. Nothing I heard, save one incident that occurred at the family consultant interview, caused me to think or find that the mother was anything other than getting on with her role as a parent. The mother acknowledged regular arguments but they were not to such a degree as to indicate a poor relationship between mother and daughter. The mother’s evidence of things that the child did with the family would indicate a close relationship.
What Dr D did not know was the efforts to which the father had gone to talk to the child in such a way as to cause the destabilisation of the mother and daughter relationship. This can be seen in, first of all, the conversations that were taped but secondly, in the family consultant’s observation that:
[The father] appears to place minimal demands on [the child] and treats her as a pseudo-adult in his interactions with her. [The child], as she is reaching adolescence, responds positively to these interactions and in her father’s company presents as much more mature than observed in other settings and it would appear that [the child] has learned that this behaviour gains her father’s approval.
I conclude that the father has been manipulating the child by the very treatment of her as an adolescent.
What the family consultant initially observed vis a vis the mother and the child was:
[54] an anxious child clinging to her mother’s side.
What better example of that childishness than in the mother’s evidence about what happened at the police station. The child was required to attend the police as I have earlier observed over the Easter assault.
Returning then to Dr D’s conclusions, he said the mother’s parenting skills were not sophisticated or responsive to the child’s development towards adolescence. Combined with the father’s approach to dealing with the child and my acceptance that B is still a child, I found the observation of Dr D perplexing and not supported by the evidence I heard.
Dr D then said that the child was unusually mature. Based on the evidence that I heard (the police station incident, the Family Court attendance and the mother’s description) I do not accept the child is unusually mature at all.
Dr D then concluded that the child’s views presented as her own and “not as unduly influence by either parent”. He went on to say that the child’s views “appeared informed and maturely asserted” and he accordingly gave the child’s views, weight. Having seen the evidence of the telephone recordings and made the findings about the father’s behaviour some of which has been witnessed by the child, I have no hesitation in rejecting these conclusions.
Thus, notwithstanding the evidence of Dr D was not challenged, it was prepared for a discrete purpose. It is now out of date in respect of the child being two years older and most importantly, it was based on flawed information. I do not accept that it has any weight in this determination.

Department of Health and Human Services

Without apparent warning, in late May or early June 2014, the Department of Human Services advised the mother that a report had been made to child protection on 28 May 2014. Naturally, the source of the complaint to the Department remained anonymous but some two weeks later, the Department advised that the file was closed by a letter that read:
If you continue to have concerns for your daughter’s emotional well-being due to the current heightened acrimony between you and her father, I would recommend that you consider accessing a counsellor for her.
The theme of acrimony between the mother and the father was not only consistent but must have been having an impact on the relationship between the mother and the child. The complaint to the Department and their apparent investigation was contemporaneous with the timing of the interviews with Dr D.

December 2014 – the child injured in bath

On 16 December 2016, the child slipped and hit her head in a bath at the father’s home. The following morning, the father went to work. the child called her father to say that she was not well enough to go to school and he told her to go around to the mother’s home. the child complained of a headache and nausea.
Accidents happen. If indeed the facts as just outlined are correct, the advice to the child by the father was sensible. It was not sensible however, not to communicate with the mother. One of the contentious issues between the parties is that the mother disputes that the child is able to travel the streets unaccompanied and that is what happened that morning. The father was not in the house but obviously, the child had sufficient common sense to contact him.
This incident is also indicative of the fact that the child ultimately sought solace from her mother who described the child arriving unannounced on the front doorstep in tears complaining of a headache and nausea. This is a clear indication of the incapacity of the parties and more particularly, the father, to speak to the mother.

The dog bite

In March 2015, the child was walking by herself but otherwise in the care of the father and was attacked and bitten by a dog. Sensibly, when the child arrived home at the house of her father in tears, he took her for a medical examination where she was given a tetanus injection and prescribed antibiotics. The father did not let the mother know. That was particularly important because the mother was unaware of the antibiotics.

Privacy

An incident about which the father complained occurred in July 2015. The father said that the child complained to him about the lack of privacy received from her mother. The father attached to his affidavit a copy of an email that he sent to the mother’s solicitors and the Independent Children’s Lawyer in November 2014 along the same lines all of which, if true, could only have come from the discussion between the father and the child. This was in the same period of time that the child began seeing Ms J. I refer to the views of Ms J later in these reasons. If the father raised the matter with Ms J or indeed had the child, it was not of sufficient importance for Ms J to raise it as an issue in her report. In her affidavit in reply, the mother denied the allegation of the father. Attendance upon Ms J would have been a perfect opportunity for the father to canvass, and have discussed, those issues. If he did, nothing happened about them.
The father’s complaint can be readily seen in his email to the Independent Children’s Lawyer in November and the solicitors for the mother responded indicating that the child had entered the bathroom to use the toilet whilst the mother was in the shower but that had never been raised as an issue between the child and the mother. Although the November email of the father did not indicate the time frame within which the complaint was covered, the child and both parents were seeing Dr D some six months before. The child raised with Dr D bathroom issues in relation to the mother’s husband Mr E and in a discussion with Dr D which included mother and daughter, it did not seem to rate a mention.
I find in the circumstances that the mother’s version is more probable having regard to the fact that the father was entirely reliant upon what the child was said to have told him. In a moment, I shall refer to the audio conversations of the father and the child and in the context of those, any conversations between the father and the child, which are effectively complaints about the mother, have to be taken very cautiously.
Accordingly, I am satisfied that the mother does respect the child’s privacy.

Passport

In July 2015, correspondence occurred because the mother wanted to take the child on a holiday overseas in January 2016 and required a passport. Sensible conversation began the father’s response and the mother was equally responsive to that. A subsequent communication on 28 July 2015 changed all of that. The father said that he felt he had no guarantee that he would get the passport if he wanted to go overseas. That issue could easily have been dealt with by a court in circumstances where trust was lacking but the importance of the evidence lies in what was said by the father because it is consistent with his denigration of the mother. He said:
Unfortunately you’re unpredictable and change your mind on a whim. You would find a reason to hold on to it and ruin my plans…I gave you a house with $120K equity – which has set you up…and you’ve just made life as difficult for me as possible. Then this trumped FVIO (presumably intervention order) and now these ongoing court proceedings with your slimy lawyer and insolent barrister.
The video of you, [Mr E] and that other moron coming to my place will be shown at court. You and [Mr E] have admitted to everything else in your affidavits.
The tone of the conversation is what is important. It is unpleasant. Watching the mother in the witness box, there is an air of resignation about how she deals with the father. Questions were asked about mediation and she responded by saying that they had tried it three times. How mediation in a case like this could be productive, escapes me. The mother was unable to see how the situation would improve. She suggested that the father would have to respect her and stop doing what he was doing. Having watched the father in the witness box and his cross-examination, all of which was calm and respectful, I still find that there is little prospect of change. In respect of decision-making, any attempts to resolve any decisions will descend into the sort of mire just mentioned.

The ski trip fall

In August 2015, the father took the child skiing and the child fell and was hurt. The mother at that time was overseas and not told of the fall. The father ultimately sent a text message setting out that the child had five stitches in her bottom lip and her front tooth was “reinserted” and there were three stitches in her knee.
When this subject was raised in cross-examination, the father’s position was that as the mother was overseas, he did not want to incur the telephone costs of the child speaking to her mother and in any event, with the condition of her mouth, she would not have been able to talk. There was a clear inference in the father’s evidence that he did not have any intention of notifying the mother of what the problem really was and that providing information was inappropriate in those circumstances. It is indicative of the state to which the relationship has plummeted.

Mr E

Mr E is the mother’s husband. His evidence was predominantly supportive of the mother. He gave descriptions of the mother’s household and, as I have already observed, his interaction with the child. Despite what the father said, Mr E’s interaction appeared positive and the child likes him.
The father required Mr E for cross-examination. He asked questions that simply reinforced the answers that Mr E had given in his affidavit. Mr E did not depart from his evidence. Curiously, the father asked Mr E whether his relationship with him was good. The inevitable answer was that it was not.
Counsel for the Independent Children’s Lawyer probed Mr E about the police “welfare check” to which I have already referred and which was orchestrated by the father. I accept there was no basis for that check and certainly the police were not concerned to remove the child from the care of Mr E that night.

Much has been focussed in these reasons to date about the parents and their lack of trust and poor relationship. This hearing and the specific inquiry is about the best interests of the child. My focus then turns to her.
B is currently in Year 7 which is the first year of high school. She was described as healthy but otherwise having a persistent cough. I know little more about her than what the parties have described. She is currently involved in a dancing group. She had done karate classes. The mother had some concerns about the child’s behaviour in the latter part of her primary school years and obtained a referral to a psychologist who thought the child was exhibiting Autism Spectrum Disorder symptoms. The father read that psychologist’s report and oddly, asserted it had been “influenced” by the mother. Such was the level of mistrust that the parties agreed, at a 2015 court hearing, that the same psychologist (Ms K) undertake another assessment. Even then, the process was problematic. The father made allegations to the psychologist about the mother. Ultimately whether that influenced the psychologist or not, the Independent Children’s Lawyer intervened. Whilst the subject of various attendances and reports on Ms K appears in court orders, her report was not written.

Ms J

After a comment in July 2014, during a Senior Registrar hearing about the need for therapy, the parties (under the guidance of the Independent Children’s Lawyer) agreed on a psychologist Ms J to assist them. The Court’s order was that the parties both attend and participate. The father initially decided not to participate but six months later, after various interviews between Ms J, the mother and the child had taken place, he agreed.
As Ms J put it, the focus was on the mother’s relationship with the child. Ms J had access to the report of Dr D.
In the early meetings where the father had refused to participate, the child expressed unhappiness at the level of arguments with her mother.
Ms J ultimately concluded by July 2015 that things had improved. She so concluded on the basis of “all accounts”. Thus, it was not so much her observation that gave rise to that conclusion as what the mother and the child were telling her. There was improvement but the matter had not gone away.
Ms J noted the child “pined” for more time with the father including a preference to live with him. the child perceived her relationship with the father as “less problematic”. The father focussed on this because, in his affidavit, he referred to what Ms J wrote. His narrative in the affidavit said that the child stated she wanted to live with him. He added:
[B] has told me she has stated her wish to live with me to the mother on numerous occasions.
In her evidence and this was not tested in any way by the father in cross-examination, the mother said that where the child lived was not a subject that she had discussed with her daughter. She said she felt it inappropriate that the child had to choose. Despite the mother not broaching the subject, there can be no doubt that the child had been articulating her wishes, including to Ms J.
As I have indicated, the father had attached all of these psychologists’ reports to his trial affidavit but his motivation was simply to highlight the fact that there were problems in the mother and daughter relationship and that the child was expressing the wish to live with him. Unfortunately, he made no reference to the rest of what Ms J said. The psychologist, who was not on affidavit and not called as a witness but whose report was admitted by agreement, said:
[B’s] experiences and relationship with her parents in light of their separation and conflict was addressed with her. She expressed unhappiness and distress about her parents’ ongoing conflict, how it impacts on her ability to have a relationship with them and her wish that “they would get along”. She carries some responsibility for her father’s emotional welfare worrying that “he is alone for so long” and that “it makes me happy” when she is spending time with him. She is aware of her parents’ acrimony and has little trust that “they would change” for her.

The family consultant’s conclusion

The family consultant thought that the Court had to decide the matter on the basis of which of the two “houses” would better promote the development of the child. Development means more than just promoting education. It includes involving the child in the meaningful relationship of the other parent, of peers and of siblings. It includes challenging the child appropriately to learn about others and responsibilities. I agree with the family consultant that the mother has shown herself open to guidance. That has occurred recently and the mother has indicated a willingness to continue to attend upon Ms C. I am not entirely sure what the father’s position is in relation to Ms C but to the extent that he can contribute, he should.
The family consultant thought that the best household for the child would be one where the mindset is open. She thought that that could be seen in the mother’s household because the mother still wants the father involved notwithstanding he has been a significant frustrating person in her life. She described the mother’s presentation as weary. I have already described it as a sense of resignation. There is little doubt that the family consultant was of the view that if the child went to live with her father, she would put her own needs to one side to prioritise keeping her father happy. At her age, that is not appropriate.
How does all of this factor into the question of time? It is a matter of balance and an assessment of risk. All of the observations of the family consultant were that the conflict between mother and daughter were age appropriate even if they were happening regularly. It is unknown as to whether or not that behaviour is impacted by the behaviour of the father but I suspect that it is. The child is manipulated to say and do things and wants to please her father. According to the family consultant, the child is able to express her age appropriate views to the mother but she should not be giving in to her father’s wishes.
The reduction of time therefore can reduce the potential for conflict but also make abundantly clear to both the child and her father that the Court has decided. It is interesting to note that the mother’s counsel submitted that his client would consider more time if the relationship improved. Whilst the father might be cynical about that, everything in the mother’s presentation and her evidence, indicated she would do so.
I therefore accept the evidence of the family consultant.

Consideration of the legal issues

Part VII of the Act dictates out how a parenting dispute should be determined with its emphasis on “best interests” principles.
The provision sets out what is intended as a guide by reference to objects and principles. These are set out in s 60B.
Parliament said that its legislative objects were to ensure that the best interests of children were 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;
b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(emphasis added)
As indicated by the emphasis, the best interests’ principle permeates those objects. The principles set out in the same section contain the same philosophical message.
Section 61DA requires the court to apply a presumption of equal shared parental responsibility when making a parenting order. That presumption, consistent with the Parliament’s view that parents should share the decision-making responsibility, is that it is in the best interests of a child for the parents to have equal shared parental responsibility. However, relevantly here, the presumption does not apply in two situations. First, it does not apply if the Court has reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.
Whether that applies requires consideration of the definition of family violence set out in s 4AB. It provides:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
The section provides a long list of non-exhaustive examples reference to which is only necessary if a court considers the facts of the case do not fit clearly into the definition above. Although the father may not concede his conduct was within the definition, I find it was. One of the examples given in the section is repeated derogatory taunts. There is a litany of derogatory comments here which could only be described as taunts. They were insulting and unnecessary in the context of the communications that were going on at the time. When questioned about them, the father could not put forward any plausible explanation for them. I have dealt with his complaint in the evidence that the mother was not putting his statements in context. He failed to show how she could be criticised. What puts his statements into the taunting category is his reference to his position always being right, to his enforcement of those rights if she did not comply and his reference to her cultural background. Nothing he said justified them.
Section 4AB refers to behaviour that coerces or controls the other parent. Here, the only finding open to the Court is that the father was demanding rather than negotiating or communicating. The mother had become resigned to that sort of confrontation.
The objection of the father to the imposition of the intervention order by the State Magistrate was based upon his view of the evidence of the mother which the law refused to allow him to test. Even had he been permitted that opportunity, the words he used to the mother could only be described as denigratory and taunting. It is difficult to see how the order would not have been made.
Underlying all of that is the requirement on the mother to show that she was coerced or controlled. I am satisfied the standard required has been met.
Section 4AB also makes alternative reference to behaviour that makes the family member fearful. The confrontation captured in the video film has to be seen in the surrounding circumstances. The mother’s unchallenged evidence is that she was worried about the privacy of her text messages and emails and that gave rise to her desire for the return of the mobile telephone. Rather than just confront the father, she contacted police first to seek assistance. She convincingly told how simply telephoning the father would not have solved the problem. She had little choice and, as the circumstances showed, had she taken any other course, the father’s position seemed to be that, even if he did not mean it, the mobile would not have been returned for some time when the contact period ended. His recorded conversation with the police officer did him little credit.
To the extent that the father’s cross-examination of the mother was to show that this confrontation was all of the mother’s fault and was unnecessary, I reject that because his ultimate explanation was that he did not want to create a precedent over the return of small items of property. He was not frightened even if he was affronted. His real intention was to bully the mother into doing what he wanted. It is unsurprising therefore that I find the mother’s general view of the father is one of fear.
Another related aspect of family violence which is relevant here is found in s 4AB(3). It provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Exposure to family violence does not appear to remove the presumption by itself but there are two reasons why exposure of a child to family violence is relevant.
First, s 60CC(2)(i) requires the court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents. the child has been exposed to family violence in the form of the taunts to which I have referred. Her statements to the various professionals (Ms J, Dr D, Ms C) all indicate she is in the middle of the parental conflict. The father seemed unconcerned about that focusing more on the conflict between mother and daughter.
A second concern about family violence lies in s 60CG of the Act. There, when contemplating what parenting order to make, the Court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence. That is a real dilemma here where the father has no insight into his exposure of the child to family violence. His derogatory taunts of the mother are not just matters that the Court can shrug its shoulders about and say that there is nothing that can be done. The Act (s 60CG) requires the Court to tailor orders that do not expose the child to an unacceptable risk of family violence. I find here that the position adopted by the father exposes the child to an unacceptable risk. His propensity to manipulate the child and his explanation of his language as just humour, all indicate he has no insight into the damage he is causing to the mother and daughter relationship but more importantly, the long term welfare of the child as indicated by the family consultant.
Whilst s 60CG(2) provides for the Court to put in place “safeguards”, there is a clash here between what the child needs in her relationship with her father and the prevention of what the father has been exposing the child to (let alone the mother) certainly since at least 2013.
Section 61DA (4) provides that the Court may rebut the presumption if the court is satisfied that it would not be in the best interests of the child for her parents to have equal shared parental responsibility.
The parties have had that responsibility since the final orders were last made. The father’s position in final address was that the mother would abuse the privilege if he was excluded. His position was that the child would suffer because the mother could effectively ignore him. The evidence does not support such a conclusion. All of the evidence shows that in respect of education, the mother has been inclusive of the father even if it was difficult to come to a conclusion. The father’s criticisms of the mother’s slowness at coming to a joint decision with him about schooling was explained by the mother about zoning problems as well as the father’s conduct towards her. Whilst past decisions have been made, they have not been easy. Communication has been understandably poor.
The best indicator of whether the parents can be effective parents in respect of major long-term decisions lies in s 65DAC. It provides that if an equal shared parental responsibility order is made, it is taken to require the decision to be made jointly by those persons.
The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Having regard to the findings made above, the approach taken by the father and the difficulties experienced by the mother, I find that such an order would clash with the philosophy of s 60CG. Even so, it is hard to see how any consultation could be undertaken where the father treats the mother with such disdain overtly and then covertly denigrates her to the child. There is no prospect of any genuine effort to come to a joint decision in circumstances where the father acts as a bully.
The s 61DA presumption therefore does not apply and s 65DAA (the consideration of time) is not applicable.
Although the presumption does not apply, the Court still has the power to consider such an order in s 64B(2)(c). Indeed, regardless of the presumption, it is important to recognise that s 61C provides that each parent has parental responsibility for the child until she reaches 18. Parental responsibility is defined by s 61B to mean all the duties powers, responsibilities and authority which, by law, parents have in relation to their children. That power, responsibility and authority remains with the parents unless and until it is removed by a court. For a parenting order to take away or diminish that, the order has to expressly so provide. That is what the mother seeks and the father opposes here.
In Runcorn & Raine (unreported [2008] FamCA 837) Murphy J said this:
The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
His Honour went on to observe that the exercise of discretion (to which I turn in a moment) ought be resolved in favour of an outcome which is seen to be in the best interests of the child. This clash between what is best for a child and the rights of adults to fulfil what is a recognised right or responsibility, needs careful consideration (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238). Murphy J described it as:
the balancing of the (s 60CC considerations), always bearing in mind that these particular children’s best interests, given their particular circumstances, is the ultimate criterion.
With that in mind, and for the same reasons upon which the presumption has been removed, I find there is ample evidence here to justify an order removing the father’s power, responsibility and authority. To do otherwise would leave the child subject to the whims of argument about health and education decisions and expose the mother to the family violence which I consider is the core of the problem in this relationship.
As is evident from the father’s case, he sees the core of the problem as the relationship of mother and daughter. His focus was on the constant arguments between them. There is little dispute about the fact that arguments occur, even on alternate days but I have the evidence of the family consultant that they were not destructive or improper arguments. The Court can only judge whether these arguments fall within the category of family violence by reference to the definition in the Act. The rejection of the father’s application for an intervention order in favour of the child against the mother does little to assist him. I have the father’s evidence as to why the Magistrate refused his application but I do not have the findings of that court or its formal reasons. The mother provided (annexure LE 6) a copy of the interim order (but not the application or evidence upon which it was based) and the father responded by giving an explanation as to what the Magistrate did. I could not make any findings of the nature described in s 60CC(3)(k) about that application. The evidence of Dr D and the father about mother and daughter arguments did little to assist.
On returning to the definition of family violence in s 4AB(1), none of the evidence supports a finding that the mother has been violent, threatening or acted in a way to coerce or control the child. The evidence supports the opinion of the family consultant that there may have been some inappropriate parenting discussions such as at the post interview observation but nothing I find in the evidence supports the conclusion that the mother acted other than as a parent would have, in the circumstances.
I do not find that the evidence supports the conclusion that the mother’s parenting is such that the child’s future development is at risk.
Having dealt with s 61DA and s 65DAA, I turn to s 65D which provides that the Court may make such parenting order as it thinks proper. That means that that the order is discretionary but, like all judicial discretion, is not untrammelled. The decision must be guided by the parameters of the other provisions of Part VII of the Act and in particular, s 60B, s 60CA and s 60CC.
Section 60CA provides that in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration. It will be evident that the child’s interests are not the only consideration and I return to that issue below. Before doing so, s 60CC mandates the court to determine the best interests of the child by reference to s 60CC.
Section 60CC requires of the Court that it “consider” each of the relevant provisions. In Goode & Goode (2006) FLC 93-286, the Full Court considered the meaning of “consider” and said that it suggested a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in the various relevant sections in the Act were met. That is the approach I take here.
Parliament distinguished between primary and additional considerations and each of the two factors largely repeats the objectives set out earlier in the Act. Those are:
o(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
o(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The amendment to the Act made the protection of the child a higher priority by giving that more weight than the need for the child to benefit from a meaningful relationship. It might well be said that a child cannot have a meaningful relationship and benefit from it if exposed to family violence. The unusual feature of this case is that the child expresses to experts a helplessness about the parental conflict and a desire for it to end. Yet, the child has a close and loving relationship with her father acknowledged by the mother. The concern expressed by the family consultant about that relationship lies in the fact that the child is endeavouring to please her father and at times, makes attempts to steer him away from the very conflict that he seems destined to perpetuate. No similar concern is expressed about the mother. The arguments between mother and daughter seem mostly, but not entirely, to be about normal growing up boundaries.
The real concern about s 60CC(2)(a) lies in the destructive manipulation of the child by the father. I am satisfied that unless that is curtailed, the chances of the child having the benefit of a meaningful relationship with her mother are lessened. The father seemed to dismiss this issue by saying that there was a meaningful relationship and he was prepared to countenance either a shared parenting arrangement or one with the mother having restricted time. Either of those situations must mean that he had confidence that the child would benefit from time with the mother.
There is a need to protect the child from the exposure to family violence. I have dealt with that earlier. The difficult question is how to craft an order which meets that requirement whilst remaining proper as defined by s 65D. I return to that in a moment.
Additional considerations lie in s 60CC(3). I propose to deal with those sequentially as follows.
The Court is to consider the views (not the wishes) of the child. That can be done in a variety of ways but particular reference is made to it being through the family consultant (s 62G(2)) and an independent children’s lawyer (s 68L). In this case, I had the benefit of both. It is obvious with the child’s age that her views should carry weight but they are not decisive of the issue. The perplexing question was that raised by the family consultant. She viewed the child as not mature enough to be making the decisions she was, under the encouragement of her father. What was not said was the child’s views about her mother. The Ms J evidence shows that the child wants a good relationship with her mother. Whilst the child expressed to a variety of people her desire to live with the father, it is not clear whether that was genuinely held (in the sense that a child can hold such views) even if it was strongly expressed. I conclude that the father did urge the child to tell the family consultant her wishes in the same way as she had done to Dr D. The concerning aspect of that is that it is open to conclude that he did the same with the child before she went to Dr D. the child’s views and the evidence of each of Ms J, Ms C and the family consultant, do not assist the father’s assertion that the child is mature enough to have her views carry the overriding consideration.

In respect of the the child’s relationships with her parents and others, a number of observations have already been made. There is closeness to all participants including the mother’s husband and the child’s siblings.
In considering the involvement of both parents and their desires to involve the other and be involved in the child’s life, my views are set out above. There is no doubt that the father has been dedicated to his cause as a parent. He has not missed any opportunities to take care of the child. His telephone calls have been consistent. The difficulty is whether all of that has been good for the child and what should be done for the immediate future.
There is no suggestion of lack of financial commitment here by either parent even if there has been arguments about the appropriate level of child support. The father would have it that the mother lied to the Child Support review agent yet the evidence supports the conclusion that the mother was deemed to have an income other than as her taxation return declared because of her business project. There is nothing I found that was sinister in respect of that. I am satisfied that the mother did not lie to the agency.
The impact on the child of a change in the existing arrangements is the most perplexing issue here. The father’s statements that the child would not be happy with less time depend upon whether the reduction is explained to her in age-appropriate terms. I intend that the Independent Children’s Lawyer explain these orders to the child before either parent has an opportunity to express their views. Obviously, the success of any reduced time also depends upon how the parents adjust to it and deal with it to the child.
There is no geographical problem with the time the father will spend with the child.
Parental capacity to provide for the child is not a problem in respect of physical needs but it certainly is in respect of her emotional needs. All of the experts pointed to the concern about the toxic relationship of the parents. The father has not been able to convince the Court that he can move above that conflict for the sake of the child. His jibes at the mother quietly to the child on the telephone enable me to infer that it is probably happening at times when he has the care of the child. the child has the opportunity for respite from that by ending the telephone calls or steering the father away from the subjects but she cannot do that during the longer periods when she is in his care. No similar concerns arise with the mother. She has demonstrated a capacity to care for the child and has adopted recommendations of experts to have counselling with the child and recent comments by the child seem to indicate that it has been successful.
I am satisfied that the father’s capacity as a parent to care for the emotional needs of the child is lacking.
I have already mentioned parental responsibility and family violence along with family violence orders and I shall not repeat them.
This is a case where the Court should make final orders. There are very few years ahead of the child before she embarks on adulthood. She has just entered secondary school. She is beginning to mature. She needs the opportunity to focus on not just education but also being a teenager. I think there is a much better chance of that happening if she is in her mother’s care where the focus is on her general well-being rather than the obsessive conduct of the father which leads to the child having to meet his needs.
It is also important for the child that there is an end to years of litigation.
On the basis of the s 60CC factors, there is a need for an order that the child have time with the father but the balancing of all of those factors simply points to the fact that the child living with the father permanently or even an equal time sharing arrangement is not in her best interests. The difficult is in determining how to structure any time here.

How to balance parental rights and best interests; What is a proper order?

Having made very strong findings against the father, the question arises as to what is in the child’s best interests particularly when he has a propensity to manipulate her and continue the conflict that so desperately needs to end. Time to some degree becomes irrelevant because, on the basis of those findings, the father can manipulate the child in any contact time.
There may be two views about the very concept of best interests. Murphy J raised the issue in Runcorn & Raine (supra) and it was an issue in AIF v AMS (supra). The narrow view is that the court should focus on the child’s well-being. A perhaps wider view is that the parental involvement, cooperativeness and well-being has an impact on what is best for a child and therefore should be taken into account. In respect of the former, in U v U (supra) the majority in the High Court of Australia said that whatever weight should be accorded a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration which was the welfare of the child.
In MW v Director-General, Department of Community Services [2008] HCA 12, the plurality (Gummow, Heydon and Crennan JJ) in respect of a Hague Convention case observed:
[54]Orders made under Pt VII of the Act are not formulated in terms of the grant to a person of custody of, or access to, a child. Nevertheless, the animating principle of the best interests of the child remains in Pt VII. Section 60CA states:
"In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
The better view I think, is the narrow one which focuses on the well-being of the child even if it means that the parent is unhappy about restrictions on his rights, duties and desires. That arises because parents have an overriding duty to their children to secure their welfare even ahead of their own.
As the High Court also asked in Minister for Immigration and Ethnic Affairs v Teoh 91995) 183 CLR 273 at 292, is there any other consideration outweighing the best interests of the child as the paramount consideration? It is hard to see any such consideration here.
The question here then can be asked about whether the father can meet certain criteria and if not, then his time should be limited to the child so that she gain a benefit from enjoying some time knowing that it is limited. A statement which I think provides some assistance can be seen in the decision of the Supreme Court of the United Kingdom in E (Children) (FC) [2011] UKSC 27 where the following (albeit in relation to a Hague Convention matter) was said:
We start from the proposition that all parents love their children and want what is best for them. Even if the parents fall out with one another, they should be able to work out what will be best for the children. They, and not the courts, are the experts in their own children. They should be able to see their children's interests separately from their own. They should be able to negotiate the "least detrimental" solution for them, with the help of a skilled mediator if they need it. But they will only be able to do this if they are prepared to accord one another equal respect. Mediation will not work if one party is allowed to dominate or bully the other. That is why it is usually thought unsuitable in cases of alleged domestic violence or abuse. Whatever the rights and wrongs between these parents, this is a mother who will need a great deal of understanding and support. But we continue to hope that, once the trauma of these proceedings is behind them, these parents can be helped – whether through the good offices of our colleagues in the family justice system in Norway or in some other way - to reach a sensible and practical solution for the good of the whole family.
That statement came from the highest court in the United Kingdom but it does set out a series of ideals consistent with s 60B of the Australian legislation. If the statement was framed as a series of questions, I would find in respect of these parties the following:
·    both parents love the child and want what is best for her;
·    the parents fell out with one another a long time ago and have proven by dint of time that they cannot end the conflictual nature of their relationship to such an extent that the child is now very much aware of and affected by it;
·    they cannot work out what will be best for the child because the father demeans the role of the mother and sees, wrongly, that he alone has the answers to what is best for the child;
·    Whilst as parents, they should be the experts in relation to the guiding hand for the child’s future, discussions about common purpose even down to extra-curricular activities such as karate, are problematic and using that as an example, the father sees the worst in the mother accusing her of stopping karate when the mother’s more probable view is that the child declined to be involved;
·    They should be able to see their children's interests separately from their own but the father does not, to the point that the child gives in to his needs because it is easier for her than challenging him;
·    They should be able to negotiate the "least detrimental" solution let alone the best one for the child but they cannot. Negotiations have failed and the child has been taken from expert to expert. The father will insist that Dr D was right but the advice there was flawed; he will not accept any other views;
·    There is little prospect of a skilled mediator helping them for the very reason suggested by the Supreme Court; they will only be able to do this if they are prepared to accord one another equal respect. The father has no respect for the mother and the mother backs away from discussion;
·    Whatever the rights and wrongs between these parents, for the child’s future development and settlement into adolescence, the mother needs an opportunity to care for the child without the ever present acrimony.
In her final submission, counsel for the Independent Children’s Lawyer described the father’s role as subversive because he made no secret of involving the child in the proceedings and shared adult issues with her. One such example was that the child was aware that the father was seeking a companion using an internet dating site. The fact that the child was involved in those discussions is concerning; it supports the opinion of the family consultant that the father treats the child as a “pseudo adult” in circumstances where the unchallenged view of that expert is that the child is still a child. That sort of view or concept, submitted the Independent Children’s Lawyer, warranted parenting orders to limit the child’s exposure. Limiting the father’s time can do no more than restrict his time and will not prevent him from continuing the role that has been so criticised but at least the child will know that for the bulk of the time she devotes to her education and extra-curricular activities, she is to be in the care of the mother. That should enable counselling with the mother to be undertaken and for the child to settle into school life without disruption.
No party suggested that school holidays should be restricted and I shall make orders which hopefully have the same effect as I just mentioned. The summer holidays have been tried at three weeks with the father and the expert’s view was that two weeks was sufficient. I agree.
Finally, in respect of telephone issues, I again say that once a week and only by telephone should suffice.

I certify that the preceding Two Hundred and Fifty Four (254) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered 15 April 2016.

Associate:

Date: 15 April 2016