ELLERSHAW & SURVANT

[2013] FamCA 510

FAMILY COURT OF AUSTRALIA

ELLERSHAW & SURVANT [2013] FamCA 510

FAMILY LAW – CHILDREN – With whom a child spends time – Where the Mother chose not to participate in the final trial of the parenting proceedings – Where the Mother had instituted the current proceedings but had filed a Notice of Discontinuance of her application – Where the child has lived with the Father since consent orders were made in October 2009 – Where the parents’ animosity and conflict is such that it is in the best interests of the child to live with one parent and spend no or limited time with the other parent –  Where the child has been at the centre of the parents’ dispute since she was three years old – Where the Mother retained the child after the June/July 2012 school holidays – Where the Mother has persisted in attempting to manipulate and influence the child and undermine the Father – Where there is a need to protect the child from the risk of psychological harm – Where any benefits of the child having a meaningful relationship with the Mother would come at the cost of the child being subjected to the Mother’s attitude and views of the Father – Where the child has expressed clear views of wanting to live with the Father and not spend time with or communicate with the Mother – Where it is clear that the Mother is unlikely to change.

FAMILY LAW – INJUNCTIONS – Where the Mother has repeatedly made unwarranted reports to a variety of agencies – Where this has resulted in the police attending the Father’s home to conduct “welfare checks” – Where the Mother’s conduct is such as to constitute a pattern of harassment of the Father – Where the Mother’s conduct is disruptive to the child’s stability – Mother restrained from contacting various agencies.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 26 FamLR 237
Gibb and Gibb (1978) FLC 90-405
Re Schwartzkopff  (1993) FLC 92-381
Re South Australian Telecasters Ltd (1998) FLC 92-825
Xuarez and Vitela [2012] FamCA 574

APPLICANT: Ms Ellershaw

RESPONDENT: Mr Survant

INDEPENDENT CHILDREN’S LAWYER: Mr Williams

FILE NUMBER: BRC 294 of 2008

DATE DELIVERED: 9 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 and 29 January 2013

REPRESENTATION

FOR THE APPLICANT: In person on 21 January 2013; no appearance on 29 January 2013

SOLICITOR FOR THE RESPONDENT: Noel Woodall & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers

Orders

IT IS ORDERED THAT

1. It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of the child S Allen born … 2002 (“the child”) and that the Father have sole parental responsibility for the child.

2. The child live with the Father.

3. The Mother not be permitted to know the residential address of the child or the Father.

4. The Mother be restrained from entering the town and its environs where the child and the Father from time to time live or frequent, including schools, recreational or other venues.

5. The Father:

   (a)advise the Independent Children’s Lawyer, within fourteen (14) days from the date of these Orders, of the name of the nominated General Practitioner or Medical Practice; and

   (b)continue to present the child to the nominated General Practitioner or Medical Practice and be guided in all medical, welfare and allied-health matters, including assessments, treatments, interventions and referrals for the child by the General Practitioner or Medical Practice.

6. The Father:

   (a)advise the Independent Children’s Lawyer, within fourteen (14) days from the date of these Orders, of the nominated counsellor currently treating the child; and

   (b)ensure the child attends upon that counsellor regularly, but not less than once every three months from the period from 10 July 2013 to 30 July 2014, with this period to be extended if advised by the treating counsellor.

7. Within fourteen (14) days of the date of these Orders the Mother is to provide the Father via the Independent Children’s Lawyer (and thereafter is to keep the Father informed of) the Mother’s postal address and email address (if any).

8. Provided the Mother complies with Order (7), the Father is to provide the Mother with:

   (a)the Father’s postal address and email address (if any);

   (b)copies of the child’s school reports without identifying the school that the child attends; and

   (c)copies of any medical reports of the child without identifying the name of the medical practitioner or the place where the child attended;

   and the authority to the Father under this Order and information provided by the Father pursuant to this Order is intended to enable the Father to so contact the Mother without in any way constituting any breach of the Father of any domestic violence or protection order issued now or in the future under State legislation. 

Time spent with the Mother

1. The Mother shall spend time with the child upon the child’s request with the Father to facilitate such time occurring with any conditions and precautions he considers necessary or in accordance with the child’s views from time to time.

2. Such time shall only occur on any occasion such time is planned to occur in accordance with the Father’s written confirmation to the Mother in advance specifying:

   (a)       when the time is to occur; and

   (b)       where the time is to occur; and

   (c)the conditions, including as to supervision, under which the time is to occur.

Communication with the Mother

1. That the child shall be at liberty to initiate communication with the Mother by way of telephone voice calls and telephone text messages only.

2. That the Mother shall not initiate any communication with the child either directly or indirectly.

3. That the Father shall provide the child with an operable telephone for the purposes of contacting the Mother.

Communication with half-siblings

1. That the child shall be at liberty to initiate contact with her half-sibling, Y, by way of telephone voice calls and telephone text messages only.

2. That the Father shall provide the child with an operable telephone for the purposes of contacting the child’s half-sibling, Y.

Child’s surname, birth certificate and passport

1. The child’s surname be changed to “Survant”.

2. The Father be recorded on the child’s birth certificate as the Father of the child and to facilitate this:

   (a)the Mother and Father do all acts and things necessary including signing any forms required; and

   (b)if either party refuses or neglects to sign any documents necessary within fourteen (14) days of a written request to do so, then a Registrar of this Court at Brisbane is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party.

3. The Brisbane Registry of this Court release the child’s passport to the Father.

Injunction and Restraint

1. The Mother be restrained and an injunction issue preventing the Mother from contacting the police, welfare agencies, child protection units, the child’s school, Centrelink, the Australian Taxation Office, or any other authority or agency about either the child or the Father, in any way whatsoever and in particular as to:

   (a)       enquiring as to the place of residence of the child or the Father;

   (b)       enquiring as to the welfare of the child or the Father;

   (c)       disseminating information about the child or the Father;

   (d)       discussing matters pertaining to the child or the Father;

   without the written consent of the Father or, alternatively, with the permission of the Court being first obtained.

2. The Mother be restrained and an injunction issue preventing her from contacting the child’s doctor or psychologist or counsellor, without the written consent of the Father or, alternatively, with the permission of the Court being first obtained.

3. The Mother be restrained and an injunction issue, preventing her from directing her agents (including but not limited to her relatives, friends, colleagues and associates), from communicating with the Father and/or the child in any way whatsoever.

Miscellaneous

1. That the Father is at liberty to provide a copy of these Orders and reasons for judgment:

   (a)to any member of the police force, welfare agencies, child protection units, the child’s school, Centrelink, the Australian Taxation Office or any other authority or agency; and

   (b)if the Mother attempts to interfere with the child’s involvement in any extracurricular activities, to the provider of such activity.

2. The Marshal of the Family Court of Australia is requested and empowered to take all necessary steps to bring the Mother’s relevant conduct in relation to alleged breaches of section 121 of the Family Law Act 1975 (Cth) to the attention of the relevant authorities and for that purpose the affidavit of Jennifer Donnelly filed on 23 November 2012 may be published to the Marshal and to the Attorney-General’s Department and to the Commonwealth Director of Public Prosecutions.

3. All previous parenting Orders be discharged.

4. All applications be otherwise dismissed and removed from the pending cases list. 

5. The Independent Children’s Lawyer is discharged thirty (30) days from the date of these Orders.

6. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in 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
Ellershaw & Survant 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 BRISBANE

FILE NUMBER: BRC 294 of 2008

Ms Ellershaw  

Applicant

And

Mr Survant

Respondent

REASONS FOR JUDGMENT

1. These proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the child S Allen born in 2002 who is now 11 years of age (“the child”). Her parents are Mr Survant (“the Father”) and Ms Ellershaw, formerly known as Ms Allen (“the Mother”).

2. The child’s interests in the proceedings are independently represented by Mr Peter Williams (“the ICL”) pursuant to s 68L of the Act.

3. On 28 November 2012 the Mother filed a Notice of Discontinuance wholly discontinuing:

   a)the Mother’s Initiating Application filed 3 July 2012 in the then Federal Magistrates Court seeking final parenting orders with respect to the child;

   b)the Mother’s Application in a Case filed 28 August 2012 seeking a recovery order pursuant to s 67Q of the Act and associated orders; and

   c)the Mother’s Application for Contravention of orders filed 5 October 2012.

4. On 4 December 2012 the Father filed a Notice of Discontinuance of his filed responses to the applications referred to in (b) and (c) above.

5. As a result, what remained for the Court’s determination was:

   a)the final parenting orders and injunctive relief sought by the Father in his Response filed on 22 October 2012 involving, inter alia, the variation of earlier parenting Orders made on 23 October 2009 and 18 April 2012 respectively;

   b)the orders, including injunctive relief, sought by the Father in his Application in a Case filed on 23 November 2012; and

   c)the orders sought by the ICL in relation to (a) and (b) above in conformity with the ICL’s independent representation of the child’s interests in the proceedings.

6. As to the previous Orders referred to, on 23 October 2009 Federal Magistrate Coker (as his Honour then was) made final parenting Orders by consent of the parents and the ICL. The parents and the ICL were each represented by Counsel when those Orders were made.

7. Pursuant to the 23 October 2009 final Orders made by consent the child was to live with the Father and he was to be solely responsible for long-term parenting decisions relating to her. Those Orders also included provision for a further family report and initial sessions for the child’s time with the Mother to occur in sessions with a Family Consultant but the Orders further contemplated, absent any applications being filed consequent upon the family report ordered, the child’s time with the Mother progressing to alternate weekend and half school holiday time.

8. The Orders of 18 April 2012 referred to were also consent Orders made on a final basis. The parties thereby consented to some variations of the Orders of 23 October 2009 in respect of the child’s holiday time with the Mother; place of changeovers; and other matters but there was no alteration of the substantive Orders for the child to live with the Father and for the Father to have sole parental responsibility. These Orders were made in the context of the Mother having relocated from the Sunshine Coast area where she was living when the 2009 Orders were made to the W area in late 2011.

9. The central event leading to the current parenting proceedings instituted following the final consent Orders of 18 April 2012, commenced with the Mother retaining the child at the conclusion of scheduled time with the Mother in accordance with those Orders in the June/July 2012 school holiday period. As already noted, the Mother instituted these proceedings in the then Federal Magistrates Court on 3 July 2012. This led to Orders being made by Federal Magistrate Coates (as his Honour then was) on 13 July 2012 for the Mother to return the child to the Father’s care via delivery to the child’s school by Monday 16 July 2012 failing which a recovery order would be issued authorising Federal and State police to find and recover the child. In the event, the child was returned to her school in accordance with that Order.

10. Following the child’s return to the Father’s care the Father relocated with the child from the Sunshine Coast area to X in southern New South Wales.  

11. As already noted it was on 3 July 2012 that the Mother filed her Initiating Application seeking parenting orders in the Federal Magistrates Court (as the Federal Circuit Court then was); the Father filed his Response to that application on 22 October 2012; and the Mother wholly discontinued her application with the filing of her Notice of Discontinuance on 28 November 2012.

12. Both in his Response filed on 22 October 2012 and in his subsequent Application in a Case filed on 23 November 2012 seeking interim orders, the Father sought a range of injunctive relief to restrain certain conduct of the Mother, as will be discussed.

13. On 27 November 2012 Principal Registrar Fillipello made interim Orders including some injunctive relief as sought by the Father.

14. Coincidentally, the Father’s Application in a Case was listed for a further return date or hearing on 21 January 2013. However, at a callover of the substantive proceedings held on 11 December 2012 the substantive parenting proceedings were set down for final hearing on 29 January 2013, only about a week later.

Hearing on 21 January 2013

1. The hearing of the Father’s Application in a Case came before me on 21 January 2013 in circumstances where, as noted, the final trial of the substantive proceedings was also listed to be heard by me on 29 January 2013. The Mother appeared by telephone for the hearing on 21 January 2013.

2. As there appeared to be little utility in entertaining on 21 January 2013 the Application in a Case for interim orders pending a trial which in the event was to occur about a week later on 29 January 2013, having regard also to the limitations of an interim hearing in resolving disputed issues of fact, I sought to ascertain from the parties whether there was any good reason not to hear both of the Father’s applications at the trial on 29 January 2013. That is, the orders sought in his Application in a Case and the parenting orders and injunctive relief he sought in his Response given the overlap between the two.

3. Whilst more will be said of the Mother’s attitude on the hearing on 21 January 2013, she asserted in the course of that hearing that she had not received some or all of the material relied upon by the Father and the ICL in support of the injunctive relief sought. Whilst that fact was disputed by the other parties it fortified the merits of the conclusion that the applications ought be heard together at the trial on 29 January 2013 with directions being made for the Mother to be served (or re-served) in the meantime with the material relied upon by each of the Father and the ICL.

4. At the hearing on 21 January 2013 and in light of the fact that the Mother had, on 28 November 2012, filed her Notice of Discontinuance referred to which wholly discontinued her applications, and in light of the orders sought by the Father, I sought to ascertain from the Mother whether in fact she sought any parenting orders with respect to the child.

5. The Mother seemed to me to adopt an unhelpful and belligerent approach in response. On the one hand she asserted that because she had not received legal aid assistance she had no choice but to discontinue her applications on the asserted basis that she could not represent herself. On the other hand, she made assertions to the effect of having no confidence in the Court and that she had resolved to pursue her interests elsewhere than in this Court or in the proceedings in this Court.

6. More than once during the hearing on 21 January 2013 the Mother was informed that the final hearing would take place on 29 January 2013 and more than once did the Mother assert she had no intention of participating in that hearing. It was also pointed out to the Mother that she had not filed any material in response to the Application in a Case of the Father and that it was necessary for her to so do if she sought to rely on any evidence in defending that application.

7. I am satisfied from the exchanges and discussion that occurred at the hearing on 21 January 2013 that the Mother could have been left in no doubt that the outcome of that hearing was that the Mother was to be provided with the documents the Father and the ICL relied upon for the injunctive relief sought via the email address the Mother then provided for that purpose and that she well knew that all applications would be heard at the trial set down for 29 January 2013.

Hearing on 29 January 2013

1. In the event, on 29 January 2013 the Mother, as she had repeatedly foreshadowed during the hearing on 21 January 2013, did not appear or seek to participate in the trial. She had filed no material in the meantime.

2. Exhibits 1 and 2 admitted into evidence on 29 January 2013 comprise copies of email communications demonstrating that in compliance with the Orders made on 21 January 2013 as to service, the relevant documents were forwarded to the Mother at the email address she had specified for herself during the hearing on 21 January 2013.

3. It was in these circumstances that at the trial on 29 January 2013 the Father and the ICL joined in seeking that the proceedings be heard and determined on an undefended basis.

4. As ought be clear from the foregoing, I find that the Mother was well aware of the orders being sought by the Father and the ICL on 29 January 2013 and that the Mother was afforded the opportunity to be heard in respect of those orders, but elected to withdraw from the proceedings.

5. In Allesch v Maunz (2000) 26 FamLR 237 Kirby J highlighted that where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

6. As was emphasised by Kirby J it is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before making orders. The principle does not require the decision-maker to actually hear the party. As Kirby J stated in Allesch v Maunz (supra) (at [38]):

   … sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

   (emphasis added)

1. Exhibit 3 admitted into evidence on 29 January 2013 is a copy of the final orders sought by the Father and by the ICL at that hearing, subject to some minor amendments. Those orders as sought were as follows:

   1.   That the child [S ALLEN] born … 2002 (“the child”), live with the Father.

   2.   That the Father have sole parental responsibility for the child.

   3.   That the Mother not be permitted to know the address of the child or the Father.

   4.   That the Mother be restrained from entering the town and its environs where the child and the Father from time to time live or frequent, including schools, recreational and other venues.

   5.   That:

   A.The Father nominate a General Practitioner or Medical Practice to the Independent Children’s Lawyer (ICL); and

   B.Present the child to this General Practice or practice; and

   C.Be guided in all medical, welfare and allied-health matters, including assessments, treatments, interventions and referrals for the child by the practitioner or practice.

   6.   That:

   A.The Father, through the General Practitioner or Medical Practice, nominate a treating counsellor for the child to attend upon regularly, but not less than once every three months for the period from 29 January 2013 to 31 January 2014; and

   B.That this period be extended if advised by the treating counsellor.

   In person contact with Mother

   7.   That the child’s in person contact time with the Mother be wholly suspended for a period of 12 calendar months from 29 January 2013 to 31 January 2014.

   8.   That in person contact between the child and the Mother resume from 1 February 2014 only upon the fulfilment of the following conditions:

   A.    Provision of a written recommendation from the child’s treating counsellor than in person contact be re-commended; and

   B.     That if, such a recommendation for in person contact is made, that such contact be supervised; and

   C.     That supervised contact take place at a family contact centre within 100 kilometres from the home of the child and the Father; and

   D.    That contact be limited to four times per year for a period of up to four hours per contact visit; and

   E.     That if:

   i.   after the first contact visit, or any subsequent contact visit, the child indicates to the child’s treating counsellor that she desires in person contact to once again be suspended; then

   ii.   a written recommendation from the child’s treating counsellor will be sufficient to further suspend in person contact between the child and the Mother for either:

   a.   a further period of 12 months to 1 February 2015; or

   b.   a time recommended by the child’s treating counsellor; and

   iii.Provision of such written recommendation to the Mother regarding suspension of the child’s time with the Mother, will not give rise to any rights for the Mother to bring any Court proceedings against the Father in relation to contact between the child and the Mother.

   Telephone contact with Mother

   9.   That the child shall be at liberty to initiate contact with the Mother by way of telephone voice calls and telephone text messages only.

   10. That the Mother shall not initiate any communication with the child either directly or indirectly.

   11. That the Father shall provide the child with an operable telephone for the purposes of contacting the Mother.

   Other contact with half-siblings

   12. That the child shall be at liberty to initiate contact with her half-sibling, [Y], by way of telephone voice calls and telephone text messages only.

   13. That the child’s half-siblings shall not initiate any communication with the child either directly or indirectly.

   14. That the Father shall provide the child with an operable telephone for the purposes of contacting the child’s half-siblings, (sic) [Y].

   Child’s surname, birth certificate and passport

   15. That the child’s surname be changed to [Survant].

   16. That the Father be recorded on the child’s birth certificate as the Father of the child.

   17. That the Court Registry release the child’s passport to the Father.

   Injunction and restraint

   18. That the Mother be restrained and an injunction issued preventing the Mother from contacting the police, welfare agencies, child protection units, the child’s school, Centrelink, the Australian Taxation Office, or any other authority or agency about either the child or the Father, in any way whatsoever and in particular as to:

   A.    Enquiring as to the place of residence of the child;

   B.     Enquiring as to the welfare of the child;

   C.     Enquiring as to the place of residence of the Father;

   D.    Enquiring as to the welfare of the Father;

   E.     Disseminating information about the child or the Father;

   F.   Providing copies of documents, including court documents and transcripts in relation to the child or the Father;

   G.    Discussing matters pertaining to the child or the Father.

   without the written consent of the parties or, alternatively, with the permission of the Court.

   19. That the Mother be restrained and an injunction issued preventing her from contacting the child’s doctor or psychologist or counsellor, without the written consent of the parties or, alternatively, with the permission of the Court.

   20. That the Mother be restrained and an injunction issued, preventing her from directing her agents (including but not limited to her relatives, friends, colleagues and associates), from spending time and communicating with the Father and/or the child in any way whatsoever.

   21. That the Father will provide to the Mother copies of the child’s school reports without identifying the school that the child attends.

   22. That the Father will provide to the Mother copies of any medical reports of the child without identifying the name of the medical practitioner or the place where the child attended.

   23. That the Father is at liberty to provide a copy of these Orders to any person or organisation conducting any extracurricular activities in which the child is involved.

   24. That the Father is at liberty to provide a copy of these Orders to any member of the Police Force, welfare agencies, child protection units, the child’s school, Centrelink, the Australian Taxation Office or any other authority or agency.

   Family Dispute Resolution

   25. The Father and the Mother attend upon a Family Dispute Resolution practitioner or agency selected by the ICL once in each 12 month period to discuss all matters pertaining to the child.

   Further Court proceedings

   26. That the Mother be restrained from bringing further proceedings in either the Family Court or the Federal Magistrates Court without the leave of the Court.

   Costs

   27. Costs of the Application.

2. Some observations, qualifications or amendments to those proposed orders were articulated in the course of the hearing including as follows:

   a)in respect of the orders 5A. and 6A. it was acknowledged there ought be a time provision of fourteen (14) days for each of the nominations referred to. In any event the Father had already arranged for a treating medical practitioner for the child and for a treating counsellor;

   b)order 7 was to be read with the conditions in order 8 and having regard to order 26. It was acknowledged that if there was no order as to time with the Mother it may be necessary to formulate orders making some provision for a further determination of the Mother’s time and communication with the child in the future upon fulfilment of certain conditions. That was particularly so in circumstances where the Mother had elected not to participate in these proceedings;

   c)order 8C. should be amended to include that the contact centre not be in the town in which the Father and the children reside in order to be consistent with the injunction sought in order 4;

   d)order 13 was not pressed in circumstances where it operates as a restraint upon the child’s half-siblings who are not parties to these proceedings;

   e)in relation to the child’s surname being changed to “Survant” it was noted that the Mother herself no longer used the surname “Allen” but had assumed the surname “Ellershaw” for herself i.e. “Allen” is no longer the surname of either of the child’s parents;

   f)in relation to order 16 it was identified that it was necessary to include an order requiring the parties to do all acts and things necessary for this to occur;

   g)issues were raised regarding the obligation upon the Father to provide school and medical reports to the Mother in circumstances where the Mother had in the past complained of breaches of the domestic violence order on the Father when the Father has attempted to contact the Mother. To overcome this, the Father’s solicitor, Ms Donnelly suggested that there should be included an order to the effect that the Father is authorised to contact the Mother in relation to providing these reports and that providing such information does not constitute a breach of any domestic violence order. It was acknowledged that the order would also need to require the Mother to inform the Father of the email address or post office box address the Father was to send such information to;

   h)in relation to orders 23 and 24, the ICL identified that these orders should be more specific and that having the orders provided to the school that the child attends would be sufficient. Ms Donnelly indicated that the purpose of the orders were to also stop the Mother from interfering with any extracurricular activity outside of the school as well. Ms Donnelly agreed that the order was sufficient if it allowed the Father to provide for a copy of the orders to the child’s school and if the Mother disrupts the child’s engagement with any extracurricular activity then Father may then provide the orders to that provider;

   i)the necessity and utility of order 25 was discussed in circumstances where the Act already provides for the parties to attend Family Dispute Resolution when they are in dispute;

   j)whilst the solicitor for the Father did initially seek an order for the Mother to pay the costs of this application, that order was not pursued; and

   k)the final orders made ought discharge the interim orders made by the Principal Registrar on 27 November 2012 albeit that those interim Orders included injunctions in terms similar to those sought on a final basis.

3. It can be seen that one fundamental difference between the orders the Father sought in his Response as compared with those in Exhibit 3, is that the Father originally sought orders for no time with the Mother whereas Exhibit 3 provides for a mechanism for time resuming provided certain conditions are fulfilled.

Statutory Framework

1. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). 60B(1) provides:

   (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.

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. (s 61DA(4) of the Act).

6. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents. (s 65DAA).

7. Section 68B of the Act is the source of power for the Court to make orders or grant injunctions appropriate to the welfare of the child in proceedings under Part VII. The power is discretionary and injunctions can be granted on terms.

Section 60CC considerations – relevant findings of fact

1. There is obviously significant overlap and confluence between many of the matters set out in s 60CC of the Act which the Court must consider in determining what is in a child’s best interests. It follows that a single fact or finding may resonate with more than one of those matters.

2. The child’s lifetime experience has been of a fractured relationship between her parents. They met and formed a relationship in 2000 when they were both mature adults. In the case of the Mother her main previous adult relationship was with Mr C with whom she had four now adult children. Since about 2008 those children and Mr C have resided in Sydney.

3. It seems that the parents’ relationship was short and tempestuous with them separating during the Mother’s pregnancy with the child and it seems that separation was against a background of the Mother seeking and obtaining domestic violence orders and the Father breaching such orders even before the child was born in early 2002.

4. Thus it is that the child’s experience to date is of conflict between her parents and litigation of one form or another, in particular parenting proceedings, since she was about three years of age.

5. Much of the child’s early years were characterised by the Mother obtaining domestic violence orders against the Father and him breaching such orders in attempts to impose himself on the Mother and/or to seek more time with the child.

6. The Father’s very concerning criminal history includes periods of imprisonment. He had a conviction in relation to a dangerous drug when he was just 18 years old. In early 2002 he was imprisoned for about three months for breaches of domestic violence orders. In July 2002 he was again imprisoned for about two months on stalking and violence offences. In November 2003 he was imprisoned for almost twelve months on something like 17 breaches of domestic violence orders of which he was convicted.

7. By 2005 the dynamic seems to have been that on the Mother’s account as recorded in family reports which will be referred to, the Father continued to breach domestic violence orders by contacting the Mother whilst on the Father’s account the Mother would invite the Father’s participation in one way or another so as to engineer him being in breach of an order.

8. In the early years of her life the child primarily lived with the Mother and spent periods of supervised time with the Father with his time evolving from supervised visits to weekend stays and the like. However, continual breakdown of care arrangements occurred with an escalation of or return to conflict between the parents.

9. For various periods the Mother would withhold the child from spending time or communicating with the Father, and indeed there were periods where he did not know where the Mother and the child were living. On the Mother’s contention the Father was stalking her or was neglectful of the child. On the Father’s contention the Mother continually made unfounded reports to the Queensland Police Service about him stalking her and/or about neglect of the child to the Department of Child Safety in circumstances where the Father became aware that the Mother was engaged in earning her income as a adult entertainer upon the breakdown of her relationship with one Mr B.

10. Against the background of parenting proceedings over many years in which numerous family reports have been prepared from time to time, it would seem that the child’s care history and experience was of an extended period until late 2009 where the Mother was her primary carer and indeed at times exclusive parent whilst the Father had an ancillary role in her life interspersed with periods where she did not see her father at all.

11. Obviously, as a consequence of the Orders made on 23 October 2009 it has been the child’s experience from that time that she has experienced the Father’s primary care and indeed for periods since then significant amounts of time when the Father was her exclusive parent from the child’s perspective.

12. One thing that both parents agree upon (and there are few) as recorded in the last of the family reports referred to is that “[The child’s] needs are better met and are more assured when one of them has sole parental responsibility and the other parent has no or a limited role.”[1]

    [1] Page 29 of the report of Mr K attached to his affidavit filed 4 December 2012. 

What are the child’s views and why is she expressing them?

1. There is ample evidence that the Mother’s retention of the child in the June/July 2012 school holiday period or the Mother’s failure to return the child to the Father’s care upon conclusion of that period had a profound effect upon the child.

2. As is recorded in Mr K’s report, the Mother asserted that the child was expressing clear views to the Mother that she wished to stay with the Mother and did not wish to return to the Father’s care. At that time the Mother was in a relationship with Mr G and was living with him in W whilst the Father and the child had been living on the Sunshine Coast.

3. The Mother and Mr G compiled a DVD consisting of the child being filmed whilst being interviewed for the purpose of recording the views she was said to hold as asserted by the Mother.

4. When the child was interviewed by Mr K on 21 November 2012 about that interview recorded on DVD by the Mother it was made clear by the child that what was recorded did not reflect her genuine views.

5. At p 23 of his report, Mr K records as to this in relation to his interview with the child:

   Her [[the child’s]] assertion is that she felt “angry…frustrated…sad” when retained by [the mother] and engaged in mother-daughter discussions with her in mid-2012, claiming that, “I asked to go back” but that described request was purportedly rendered unrecorded. [The child] proposes that [Mr G] was behind the camera when [the mother] was leading the mother-daughter discussion and that, “I made things up…to stop mum…stop the questions.”

6. A sad reflection upon the child’s experience of the parental conflict is what is recorded in paragraph [58] of Mr K’s report as follows:

   The girl proposes that she has no happy memories from when her parents were together or she has seen them engage with each other, while her sad memory from when she has seen her parents engaged with each other is of her nightmares wherein, “I’m on the first floor and I’m running and there’s a sign saying ‘Short cut’ and I run and I fall off a cliff”. Her opinion is that her parents are not friends or on friendly terms, as “no, Mum wants to put Dad in jail so she can have me. They’ve been fighting since I was three years old…enough”.

   (emphasis added)

1. The comparisons the child drew between her parents and her statement of views in relation to the outcome of these proceedings is recorded in paragraph [59] of the report as follows:

   [The child] says that, when her mother talks about her father, she sounds “angry…I’m going to put him in jail…he’s a dirty liar” while when her father talks about her mother, he sounds, “frustrated. He likes mum. He doesn’t want to fight…she lies a lot”. If she could talk to the Court, [the child] would say, “I want to live with Dad. He’s normal, fun…we have great adventures…I don’t want to see her…talk to her.”

2. In relation to the child’s view of the Mother paragraph [60] of the report contains:

   …in relation to [the mother] the girl states, that there is “nothing” she likes about her mother and she would change her so that, “I could trust her and for her to be nice”.

3. In that same paragraph it is recorded that the child nominated the Father as being the carer she would look to or for if she was injured or ill or frightened or worried and the like.

4. As to both the child’s perception as to the parental conflict but also the child’s perception as to Father’s preparedness to promote her relationship with the Mother, paragraph [61] of the report records:

   [The child’s] understanding of the adult dispute is that her mother, “wants to put Dad in jail and have me back and wants me to be jealous of [Mr G]”. Whilst she says that she is uncertain as to what her father might hope for or want. “I don’t know…he says, ‘do I want to phone Mum…see Mum’ and I say, ‘No’”.

5. Whilst Mr K had the opportunity to observe the interaction between the child and the Father for the purpose of his interviews and report, the child did not want to participate in a joint meeting with the Mother. I accept Mr K’s opinion that the child living with the Father and having no or limited time or contact with the Mother is congruent with the child’s expressed needs and wishes; regardless of how and why the child has arrived at this position.

6. I accept Mr K’s opinion that it is beyond the parents’ capacities to manage a co-parenting relationship and their animosities and antipathies in any semblance of a manner where the child is insulated from one or both parents’ angst and acrimony.

7. I accept Mr K opinion that an outcome is required:

   …which releases [the child] from her untenable position as the focus of the entrenched and the extended adult conflict and being the prize and victim of a parental tug-of-war.

   All indications are that an outcome is needed where [the child] lives with one parent and has no, limited or conditional time and visits with the other parent.

8. I find that the child’s genuine view is to live with the Father and to have no time or communication with the Mother. I find that her expressed views to that effect are the product of her own experience of her life to date of the parental conflict and of the dislocation and fear and anxiety she felt as a consequence of the Mother’s retention of her at the conclusion of the June/July holiday period referred to.

9. These findings are fortified by the evidence and opinions of the child’s treating psychologists, Dr U and Ms T.

10. Dr U interviewed the child on 24 July 2012 soon after the child’s return to the Father’s care and prepared a report dated 24 July 2012 attached to her affidavit filed 30 August 2012. I accept Dr U’s qualifications and expertise.

11. Notably Dr U commenced seeing the child in October 2010 and subsequently saw her at intermittent times following initial visits and was able to establish a “healthy rapport” with the child.

12. Notably even in her April 2012 session, prior to the June/July event, the child was expressing concerns about the Mother and fears about the Mother retaining her. Dr U records in her report:

    At this time [the child] was very outspoken about her fears for her safety after she learned that the court had recently suggested unsupervised visits with her mother. She claimed that she feared her mother may “kidnap” her “like she did before”. [The child] suggested that “I just want someone to tell my mother about me not wanting to live with her” because [the child] did not want to “hurt” her mother’s feelings. She stated that she felt safe at the family contact centre as there was “a lady” who watched her and ensured that she was “ok”.

13. As Dr U records in her report as at the date of an interview on 24 July 2012 the child was refusing to attend school out of fear that the Mother might again act to remove her.

14. Dr U assessed the child as intelligent and as open and reactive and frank about her concerns. Notably, whilst the child expressed that she “liked” visiting her mother it is clear that the child expressed distress at being in the centre of the conflict between her parents.

15. In her report Dr U opines:

    The current lack of stability and permanency for [the child] is most disturbing. Children who lack permanency in their lives often develop a “one-day-at-a-time” perspective of life and ultimately this perspective impacts on appropriate development of the cognitive-behavioural chain – thoughts, feelings, actions, choices and outcomes.

    It is evident that children, such as [the child S], may develop a learned helplessness. Learned helplessness is a condition which develops when individuals come to the conclusion that in certain situations, regardless of what they may do, that they are unable to alter their environment and that punishment may continue regardless. In the situation of parental abduction, the child victim often has no idea why she has been abducted, has no control over the situation, and even though there may be very strong feelings of anger, frustration and confusion, the helplessness may result in a yielding to the circumstances. This yielding and superficial appearance of resolution to the circumstances may be the result of complete devastation, lack of control, and total helplessness rather than acceptance…

    With this in mind, I am most concerned for [the child’s] wellbeing should she perceive herself to be at continued risk of being “kidnapped”. I urge the Magistrate to consider the further protection of this child when deciding on an appropriate living arrangement and ensure she is able to enjoy a life free from manipulation and conflict. To date, her father appears to be offering this required stability and honesty.

    (emphasis added)

16. I accept Dr U’s opinions taking into account that as Dr U herself observes her report and assessment is limited by the feature that she has not had the opportunity to observe the child when with the Mother.

17. The report of Ms T dated 2 November 2012 was admitted into evidence as Exhibit 4.

18. That report records that when Ms T saw the child on 30 October 2012 whilst the child presented as very confident and happy to talk:

    …she stated to me that I don’t want to go back to Mum’s. I don’t want to leave [X] and am worried. She stated Mum had kidnapped her twice and that she worried she will do it again. She said I am afraid of what she has done to Dad and I don’t feel safe with her.

19. Ms T assessed the child “…as a cheerful and articulate girl, quite clear about what works for her.”

What weight should be given to the child’s expressed views?

1. None of the expert evidence to which I have referred expresses any reservations about the views expressed by the child to the effect that they are the product of any influence by the Father or not the genuine expression by the child of her own views.

2. I am satisfied that the descriptions of the child referred to as “intelligent” and “articulate” result in the conclusion, having regard also to her age at the time she expressed such views, that the child has a sufficient level of maturity to have expressed her genuine views that are well-considered having regard to her own experiences. It is to be noted that as is recorded in Dr U’s report as referred to, the child expressed that she “liked” visiting the Mother and it is obvious the child would be favourably disposed to spending time with and communicating with the Mother if that did not come at the price of being subjected to the manipulation she experiences by the Mother or the conflict between her parents she experiences whenever there is a regime of her spending time with the Mother whilst living primarily with the Father.

3. There is abundant evidence that the Mother is wedded to a cause involving deprecation of the Father and attempting to bring about his downfall in one way or another. Indeed, the fact that the Mother did not wish to participate further in these parenting proceedings but asserted in the hearing on 21 January 2013 to the effect that she was pursuing her efforts elsewhere than via such proceedings speaks volumes as to her attitude and approach to the child’s best interests. In short, it is clear and I so find that the Mother puts ahead of the child’s best interests this cause she has chosen for herself to portray herself as a victim of the Father and to deprecate him; irrespective of the effect that has or would have upon the child.

4. I find that the child’s expressed views ought be given weight because they are entirely consistent with her own experience in circumstances where she has been the subject of parental conflict throughout her life to date and in circumstances where parenting proceedings have essentially been on foot continuously for years including as they have multiple family reports and other expert reports including those involving the child’s participation.

5. I find that the child’s views should be given weight because they are no more or less than a reflection of the child saying, as she puts it herself, that she has had “enough” of the parental conflict.

6. I find that in circumstances where she has been in the primary care of the Father since the October 2009 Orders referred to the child’s views reflect her experience of stability of her circumstances in that care and her clear preference to continue living with the Father. For all of his faults, of which there are many as referred to by Mr K, it would seem that the Father has been capable of meeting the child’s needs in priority to the parental conflict. The same cannot be said of the Mother. The child’s views, in my judgment, reflect the child’s own perception of that.

What is the nature of the child’s relationship with each of her parents?

1. It is reasonable to conclude that in circumstances where the child was primarily living with the Mother throughout the period from her birth until the Orders of October 2009 that the Mother was the child’s primary attachment figure. However, it is clear that over time since the 2009 Orders were made the child has gravitated to the Father as her primary care and attachment figure. As already noted in Mr K’s report, the child identifies the Father as the person to who she would turn in the situations there identified.

2. Mr L, psychologist, prepared a family report dated 12 May 2011 from interviews of the parents and the child on 4 April 2011.

3. Even by that stage Mr L assessed that the child demonstrated having a close attachment to the Father and an “ambivalent” attachment to the Mother. I accept that assessment.

4. On all the evidence the child plainly loves the Father and is unable to deal with the Mother’s apparently relentless campaign to apply pressure upon the child in one form or another for the child to live with the Mother (when that is contrary to the child’s views) and to involve the child in parental conflict sourced in the acrimony the Mother has for the Father. It is clear on the evidence that the child has been exposed to the Mother’s demeaning of the Father and accusations against him. The child’s response is to withdraw from the Mother and not seek to spend time with or communicate with the Mother.

5. In the assessment of Mr K the child spoke fondly and positively about life with the Father. They clearly share interests and the child had nothing negative to say about the Father’s care.

6. Interestingly, whilst the Mother has historically claimed that one Ms J, a former partner of the Father, made reports to the Mother once her relationship with the Father had broken down to the effect that the child was victimised and harmed by the Father and she had made such observations during her relationship with the Father, at the time of the interview with Mr K the child apparently could not recall who Ms J was.

7. It is apparent from Mr K’s report and comments the child had to make as they are recorded that the child has no particular attachment to the Mother’s present partner and indeed the child voiced some criticisms about the Mother’s “boyfriends”. That may well be the natural response of a girl of the child’s age but the point here is there are no adults or children in the Mother’s household with whom the child has any particular attachment. The Mother’s other children, the child’s half-siblings, do not present as particularly attached to the child and obviously at their ages and stages in life are living their own lives.

8. I am satisfied that the child has a close and warm attachment to the Father as her now primary care figure whilst the child has withdrawn from the Mother by reason of her experience of the Mother in the respects referred to.

What are the parents’ capacities, attitudes and demonstrated responsibilities in parenting the child?

1. Mr Z, psychologist, in a report attached to his affidavit filed on 24 March 2009 (at a time when the child was living with the Mother) observed at paragraph [38]:

   When I review the history of this matter it seems clear to me that [the mother] cannot be relied upon to ensure that [the child] has a relationship with her father. She has repeatedly made decisions to not provide [the child] to her father based on her own determinations. Most recently the decision she made was based on unverified reports from an ex-partner of [the father]. On the other hand, if the reports of [the father] being violent and threatening while [the child] has been in his care can be verified, I would be concerned about [the father’s] capacity to act in [the child’s] best interests.

2. In that report Mr Z expressed an opinion to the effect that if the adverse reports to the Father could not be verified he saw a potential solution to the problem of the child repeatedly not being made available to the Father for time was for the child to live with the Father and spend time with the Mother. He identified that as maximising the chances of the child being able to have a relationship with both of her parents.

3. The reference to “ex-partner” in that context is to Ms J earlier referred to. There is nothing in evidence before me as to amount to verification of the kind referred to by Mr Z of the allegations of Ms J.

4. It must be observed immediately that the Father has, as already noted, a very troubling criminal history including a history of convictions for breaches of domestic violence orders. It is obvious that if the child was exposed to violence in the Father’s household that would have dramatically negative consequences for the child in terms of her development.

5. However, in this case, whilst the ICL in submissions highlighted this concern it was pointed out that the Father’s troubled history mainly goes back to the period from early 2002 until about November 2003. The allegations made by Ms J, which have not been verified before the Court on this hearing, allegedly occurred in 2008. Thus it is that the domestic violence history of the Father goes back now to almost a decade ago in terms of evidence of current behaviour.

6. That is not to excuse or minimise the Father’s historical behaviour but simply to acknowledge the reality in terms of the extent to which the child has been exposed. Nothing the child reported to Mr K would suggest that this is a child who has experienced violent behaviour or witnessed such behaviour.

7. The Father himself refers to an episode in July 2012 when the police arrived late in the evening at his home. The Father maintains that he was assaulted by police and indeed that he lodged a complaint with the Crime and Misconduct Commission about the police’ behaviour on that occasion. There is medical evidence in relation to injuries the Father sustained on that occasion.

8. However, again despite the child being seen by counsellors and also by Mr K there is no report from her to the effect that she witnessed anything or has ever witnessed violent behaviour by the Father. In this respect, relevant to this factor and any need to protect the child, the ICL submitted that there was no basis for a finding now that there is on the evidence an identified need to protect the child, within the meaning of the primary consideration expressed in s 60CC(2)(b) as regards the potential for her being exposed to family violence in the Father’s household. I accept that submission.

9. I reiterate that there is nothing in the evidence before me to support any finding to the effect that demonstrated behaviour of the Father to which the child is or has been exposed constitutes some risk that the child ought be protected from.

10. Whilst in the course of the hearing on 21 January 2013 the Mother made a number of assertions to the effect of there existing a large body of evidence as to the Father, the fact is that other than the concerning evidence of breaches of domestic violence orders in 2002 and 2003, there is no evidence of violence on the part of the Father over the period since then. The Mother, I reiterate, chose not to participate in the parenting proceedings notwithstanding having ample opportunity to so do.

11. There is certainly evidence of the Mother making complaints to the effect that the Father had breached or was in breach of domestic violence orders in the period since 2003 but the unchallenged evidence of the Father is to the effect that this was one means by which the Mother attempted to create difficulties for the Father. That is, that she would engineer situations where the Father would be invited to meet with her or be near her and that would constitute a breach of the existing domestic violence order because the Mother would then complain that the Father was in breach. As the Father’s evidence on that aspect is unchallenged for the purpose of these proceedings and there is no other evidence to the contrary. I accept the Father’s account.

12. In his report, Mr K observed of the Mother (at paragraph [47]):

    …she brings great energy to her recounting of matters and gives the impression through her personal involvement in the dispute with [the father] and her described professional involvements as a spokesperson and advocate that at least part of her sense of identity and/or self-esteem is informed and shaped by this dispute.

    (emphasis added)

13. In the hearing on 21 January 2013 the Mother seemed to be at some pains to highlight her role as an advocate for women generally on matters of family violence and included in that reference to her alleged role in amendments made to the Act, which took effect last year. She has described herself as the “CEO” of a human rights organisation. As already noted, in the hearing on 21 January 2013 the Mother made references to not participating in these proceedings but rather in advancing her interests elsewhere which I took to mean by political activism or like means.

14. Nothing in these reasons ought be interpreted as any form of criticism of persons advocating against the insidious effects of family violence. However, in context here what is troubling about the Mother’s conduct or behaviours is the extent these reflect what Mr K refers to as the Mother’s self-interest in terms of her sense of identity and self-esteem by some public campaign as opposed to focusing upon the child’s interests. 

15. For example, during the hearing on 21 January the Mother made submissions to the effect that subpoenaed documents revealed or would reveal that the Father has had something like 12 domestic violence orders made against him since 2009. If that were true, it beggars belief that the Mother chooses not to participate in the proceedings and bring that evidence before the Court but makes broad assertions to the effect that she will pursue matters elsewhere than in this Court, being the Court charged with the responsibility of deciding parenting orders in the child’s best interests.

1. In terms of parental conduct relating to the primary consideration of any need to protect the child, the Mother’s attitude in this respect resonates with that primary consideration.

2. It is obvious on all the evidence that the child loves the Father and has a close attachment with him. On the evidence, the Mother would not seem to have any appreciation of the effects upon the child of repeatedly having police attend the child’s household to conduct “welfare checks” as a consequence of reports by the Mother; or to forward court documents and allegations she makes about the Father to a range of persons associated with the child, such as her school principal.

3. An example of the Mother’s capacity to act in a manner disproportionate to the circumstances and adversely to the Father and the daughter/father relationship relates to the child’s coeliac disease, diagnosed in the child since about June 2005.

4. Material attached to the Father’s affidavit includes an email from the Mother to school authorities on 9 July 2012 containing the assertion to the effect that because the Mother discovered items containing gluten in the child’s lunch box this constituted “child abuse”. The Father explains in his affidavit filed 21 September 2012 how he has managed the child’s coeliac condition with medical interventions. Whilst on the one hand reasonable parents might differ as to the methods of management of a condition such as this it takes matters to an extreme level to assert that because the Father does not manage it in the way the Mother would have it, this constitutes “child abuse”. I accept the Father’s evidence that he has followed medical advice with respect to the child’s condition.  

5. The Father has had sole parental responsibility for the child since the Orders of October 2009 were made. There is nothing in the evidence before me to suggest that the Father has failed in any material respect in the exercise of parental responsibility in the period since.

6. The breakdown in time and communication between the child and the Mother was occasioned predominantly by the Mother’s conduct in retaining the child at the end of the June/July 2012 school holiday period and the child’s reaction to that against the background of the child’s experience of the parental conflict.

7. As already noted, the Father relocated to X to avoid what he said was the continuing harassment from the Mother whilst he remained in Queensland following those relevant events. His most recent affidavit and that filed by his solicitor, Ms Donnelly provides insight into the Mother’s capacity to broadcast allegations against the Father widely. The child was further distressed by the feature that police visited her school in August 2012 on the basis of the Mother having filed a “missing person” report.

8. I am satisfied that the child not having spent time with or communicating with the Mother since that period is the product of the child’s choice as opposed to the influence of the Father. Indeed it is clear from the reference earlier made to the child’s comments to Mr K that the Father has asked the child whether she wishes to telephone or see the Mother. Each of the reports of Mr K, Mr Z and Mr L contain positive assessments as to the Father’s capacity to promote the child’s relationship with the Mother historically but the position has clearly been reached that the child is exercising her own choice not to communicate with or spend time with the Mother. Historically, on all the evidence it cannot be said that the Mother promotes the child’s relationship with the Father.

9. At page 29 of his report, Mr K observes:

   The report is challenged to actively endorse the personal, relationship and/or parenting functionalities of either [the father] or [the mother] as both appear to have pronounced flaws, deficits and/or dysfunctions.

10. In relation to the Father there is the fact of his disturbing criminal history which commenced with his conviction for drug offences when he was only 18 years of age. Primarily his criminal history relates to breaches of domestic violence orders but he also has drink driving offences and historically the family reports have raised concerns about his historical use or abuse of alcohol.

11. Whilst the Mother also has some criminal history historically concerns were raised about her working as an adult entertainer and potentially exposing the child to the risks associated with work in that industry particularly when undertaken from home. Primarily the concerns about the Mother relate to her complete incapacity to support the child’s relationship with the Father.

12. As the submissions of the ICL reflect, for all of his flaws and deficits it would seem that the Father has demonstrated the capacity to provide for the child’s needs, including her intellectual and emotional needs. The same cannot be said of the Mother given the extent to which she has attempted to influence the child by her own views of the Father and the extent to which she has caused disruptions to the child’s sense of stability, the best example of which is the retention in June/July 2012.

13. Whilst the Father’s history of family violence and breaches of domestic violence orders is very troubling there is no clear evidence of any recent such conduct nor of the child being exposed to such conduct either directly or as a witness to it.

14. I am satisfied that there is a need to protect the child from the psychological harm potentially caused to her by reason of the Mother’s conduct at least since the October 2009 Orders of persistently attempting to influence the child and undermine the Father and the existing care arrangements that have now subsisted for more than three years.

Can the child have a meaningful relationship with both of her parents? What are the likely effects of any changes?

1. It is clear from the child’s statements to Mr K as recorded in his report that the child has a positive and meaningful relationship with the Father and that she benefits from that relationship.

2. It is equally clear from the same source that as at the time of those interviews it could not be said that the child has a meaningful relationship with the Mother and moreover, in circumstances surrounding the child’s expressed views, there seems little prospect of such a meaningful relationship being established unless there is fundamental change in the Mother’s approach.

3. Notwithstanding that the report of Mr K was the sixth family report that has been compiled over the long course of these protracted proceedings and that the Mother has obviously had ample opportunity to reflect upon the contents of those reports including the most recent report of Mr K particularly as regards the effect upon the child of the parental conflict and the Mother’s continued attempts to undermine the child’s relationship with the Father there is no evidence heralding any change in attitude by the Mother. To the contrary, her approach in the hearing on 21 January 2013 fortifies the conclusion that the Mother remains entrenched in her position and that, as Mr K observed of her, she remains energetic about her stance and position in the respects referred to.

4. I find that from the child’s perspective any benefits of a relationship with the Mother come at the cost of her being subjected to the Mother’s attitudes as regards the Father and her conduct in undermining the child’s relationship with the Father or her views of him. The position has been reached where that is a price the child is no longer prepared to pay given her expressed views.

5. As at the trial the child was not spending time with nor communicating with the Mother. She had plainly adjusted to the change in living circumstances brought about by the Orders of October 2009 placing parental responsibility with the Father and with the child living with him.

6. One of the recommendations in Mr K’s 28 November 2012 report was that the Father provide counselling sessions for the child and it is clear that the Father has acted on that recommendation. Mr K also recommended that the child’s time with the Mother be suspended for such time as the child, with the benefit of counselling, is ready to re-accommodate time and communication with the Mother.

7. I am satisfied that for any re-engagement of the child with the Mother to succeed that must be supported by the child’s own choice. I am also satisfied that the Father is responsive to the child’s needs and if it is the child’s choice to communicate with the Mother or to spend time with her, the Father will accommodate that albeit that it would be necessary for there to be safeguards in place to prevent any re-occurrence of the events of June/July 2012 earlier referred to.

8. It seems to me that the Father having sole parental responsibility would enable him to dictate any necessary safeguards with respect to future time with the Mother, such as supervision, should the child determine to have such time. Likewise I am satisfied that if the child wished to communicate with the Mother via telephone or electronic means the Father would facilitate that.

9. In terms of the safeguards Mr K referred to the use of a contact centre near, but not in, X also depended upon the Mother’s resources to be able to visit that area.

10. Given the circumstances that have existed since the June/July episode of the child not actually spending any time with the Mother or communicating with her, orders which do not include any provision for time and communication simply reflect the reality, consistent with the child’s expressed views as to the situation that has pertained since those events.

Balancing of best interests considerations

1. I find that the child’s best interests would be served by final orders for her to live with the Father and for the Father to have sole parental responsibility.

2. In my view, in the child’s best interests the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility is rebutted. Such is the parental conflict that there is no prospect of these parents acting cooperatively and there is evidence of that over many years. I am satisfied it would not be in the child’s best interests for her parents to have equal shared parental responsibility and that her best interests are met by an order for the Father to have sole parental responsibility.

3. As the Mother chose not to participate in these proceedings the Court is left in the position of being unable to further assess whether there is any prospect of the Mother adjusting her views or conduct in future so that some orders for future time and communication could be identified as being in the child’s best interests. For the reasons already outlined in the current circumstances the child’s best interests would be served by there being no orders for time and communication with the Mother.

4. If the child, with the benefit of counselling, determines that she wishes to communicate with the Mother or spend time with the Mother I am satisfied that the Father would not stand in the way of that beyond ensuring the use of a contact centre or like mechanism. Whether that occurs before or after February next year, being the period the Father sought as a suspension of time, is a moot point. That is, I do not see the arbitrary selection of that date as proposed in the Father’s orders in Exhibit 3 as mandated by any evidence. The child ought be able to dictate when she herself can deal with the dynamics that operate. That may be prior to or after February 2014 and I am satisfied that if and when the child determines, with the assistance of counselling, that she can again cope with seeing or communicating with the Mother, arrangements can and will be made by the Father including arrangements with a contact centre to supervise if that is in accordance with the child’s views at the time.

Change of surname

1. As already noted, the Mother has ceased using the name “Allen” and thus the child’s current surname is not the surname of either of her parents. It follows that the name “Allen” is not one by which the child identifies herself with respect to either of her parents.

2. It would also follow that maintaining the surname “Allen” for the child has no relevant effect upon the prospects of the child re-establishing some relationship with the Mother or forming a meaningful relationship with the Mother. The future in that respect will be dictated by the child’s capacity to deal with the Mother given the unlikelihood of any change in attitude or stance by the Mother on the evidence of the years of history to date.

3. In my view consistent with the Father’s exercise of sole parental responsibility and with the child’s best interests, the Father ought be permitted to allow the child to share his surname. The child plainly identifies with the Father and as already noted has gravitated to the Father increasingly over the period since living with him following the October 2009 Orders.

Injunctions

1. I am satisfied on the Father’s evidence that the Mother has repeatedly made reports to a variety of agencies including police; welfare agencies; and to the child’s schools that have been unwarranted, in terms of any genuine risk to the child’s welfare, such as to constitute a pattern of conduct constituting a form of harassment of the Father. This has been disruptive to the child’s stability. One example already referred to is the Mother’s approach about the child’s coeliac disease and the unwarranted accusation that the Father’s conduct in this respect amounted to “child abuse”. Another example is repeatedly causing police to conduct “welfare checks”.

2. I am satisfied on the Father’s evidence that the stress those actions cause to the Father has an effect upon him sufficient to potentially compromise his parenting capacity. I am also satisfied that this is potentially disruptive to the child and thus contrary to her best interests.

3. The Father seeks an order (paragraph 24) supported by the ICL permitting the Father to provide a copy of the final orders (and I assume these reasons for orders) to a variety of agencies. If such an order is made there is some protection afforded by that means against future similar conduct by the Mother and the other injunctive relief sought should be viewed against the background of such an order if made.

4. On the evidence of the Father’s solicitor, Ms Donnelly as provided in her affidavit filed on 23 November 2012 as to the emails and attachments to those emails forwarded by the Mother to the recipients therein identified the Mother has prima facie breached s 121 of the Act.

5. Whether or not the Mother has breached s 121 is a matter for the Commonwealth Director of Public Prosecutions and the criminal justice system but it seems that it is legitimate to require and enable the Marshal to bring the Mother’s relevant conduct to the attention of the relevant authorities. Otherwise those authorities would remain unaware of conduct that may constitute a breach of the Act. I therefore propose to make an order giving effect to the Marshal being empowered as sought.

6. As to order 1 of the orders sought in the Father’s Application in a Case it seems to me that this injunction as expressed restrains the Mother from doing that which s 121 of the Act prohibits.

7. There is ample authority for the proposition that it was not intended by parliament that this Court should enforce the provisions of s 121 and that an injunction merely restating the effect of the legislation is unnecessary and undesirable.[2] I am not satisfied that “special circumstances” of the kind considered in Re South Australian Telecasters Ltd[3] or Xuarez and Vitela[4] exist here such as would justify departure from the underlying principle referred to in Gibbs’ case (supra) and I therefore do not propose to make such an order.

   [2] See Gibb and Gibb (1978) FLC 90-405 and Re Schwartzkopff  (1993) FLC 92-391.

   [3] (1998) FLC 92-825.

   [4] [2012] FamCA 574.

8. I am satisfied that it is in the child’s best interests to restrain the Mother by injunction from repeatedly attempting to enlist various authorities, as identified in the orders sought by the Father, to her cause and in doing so to give them information and allegations designed to have them investigate the Father. The history of the Mother’s propensity to do so historically is to such an extent that it can be legitimately concluded that it is not in the child’s best interests for the Father and the child to be subjected to that in future.

9. The Father sought an order that the Mother be restrained from bringing further proceedings in either this Court or the now Federal Circuit Court without the leave of the Court.

10. Section 118 of the Act provides the source of power for the Court, if it is satisfied that the proceedings are frivolous or vexatious, to make such an order.

11. I have already noted that the history of this matter includes the Mother consenting to final orders on 23 October 2009 conferring sole parental responsibility on the Father and providing for the child to live with the Father. Again on 18 April 2012 the Mother consented to final Orders only varying the earlier Orders but not in any material respect.

12. These proceedings were brought about as a consequence of the Mother instituting them following her conduct referred to in the June/July 2012 holiday period already discussed. In the end, the Mother did not pursue these proceedings given her decision to cease to participate in them as confirmed by her in the hearing on 21 January 2012 following her earlier filing the Notice of Discontinuance.

13. With some hesitation I conclude that the Court cannot be satisfied that the proceedings were actually vexatious or frivolous. The Father has actively sought orders as supported by the ICL which are final orders in different form to those previous operating. In that respect to the extent that the proceedings involve orders sought by the Father and the ICL and the evidence relied upon for those orders it does not seem to me that the proceedings can be described as vexatious or frivolous such as to enliven the power under s 118.

14. However, that is not to say that if the Mother again institutes proceedings after these orders it would not be open to a court considering those proceedings to determine, against the background history including these final orders and reasons that such proceedings are frivolous or vexatious if the Mother is unable to support such proceedings by showing a substantial or material change in circumstances as would justify yet further parenting proceedings.

15. Nothing in these reasons should be interpreted as meaning that the Father and the ICL are any way constrained to mount an application pursuant to s 118 in the event that the Mother again institutes parenting proceedings, absent any convincing proof of a material change in circumstances.

16. For these reasons I make the orders set out at the commencement of these reasons. 

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 July 2013.

Associate:

Date:  9 July 2013