EWENS & EWENS

[2018] FCCA 2300

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWENS & EWENS [2018] FCCA 2300

Catchwords:
FAMILY LAW – Children – seventeen year old child – no contact with the father.

Legislation:

Family Law Act 1975, ss.60CC, 65D

Applicant: MR EWENS

Respondent: MS EWENS

File Number: BRC 3322 of 2012

Judgment of: Judge Cassidy

Hearing date: 14 August 2018

Date of Last Submission: 14 August 2018

Delivered at: Brisbane

Delivered on: 17 August 2018

REPRESENTATION

For the Applicant: Self-represented

For the Respondent:	Self-represented
Counsel for the Independent Children's Lawyer:	Ms Oakley
Solicitors for the Independent Children's Lawyer:	CNG Law

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

Parenting

(1)That the mother have sole parental responsibility for the child [X] born …2001 (“the child”).

(2)That the child shall live with the mother.

Discharge of Independent Children’s Lawyer

(3)That the Independent Children’s Lawyer be discharged.

Certificates issued under the Evidence Act 1995 (Cth)

(4)That MR EWENS is granted a certificate under section 128 of the Evidence Act 1995 (Cth), regarding evidence given in these proceedings by that person on 14 August 2018 concerning an indecent dealing charge relating to allegations of that person filming a child.

(5)That MS EWENS is granted a certificate under section 128 of the Evidence Act 1995 (Cth), regarding evidence given in these proceedings by that person on 14 August 2018 concerning her alleged breach of the Orders of this Court dated 1 December 2016, relating to her alleged failure to keep the father informed of the name/s of the child’s treating practitioners and school.

IT IS NOTED:

A. That 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 3322 of 2012

MR EWENS

Applicant

And

MS EWENS

Respondent

REASONS FOR JUDGMENT

Introduction

1.In this matter, the parents have asked me to decide the future parenting arrangements for [X], born …2001 (“[X]” or the Child”). [X] is seventeen years old and will be eighteen next June. 

2.The parents have been in some form of litigation involving [X], either in the Family Law jurisdiction or the domestic violence jurisdiction, since he was two years old. 

3.The mother’s proposal for the orders that she seeks is set out in an Affidavit filed on 10 August 2018. The orders that the mother is seeking are:

“1)That the previous Family Court orders be fully discharged;

2) That the ICL, Samantha Bolton, be discharged;

3) That the child, [X], born …2001, live with me;

4) That I have sole parental responsibility for the long term decisions of the child; and

5) That there be no communication between [X] and the applicant father.”

4.The father’s proposal is set out in an Affidavit that he filed on 10 August 2018.  The father is seeking that [X] spend one weekend a month with him, from 5:00pm Friday until 5:00pm Sunday; phone contact every Wednesday at 7:00pm for a maximum of ten minutes with Ms Ewens not present in the room to give [X] privacy. The father also seeks to instigate text chat once a week, however, the father can reply any time [X] initiates text chats.

5.Additionally, the father seeks an order for holiday time, including one week between Boxing Day and New Year’s Day inclusive; two weeks at Easter 2019 to spend time with the father and visit the grandmother in Country A; and every second year to spend time with [X] on his birthday. [X] has only one birthday left whilst these orders would be in effect, and he will have his majority on that birthday, so I would not make that order.  The father also seeks Father’s Day every year.  Again, there is only one Father’s Day left before [X] turns eighteen.  Finally, the father seeks an order that the mother provide him with [X]’s current treating doctor’s contact details.

6.The Independent Children's Lawyer set out a proposal in the Outline of Case filed on 13 August 2018, in part A of that document.  She seeks that the mother have sole parental responsibility for the child and that the child live with the mother. 

Background

7.This matter has had such a long history that I am adopting the chronology prepared by the Independent Children’s Lawyer as the background in this matter, even though not all of the events set out in the chronology are in evidence before me.  The reason I have taken that approach is to demonstrate the matter has been before various courts since [X] was two years old.  Furthermore, given [X] is now seventeen, I consider his views determinative of the matter. 

8.The orders I am making will only have ten months’ operation before [X] reaches eighteen and can be finally free of further litigation involving him under the Family Law Act 1975 (Cth) (“the FLA”).

Chronology of the matter

Item	Date	Event
1.	1965	Father born (51 years old).
2.	1970	Mother born (46 years old).
3.	1996	Date of marriage.
4.	1997	Father sentenced on one count of crimes… Conviction recorded, fined $1000, 240 hours community service and regular drug testing
5.	1997	Father sentenced on one count of crimes… . Convicted, fined $200.00.
6.	2001	Child born (15 years old this year). Child suffers from a number of medical conditions, including Autism, ADHD, anxiety and Sever’s Disease.
7.	19.05.2003	Parties separated. Father alleges the mother and child moved to Suburb L to reside with the maternal grandmother. Child spent no time with the father, except on his birthday. Mother alleges there is a history of domestic violence in the relationship and she was scared of leaving.
8.	18.09.2003	Consent Orders filed in the Court. (Father alleges he thought it was a Parenting Plan) This provided that the father spend time with child prior to pre-school each week from Monday 10am until Wednesday 9am and from when the child commences pre-school each alternate weekend from Friday 5pm until Sunday 5pm and half school holiday time with the father to facilitate all changeovers. Father alleges he travelled to Suburb L from Suburb M to spend time with child, being 120km round trip. Mother alleges father never had the child during school holiday time.
9.	2003	Mother alleges the child developed a medical condition, being an extended bowel which required constant monitoring and medication.
10.	07.2004	Date of divorce.
11.	2004	12 months after separation, mother relocated to Town N. Child spent time with father most Mondays and Tuesdays. Father enrolled child in Town N Grammar School but child moved to Town O State School after his first term at school. At this time child was diagnosed with mild Asperger’s Syndrome.
12.	2005	Father alleges he changed employment. Child’s time with father changed to time on most Saturdays and Sundays in addition to time once or twice a week after work for a few hours before taking him to his mother’s house. They played sport in the park during this time.
13.	2009	Mother relocated to Town P with the child. This was with the father’s consent. Father alleges they agreed to each share the transport time and costs. Father was still residing in Suburb R and travel time was 290km round trip. The mother did little travelling and never paid for petrol as promised. Father drove to and from Town P to spend time with child most weekends. Father took child to sports games on the weekends.
14.	29.05.2009	Child has first appointment with Mr B of Town P Psychological Services.
15.	04.06.2009	Letter from Mr B to Dr C notes: -    “the main issue for both parents was the inconsistency of parenting styles and the perceived impact this was having on [X]. Ms Ewens and Mr Ewens agreed that a major concern was the observation that [X] appears to exhibit more dysfunctional emotional and behavioral features when in the care of his mother… This concern bears further investigation with respect to [X]’s affect and comfort levels when in these separate environments.”
16.	05.06.2009	Mother informs child’s psychologist that “father is very controlling and dominating. Largely unsupportive during [X]’s pregnancy and expected her to continue to complete home duties with new baby and PND (post natal depression)”
17.	July 2010	Father alleges the mother said he was spending too much time with the child so decreased to each alternate weekend. Father made friends with Mr D in Town P and stayed there during the time he spent with the child.
18.	2010	Father commenced relationship with new partner, Ms E. The partner has a child [S] who is now 14 years old. Mother alleges she developed a friendship with the father’s partner. Mother alleges the father’s partner disclosed domestic violence she was experiencing by the father.
19.	2011	Mother alleges she arranged and paid for child’s passport to facilitate the child travelling to [Country A] with the father to see his family.
20.	October 2011	Father alleges child expressed a desire to spend more time with him and made complaints about his mother’s care.
21.	2012	Father, new partner and her child relocated to Town P. This was to be closer to the child. [S] commenced school at the same school as [X], being Town S State School.
22.	29.03.2012	Mother alleges father’s partner came to her distressed and said that the father had kicked her and her son out of the house. The father’s partner had recently been diagnosed with cervical cancer. The father’s partner asked the mother to help her find somewhere to live and an application was submitted, however the father’s partner withdrew it and went back to live with the father. The father’s partner disclosed to the mother that she thought the father was only with her to show he was in a “family” for the Court’s eyes to gain custody of the child.
23.	2012	Mother alleges that the child has liked the father living nearby but has started displaying anxiety issues including speech stuttering and health issues such as abnormal bowel issues.
24.	15.04.2012	Incident of Family Violence, Father aggrieved. Police called due to argument, Respondent to incident found out diagnosed with cancer and was angry with the Father for coming home intoxicated and bringing a friend. Incident recorded as minor and there were no previous incidents.
25.	20.04.2012	Initiating Application filed by father seeking:- -    Equal shared parental responsibility; -    Child live with mother and spend half the time with the father on the times he has off from his employment; -    Changeover at child’s school or mother’s house; -    Telephone call once a week to father during the time he is at work; -    Child to spend time with [X] (step-brother) once a week; and -    Mother to be restrained from relocating from Town P.
26.	24.04.2012	Mother alleges this was the last time she spoke to the father’s partner who informed her that her operation went well and she would need to undergo chemotherapy.
27.	28.04.2012	Mother alleges child disclosed to her that the father allowed the child to watch a movie rated “X rated horror.” Mother alleges following this the child was too scared to do anything on his own.
28.	30.04.2012	Father alleges the mother arrived at the father’s house with the Police to collect the child for changeover. Father alleges this was embarrassing in front of the children and the mother refused to allow the father’s partner touch the child’s hair despite treating him for head lice.
29.	04.05.2012	Mother alleges she was served with the father’s Initiating Application seeking parenting orders.
30.	June 2012	Father alleges mother has failed to facilitate telephone contact between the father and child. Father alleges the mother was also abusive towards father by way of text messages and in person at the child’s sports games. Father alleges the mother has taken the child to a psychologist without father’s consent and refuses to disclose psychologist details to the Father. Mother alleges the child does not like speaking on the phone and chooses when he wants to speak to the father.
31.	2012	Mother alleges the father has hidden behind trees at the child’s school and jumped out to see him. The mother alleges the father also attempts to speak to her about the court matter in front of other parents at the school.
32.	13.07.2012	Response filed by mother seeking:- -    Equal shared parental responsibility but mother have sole responsibility for all education and medical decisions; -    Child live with mother; -    Child spend time with father for 2 days on the father’s home roster and that time not to be overnight time; -    Father may contact the child once a week; -    Mother may contact child when the child is spending time with the father; -    Changeovers be at child’s school or mother’s house and no other person to assist other than mother and father; -    Father to return child’s passport; Notation that father have suitable accommodation for child, supply all clothing and mother to provide all medication for the child with clear instructions for the child’s time with the father.
33.	29.11.2012	Family Report prepared by Ms F.
34.	02.01.2013	Mother and Father attend first session of Sensory Detective Program with Ms G. Father had left child in the car and Ms G asked Father to bring him inside. Father did not want to bring child inside. Ms G insisted due to difficulties child with Asperger’s Syndrome have in tolerating hot weather. Father was belligerent for remainder of session.
35.	14.01.2013	During session with Ms G, Father is alleged to have told Mother “Shut your mouth before I knock your head off!”
36.	15.01.2013	Letter from Dr C to Dr H notes: -    He saw child accompanied by Mother and Father -    Father recently shown interest in being involved in child’s care after marital split -    “For the past several years Ms Ewens has been very keen to not let his father have involvement in any of his care. She finds that [X]’s behavior is very different while he is with him and has always claimed that every time he comes back from his father’s he is very emotionally disturbed and upset…. On leaving the room [the child] went straight to another boy that had come in with him and his dad. I understand this is his step-brother and he seemed to separate easily from Ms Ewens.”
37.	17.01.2013	During session with Ms G Father purportedly yelled at Ms G repeatedly. Ms G notes that during the meeting the Father kept raising his voice, berating her repeatedly and continued to be intimidating and obnoxious.
38.	18.03.2013	Letter from Dr C to Dr H notes: -    “There are still issues for [X] going to see his dad. He hates going and says its too long that he has to go.”
39.	04.07.2013	Final Orders made by consent including equal parental responsibility and ‘week about’ time. This arrangement was carried out from 04.07.2013 until 03.07.2015.
40.	12.09.2013	Letter from Dr C to Dr H notes: -    Mother “keen to enroll my support in furthering her cause in having [X]’s father excluded from contact with [X]” -    Mother “continues to be convinced that all [X]’s difficulties are a function of his interaction with his Father.”
41.	03.11.2013	Incident of Family Violence, Father is Respondent. Child was exposed. Aggrieved and another child unknown. Police witnessed aggrieved to have two visible bruises and swelling on her face. Aggrieved and respondent in de facto relationship. There was damage to property and Aggrieved disclosed Father calls her a “dumb slut” in presence of children, also has previously choked her.
42.	04.11.2013	Temporary Protection Order naming Father as Respondent, Aggrieved unknown, child unknown.
43.	08.11.2013	Police received notification from Department of Child Safety. Alleged Mother incapable of caring for the child. Anonymous notifier refers to child having bruises on knees, legs and arms. Police referred matter back to Department.
44.	21.01.2014	Letter from Dr C to Dr H notes: -    Mother complaining that Father failing to act appropriately -    Dr C supported Father not regularly giving child OsmoLax as should only be given as and when needed
45.	28.01.2014	Father’s partner allegedly verbally abused and physically assaulted by Mother at school.
46.	26.03.2014	Incident noted in school records where Father’s partner at the time allegedly hit by Mother. Father wanted Mother banned from school grounds.
47.	29.10.2014	Letter from Dr C to Dr J notes: -    Saw both parents with child although spoke with parents separately -    Father took on board advices from Dr C -    Mother “continues to want to put Mr Ewens down the whole time and eventually we managed to get a coherent discussion going.”
48.	18.03.2015	Letter from Dr C to Dr J notes: -    Child is not getting psychological support because Father has forbidden it -    Mother claims she is going to Court to get full custody of child
49.	28.06.2015	Incident of Family Violence, Police called, Father Aggrieved and Respondent unknown. Alleged property damage to Aggrieved Ute, noted by Police. Police noted that parties had separated and were living at different addresses, argument started over division of property.
50.	03.07.2015	Father alleges he returned the child to the mother at the conclusion of his week. Father has not spent any time with the child since this date.
51.	10.07.2015	Mother alleges child disclosed to her that the child was exposed to daily domestic violence between the father and his partner. This included aggressive loud arguments and accusing the child of being the cause of their problems. Mother states she reported this to Police and DOCS.  Mother alleges the child has commenced exhibiting aggressive and negative behaviour and told her he couldn’t sleep at night when he was at the father’s house. Mother also alleges father made a number of remarks to the child such as “when I get you I will take you away and you will never see your mother again.” Child told mother that he is scared and does not want to see his father again. Mother alleges child refuses to spend time with father unless it is supervised time. Mother made fortnightly appointments at SCOPE for child and GP appointments on a weekly basis. Mother cancelled child’s enrolment at Town P High School and commenced home schooling the child. Mother alleges the father refused to co parent and objected to complying with the Consents Orders made on 04.07.2013. The mother alleges these breaches included:- -    Not collecting the child from changeover himself, instead getting his partner to collect the child -    Having his partner talk to the school in relation to the child’s schooling -    Child not allowed to use electronic devices at father’s house -    Father not there in the mornings or evenings with child due to work -    Father refused to pay for schooling expenses for child -    Father not giving child medication correctly at designated times -    Father not returning child’s passport to the mother Mother also alleges that father’s partner would grab the child and the father would also be aggressive to the mother at changeover and this caused the child to be anxious.
52.	13.07.2015	Principal telephoned Mother to discuss email received. Mother stated Child would not be at school due to child witnessing incident of Family Violence and stating she did not want the Father to collect child from school.
53.	13.07.2015 – 28.07.2015	Child did not attend school
54.	14.07.2015	Child’s GP Dr J produced medical certificate stating child was unfit to attend school from 13.07.2015 to 30.08.2015.
55.	16.07.2015	Mother sought to gain 6 week exemption for Child from school due to Family Violence child alleged to have witnessed. Principal did not accept medical certificate.
56.	22.07.2015	Mother filed a Protection Order Application. A Temporary Protection Order was made by Magistrate Tonkin, suspending the Parenting Orders. Father served with Mother’s Application for Protection Order at 20:45 hours.
57.	03.08.2015	Mother requested Father be removed from school system due to DVO.
58.	17.08.2015	Varied Temporary Protection Order made temporarily removing the suspension of the Parenting Order.
59.	04.09.2015 – 26.10.2015	Child did not attend school
60.	08.09.2015	Child’s GP Dr J produced medical certificate stating child was unfit to attend school 08.09.2015 to 19.10.2015. Incident at child’s school wherein Father emailed principal to advise he would collect child, Mother telephoned to state “[X] was in danger and did not want to go with his father…” Principal informed Mother that they must abide by Orders. Mother then attended school and removed child prior to Father picking child up.
61.	16.09.2015	Father alleges he wrote to the mother proposing they attend mediation.
62.	25.09.2015	Father files a Contravention Application. Mother writes letter to DOCS.
63.	28.09.2015	Letter from Dr C to Dr J noting that both mother and child are suffering from heightened anxiety and child’s development progress seems to have stalled and he appears much younger than his 14 years.
64.	07.10.2015	Mother has meeting with Principal. Mother “adamant that [X] would not be returning to school while she believed that there was a possibility of Dad collecting [X] as she believed that he was not safe.”
65.	17.10.2015 – 20.12.2015	Child exempt from attending school due to medical certificate.
66.	20.10.2015	Child’s GP Dr J produced medical certificate stating child was unfit to attend school 20.10.2015 to 20.12.2015.
67.	22.10.2015	Email from Mother to school Principal, notes: -    Mother has submitted application for home schooling -    “hope you understand the stress these two court cases are having on [X] even though I am keeping it from him as much as I can. I do have to explain to him the reasons for the many appointments that he needs to attend.”
68.	23.10.2015	Contravention Application heard by Registrar Spink and withdrawn due to the father’s intention to file an Initiating Application.
69.	26.10.2015	Child registered for Home Schooling.
70.	30.10.2015	Father discovered the mother had withdrawn the child from school for 2015 and was home schooling him.
71.	02.11.2015	Father files an Initiating Application seeking:- -    Return to week about time arrangement with the child; -    Equal shared parental responsibility; -    Child be re-enrolled at Town P High School; and -    Recovery Order to lie in the Registry.
72.	19.11.2015	Mother files a Response to Initiating Application seeking:- -    All previous orders be discharged; -    The mother have sole parental responsibility; -    The father receive an annual update from the mother as to the child’s schooling; -    Supervised time with father at Harmony House each alternate Sunday; and -    Child’s passport returned to mother.
73.	30.11.2015	Orders made. Section 11F Report ordered.
74.	07.12.2015	Mother alleges an incident occurred where the father attended the child’s doctor appointment and wanted to sit in on the appointment. This was not planned. The doctor saw the father separately first and after that the father left saying “goodbye” to the child only. Father alleges he attended the child’s appointment with Dr C. Father alleges in the waiting room child attempted to engage him in conversation and each time he did this, the mother hit him in the leg with her hand to prevent him doing so. The doctor suggested the child come in with the father for the appointment but the mother refused to allow this. Letter from Dr C to Dr J, note the following: -    Dr C saw Father and then saw Mother and child -    Dr C notes when he fetched child from waiting room “he was sitting on a bench seat in a corner facing away from the door while his Dad left. He then freely came into my room..”
75.	07.12.2015	Final Protection Order made by way of consent without admissions for a period of 2 years. The child is named as a protected person, as is the maternal grandmother. The conditions state that the father is prohibited from contacting or attempting to contact the named persons or following or approaching the named person except to spend time with the child at Harmony House as agreed. Father also prohibited from making telephone calls or sending text messages. Mother alleges the father’s behaviour has improved since this Order was made.
76.	17.12.2015	Mother attended at Harmony House for initial intake with the child. Mother obtained Protection Order against the Father. Protection Order valid until 27.11.2017.
77.	21.12.2015	Child Inclusive Conference held.
78.	21.02.2016	Breach of Protection Order noted on file. Father alleged to have sent 2 photos and 2 messages to the child, in breach of the terms of the Protection Order.
79.	29.02.2016	Notes from Child’s engagement with Mr K, Life Coach: -    Child very withdrawn and hard to connect with -    Mr K feels child had regressed to be worse then when they started talking in November 2015 -    Child could not tell Mr K how he was or how he had been feeling -    Mr K feels child is more isolated and disconnected the child has ever been
80.	05.03.2016	Breach of Protection Order noted. Father attended Mother’s residence to collect the child in accordance with Orders. In breach of terms of Protection Order.
81.	18.03.2016	Notes from child’s engagement with Mr K, Life Coach: -    Child very aloof not interested in talking about past fortnight -    Child very distant and disconnected -    Child kept walking away from life Coach and life coach feels as though everything they have worked for has been list
82.	19.04.2016	Temporary Protection Order made, valid until 31.05.2016, Father is Respondent, Aggrieved is not named. Conditions: -    Respondent be of good behavior -    Respondent not contact -    Respondent must not go within 100m of where aggrieved lives or works.
83.	27.04.2016	Father charged with one count of Indecent treatment of child under 16. Charge relates to the Father having knowledge of an incestuous sexual relationship between his former partner Ms E and her son. It has been alleged that Father filmed his former partner having sexual intercourse with her son. Father informed Police that he has not reported the incident because he had a Family Law trial coming up and he did not want anything to jeopardise his trial.
84.	28.04.2016	Father charged with one count of owner permitting abuse of child on premises. Charge relates to the Father having knowledge of an incestuous sexual relationship between his former partner Ms E and her son. Father informed Police that he has not reported the incident because he had a Family Law trial coming up and he did not want anything to jeopardise his trial.
85.	10.05.2016	Temporary Protection Order made, valid until 10.06.2016, Father is Respondent, Aggrieved is not named. Conditions: -    Respondent be of good behaviour -    Respondent not contact Respondent must not go within 100m of where aggrieved lives or works.
86.	13.07.2016	Interim Order made for: 1.   Mother to have sole parental responsibility; 2.   Child to live with the Mother; 3.   Child to spend time with the Father at Harmony House; 4.   Father to engage in intensive psycho-education about safety needs of children and obligations of adults; 5.   Telephone time occur each Wednesday at 7.00pm.
87.	27.07.2016	Incident of Domestic Violence between Father and unnamed female whom he is alleged to have been in relationship with for four months. Police called due to argument, Father alleges that unnamed woman struck him, no visible injuries. Father noted as being argumentative with Police. Unnamed woman removed from premises by Police at Father’s request. Recorded as first incident of Family Violence between the parties.
88.	23.08.2016	Incident of Domestic Violence whereby Police were called to Father’s premises. Father had informed his new partner she was required to leave. Alleged that she had moved in and then lost her job and he was paying for everything. Meditated by Police and agreed she could stay one more night then Father would drop her to a friend’s house the next day. No physical violence or damage to property.
89.	02.11.201Ap6	Updated Family Report of Ms F filed. Recommends: 1.   Sole Parental Responsibility to the Mother; 2.   The child live with the Mother; 3.   The child spend time with the Father at Harmony House each fortnight, or if Harmony House is not available or able to be used then his time is to be supervised by an appropriate adult; 4.   The child have liberal telephone, skype or FaceTime communication; 5.   The Mother provide the Father with photographs, school records and reports etc.
90.	April 2016	Mother alleges the child has not spoken with the father or communicated with the father since this time. Source – paragraph 4 Affidavit of mother filed 23.11.2017
91.	August 2016	Mother states that she and maternal grandmother sold their house in Town T due to fear of the father knowing their whereabouts.  Mother alleges father then applied to the CSA alleging the mother had a large sum of money hidden from the sale of the property however his application was ultimately refused.
92.	November 2016	Mother alleges father applied for a review of the child support payable on the basis that the mother had funds from the sale of her property in Town T.  The mother alleges that this application was refused and considers that it was a ploy to obtain information about her and her family’s whereabouts.
93.	01.12.2016	Order made by Judge Purdon-Sully provides that:- 1.    The child live with the mother; 2.   The mother have sole parental responsibility; 3.   The child spend one day per week with the father at Harmony House; 4.   The father be at liberty to telephone the child each week on Wednesday’s at 7pm; 5.   The parents are restrained from removing the child from Australia; 6.   The ICL be discharged.
94.	03.12.2016	Father makes post to social media stating “what can I say…on Thursday the Federal Circuit Court refused to go through with the Trial…I waited 18 months after my son was taken but still can’t get justice.  Judge Purdon-Sully chose to hide behind fancy words and legal speak and denied my son a choice.  More than 60 false statements and contraventions, all in breach of the law, all fully documented but being a male means you are a paying target…can’t be a dad because they “know better”.  All the lawyers and all the barristers and the “independent children’s lawyer and psychologist and report writers, were female...starting to see a pattern??? Hard to do but time to start again miss my best mate. Love you always [X] xxx”.
95.	01.01.2017 – 10.08.2017	Mother participates in 10 sessions with …Psychology. Child has also attended.
96.	24.06.2017	Father files objection.  Mother alleges father’s files notice of objection application to child support.  The mother says that in support of such an application the father alleges that maternal grandmother was quite often seen in coffee shops unsupported, that the mother is the carer for the maternal grandmother.  She considers that the father has had the maternal grandmother followed to obtain information as to where they are residing.
97.	02.08.2017	Father sends text message to child.  “Hi [X], everything is going well. Would you like to have lunch with me at the …Club on Saturday at 12:30. Show mum the message and she will understand.  Mum and I will have a quick chat and then you and I can chat and catch on things and have lunch and mum can pick you up at 2pm. We have a lot to chat about to catch up like school and how much you have grown. I am sure Mum will bring you because so much has changed and so much more could change.  Please ask mum to ring me and I will chat to her. Love you heaps and can’t wait to see you on Saturday.  Love Dad xx”
98.	05.08.2017	Test message father to child. “Hi [X].  Missed you today. Lunch tomorrow would be good. I think mum knows how important it is for her to chat with me so there is no problem.  Hope you can come for lunch. Love you heaps Dad xx”
99.	09.08.2017	Test message father to child.  “Hi mate, hope you are keeping warm. It has been a bit cold hey.  Please pass this on to mum so we can arrange for us to go fishing on the weekend.  Love you heaps Dad xxx”  Hi Ms Ewens, please look carefully at the attachment.  … is my local MP.  I am sure you understand that I just want to see my son and don’t want anybody looking into your affairs any further.  Seems like a fair deal to me.  I would like to go fishing with [X] on Saturday. I look forward to talking with you by phone at 7pm tomorrow night.  Regards Mr Ewens.
100.	12.08.2017	Text message father to son.  “Hi [X].  We went fishing and got lots of small flatheads.  Hopefully big ones next week.  Hope you are okay. Shame mum won’t let you come with me.  Everything is changing now mate.  We will be able to go fishing soon.  This Minister is now helping and other ppl are also looking out for us so I get to see you soon.  Xxx Dad”
101.	18.09.2017	Correspondence to Dr L regarding treatment of mother and child, states that throughout 2017 she has been offering clinical psychological support to the mother and child for symptoms consistent with generalized anxiety disorder and post-traumatic stress disorder.  States that both mother and child are victims of domestic violence and experience ongoing trauma and stress. They experience constant fears of the child’s father taking him away from the mother and potentially harming him.  The child meets the criteria for ASD and as such his fears are magnified.  The child avoids food and activities that seem related to past experiences with his father and shuts down with anxiety when he receives messages.  Alleged that the mother and child are developing coping strategies of stress management exercise for mind and breathing techniques to improve emotional stability and they are learning to use boundaries such as walking away, turning off phones to manage their feelings.
102.	04.10.2017	Mother alleges father was found to be in breach of protection order and fined $650 in the Town P Magistrates Court.
103.	27.10.2017	Mother applies to Town P Magistrates Court seeking changes in relation to the protection order.
104.	07.11.2017	Correspondence, mother solicitors to father enclosing draft orders for father’s consideration. Proposed consent orders seek that the child live with the mother, the mother have sole parental responsibility, child spend no time with father, father not permitted to access any information about the child.
105.	09.11.2017	Correspondence father to mother solicitors stating that he would get legal advice and get back to them.
106.	13.11.2017	Temporary protection order issued by Town P Magistrates Court. Father listed as respondent, mother listed as the aggrieved, maternal grandmother and child named on the order.  States the respondent to be of good behavior towards the aggrieved, not commit an act of domestic violence, respondent prohibited from entering or attempting to enter or approach within 100m of premises where aggrieved lives. Respondent prohibited from contacting or attempting to contact the aggrieved.  Respondent prohibited from following or approaching within 10m of the aggrieved.  Respondent prohibited from making telephone calls or sending text message to the aggrieved.  Respondent to be of good behavior towards named persons. Respondent prohibited from contacting or attempting to contact the maternal grandmother or the child. Respondent prohibited from following or approaching within 10m of the names persons.  Respondent prohibited from making telephone calls or sending messages to the named persons.
107.	28.11.2017	Mother files Application in a Case seeking that all previous Orders be discharged, mother have sole parental responsibility, the child live with the mother, the child spend no time with the father, father not contact the child’s school, GP or other Specialists, child’s name be removed from the Family Law Watch List and the father pay the costs of and incidental to the Application in a Case.
108.	29.11.2017	Interim Order made by Her Honour Judge Purdon-Sully seeking ICL be appointed with respect to the child.  Matter to be set down for final hearing of not more than one day on a date to be fixed.  Requested that legal aid give consideration to reappointing Samantha Bolton in the mother.
109.	29.01.2018	Child & mother attend with Dr L, Clinical Psychologist.
110.	09.03.2018	Protection Order made in the Town P Magistrates Court continuing in force up to and including 18th March 2023 in which the child is a named person. The Order provides for the father not to approach the mother, come into contact with the mother, or cause any other person to come into contact with the matter, from making telephone calls or sending text messages.
111.	09.05.2018	Orders issued for the parties to participate in a Child Inclusive Conference and the matter adjourned to 01.08.2018 oral report to be provided to Federal Circuit Court.
112.	01.08.2018	Oral report provided by Ms M recommending that the child live with the mother and that there be no Order as to time between the father and the child based upon the child’s explicit wishes.

Education

9.[X] is in year twelve at the Town P High School. He is very much looking forward to his graduation at the end of this year. 

Health and any special needs of the child

10.[X] has a number of special needs that arise from being diagnosed with the following conditions: autistic disorder, borderline intellectual impairment, inattentive type Attention Deficit Hyperactivity Disorder, anxiety disorder, and Sever’s Disease.

Domestic violence

11.The chronology provided by the Independent Children's Lawyer sets out various incidents of alleged domestic violence. The mother currently has an order in place for five years until 2022. That order names the father as the respondent.  [X] is named on that order, but that part of the order will expire when [X] turns eighteen.  The order is a no contact order in relation to both [X] and his mother.  [X] told Ms M, the author of the s.11F report, that:

“He was able to talk about some of the experiences he had when his father was with his previous partner and their arguing and what he likened that to was he said to me,

“The court matter is ten times worse than what it was like when dad and his partner were arguing.”

12.[X] has obviously been exposed to some arguments and disagreements in the father’s household.  I accept that [X] was exposed to those arguments whilst staying with the father and the father’s partner.  I also note that, if I make no orders for [X] to have any form of contact with his father, the current domestic violence order that has [X] as a named person will prevent any form of contact between [X] and his father. 

Violence and abuse

13.The father is still facing a criminal charge relating to his alleged indecent dealing with a child. The father’s evidence is that the criminal charge is likely to be withdrawn; however it has not yet been finally dealt with.  The background to that charge is that the father’s ex-partner and her son arrived to the father’s home for one night to use the internet, as they did not have access to the internet at home. The father agreed to them staying for the night on that basis.  The father’s evidence is that he heard noises.  The father then investigated to see his ex-partner and her child in a sexual act.

14.The father says that he then asked his ex-partner to leave his home the next morning. However, the father did not report the incident to police.  The father’s evidence is that he was concerned police involvement in the incident might compromise the outcome of his Family Law matter. The father admits to a moral misjudgement but denies any criminal behaviour. 

15.I do not, on the basis of the evidence I have before me, consider that the father poses any unacceptable risk of sexual abuse to his son. Therefore, those events would not be the reason for making an order for no time.

16.I have to look at the factual issues that are in dispute, and there is really very little on the basis of factual issues in dispute in this matter.  The trial was very short in its compass, and so I will turn to the legal principles I have to consider.

The legal principles

17.The legal principles are set out in the FLA. There is a presumption of equal shared parenting under section 65D. I have the power to make a parenting order and, in deciding whether to make a parenting order, I have to have regard to the best interests of the child as my paramount consideration. I have to consider the primary considerations and additional considerations in coming to that decision. I also have to be aware of the objects of the Act and the principles underlying it. I note that children have a right to a relationship with both parents.

18.In terms of the primary considerations, I must consider the benefit to the child of having a meaningful relationship with both of their parents and the need to protect the child from physical or psychological harm or being exposed to neglect, abuse, or family violence. My conclusion is that it would be important to [X] to have a meaningful relationship with both his mother and his father.  I do not consider that there is a need to protect [X] from being exposed to the risk of family violence, harm, or abuse.

19.However, this young man has asked for some peace from the ongoing dispute his parents have involved him in for many years. The consequence of that is, for the next ten months until he is eighteen, he is probably not going to have a meaningful relationship with his father on his own views and wishes. 

20.The mother had no relationship with her own father for many years but, as a note, she now does have a relationship with him. It can be hoped, given [X] has a right to know and be cared for by both of his parents that he will be able to re-establish his relationship with his father once he is an adult. At that point [X] will not be constrained by the requirements to comply with orders of the Court or by the views or wishes of a parent.

The child’s views

21.The child’s view is the single most significant factor in this matter, that I have to take into account in coming to a decision in [X]’s best interests.  [X] told the report writer:

“[X] was very much focused on his graduation.  He was excited about graduating from year 12 and being in his last year of school and what that meant to him.  I think that probably will help you, your Honour, if I give you the words that [X] gave me.  [X] was able, when I asked him around what he would like, his views and wishes, and what he would like to happen, he wanted me to speak to her Honour and his words were that he would like you to make it happier for him and to make all this stop. 

He was able to describe that.  He used a description of him being in sports and having a five year sports badge, and that this Court case has been along the same lines as five years.  All that time, he said.  Most of that time, this has been occurring.  He talked about feeling in the middle and bouncing between two parents. 

He was able to talk about and explain that he felt like he was on a tightrope being pulled either way, and that there was a door in between, and he’s constantly hitting against this door, and that he would, if he severs one end of the rope, the impact for that person or the parent and how they would feel.  So he’s very much able to articulate that he is in the middle and he feels frustrated.  He said he would like all this finalised by the end of the year and to have a really happy graduation and, in his words, he said he didn’t want to have time with his father.”

22.The expert expressed the following opinion.  She said:

“The biggest thing for [X] at his age is that he should have some – he has got a small amount of his childhood left.  The milestones, like his graduation, is extremely important to him, and he should be able to enjoy that free of being within the conflict that he didn’t feel that anything was going to settle in the near future.” 

23.The expert went on to say:

“I think it’s because he’s under a lot of pressure and he doesn’t want to make the decision about that.  He just wants all this to finalise.”

24.The report writer continued:

“I can’t see, your Honour, how a contact regime could occur that wouldn’t continually put the child in the middle.  While it would be beneficial to [X] to have as many people who love him in his life, he’s almost a grown man, and I think his views and wishes are really important that a court should consider, and I don’t know what recommendations that I could make in regards to him being able to have contact, given the conflict in the co-parenting relationship, and the involvement of him in a way that would be able to be positive for him at the time.”

25.Having listened to the parents during the trial, I adopt the expert’s opinions without reservation.  [X] has asked the report writer to let his father know that Craig Lowndes was retiring this year. [X] and his father used to go to the V8 racing.  The father had a friend who worked with Craig Lowndes. I accept this suggests the young man might be reaching out to his father. The expert gave evidence that [X] had a very positive sense and feeling, he was able to talk about the things the father and he used to do years ago.

26.The difficulty, in my view, is the conflict.  This young man had to make a decision that he needs peace from the conflict.  It is rather sad that it has come to this, and the mother of all people should have realised that, given that she has had that severance from her own father.  The mother does not seem to have been as cognisant of it as I would have hoped.

The child’s relationship with significant persons

27.There is no doubt that the child has a significant relationship with his mother. Dr N, a clinical psychologist, raised some concerns about the mother’s relationship with [X] in 2016. Those concerns are set out in the report. The doctor says at paragraph 5.2:

“…She appears to be an over-protective mother who focuses all of her energy on her child without considering her own needs.  Ms Ewens’ reporting of her relationship with [X] suggested a close attachment.  She is certainly very child centred in her parenting approach if not somewhat enmeshed with her son.”

28.I share that concern that the mother is somewhat enmeshed with her son.  The psychologist goes on to say:

“It is unlikely that Ms Ewens’ anxiety and borderline traits would be interfering in her ability to care for [X]’s physical needs.  However, her anxieties about Mr Ewens are possibly being transferred onto her son, affecting her emotional care of [X].  I would be most concerned about parental alienation as Ms Ewens may be discussing too many issues about the father in [X]’s presence.”

29.I too, am concerned about that, but this young man will soon be able to see that for what it is. I also note that the expert said at page 17 of 21 of the Affidavit:

“…She acknowledged the need for [X] to have a relationship with Mr Ewens, as she did not have a relationship with her own father until she was an adult.  We discussed the parallels between the breakup of her own parents around the same age that [X] was when she split from Mr Ewens, and also her father re-contacting when she was around 14, a similar age to [X] at the moment, and how this made her very angry and rejecting at the time.”

30.I see history repeating itself in this matter and we simply have to wait and see how long it takes [X] to contact his father.  Parental capacity is also considered in the psychologist’s report at paragraph 5.7 and, in that report, the psychologist said:

“Ms Ewens is very capable of parenting [X].  She has some level of insight into the negative impact on [X] of her disputes with Mr Ewens.  However her anxiety and her poor coping strategies seem to feed the ongoing disputes with [X]’s father.  Ms Ewens may not be aware of how she is causing some degree of alienation in the relationship with her son and his father.”

31.That alienation is almost complete now.  In terms of the orders I am going to make, however I consider the psychologist’s opinions accurately sum up some of the concerns I have about the mother’s parenting and her relationship with [X]. 

32.Unfortunately, these issues have not been resolved, and it is [X] who has paid a very high price of having to “cut the rope” that attached him to his father, as he indicated to Ms M.  The same expert observed of the father that:

“Mr Ewens seems very capable as a parent.  However, he does not seem to fully understand the negative impacts the parental disputes may have on [X].  He reported not discussing the problems between him and Ms Ewens with [X].  However, he acknowledged that he is not very good at talking with [X] about either of their feelings.  In turn, [X] may not feel his dad is approachable if he has problems which are bothering him.”

33.I do not say the father was an angel by any means in this dispute.  The father has had significant issues with domestic violence and he certainly has the traits that he described to the psychologist that make it difficult for him to communicate.  However, I am very troubled by the mother’s approach and attitude. 

34.I have to look at parenting and the discharge of parenting responsibilities and the extent to which the child’s parents have taken, or failed to take, an opportunity to participate in making decisions about major issues.

35.This is a matter where I have never seen anything quite as spectacular in terms of a complete failure to be in harmony about caring for and making decisions about the medical, social and emotional needs of the child.  It is startling that the parents are so lacking in insight that they could not put any views and anxieties they have aside, with even the help of therapy, to let this little boy grow to his potential with their assistance. 

36.I have to look at the extent to which the child’s parents have fulfilled or failed to fulfil their obligations to maintain the child. There does not seem to be any evidence about that before me. 

37.I have to look at the capacity of the parents to provide for the emotional needs of the child.  I have already indicated I have real concerns about the mother’s capacity to provide for the emotional needs of the child. I think the father has some deficits in that area as well.  [X] has paid the price for that.  It is such a pity that the parents could not have got some assistance with their own failures so that they did not pass on these difficulties to this poor little boy, who is now a young man.

38.I have to look at the effect of any changes in this child’s circumstances.  [X] has not spent any time with his father since July 2015. The child will soon be eighteen. The young man’s circumstances are complex because of his disabilities. I accept the expert’s opinion that, if I make any order for contact, even the father just providing [X] with a V8 magazine subscription, that would have an adverse effect on [X]. This is because of the parents’ inability to damp down the conflict to allow [X] to have a relationship with both of his parents.

39.That is the parents’ fault. There is nothing I can do about that. That falls in their lap, and they will have to live with it for the rest of their lives. It may have very serious consequences for their son, who will soon be an adult. 

40.I have to look at any proposal that would be less likely to lead to further proceedings. The child will be eighteen in ten months. It is unlikely either parent will have the energy or capacity to have the matter relisted between now and then to seek another hearing. 

41.I have to look at parental responsibility. In making an order, I have to apply a presumption that it is in the best interests of [X] for the parents to have equal shared parental responsibility. How I wish I could have made that order in this matter, given this boy’s needs and the benefit it would have achieved from having two parents focused on getting him to his potential.  That, unfortunately, was not the case. 

42.I can accept there has been enough domestic violence to displace the presumption potentially, but it is really the lack of capacity to communicate, and the profound conflict between the parents that would be the reason I would not make the order for equal shared parental responsibility.

43.The father has conceded sole parental responsibility to the mother.  I therefore do not need to look at equal time or substantial and significant time as mandated under the legislation. I accept that the Independent Children's Lawyer’s proposal is in the child’s best interests for the following reasons. This young man needs to have some conflict free time leading up to his graduation from year twelve. [X] has expressed a clear wish to have no time with his father. [X] still has positive memories of his father, and this order might preserve them. In turn, those memories may open up a way to a relationship with his father when [X] is an adult.

44.I consider that putting [X] through more conflict in the last ten months of his childhood has a greater risk of jeopardising those fond memories, and the fact that he reached out to his father with the Craig Lowndes information. Therefore, I will make the order that is sought by the Independent Children’s Lawyer in her Outline of Case. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date: 19 December 2018