FENTON & FONTAINE

[2013] FamCA 523

FAMILY COURT OF AUSTRALIA

FENTON & FONTAINE [2013] FamCA 523

FAMILY LAW – PARENTING – Mother brought application for parenting orders after final orders made – Rice & Asplund issue – mother stated that the change in circumstance was the child’s expressed views that she wants to live with the mother – child view’s obtained through a family report – expert concluded and recommended that child live with the mother – expert opinion did not meet criteria set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 – pathway of reasoning was not clear – expert conclusions and recommendations not relied upon – no significant change in circumstances

Family Law Act 1975 (Cth), s 60CC, 61DA, 65DAA, 69ZT

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Rice v Asplund (1979) FLC 90-725
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.

APPLICANT: Ms Fenton

RESPONDENT: Mr Fontaine

FILE NUMBER: CAC 261 of 2009

DATE DELIVERED: 15 July 2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 December 2012, 20 May 2013 and 9 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Ms Petrie, 10 December 2012 and 20 May 2013

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers, 10 December 2012 and 20 May 2013

Orders

1. The mother’s application is dismissed.

2. The parties have equal shared parental responsibility for B.

3. The parties give consideration as to how the child can spend more time with her mother and do all those things which they might reasonably do to ensure that that occurs. 

4. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

5. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

6. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

7. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fenton & Fontaine 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 CANBERRA

FILE NUMBER: CAC 261 of 2009

Ms Fenton

Applicant

And

Mr Fontaine

Respondent

REASONS FOR JUDGMENT

1. The proceedings in this matter come at the end of what has been a long period of litigation between the parents of the child B, born in 2005. 

2. Proceedings first began on 16 February 2009, further proceedings about the child were begun on 9 August 2010 and these proceedings resulted in the judgment from me in November 2010 which meant that the child continued to live in Canberra with her father while her mother moved to Queensland as part of her employment in the public service. 

3. Subsequently, on 22 December 2011, Ms Fenton applied for certain orders relating to the time that the child might spend with Ms Fenton’s family during Ms Fenton’s work overseas. 

4. On 6 November 2012, Ms Fenton amended her application to seek that the child live with her in Queensland. 

5. In respect of that amended application the father raised the issue of Rice and Asplund[1] on the basis that there had been a defended hearing which concluded in November 2010 and this, in effect, was a relaunching of the same litigation.  In many respects it was.  The mother argued that the circumstances giving rise to the application in December 2011 were the child’s desire to live with the mother. The mother’s evidence was that the child was imploring the mother to allow her to come and live with the mother in Queensland.[2]

   [1] (1979) FLC 90-725.

   [2] This is not intended to be a quotation but rather a summary of what was said.

6. Ms C (“the Family Consultant”), a Family Consultant attached to the Family Court, Canberra Registry, provided a preliminary report dated 28 March 2013[3] in accordance with my orders of 10 December 2012.  This was necessarily a brief report focusing exclusively on the child and included the following comments:[4]

   She expresses clear wishes to live with her mother and a real longing to be with her and her family.

   [3] Exhibit J2.

   [4] Exhibit J2, [3.1].

7. The proceedings were scheduled to proceed on 2 April 2013 but were adjourned on that day because of the arrival of the mother’s new baby in Brisbane.[5] 

   [5] From her marriage to Mr Fenton.

8. The hearing resumed on 20 May 2013 for one day and the evidence of the parties was taken.  At the conclusion of that hearing, I indicated that I would proceed to deal with the matter on a substantive basis rather than dealing with it at a preliminary or threshold level under Rice and Asplund.  To assist me in that process, I commissioned a full family report and that report, dated 2 July 2013, became evidence in the proceedings[6] before me.  The other family report, together with earlier reports from Ms D[7] and Ms E[8] in relation to previous proceedings, also became exhibits. 

   [6] Exhibit J3.

   [7] Exhibit J1.

   [8] Exhibit J4.

9. The matter on 9 July 2013 and  the Family Consultant was cross-examined and each of the parties gave further evidence and was cross-examined. 

General principles in relation to parenting matters

1. I will return to the issue of Rice and Asplun and its application to these proceedings shortly. However, it is important that I should keep in mind the fact that in making any parenting order in relation to the child, I must hold her best interests as my paramount consideration. I am conscious also that those best interests should be determined taking into account the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).

2. Notwithstanding that the matter has been the subject of a previous hearing and final orders for sole parental responsibility to the father, I acknowledge the Act mandates that, when making parenting orders, I should apply a presumption that it is in the best interests of the child for there to be equal shared parental responsibility between the parties. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence.[9] The presumption may also be rebutted if I am satisfied that it would not be in the child’s best interests to share parental responsibility.[10]

   [9] Family Law Act 1975 (Cth), s 61DA(2).

   [10] Family Law Act 1975 (Cth), s 61DA(4).

3. If that presumption applies, or if I propose to make orders for equal shared parental responsibility, it is necessary that I should consider whether the child should spend equal time with each of her parents or should spend substantial and significant time with each of her parents.[11] 

   [11] Family Law Act 1975 (Cth), s 65DAA.

Applications of the parties

1. Previously, in November 2010, I had made orders which provided that the child’s father should have sole parental responsibility.  This has occupied part of the proceedings before this Court because the mother asserts that the father has been inflexible and unyielding in relation to this matter and overbearing of her in what she regarded as reasonable requests for information and participation.  For his part, the father reported that the mother’s conduct was harassing and unreasonable.  In these proceedings, the mother sought that the child should live with her in Queensland  that there be equal shared parental responsibility.[12]  The mother sought that the child should spend time with the father for substantial block periods during the school holidays, for two weekends during the Queensland school terms and at such other times as agreed between the parents.

   [12] Mother’s minute of orders sought, [2] and [3]. The document was in fact titled “Consent Orders”, however, the mother made it clear that these are the orders she seeks in these proceedings.

2. The father, in resisting the mother’s application, did not seek any specific order but it was implicit that he would prefer that the situation remain as it is, that is, that he has sole parental responsibility. He sought that the child live with him and spend time with the mother for block periods during the school holidays and for two weekends during the ACT school terms.[13]

   [13] Father’s minute of orders sought, [2] and [8].

Rice & Asplund issue

1. It is sometimes said that the rule in Rice and Asplund should be dealt with as a preliminary or threshold matter.  It is otherwise suggested that it is a factor properly to be taken into account after all of the relevant evidence has been heard.  I have determined upon the latter in this matter.  But to some extent, there is an issue about the re-agitation of litigation so soon after a final judgment. 

Best interests of the child

1. It is not suggested there have been any changes in the matters relating to the child’s best interests in broad terms as might be understood in the light of s 60CC.

2. There are mutual allegations, as there were in the last hearing, that each of the parents does not encourage the child in a relationship with the other parent, and each continues to assert that the other has failed to demonstrate capability as a parent because of a lack of empathy with the child and her wishes. 

3. Indeed, when pressed, the mother’s reason for bringing the proceedings again was what she said were the child’s continually and steadfastly expressed views that she wished to live with her mother.  In this regard I accept, without reservation, the mother’s genuineness in her bringing of the application.[14] 

   [14] The mother said words to the effect of “why would I put me and my family through all of this if…”

4. For his part, the father believes, and again I accept that he genuinely believes, that the mother has gone out of her way to influence the child. His opposition to the child’s moving to Queensland is based on what he regards as the child’s best interests. 

5. In part therefore the proceedings rest upon the family report of the Family Consultant dated 2 July 2013 to the extent that it analyses the relationship between the parents and their partners and the child, the importance of the families involved, the child’s views and her perceived needs. 

Primary considerations

Section 60CC(2)(a)

1. There is no question that the child will benefit from continuing a meaningful relationship with each parent.

Section 60CC(2)(b)

1. There is no child abuse or family violence within either household.

2. The mother suggested that the child may be exposed to family violence as a result of witnessing the father and his partner arguing. However, I accept the father’s partner’s evidence that their arguments are those that any couple would have in the course of a relationship. I also accept the Family Consultant’s evidence that a child’s witnessing of the resolution of those arguments, which the father and his partner do, is important.

Additional considerations

Section 60CC(3)(a)

1. Taken at its face value, the report records that the child has said that she now wants to live with her father:[15]

   [The child] was interviewed separately. Asked to recall what was discussed in her previous interview she said that “I wanted to live with my mother”. the child went on “but I’ve changed my mind because I didn’t know I was going to change my life in Canberra … so I take it back … I didn’t mean to upset my Daddy’s feelings and [Ms F].”

   [15] Exhibit J3, [29].

2. Perhaps not unsurprisingly, the mother does not accept that this is an independently arrived at view of the child.  And while she had been eloquent and emotional in her espousing of the proposition that, if at some point the child changed her mind and stated she wanted to live with the father, she would honour those views, the expression of the child’s views in the family report was not accepted by her as being independent.  The irony of this situation, given the father had previously felt that the child’s views about wanting to live with her mother had been influenced by the mother, is obvious. 

3. All of that having been said, it is clear that if I were to make the determination about where the child should live based exclusively upon what she had told the Family Consultant as her views, then she would remain where she is. That is, living with the father.  This, in itself, effectively removes the mother’s basis for her application. 

4. However, nothing is quite that simple.  As I will examine in some detail, the Family Consultant nevertheless came to the conclusion that it would be preferable for the child to live with her mother and spend time with her father and she sets out in some length in her report why that is so. 

5. One basis for the conclusion, although not a causa causans is that it is more likely than not that the child has now got to a point where she is distressed about the fact that what she says to the Family Consultant may upset one or both of her parents and really does not want to make any choices.  This is nowhere more apparent than in the following paragraphs:[16]

   34.      [The child] also indicated she was “worried about upsetting Mummy’s feelings.” These comments appear to confirm the child’s concern about upsetting her parents and that she perceives the issue as affecting other family relationships. This is of concern because it places the child at the centre of her parents’ conflict and requires her to make the “right” decision about her relationships.

   35.      She is aware that “my Mummy wants me to live with her and my Daddy wants me to live with him.” She said she wants to “see my Mummy more but I want to live in Canberra.” At this point the child began blinking her eyes and said they were “sore”. When the topic of her parents was raised again the child appeared irritated, stated “I don’t want to talk about it” and said that her eyes were “stinging…going funny.”

   [16] Exhibit J3, [34] and [35].

6. The poignancy of this situation is further underlined when the child was asked if she had a message for the judge and the child said:[17]

   “no” and then “actually yes, I want to live with my Daddy”. She said she did not think she would change her mind again. Asked how long this issue had been talked about in her family she said “it started when I was a baby.”

   [17] Exhibit J3, [37].

7. This is further analysed in the following paragraphs in the report by Ms C where she concluded that:[18]

   [The child] is experiencing considerable stress from being caught in the middle of the dispute. More than anything she wants to extricate herself from this position, not wanting to “choose”.

   [18] Exhibit J3, [40].

8. It is interesting that the word “choose” was chosen in this context.  The positions of the two parents were remarked upon by the child to the Family Consultant:[19]

   my Daddy says it’s my job to be a kid and have fun and Mummy says life is all about choices.

   [19] Exhibit J3, [42].

9. In summary, it might be reasonable to construe from the family report that the child does not want to choose and that any expression that she wanted to live with the father may have been unreliable as to her views. 

10. If this is the proper construction then the same logic is applicable to the child’s previous assertion that she wants to live with the mother. If the child’s views about wanting to live with the mother are unreliable because she does not want to choose, the mother’s application then loses the premise upon which it was based. 

11. A third construction, however, which appears to be the position taken by the Family Consultant is that, notwithstanding that the child has said she wanted to live with her father, and notwithstanding that it would be reasonable to construe her comments to the Family Consultant as wanting to be taken out of the middle of the dispute, nevertheless there were a number of factors which meant that it would be appropriate for the Family Consultant to recommend that the child should live with her mother. 

12. It is necessary to examine why the Family Consultant arrived at the conclusion she did and to do so in the context that she is an expert giving evidence in the proceedings. 

13. In the ordinary course of events, an expert giving evidence before the Court must indicate the bases upon which he or she has formed the conclusion. The expert must have the necessary expertise to form the opinion he or she does. The Expert must identify the assumptions which have been made and clearly set out the pathway of reasoning leading to the conclusions/recommendations.[20] 

    [20] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.

14. Section 69ZT(1) of the Act provides that a Court exercising jurisdiction about children might accept opinions, even if they did not satisfy the strict requirements of the Evidence Act 1995 (Cth). However, the Court has the discretion to “give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).”[21] The weight to be given to any such opinion is dependant in large measure upon the way in which the opinion was constructed and does not remove the obligation for experts to exercise professional rigour in the preparation of their reports. 

    [21] Family Law Act 1975 (Cth), s 69ZT(2).

Section 60CC(3)(b)

1. At paragraph 55, the Family Consultant formed this conclusion:[22]

   From these observations it seems that while the child was comfortable within each family unit, her play and free narrative suggested she has an emotional connection and identifies “family” most strongly with her mother and those with whom she lives. Her unconscious play appears to betray her true feelings and sense of family.

   [22] Exhibit J3, [55].

2. This apparently arises from the observations referred to in paragraph 54:[23]

   Observed in play with the father, [Ms F] and [G], the child played with the doll’s house and went about setting the furniture aright while the father watched on. With her mother, [Mr Fenton] and [H] in the room, the child played again with the doll’s house and went about choosing dolls to be each a member of the mother’s side of the family developing a narrative of their life, where they would eat and sleep. The mother engaged in the narrative the child initiated showing interest and asking questions.

   [23] Exhibit J3, [54].

3. While unqualifiedly accepting the experience and learning of the Family Consultant, it is difficult to determine from paragraph 54 how the Family Consultant reached the conclusion that she did in paragraph 55.  There may have been more to the observation that is recorded, but without the linkage and the pathway of reasoning it is difficult for me to accept the conclusion unqualifiedly. 

4. In paragraph 63 the Family Consultant recorded:

   From observations of her play and her comments made in both interviews, it seems that [the child] can talk about the everyday experience of being cared for by her mother and [Mr Fenton] in a manner that seems to be absent in her conversation about her father. This seems in contrast with the fact that her everyday life is with her father. [The child’s] report of her father’s attitude to her crying when leaving her mother as “being fussy” suggests he may lack emotional attunement with the child and awareness of her needs.

5. In this paragraph, the Family Consultant appears to draw some significance from the child’s discussion of everyday life with her mother and its purported absence in her conversations about life with her father.  While a distinction so drawn is, in some respects, obvious, it is not clear why this would necessarily lead to the conclusion that she should live primarily with her mother.

1. Again, in paragraph 83 the Family Consultant refers to the fact that:[24]

   From observations and statements of the child it appears she shares an emotional connection to her mother which is not wholly satisfied under the current arrangements.

   [24] Exhibit J3, [83].

2. I pause to comment that the observations and statements are not identified and I assume the conclusion contained in that paragraph has been reached as a result of the expert’s observations.  The pathway of logic to the conclusion is not, therefore, identified.  The paragraph continues:

   This was emphasised by the child when she said she wants to increase the time she spends with her mother.

3. The child did apparently make the comment that she wanted to spend more time with her mother but this sentence is used as a stepping stone towards a conclusion whereas why this connectedness was emphasised by this comment is not in any way explained.  The concluding sentence in the paragraph is as follows:

   If her experience is that the mother has been the parent that is best able to meet her needs then she will continue to look to her mother as she continues to develop, particularly when she is feeling under stress or emotionally overwhelmed.

4. Again, no basis for this conclusion is advanced by the Family Consultant.

5. However, this conclusion then leads to the further conclusion in paragraph 84 in these terms:

   If this need to consolidate her relationship with her mother is not met it could lead to a number of possible negative outcomes for the child.

6. The need to consolidate the relationship has not been articulated nor explained. 

7. The Family Consultant goes on to say:

   As the parents are so polarised if she remains with her father she could begin to align to a greater extent with her father and possibly become rejecting of her mother and question her mother’s love for her.

8. The contrary proposal of whether, if she were living with her mother she would become aligned with her mother and rejecting her father is not examined by the Family Consultant at all. 

9. I should record however paragraph 85 is persuasive about the need for a girl to be with a mother figure and would support unequivocally and unquestionably the need for the child to have regular communication with and indeed time with her mother. 

10. Assuming I were to accept the recommendation of the Family Consultant the comments that follow about “harm mitigating strategies” I believe to be helpful, sensitive and appropriate. 

11. Under a heading of evaluation the Family Consultant says in paragraph 89 

    [The child] seems to have a strong emotional bond with her mother and relate to her as her primary attachment figure. Her representation of her mother as her primary attachment relationship was exhibited in her comments during the two assessments, her drawings and her play especially with the doll’s house.

12. The significance of the mother as a primary attachment figure for a child of the child’s age is not examined by the Family Consultant.  It would appear likely, and so far as I can recall the evidence would support, that the mother was the primary attachment for the child in that she was the primary carer for the child during the first part of her life.  However, the child has now been away from her mother as a primary attachment figure for some two and a half years and the effect of that separation on a child of the child’s age was not the subject of any expert comment.  The extent and level of her attachment to her father and the significance of that attachment were not explored in this part of the report as well. 

13. Moreover, although it was asserted that the relationship was “exhibited in her comments during the two assessments, her drawings and her play especially with the doll’s house”, for reasons set out above, I do not accept that the play in relation to the doll’s house simpliciter is definitive of her relationship with either of her parents.  I also am unconvinced that her comments during the two assessments demonstrate very much more in this context then the fact that the child is a little girl caught in the middle of acrimonious conflict between her parents who is trying desperately to avoid hurting or offending either of them. 

14. This view is to some extent expressed in paragraph 90 of the report.

Section 60CC(3)(c)

1. Each of the parents have taken every opportunity to spend time with the child.

Section 60CC(3)(d)

1. In what appears to be the expert’s pathway towards her conclusion, paragraphs 70 and 71 occur:

   70.      It seems clear that if the child were to relocate to Queensland she would miss her father. This seems only natural when she has a positive relationship with him and has spent the last two and a half years primarily in his care. As well she would likely miss the familiar aspects of her life in Canberra in particular her relationship with [Ms F], [G] and her school friends.

   71.      The time in Canberra seems to have afforded her much needed stability and an opportunity to forge a strong relationship with her father. It seems likely that this relationship would remain intact if the child were now to live with her mother. There would no doubt be a period of adjustment and it is essential she receives professional support over this time.

2. I interpret paragraph 71 as meaning that because the child has now spent some two and a half years with her father, that her relationship with him will have the resilience to survive her translation to Queensland.  This may be supportive of a prediction about the child’s capacity for change but does not in itself provide a reason for change.

3. Into the same category, might be put the comments contained in paragraph 75 of the Family Consultant’s report in which the connexions with her peers and friends in Canberra seem to be diminished in importance.  While not doubting for a moment the accuracy of the observation, again this does not seem to be a reason for change but rather a reason why change, if affected, might be successful. 

4. Paragraph 91 moves straight to a consideration of the management of the transition to the mother without necessarily ascribing those matters to reasons for change. 

5. In my opinion, similarly unsupported in logic is paragraph 92 of the report:

   If the child continues to live in a situation of high conflict it is important that she lives with the parent who is best able to support her and her relationship with the other parent. It seems that through their close connection the child is better able to rely on her mother and ask for needs to be met when she is facing situations which distress and overwhelm her. There are concerns for her adolescent years being more problematic without the emotional scaffolding of her primary relationship with her mother to support her.

6. There seems little doubt on the evidence of both parents as well as the observations of the Family Consultant that there is a close connexion between the child and her mother.  However, the basis upon which the mother is the one who is “best able to support her and her relationship with the other parent” is, in my opinion, missing.  I also find it difficult to comprehend the meaning of “without the emotional scaffolding of her primary relationship with her mother to support her”. That necessarily relies upon the primary relationship which I have suggested before is not otherwise explained, the need during adolescent years for the emotional scaffolding referred to, and its particular application to the child in this case.

Section 60CC(3)(e)

1. If the child moves to live with the mother, the practical difficulty and expense in spending time with the father will be the same as it currently is when the child lives with the father and spends time with the mother. The child will still need to travel between Queensland and Canberra.

Section 60CC(3)(f)

1. It is not suggested that the child would not receive proper physical care and emotional and psychological and educational support with either parent.  Each of the parents believes he or she would be better able to do that, but there is no suggestion the other is not capable of doing it. 

2. I see nothing in the proposed arrangements that either of the parents offers in relation to the child’s care, education and extra-curricular activities as providing a differentiation between them. 

3. Also in paragraph 63, the reference to “being fussy” which leads to a conclusion by the Family Consultant that the father “may lack emotional attunement with the child and awareness of her needs” is not necessarily as clear cut it appears to be from the family report. 

4. “Being fussy” is a reference to the conversation reported in paragraph 36 of the Family Consultant’s report and the words attributed to the child: “Daddy gets upset because I’m being fussy”.[25]  The father, during the course of the proceedings, gave evidence that he had told her “not to make a fuss” about the fact that she might be sad about leaving her mother, not that she was “being fussy”.  This, of course, may mean that the child either misheard the father or the father is mis-relating what he said.  Whatever maybe the situation, there is at least some doubt about precisely what was said and, if the father’s version of it were to be accepted, then it may not suggest a lack of emotional attunement.  In any event (and the Family Consultant could not have known what the father’s version might be), it seems unsafe to base a conclusion of some magnitude upon, among other things, what may well have been a misconstruction of what was actually said. 

   [25] Exhibit J3, [36].

Sections 60CC(3)(g), (h), (i), (j), (k) and (l)

1. There is nothing relevant to add in relation to these matters.

Parenting orders

1. This judgment appears to be somewhat critical of the Family Consultant’s opinions and observations and the recording of those opinions and observations.  It is unfortunate that that should be so and it in no way diminishes the value that I place upon the massive professional talents Ms C brings to bear in her role. 

2. It is not often that it is necessary to examine in such minute detail the reasoning processes associated with the formation of opinions. 

3. In this case, it became necessary because of the crucial significance of the report and its recommendations in the light of the way in which the proceedings unfolded and the fact that absent the opinion and recommendations of the Family Consultant, none of the evidence would otherwise support any change from the existing situation arrived at through a final hearing.

4. Regrettably, each of the parties was self-represented and therefore possibly did not ask questions of the Family Consultant in cross-examination which may have provided some of the linkages necessary to confirm or to question the steps to the opinions expressed. 

5. I do not diminish for a moment the importance of the opportunity for observation by the Family Consultant.  It is with significant reluctance that in the light of her particular skills and experience in her observations that I disagree with the opinions expressed.  However, ultimately it is my task as judge to assess the evidence and I have set out above my reasons for the conclusions that I have reached. 

6. In coming to the conclusion I have that the child should remain living primarily with her father I have taken account of the benefit to the child of having a meaningful relationship with both of her parents.  I hope that she will continue to have that meaningful relationship as it has been recorded by the Family Consultant. 

7. I do not believe that the child needs to be protected from any physical harm whatsoever.  I do believe that it is necessary for a decision to be made to protect her from psychological harm and the emotional stress that she suffers from being in the middle of the dispute between her parents. 

8. I have taken account of the child’s views as best I may in the circumstances that are set out above.  I have concluded that the child has a good relationship with both of her parents.  This is a matter in fact corroborated by each of the parents of the other to some extent.  I have considered the allegations that each of the parents has to some extent fulfilled or failed to fulfil their parental role in the support of the other parent in the relationship and their support of the child.  I need add nothing more.  I have commented about the parent’s attitude to the child and to their responsibilities of parenthood indirectly.  It is probably appropriate for me to say a few more words about this.  For the child’s sake these parents must give up the animosity they express towards each other.  I would not expect either parent to have any warm or affectionate relationship with the other parent again.  That does not mean however they cannot behave in a restrained, disciplined and civilised way in matters relating to their daughter.  Their responsibility for their daughter will not cease at law until she turns 18 and may not cease for the rest of her live or their lives. 

9. Finally, I take account of the fact that the orders I make may or may not result in the institution of further proceedings in due course.  I cannot prevent what the parents will not undertake as a responsibility and that is giving their daughter the peace that she needs and a relationship with each of them that she craves. 

10. Essentially, this case related to the re-opening of a matter that had been the subject of orders made after a final hearing.

11. The primary reason for change was asserted to be the child’s strongly expressed wish to live with her mother. That is not the primary recording of the child’s wishes from the family report. It is reasonable to conclude that the child feels distressed and torn between saying that she wants to live with her father or that she wants to live with her mother. It is palpable that she does not wish to distress either parent and that she is acutely conscious of the fact that whatever she says will indeed distress either or both her parents. In my opinion, she no longer wishes to choose.

12. If I were to draw that conclusion from the report, this would not constitute a basis for changing the existing situation.

13. However, the Family Consultant, while acknowledging that situation, went further in providing a recommendation that, in any event, the child should live primarily with her mother. It is that conclusion and the bases for it which were the subject of my analysis above and which led me to reject the conclusions reached by the Family Consultant and the recommendations following therefrom.

14. Accordingly, in my opinion, there is no proper basis demonstrated for a change from the result of the judgment from the contested hearing in November 2010.

Parental responsibility

1. There is no doubt that the conflict between the parents, evidenced by the long series of litigation and from their palpable dislike of each other in their exchanges during the Court proceedings, means that the ideal of a cooperative parenting arrangement would be difficult to implement and any order requiring communication and cooperation between the parties would have to be made essentially in hope rather than expectation. 

2. Nevertheless, it is about time that these parents applied themselves rather more enthusiastically to the proposition that they should communicate on an effective and business-like, if not amicable, basis about the child and her welfare.  They are both intelligent and educated people and the distress they have caused to their daughter as a consequence of their failure to be able to agree is palpable in each of the reports provided for the benefit of the Court in this matter.  I think that many of the perceived provocations by one party were not intended as such and what one person considers to be concern, the other regards has harassment. 

3. In her family report, Ms C suggested that a move, as she recommended should be the case, of the child to Queensland should have the support of the father and that this would be in the child’s best interests.    This is unlikely to be the case. However, if these parents are able to get over how much they dislike each other and start putting their daughter’s best interests first, the child’s life will become much more tolerable then presently is.

4. While it may seem perverse to do so in the circumstances of this matter, in my opinion, the parents should share equal parental responsibility in the hope and, I believe, expectation that although it may be difficult for them to accomplish this, it is absolutely necessary they should learn to work together for the benefit of their daughter.  I will make an order accordingly.

5. Nevertheless, it does not seem that there is any reasonable prospect that the child will spend either equal or substantial and significant time with the parent with whom she is not primarily living.  The geography of the parents is such that such an arrangement in either case would not be reasonably practicable. 

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 15 July 2013.

Legal Associate:

Date:  15 July 2013