FLEETWOOD & WALTERS

[2014] FCCA 580

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLEETWOOD & WALTERS [2014] FCCA 580

Catchwords:
FAMILY LAW – Parenting – mother’s ability to facilitate the child’s relationship with the father – mother’s denigration of the father – mother’s consumption of alcohol – evidence of consultant psychiatrist – change of primary residence – sole parental responsibility.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Dundas & Blake [2013] FamCAFC 133
Marvel v Marvel (2010) 43 Fam LR 348

Applicant: MR FLEETWOOD

Respondent: MS WALTERS

File Number: BRC 7101 of 2012

Judgment of: Judge Howard

Hearing dates: 17 and 18 March 2014

Date of Last Submission: 21 March 2014

Delivered at: Brisbane

Delivered on: 26 March 2014

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the Respondent: Self Represented

Counsel for the Independent Children's Lawyer: Mr Linklater-Steele

Solicitors for the Independent Children's Lawyer: DA Family Lawyers

ORDERS – UNTIL FURTHER ORDER

1. That the child X born (omitted) 2010 (“the child”) shall be released from the Child Dispute Services Section of the Federal Circuit Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane into the care of the father on 26 March 2014.

2. That the child live with the father.

3. That a Family Consultant at Level 3 of the Federal Circuit Court of Australia provide counselling to the child in relation to the child’s change of residency if the Family Consultant deems it necessary.

4. That for a period of two (2) months from 26 March 2014 the child shall have no contact whatsoever with the mother.

5. That the Independent Children’s Lawyer shall prepare a proposed Final Order reflecting the Reasons for Judgment and forward it to the Court by 4:00pm on 2 April 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7101 of 2012

MR FLEETWOOD

Applicant

And

MS WALTERS

Respondent

REASONS FOR JUDGMENT

1. The Applicant father is Mr Fleetwood.  He lives in (omitted), Queensland.  He works in (employment omitted).  The father was born on (omitted) 1986.

2. The mother Ms Walters was born on (omitted) 1989.  The mother lives in (omitted), Queensland.

3. The parties are the parents of X who was born on (omitted) 2010.  The parents commenced a relationship on (omitted) 2009 and commenced living together in approximately June 2009.  The parents separated in December 2010.  Prior to that separation the parents had lived in (omitted) and (omitted).  Both of those towns are in New South Wales.

4. After the separation in December 2010 the mother relocated with X to Brisbane in approximately March or April 2011.  The father remained in (omitted).

5. Between April 2011 and October 2011 the father had telephone time with the child but only saw her on limited occasions – when the mother would agree to let him do so.

6. Between October 2011 and 27 December 2011 the father travelled from (omitted) every second weekend and spent the weekend with the mother and the child.  Then, from 27 December 2011 the father moved to Brisbane and lived with the mother – their relationship recommenced.  The mother, the father and the child then moved into a house in the suburb of (omitted).

7. The parents separated on a final basis in February 2012 when the father moved out of the (omitted) property.

8. The parents have been unable to agree on parenting orders.

9. The father would like to see a situation whereby the child lives primarily with him and spends alternate weekends with the mother.

10. On the other hand, the mother wants the child to remain living primarily with her and spending alternate weekends with the father.

11. The mother currently lives in (omitted) and changeovers have been occurring (when they do take place) at the (omitted) Contact Centre and/or in front of the (omitted) Police Station.  

Best Interests

1. Section 60CA of the Family Law Act 1975 states:-

   ““SECTION 60CA  CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER

   60CA    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

2. Section 60CC of the Act states how it is that a Court determines what is in a child’s best interests. The primary considerations are stated in s.60CC(2). Additional considerations appear in s.60CC(3). Section 60CC(3)(m) is a subsection requiring the Court to take into account, “any other fact or circumstance that the Court thinks is relevant”. Because of the myriad of issues for consideration in this particular parenting case – it is convenient and appropriate for the Court to deal firstly with s.60CC(3)(m).

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. For many years the mother has had a problem with alcohol.  The evidence discloses that, as early as 2004 – when the mother was only aged 15 years – the mother was consuming alcohol excessively and to such an extent that it was impairing her ability to make sensible decisions.  Exhibit 5 contains subpoenaed material from the New South Wales Police Service.

2. On 1 October 2004 in (omitted), New South Wales, the mother was intoxicated and was detained by the police.  The police notes of 1 October 2004 note as follows:

   “At 9.30pm on Friday the 1^st October 2004, the young person was located by Police in (omitted) well affected by alcohol consuming alcohol from a bottle of ‘Smirnoff’ vodka spirit.  Due to her inability to take care of herself and her state of intoxication, she was detained and conveyed to the Police station with the aim to contact a parent/guardian to release her into their custody.  Whilst at the station she was placed in a muster room, not in the charge room due to her tender age.  The young person insisted on Police supplying her with a cigarette.  This request was refused.  The young person started to walk out of the station, she was informed she was not able to leave until a parent/guardian was able to take her into their custody.  The young person became aggressive and abusive towards Police and had to be restrained.  The young person was placed in to the charge room into a dock.  A mobile phone was in her possession in the dock and she had a silver chain best around her waist that was a custody risk.  The dock door opened and the young person was invited to leave the dock and remove her personal property.  The young person refused to leave yelling abuse at Police.  Eventually the young person was forcibly removed for the purpose of being searched.  She resisted, kicking Leading Senior Constable B in the stomach as she was standing on the seat in the dock.  The young person had to be restrained on the ground whilst a female officer removed her property.  The young person resisted any attempt to put her legs back in the dock, as Police were trying to push her in, the young person kicked Constable T in the shins.  Eventually the door was closed.  The young person was entered into custody, during that period the young person continued to yell loud abuse at any Police officer present.  The young persons father was contacted, he stated that he was working a shift as a (omitted) and was unable to attend until 4:30am.  A Duty Officer from (omitted) attended the station and spoke to the young person, who abused the Duty Officer in response.  Whilst in the dock the young person was baring her buttocks towards Police whilst wearing a G-string and continually yelled abuse at Police.  With the Duty Officer present it was decided to move the young person to a cell where the young person had more room and a mattress to lie on with a blanket.  The dock door was opened and the young person hurled abuse at the officers present.  No officer touched her or came into contact with her in any way.  The young person walked to the cell and stood in the door yelling abuse directly in the face of Leading Senior Constable B, as she was yelling, saliva from her mouth was striking Leading Senior Constable B in the face.  Leading Senior Constable B asked her not to spit in his face, the young person spat a mouthful of spit then directly into the fact of Leading Senior Constable B from a distance of about 20cm away.  The saliva struck the officer in the left eye, cheek, forehead and hair.  The young person walked into the dock and the dock was secured.  Leading Senior Constable B immediately washed the saliva off his person.  The young person was informed that she had assaulted Police and action would be taken.  The young person continued yelling loud offensive abuse at Police for a further 40 minutes before quietening down.  Police suspect the young person may have had more than alcohol this evening.  Neither Constables T or B were injured as a result of each assault.  Leading Senior Constable B felt disgust at her actions, Constable T felt pain where she was kicked for some time afterwards.”

3. The young person referred to in the above quotation is the mother in these proceedings, Ms Walters.

4. As noted, from an early age the mother had a difficulty in controlling her consumption of alcohol.  Those problems continue.  In addition to the consumption of alcohol – the mother seems to have a history of poor decision making.

5. The mother’s behaviour in the (omitted) incident of 1 October 2004 could be seen as a youthful indiscretion.  But, unfortunately for the mother – her issues with alcohol and her inability to appropriately moderate her behaviour have continued – virtually right up until the present day.  The (omitted) Hospital and Health Service records are contained in exhibit 11.  In essence, these are the hospital notes from the (omitted) Hospital.  On 25 December 2012 (Christmas Day) the mother attended at the hospital and told the staff at the hospital that she had consumed four full strength beers “at dinner”.  In the witness box the mother clarified that and said that she had in fact consumed the four beers at lunch.  The mother then consumed two more of those beers after lunch and then went for a walk.  The hospital notes then state:-

   “Does not recall what happened afterwards only remembers being picked up by the ambulance from whom she had absconded.  Later called father to come pick her up and her father brought her to the hospital.”

6. The mother confirms that she fell over.  She does not remember what happened after that until she remembers waking up in the back of an ambulance.  She then climbed out of the ambulance and ran down the street back down to her father’s house.

7. The ambulance had inserted a cannula into the mother’s arm – no doubt in order to administer some intravenous fluids in order to assist the mother.  The mother returned to her father’s house with the cannula in her arm and her father took her to the (omitted) Hospital.  The hospital noted that the mother was “distressed”.  That appears in a type written note on the page which contains the first yellow tag affixed by the Independent Children’s Lawyer on exhibit 11.

8. The child – according to the mother – during this time was present at the maternal grandfather’s residence and no doubt saw the mother in a distressed state and with a cannula in her arm and then being taken off to the hospital by the maternal grandfather.  It seems more likely than not that the child remained at the maternal grandfather’s residence with the maternal grandfather’s partner – in relation to whom there are no details and no evidence.

9. Even though the mother, during her evidence, said that these events had occurred after lunch on Christmas Day 2012 – I note that the hospital record in fact notes that the mother arrived in the evening on Christmas Day – 19:52.

10. The hospital note states “Diagnosis – alcohol intoxication”.

11. Exhibit 4 contains the notes from the (omitted) Contact Centre in (omitted).  On more than one occasion in November 2012 it is noted that the mother was “very aggressive” when talking to staff at the contact centre; on another occasion it was stated that the mother was “very angry and abusive on the telephone and screaming loudly down the telephone before hanging up on contact centre staff”; the mother was “verbally aggressive and very unpleasant on the telephone” and the mother appears to have confronted contact centre staff on arrival on one occasion.  Further, the mother alleged that some medicine had been stolen from the child’s nappy whilst the child was at the contact centre spending time with the father. 

12. It is apparent from the notes contained in exhibit 4 (the (omitted) Contact Centre notes) the mother has significant difficulty in controlling her temper.

13. Not surprisingly, the contact centre staff felt compelled to withdraw the contact centre service.  This had the immediate effect of preventing the father from spending any time with the child.

14. The father eventually obtained interim orders from the Court to allow him to spend unsupervised time with the child and the contact centre in (omitted) was designated as the changeover point.  That is known as “(omitted)”.  Exhibit 10 contains the records from (omitted) at (omitted).  Those records reveal that the mother cancelled the changeover that was supposed to take place on 11 August 2013.  Further, the mother cancelled the changeover that was supposed to take place on 25 August 2013.  That evidence also reveals that the mother was running late on many occasions.  The changeover was also cancelled on 21 December 2013 when, once again, the father was refused access to the child by the mother.

15. It is apparent from exhibit 10 that the mother was looking for excuses not to attend at the centre and in particular I note on 12 October 2013 the mother informed the centre staff that she was attending at the police station in order to get the father’s car seat checked and was attempting to get the police to come to the contact centre in order to check the car seat which was apparently fitted in the father’s car to transport the child. 

16. The Independent Children’s Lawyer also obtained medical records from the (omitted) Medical Centre at (omitted).  Those records are contained in exhibit 9.  It is apparent that on 21 November 2013 the mother attended upon Dr G.  The mother informed Dr G that the child had been having reactions to berries in the past.  Dr G then referred the mother to a local paediatrician in order to seek further assistance.  I note there is a letter dated 26 November 2013 contained in the exhibit whereby the child’s name has been entered onto the paediatric clinic wait list.

17. There is no medical evidence at this stage to confirm that the child is allergic to berries.

18. On 2 December 2013 the mother went back to see Dr G with the child and Dr G notes that the child had a red macular rash on her face.  The doctor notes that he was not sure where it was coming from.  But the mother told the doctor that it seemed to be related to every time the child visits her dad and she is not sure if this is just a coincidence or whether it is related to a wilful exposure by the father of the child to berries. 

19. The doctor advised the mother that the child looked well and was not suffering from any fever.  The doctor told the mother that he was not in a position to say that the child should not visit the father.  The doctor (very sensibly) advised the mother to reach some mediated agreement with the father as the parents needed to work towards the best interests of the child in the end.  The mother indicated that she understood this.  Having listened to the mother give evidence in the witness box on 17 and 18 March 2014 – I have no confidence whatsoever that the mother understands the point that was made to her by Dr G.

20. Clearly, the mother was looking for a reason to suspend the child’s time with the father.  The mother did not obtain any assistance from Dr G in relation to coming up with a reason to prevent the child spending time with the father.  Notwithstanding that outcome with Dr G, the mother unilaterally suspended the father’s time from approximately November 2013 until February 2014 – when some further very limited time was “allowed” by the mother.

21. It is concerning to note that the mother appears unwilling to accept medical advice.  I note that the mother attended at the (omitted) Hospital at the emergency department at 11:30am on 9 December 2013 with a primary diagnosis of dysfunctional uterine bleeding.  It seems that the hospital performed an ultra-sound and no pregnancy was observed in the uterus but – the hospital notes that the possibility of pregnancy was not thereby excluded.

22. The urine pregnancy test was negative and the hospital recommended blood tests.   Of concern to the Court is the fact that the hospital notes that the mother was encouraged to have bloods taken – on two occasions – but refused.  The hospital further notes:-

    “Patient left against medical advice.”

23. There are Queensland Ambulance notes contained in exhibit 8.  On Sunday 14 April 2013 the mother had been out drinking with a male companion name “Mr C”.  It seems that this is not the same Mr C who is the mother’s current partner (Mr C).  The ambulance notes that the mother and Mr C had been “out drinking at clubs and taverns tonight”.  The notes state further:-

    “When it was time to go home Ms Walters had an unsteady gait and was being assisted to walk by Mr C.  At some stage she stumbled and Mr C caught her and she landed on top of him.  People watching on became concerned for her welfare as she was being bundled into a taxi for trip home.  Mr C says he told someone the address they were going to.  Someone not known to either of them called QAS.  QAS arrived at address expectantly.  1^st contact was Ms Walters’s mother who reported that she gets drunk frequently.  Ms Walters is initially pretending to be asleep but become offended at something her mother just said and then they started to have a heated argument. Once that settled down Ms Walters was able to say that she had been drinking and was unhurt and just wanted to sleep.  She denies being injured in any way.  She was accurate with her details and gave QAS no concern.  She consented to a basic examination.  Ms Walters, Mr C and the mother were advised to watch her for head injury signs if she did hit her head such as unable to be roused, vomiting and unable to walk.  Confusion and unequal pupils.  Advised that they call QAS if any of these undesirable symptoms manifest.  As a precaution VIRCA was applied when transport was offered and she declined/refused.  Ms Walters gave her refusal voluntarily without coercion.  She was informed that should a head injury exist the risks are that she may develop vomiting headache unable to walk unconscious or die.  Ms Walters’s refusal was relevant to her present condition bearing in mind that some symptoms can be caused by liquor consumption.  She was alert and orientated and comprehended and deemed to therefore have capacity to refuse.  Advised Mr C and mother accordingly and to monitor Ms Walters through the night and call QAS should she deteriorate.”

24. This incident occurred when the maternal grandmother was at the mother’s residence looking after the child.  It is not known whether the child witnessed any of the events once the mother arrived home in an intoxicated state.

25. The Queensland Ambulance Service were worried about the mother and offered to transport her as a precaution – no doubt to the emergency department at the hospital.  But the offer of transport was “declined/refused” by the mother.  This is another example of the mother refusing to accept sensible medical advice.  Further it is another example of the mother’s inability to control her consumption of alcohol.

26. It is worth noting at this point that the mother and the maternal grandmother have been estranged for many years.  It seems there was a three week window during 2013 when the mother and the maternal grandmother were reconciled.  It was during this three week window that the maternal grandmother was caring for X – on the night of the 14 April 2013 incident.

1. On 5 June 2013 the Queensland Ambulance Service once again came to the aid of the mother.  This note is also contained in exhibit 8.  The mother was located in a back alley behind the (omitted) Bank on (omitted) in (omitted).  The mother was in fact found by a mother and daughter cleaning team.  Bystanders told the Queensland Ambulance Service that they found the mother but were unable to arouse her from her sleep.  On arrival the QAS found the mother sleeping wearing black jeans which were pulled down to just above her knees.  The mother was not wearing shoes and was lying on a wet concrete surface.  The mother was easily roused by speech/touch and was able to walk to the vehicle with assistance.  The QAS called the Queensland Police Service because of the nature of the scene.  The mother stated that she had been at the tavern watching the football.  In the witness box the mother confirmed that this was a State of Origin game.  The mother said that she left the premises prior to the end of the game at about 10:30pm and says that she left the premises alone.  The mother was “unwilling to provide any more details of event, however informed QAS that she had recollection of tonight’s events, in which she became distressed ++.  PT (the mother) made mention of a person called “Dan” who was somehow involved in tonight’s incident, (mother) unwilling to provide further details.  Full head to toe assessment unable to be completed due to (mother’s) distress”.

2. The mother – during her testimony in Court gave evidence that she had watched the State of Origin game with two boys she knew from the Northern Territory.  No further details or evidence was given by the mother to explain how she ended up in a back alley behind the (omitted) Bank with her jeans pulled down to just above her knees.  It seems that the Queensland Ambulance Service discovered the mother in the back alley at some time just prior to midnight.

3. The mother maintains that on the night that incident occurred the child was being cared for by her father.  The maternal grandfather lives in (omitted).  It is worth noting that at this point the maternal grandfather did not provide an affidavit and was not called as a witness.  He was involved in one of the family report interviews.

4. The evidence reveals that, on 9 June 2013, the mother went on a pub crawl through the town of (omitted) visiting historic hotels.  She was accompanied by her companion or partner at the time whose name was “Mr C”.  At one stage during the course of this pub crawl the mother punched “Mr C” in the face or head.  The mother denies that she punched Mr C because she (the mother) suspected Mr C may have sexually interfered with the child.  The maternal grandmother had come to the conclusion that the mother herself believed that the child had been sexually interfered with by the person known as “Mr C”.  But the police held discussions with the maternal grandmother and the mother and came to the conclusion that the mother did not hold this fear.  No further action was required.

5. Of note, in relation to this evidence, is the fact that the mother was once again consuming alcohol to excess and freely admits punching “Mr C”.  There is no sensible reason provided by the mother as to why she saw it necessary to assault the person known as “Mr C” – (the mother stated that “Mr C” had been telling her what to do).  I confirm that the “Mr C” involved in this incident is not the mother’s current partner Mr C.

6. A close analysis of the evidence reveals that the police investigated the possible sexual interference with the child – and this investigation took place on 14 June 2013.  More details of the 9 June 2013 incident are contained in exhibit 6 which contains further notes from the Queensland Police Service.  It is apparent from exhibit 6 that the mother and “Mr C” had consumed their last drink at the (omitted) Hotel in (omitted).  The mother and “Mr C” had been observed to drink at that hotel over the period of a couple of hours.  The mother had been seen at that location “staggering” and “yelling” and “swearing” at “Mr C”.  The police were called to deal with the public nuisance created by the mother.  The mother was so intoxicated and so unable to control her actions that whilst in the presence of the police at or near the (omitted) Hotel in (omitted) the mother continued to swear loudly and the police “continually warned her to cease her behaviour” – and then, remarkably, and in the presence of the police, the mother hit her companion in the jaw.  This is the punch referred to by the mother in her oral testimony.  The police, not surprisingly arrested the mother in order to prevent the continuation of the offence.  The police noted that the mother was “extremely intoxicated and could hardly walk herself”.  The police organised a police van to attend at the scene and transported the mother back to the (omitted) Watch House.   

7. The parties attended for a family report that was prepared by Dr R and dated 16 May 2013.  That report is annexed to an affidavit of Dr R that was filed on 23 May 2013.  The report writer notes in paragraph 2.0, inter alia:-

   “Both agreed that the relationship was characterised by frequent physical, mental and verbal abuse, resulting in repetitive police callouts and notifications to the Department of Child Safety.  There are differing accounts as to the nature and pattern of violence in their relationship, with Ms Walters alleging that Mr Fleetwood was very violent.”

8. Mr Fleetwood told the report writer, “I have never hit her.  I have shoved her and grabbed her by her hair but I have never hit her.”

9. Mr Fleetwood told the report writer that the parties were fighting all the time.  He told the report writer that she would have massive mood swings and that one minute the mother would be fine and then the next minute the mother would be throwing remote controls at his head or attacking him.

10. During his oral testimony in the witness box on 17 March 2014 Mr Fleetwood confirmed that the parties, when they were together, had scuffles where they would grab each other.  He said this occurred on three occasions.  Mr Fleetwood says that both parties were at fault.  I note from exhibit 5 (notes from the New South Wales Police Service) that on 8 November 2010 in the Lismore Local Court an apprehended violence order was granted in favour of the mother against the father.  The father, it seems, had sent some abusive text messages to the mother complaining of the mother’s multiple sexual partners since separation.  I do note that the father had complained about the mother’s behaviour in this regard to Dr R.  I do note that the father agreed to attend an anger management counsellor in New South Wales in 2010.  Further, I note that after that date the parents became reconciled for some time.

11. I accept the father’s evidence in relation to the extent of any family violence that may have occurred during his relationship with the mother.  Inappropriate conduct by the father (in the form of being a party to family violence) appears to have ceased entirely following the final termination of his relationship with the mother.  

12. The father’s new partner, Ms A, gave evidence that, essentially, she does not believe that the father has an anger management problem.  I accept the evidence of Ms A.  I have come to the conclusion that the mother in this case has significantly exaggerated her claims in relation to the domestic violence which, she claims, was perpetrated by the father during the relationship.

13. I had an opportunity to listen to both the mother and the father in the witness box at length.  Post separation an incident occurred whereby the mother alleges that the father tried to run her over in a motor vehicle.  The father’s version is that he attended at the mother’s residence with the intention of dropping some child support money into the letterbox.  The father sent a text message to the mother to this effect.  The father drove his motor vehicle onto the footpath and was placing the money ($200-$300) into the letterbox when he caught a glimpse of the mother charging at him with a wooden spoon in her hand and then striking him in the face with that wooden spoon and the mother then climbed into the car and wrapped her legs around the steering wheel and was attacking the father in a violent manner.

14. The mother maintains that the father drove the motor vehicle at her on the footpath and struck her and then she rolled up onto the roof of the motor vehicle and in an attempt to hold onto the roof of the motor vehicle she put her right arm inside the driver’s side window and in so doing the mother struck the father in the face. 

15. During this manoeuvre the mother alleges that the father was driving off down the street with the mother still on the roof of the car for 200 metres.

16. I accept the father’s version of events in relation to this incident.  I find the mother’s version of events to be so incredible that it is not believable.  I have come to the conclusion that the mother was to blame for the incident.  I do not believe that the father drove the motor vehicle directly at the mother and I do not believe that the father struck the mother with the motor vehicle.  The police apparently investigated the incident and no charges were laid against either person.

17. The mother makes various other allegations against the father including that he placed a knife across her throat.  I reject that evidence of the mother.  I accept the evidence of the father where he denied doing any such thing.  I also reject the mother’s evidence that the father sexually assaulted her after separation.  Where there is any discrepancy between the evidence of the father and the mother in relation to family violence – I accept the evidence of the father.

18. I note further that the family report writer spent considerable time with the parties in the course of preparing two family reports. The father presented as somebody who is calm and essentially child focused.  Apart from one (relatively minor) incident – there is no evidence of the father being involved in family violence since the father’s final separation from the mother.

19. I had the opportunity to hear the evidence of the father and Ms A in relation to a heated argument that they had at their residence during 2013.  I accept the evidence of both the father and Ms A.  There was no physical violence involved.  The police attended the following day but the police were told there was no problem which required any further intervention by the police.  It appears there was a heated argument.  Neither the father nor Ms A were able to recall the precise terms of the argument.  Ms A had telephoned both the police and her brother – she was clearly very upset at the time.  But things obviously settled down very quickly and there have been no further issues.

20. On the other hand the mother’s life since final separation from the father has been characterised by the excessive consumption of alcohol; by frequently coming to the attention of the police; by being involved in violent and abusive behaviour.  A review of the subpoenaed material referred to earlier herein in these Reasons for Judgment confirms this history.

21. There also evidence to show that the mother abused the father’s former solicitor in writing.  The father’s former solicitor is Mr D.  I note an email sent by the mother to Mr D on 20 January 2014.  That document is annexure G (stated as exhibit G) to the affidavit of the father filed 4 March 2014.  The mother’s email of 20 January 2014 is offensive.  The mother heaped abuse upon Mr D and inexcusably – the mother has racially vilified Mr D.  The email reads:-

    “Seriously Mr D how fucking dumb are you?

    All I have asked for is a simple fucking email stating as to if you do or do not agree I will pre write it for you seen as your brain is never turned on!!!!

    “In regards to your request, our client does not agree to having order no. 7 removed from current orders”

    IS THAT FUCKING HARD ??????????

    Another piece of information for you.  I suggest you stop your unnecessary bullshit before I sue you!!!

    I AM PREGNANT UNNECCESSARY STRESS IS NOT WELCOMED DURING A PREGNANCY.

    You need to go back to school and re do your law degree because you have absolutely no idea what you are talking about in any of your emails.

    English is the common language used in Australia I suggest you use it or go back to your own friggin country!

    Don’t try me because If you cause any complications in my pregnancy I will sue you.”

22. The father’s affidavit filed 4 March 2014 contains quite a large number of pieces of correspondence where the mother has heaped scorn abuse and derision upon the father, the father’s lawyer and members’ of the father’s family.  In a most vile way – the mother has racially vilified the father’s new partner Ms A – referring to Ms A as a “black cunt”.  The mother, in the witness box, had originally denied that she had been racist in her comments.  But when confronted with such obvious evidence of racism – the mother was forced to concede her racist conduct.  There is further evidence of the mother’s vile and racist attitude contained in exhibit N of the father’s affidavit filed 4 March 2014.

23. In Dr R’s most recent family report dated 22 January 2014 and annexed to her affidavit filed on 11 March 2014 I note paragraph 12.2 where Dr R has referred to the mother’s substance abuse and mental health issues.  Dr R noted that there have been a number of occasions where the mother has required medical assistance as a result of her alcohol consumption and she noted that the mother has been held in a police station due to her aggressive behaviour.  Dr R notes further:-

    “Ms Walters also has characteristics of a high conflict personality.  She seems to lack self awareness in terms of her own interpersonal behaviour on others (for example she is not aware of the effect her negativity towards Mr Fleetwood has on X), she externalises responsibility for current issues blaming others (her mother, Mr Fleetwood, Mr Fleetwood’s legal representative, ICL, Contact Centre staff, myself) and has positioned Mr Fleetwood as her target of blame taking aggressive action against him and those who she views as supportive of him (his solicitor and the ICL).  Ms Walters at no point during the interviews was able to consider how her ongoing allegations, substance use and recent police and ambulance involvement could be perceived as concerning to Mr Fleetwood.  This point ought to be considered along with Dr G’s (diagnosis) of Post Traumatic Embitterment Disorder.  At the very least, these issues require monitoring and addressing as the impact of unstable parental mental health and substance abuse upon children is compelling.  In terms of Mr Fleetwood, it appears he has remained in a stable relationship with no issues of concern being evident.  Further, since resolving his relationship with Ms Walters, Mr Fleetwood has not shown any propensity for violence or aggressive behaviours”.

24. I accept this evidence from Dr R.

25. The mother lacks the capacity to facilitate a relationship between the child and the father (note, inter alia, transcript day 2, page 50, from line 17 and paragraph 12.1 of the second family report).  That was essentially the conclusion reached by the family report writer.  That is the conclusion that I have reached after having listened to the mother give evidence in the witness box during the course of these proceedings.  The mother has come to the conclusion that the father has been attempting to deliberately harm the child – by exposing the child to berries when it seems the child may be allergic to berries.  I completely reject the mother’s evidence in relation to that issue.  I find that the father has not at any time intentionally tried to harm the child.

26. Further, the mother believes that the father has been harming the child in an attempt to get back at the mother – or in some way harm or do injury to the mother.  This is clearly the mother’s view.  Mr C (the mother’s partner since August 2013) confirmed to the Court during his testimony that the mother holds this view. 

27. Further and of even more concern to the Court are the intimations given by the mother during her evidence that she does think or she may think in the future that it is possible that the father might sexually interfere with the child.  There is no evidence whatsoever that the child is at any risk in the father’s care.

28. As noted by Dr R in paragraph 12.1 of her most recent family report the mother’s beliefs and the mother’s comments and the mother’s negative opinions have been conveyed to the child.  The child has been exposed to the mother’s negative opinions regarding the father.  During the most recent family reports it was apparent to Dr R that the child was delighted to spend time with the father and interacted with him in a positive manner.  There were no signs of distress whatsoever.  Dr R noted at the conclusion of the observations that the child was observed to comment, “So do you still hate my daddy”.  The child made that comment to her mother.  Clearly, therefore, the mother has been expressing her negative opinions about the father to the child or in the presence of the child.  This is further evidenced by the fact that the mother has inappropriately interjected during telephone calls between the father and the child and the mother has inappropriately made accusations against the father during the telephone calls and in the presence of the child.  The mother’s behaviour in this regard is reprehensible.  Dr R stated at paragraph 12.1 that the mother’s behaviour is the beginning stages of parental alignment and/or alienation.  Whilst Dr R says that it seems, fortunately, that at this point in time the child is not yet demonstrating symptoms of parental alienation syndrome – it really is just a question of time.  Dr R notes:-

    “Indeed it seems she makes sense of non-contact as being due to her mother’s hatred of her father (as demonstrated in her comment at the conclusion of the observations period) rather than her father being a risk.  Nonetheless, continued exposure to a context where she is questioned and informed her father is negligent and harmful by her mother places X in an untenable position characterised by fear and confusion and is the constitutive context for parental alienation syndrome and other psychological complications.  Overall, Ms Walters lacks capacity to facilitate a relationship between X and her father.”

29. I accept this evidence of Dr R.  I accept her opinions.  I have also reached the conclusion that the mother does not have the capacity to facilitate a relationship between the child and the father.

30. On the other hand, I have come to the conclusion (as did Dr R) that the father does have the capacity to facilitate a relationship between the child and the mother (note transcript day 2, page 50, from line 27).

31. I was particularly impressed with the evidence given by the father’s new partner Ms A.  Ms A has two children of her own – a ten year old daughter and a two year old son.  The ten year old daughter spends regular holiday time with her own father in (country omitted).  Ms A is supportive of that situation.  The two year old son of Ms A does not spend time with his own father – but that is a choice that has been made by the child’s father.  Ms A is perceptive, sensible, child focused, intelligent, caring, understanding, sympathetic, supportive of X and supportive of the father in his endeavours to obtain an order whereby X would come to live permanently in their household.  Ms A is also well aware of the importance of X continuing her relationship with the mother.

32. I want to make it perfectly clear in these Reasons for Judgment though – even in the event the father was not in such a steady relationship with Ms A – I would have been convinced that the primary residence needs to change.  The mother is utterly incapable of controlling her behaviour and her hatred of the father seems to know no bounds.  I note further evidence from Dr R stated in paragraph 12.6 of her report where she states:-

    “Despite high levels of frustration and disappointment due to his time with X being limited or ceased as well as ongoing allegations made by Ms Walters that he is negligent and a poor parent, Mr Fleetwood has remained calm and stable with no evidence he poses any risk.  This is not the case with Ms Walters who is vulnerable to poor impulse control, aggressive behaviours and dysregulated affect.  These issues combined indicate that Mr Fleetwood is potentially more able to provide a safe, stable and secure caregiving context and is better positioned to facilitate a meaningful relationship between X and both her parents.”

1. I have no doubt that the best interests of this child demand a change of residence.

2. As further evidence of the fact that there needs to be a change of residence I note the compelling evidence of Dr G, consulting psychiatrist.  Dr G interviewed both parents and has provided a report which is annexed to his affidavit filed 18 September 2013.  Dr G comments at line 40 on page 8 of his report:-

   “(The mother) was antagonistic from the commencement of the assessment.  She was angry about the contention and need for this assessment which had “ordered” that she be medically assessed as she stated:-

   “The ICL Leanne Walsh yeah because she thinks I hurt my daughter.”

   She also indicated she believes that asking for an ICL has “completely backfired” on her.”

3. Dr G noted that the mother is not currently suffering from major depression and there was no evidence that she has suffered from a psychotic disorder like schizophrenia.  It is noted that the mother has a past history of poly-substance abuse and a past history of alcohol abuse which Dr G assessed as “severe and extremely problematic”.  Dr G continued on page 9 of his report:-

   “These issues combine with an extremely prejudicial childhood, and extremely prejudicial adolescent developmental period to produce a SEVERE POST TRAUMATIC EMBITTERMENT DISORDER (PTED).  Dr Linden of Germany has written about this syndrome over the last 10 years, one which is in this case, the most useful method of understanding the anger and rage, which Ms Walters harbours and which will guide (hopefully her psychological recovery from the abusive experiences, traumas and losses she has endured).”

4. Further, Dr G notes at page 9 from line 40 that the mother also has features of a personality dysfunction, “marked by a propensity for severely conflictual interpersonal relationships.”

5. During his evidence given to the Court by telephone on 18 March 2014 Dr G was particularly concerned at the mother’s attitude to a termination of pregnancy that occurred when she was 15 years of age.  Dr G quotes the mother as, in relation to the unborn child that the mother was then carrying, “I got rid of it”.

6. Dr G was very concerned at the words used by the mother when talking about, as Dr G put it, a new life that the mother was potentially able to bring into the world.  But Dr G’s concerns went further than just the content of the phrase used by the mother.  Dr G was concerned with the way the mother spoke the words.

7. Dr G noted that the post traumatic embitterment disorder impacts upon the ability of the mother to function.  The mother, in cross-examining Dr G pointed out that she is able to function day to day.  But Dr G explained that the post traumatic embitterment disorder impacts upon a person’s ability to function – in that part of their life where they engage in personal relationships with other members of society including those closest to them.  Dr G said that his concern is the mother’s inability to obtain and maintain fulfilling, loving, stable personal relationships.  The mother harbours significant hatred in respect of her own mother and expresses this hatred openly.  The mother harbours significant hatred in respect of the father in these proceedings.  The mother is estranged from her sisters.  The mother hates her step-father. 

8. The mother does seem to have a reasonably good relationship with her own father.  The mother has commenced a new relationship with Mr C (from August last year) and is, according to the mother’s testimony expecting a child with Mr C.  Whilst Mr C appeared to be a reasonably sensible person – he is not, unfortunately, in a position to guide or assist the mother in many of the areas that have been highlighted by Dr R and Dr G.  That is to say, the mother needs significant psychiatric and/or psychological therapy as outlined by Dr G (including what he called – wisdom therapy).

9. I also note that Dr G concluded that Mr Fleetwood did not appear to display any aggression.  Dr G essentially concluded that the allegations made by the mother against the father (in relation to violence and aggression) do not accord with Dr G’s assessment of the father.

10. Dr G commented at page 11 of his report that the mother has a “marked incapacity to accept/listen to/consider discuss the opinion of a person in authority.”  As an example – the mother was not accepting of Dr G’s comments and point of view.

11. I accept Dr G’s evidence and his opinions.

Section 60CC(2)

1. The Parliament has included s.60CC in the Family Law where it has set out how it is a Court is to determine what is in a child’s best interests. The reasons included above cover a broad range of evidence and touch on a large number of topics which are also referred to in s.60CC(2) and the other subsections of s.60CC(3).

2. Section 60CC(2) states:-

   “60CC(2)  The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

3. There are undoubted benefits to the child in having a meaningful relationship with the father in this case.  That was observed and commented upon by the family report writer, Dr R. 

4. It would also seem (at this point in time) that there are benefits to the child in having a meaningful relationship with the mother.  In order for that truly to occur – the mother will need to receive psychiatric/psychological therapy in accordance with the recommendations of Dr G.  If the mother does not address her excessive alcohol consumption and if the mother does not receive the type of psychiatric/psychological therapy recommended by Dr G – I have come to the conclusion that it may not – in the long term best interests of this child – be of a benefit to the child to have unsupervised time with the mother.  The mother needs to change.  The mother needs to address her problem with alcohol and the mother needs to obtain expert therapy to address the issues raised by Dr G including the syndrome identified by Dr G – post traumatic embitterment disorder.  It needs to be borne in mind that the mother in this case has no relationship with her own mother.  Further, the mother in this case does not have a relationship with her sisters.  The mother in this case in fact loathes her own mother and, as noted earlier the mother in this case loathes the father of the child.  Unless the mother in this case adequately and appropriately addresses the issues raised by Dr G (and by Dr R) including by receiving expert psychiatric assistance over a long term period – then I struggle to see how it could be in the child’s best interests in the long term to have unsupervised time with the mother at all.

5. Having said that – if the mother does address her problem with alcohol and if the mother does address the psychiatric issues referred to by Dr G then it will be in the child’s best interests to have a meaningful relationship with the mother.

6. Further, it is worth noting at this point that the mother’s negative attitude towards the father has significantly hindered the time that the child has been able to spend with the father since the parents separated on a final basis.  Notwithstanding that – the quality of the child’s relationship with the father has been maintained at a very high level and was commented upon by Dr R both in her written family report (the most recent family report) and in her oral testimony to the Court on 18 March 2014.

7. In relation to s.60CC(2)(b) the mother has been unable to control her consumption of alcohol. That is apparent from an examination of all of the evidence. Many of the events contained in the evidence that I have examined and referred to above (under s.60CC(3)(m)) – occurred during 2013.

8. The repeated excessive use of alcohol by the mother clearly is a significant risk factor for the young child.  The mother has not, to date, accessed any form of proper counselling or expert assistance to assist her in dealing with her excessive consumption of alcohol.

9. Further, the child needs to be protected from being exposed to abuse in the mother’s household.  That abuse takes the form of denigration by the mother of the father.  Dr R has pointed out that the mother’s negative and aggressive opinions of the father are voiced by the mother in front of the child.  The child has to be protected from that situation.  If the mother is not able to (even after receiving expert assistance) change her attitudes relating to the father – then it may well be the case that the mother’s time will need to be supervised with the child.

10. The child is at no risk in the father’s care.  That is the conclusion reached by Dr R.  It is also the conclusion to be drawn from the evidence of Dr G.  It is certainly the conclusion that I have reached having had regard to the evidence in this case.

11. I have no doubt that the primary considerations alone (in s.60CC(2)) are sufficient to lead the Court to conclude that this child must live in the primary care of the father. I also accept the evidence of Dr R that there needs to be at least a two month moratorium on the mother’s time and communication with the child. When the child goes to live with the father there is to be no contact whatsoever (including no telephone contact) for a two month period.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. The child is too young to express any meaningful views.

Section 60CC(3)(b) – the nature of the relationship of the child with:-

1. each of the child’s parents;  and

1. other persons (including any grandparent or other relative of the child).

1. Dr R observed a close relationship between the mother and the child.

2. Despite the mother’s best efforts to stymie any relationship between the child and father – the child continues to enjoy a close and loving relationship with the father.

3. Having observed the father’s new partner Ms A, I have come to the conclusion that there will be no problem with Ms A connecting with the child and caring for the child – for instance while the father is at work.

4. The extended family members of the father have not been given a proper opportunity to form a relationship with the child.  That is because of the actions of the mother. 

5. Indeed many of the extended members of the mother’s own family have been prevented from forming a relationship with the child – again because of the actions of the mother.  It seems that the child has a good relationship with the maternal grandfather.  The child would also seem to have a good relationship with Mr C.

Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long-term issues in relation to the child; and

1. to spend time with the child; and

1. to communicate with the child.

1. The father would like to have spent more time with the child; the father would like to have communicated more with the child and the father would like to have participated in making long term decisions in relation to the child – but, to date, since the separation of the parties – the mother has done practically all within her power to prevent the father from being involved in the child’s life.

2. The mother has been involved in the child’s life to date.

Section 60CC(3)(ca) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. When the child has been in the care of the father he has maintained the child.  The evidence discloses that the father has paid child support.

2. The mother has also maintained the child.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents;  or

1. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. The Court has come to the conclusion that the child’s residence must change.  The child will move from the mother’s residence in (omitted) and will now live primarily with the father in (omitted).  Dr R points out that this will be a difficult transition for this young girl at this point in time but – Dr R is of the opinion young X is resilient and the father and his partner are well capable of dealing with this transition. 

2. After a moratorium of two months the mother will be able to have alternate weekend time with the child – but only if the mother is living in Brisbane or the (omitted).  In the event that the mother remains living in the (omitted) region then her time with the child will be limited to one weekend per month and half school holidays.

3. It should be pointed out that Dr R made the observation that this is a drastic step to remove the child from the primary care of the mother – noting as she does that the child’s primary carer since birth has been the mother.  It is indeed a drastic step and not a step that the Court takes lightly.  But the evidence in support of a change of residence is overwhelming.  This child will have little or no relationship with the father if the child is allowed to remain in the primary care of the mother.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. If the mother moves to the (omitted) or Brisbane there will not be any significant practical difficulties or expenses in relation to the child spending time with the mother.

2. If the mother remains living in the (omitted) area there will be some practical difficulties and expenses – but these can be easily overcome by having changeovers at the (omitted) Contact Centre.

Section 60CC(3)(f) – the capacity of:-

1. each of the child’s parents;  and

1. any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

1. Both Dr R and Dr G essentially concluded that the father seems like a calm and reasonable person.  That was the upshot of their evidence.  I am certain that the father has the capacity to provide for the emotional and intellectual needs of young X.  The father has full time steady employment where he earns approximately $80,000-$100,000 per year.

2. The mother does not have the capacity to provide for the emotional needs of this child.  That is apparent from the evidence.  The mother’s derision and ridicule of the father in the presence of the child will impact upon the child’s emotional and psychological health.  That is the import of Dr R’s evidence.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. There are no particular findings in relation to this subsection except – the diagnosis made by Dr G in relation to the mother and the comments made by Dr R and Dr G in relation to the mother’s difficult personality.

2. Subsection (h) is not relevant.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The father has an excellent attitude towards the child and towards the responsibilities of parenthood and this has been demonstrated by his actions.  He has tried long and hard to obtain parenting orders to enable him to spend time with the child.  He has paid child support.  He has cared for the child when the child has been in his care in his household.  The father understands that the child needs to have a relationship with the mother.  The father will facilitate that relationship.

2. The mother does, on the face of it, have a good attitude towards the child – but due to the mother’s lack of insight – the mother has failed to realise the damage that she has been doing and will continue to do to the child if she continues upon her present path of denigration of the father.  To that extent the mother has not fully accepted the responsibilities of parenthood.  One of the responsibilities of parenthood is to ensure that the child has a proper and balanced relationship – indeed a close and loving relationship – with the other parent.   And that is an obligation which is placed upon a parent whether or not the parents are still living together or whether the parents are separated.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-

1. the nature of the order;

1. the circumstances in which the order was made;

1. any evidence admitted in proceedings for the order;

1. any findings made by the court in, or in proceedings for, the order;

1. any other relevant matter.

1. I have already made significant mention of issues relating to family violence earlier herein in these reasons and I do not need to canvass those issues any further at this point in time.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. An order that provides for the child to live primarily with the father is, in my view, an order which is less likely to lead to the institution of further proceedings.  If the child was to remain living with the mother I have no doubt that the mother will continue to denigrate the father and take steps continually to try to frustrate the father’s time with the child and will take steps continually to try to frustrate the father’s relationship with the child.  The mother’s actions since separation from the father all point in this direction.  In those circumstances – if the child was to remain living primarily with the mother – then I have no doubt that there would be further family law litigation brought about because of the actions of the mother – the mother will breach orders and try to stop the father spending time with the child.

Conclusion in relation to Best Interests

1. It will be abundantly apparent that I have come to the conclusion that the child’s best interests demand in this case that there be a change of residence.  There will also need to be the moratorium on time with the mother that I have referred to.

Section 61DA

1. To my mind there is overwhelming evidence pointing to the fact that the presumption of equal shared parental responsibility should be rebutted.  The mother has no regard whatsoever for the father.  The mother loathes the father.  The mother does not want the father as part of the child’s life.  It is not in the child’s best interests that there be an equal shared parental responsibility order.

2. The mother’s abuse of alcohol and the fact that she lacks insight in relation to her own denigration of the father (in front of the child) further compels the Court in this case to conclude that their ought be no equal shared parental responsibility.

3. Rather, what needs to occur is that there needs to be an order for sole parental responsibility in favour of the father.  I accept the submission made by Mr Linklater-Steele, counsel on behalf of the Independent Children’s Lawyer, in relation to this issue.  I also note the comments of the Full Court of the Family Court in Marvel v Marvel (2010) 43 Fam LR 348. At paragraph 103 the Court noted:-

   “103. It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances.  This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children.  In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.”

1. This is not merely a case of “poor communication” (as referred to in Dundas & Blake [2013] FamCAFC 133). Because of the mother’s antagonistic attitude and her confrontational personality – there is no chance that these parties would be able to share parental responsibility. My attention has not been drawn to any evidence (for example in exhibits 2 or 3) that would impact upon this finding.

Section 65DAA

1. There is no need for the Court to consider s.65DAA. If there was such a need I would have come to the conclusion (based on the reasons already provided) that an equal time order under s.65DAA(1) would not have been in the best interests of the child.

2. Further, if the mother remained living in the (omitted) area it would not have been reasonably practicable in any event.  If the mother was living close to the father’s residence it may have been reasonably practicable.  If the mother is living on the (omitted) it would not be reasonably practicable in my view.

3. In relation to s.65DAA(2) – I have come the conclusion that it is not in the child’s best interests for there to be an order for substantial and significant time with the mother. The mother’s time has to be limited to alternate weekends at this point in time. Having said that – down the track once the child gets to school the alternate weekends could commence from after school Friday and continue until before school Monday. In that respect it could possibly be said that such an order does come within the definition of substantial and significant time. To that extent – and to that extent only – it could be seen to be within the child’s best interests. That could only occur if the mother moves from the (omitted) area and lives either in Brisbane or on the (omitted).

4. My comments in relation to s.65DAA(1) and (2) are only included out of an abundance of caution. I do not take the view that the Court in this case needed to make particular reference or findings in accordance with those sections – because there is not going to be an order for equal shared parental responsibility.

The Independent Children’s Lawyer

1. On 23 October 2012 the Court made an order for the appointment of an Independent Children’s Lawyer.  The Independent Children’s Lawyer was Ms Leanne Walsh.  It is apparent from the evidence (transcript day one, page 109, from approximately line 10) – that the mother was not happy with the Independent Children’s Lawyer.  The mother made a complaint against Ms Walsh to the Legal Services Commission.  The mother claimed that Ms Walsh falsified one of the mother’s Court documents.  The mother went on to explain that it relates to what “informational material” the Independent Children’s Lawyer forwarded to the family report writer, Dr R.  It seems that Dr R had initially, inadvertently, failed to include a reference to one or more of the mother’s affidavits – as a document which Dr R had considered during the course of her deliberations.  When this inadvertent slip by Dr R was brought to her attention – she rectified the situation.  Dr R explained during her evidence given to the Court on 18 March 2014 precisely what had occurred.  There was no wrongdoing whatsoever by Dr R and nor was there any wrong doing whatsoever by Ms Walsh.

2. I totally reject the allegations made by the mother against Ms Walsh in relation to some form of unprofessional conduct.  There is no credible evidence upon which such an allegation could be made.  As the Independent Children’s Lawyer in this case Ms Walsh has conducted herself in a diligent and professional manner at all times including at the many mention dates before the Court.  Ms Walsh has also displayed an exemplary approach on behalf of the child in the onerous task of evidence gathering. 

Conclusion

1. I should also note that the mother conceded in the witness box that she would relocate from the (omitted) region to Brisbane if the Court ordered that the child live primarily with the father.  Mr C also indicated that he would relocate with the mother.  The mother and Mr C have already taken some preliminary steps (it seems) to enquire about employment in the Brisbane area.  I must say that – the mother is to be commended (as is Mr C) for considering such a move.

2. Notwithstanding the mother’s concession in the witness box (referred to in the last preceding paragraph) – in the written submission forwarded by the mother to the Court by email in accordance with the Court’s direction (the email having been received initially at 5:08pm on 21 March 2014 and then subsequently at 7:33pm on 22 March 2014) – I note that the mother does not restate her intention to move to the Brisbane area.  But the mother does talk about fortnightly visits “only if the mother travels to the (omitted) area to collect the child and has a suitable place for the child to stay.”  This is, in fact, a child focused suggestion.  It would enable the mother to remain living primarily in (omitted) (as appears to be her choice now confirmed in the written submissions) and yet still enjoy alternate weekend time with the child – without requiring the child to travel excessive distances.

3. Both Dr R and Dr G noted the mother’s aggression, anger and confrontational attitude.  The mother’s manner of giving evidence during the course of this trial – would have to be described as being, on a large number of occasions, aggressive.  And this is in the context of a parenting trial – where one would expect a parent to be on their best behaviour.  But the mother’s demeanour and attitude has to be seen in the context of Dr G’s reference to the syndrome known as post traumatic embitterment disorder.

4. It should be noted that I have had regard to the entirety of the mother’s written submissions (dated 21 March 2014 and sent to the Court by email in accordance with the Court’s direction) and I have also had regard to the written submissions forwarded by the father to the Court by email on 21 March 2014 at 4:36pm – in accordance with the Court’s direction.  In respect of the majority of the issues raised by the parents in their written submissions – I have touched upon most of those issues in the Reasons for Judgment and I do not consider it necessary to refer in any further detail to those written submissions of the parents.

5. I have placed significant weight on the fact that the mother is not and will not be able to facilitate the child’s relationship with the father.  In this regard I note the comments of the Family Court in Collu & Rinaldo [2010] FamCAFC 53 – where the Full Court noted that it is important for a trial Judge when weighing the considerations in s.60CC – to point out those matters upon which the trial Judge has attached greater significance.

6. In the best interests of this child the primary residence must change forthwith.

7. I would ask that within seven days the Independent Children’s Lawyer forward to the Court proposed Final Orders reflecting these Reasons for Judgment.   

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  25 March 2014