FREEMAN & BAGGS

[2011] FamCA 988

FAMILY COURT OF AUSTRALIA

FREEMAN & BAGGS [2011] FamCA 988

FAMILY LAW – CHILDREN – parental responsibility - with whom child shall live – mother primary carer – meaningful relationships with mother and father – allegations of physical abuse of child by father – father poses no risk of physical harm to child – father’s aggressive behaviour towards maternal family and lack of willingness or capacity to control his behaviour poses a risk of emotional harm to child – allegations of physical endangerment, neglect and mistreatment by mother unsubstantiated – mother poses no risk of physical or psychological harm to the child – allegations of past family violence perpetrated by father – father engaged in conduct towards mother falling within the definition of family violence - presumption of equal shared parental responsibility not applicable and/or rebutted – sole parental responsibility allocated to mother – child to live with mother

FAMILY LAW – CHILDREN – with whom child shall spend time – where infrequent contact was maintained between father & child despite mother’s offers to make child available to father - mother demonstrated a willingness and ability to encourage a close and continuing relationship between child and father – mother has capacity to provide for all needs of the child – father has an impaired capacity to fulfil child’s emotional needs – mother demonstrates proper attitude to child & responsibilities of parenthood – expert evidence the risk of psychological harm posed by father to child averted by supervised time with child and father engaging in counselling – orders for child to spend supervised time with father whilst father engages in counselling - transition to the child spending unsupervised time with father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Family Law Rules 2004 (Cth) rr 2.04B, 2.04D

Goode & Goode (2006) FLC 93-286
Marriage of B & B (1993) FLC 92-357
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Freeman

RESPONDENT: Mr Baggs

INDEPENDENT CHILDREN’S LAWYER: Neisha Shepherd Solicitor

FILE NUMBER: NCC 1277 of 2010

DATE DELIVERED: 21 December 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 15, 16  & 17 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Graham

SOLICITOR FOR THE RESPONDENT: David J Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Goodchild

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Neisha Shepherd Solicitor

Orders

1. All former parenting orders relating to the child B, born on … 2002, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Subject to compliance with Orders 8 and 9 hereof, each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)Until the parties are duly registered at the Relationships Australia D Contact Centre, Suburb C, NSW (“D Centre”) and supervised visits between the child and the father are able to begin at that venue:

   (i)For three hours on the last Saturday of each calendar month at E Centre, F Town, NSW (“E Centre”).

   (b)Once supervised visits between the child and the father are able to begin at D Centre, until the period of 9 months has elapsed following these orders:

   (i)For three hours on the last Saturday of each calendar month at D Centre.

   (c)For a further period of 9 months thereafter, subject to supervision by the paternal grandmother:

   (i)For one weekend each school term, commencing at 6.00 pm on the fifth Friday of the term and concluding at 6.00 pm on the following Sunday, or Monday if a long weekend; and

   (ii)For four consecutive days in each NSW school holiday period, other than the Christmas school holiday period, commencing at 12.00 noon on the first Sunday following the child’s last day at school in the preceding term and concluding at 12.00 noon on the fourth day thereafter; and

   (iii)For four consecutive days in the NSW Christmas school holiday period of December 2012/January 2013, commencing at 12.00 noon on Wednesday 26 December 2012 and concluding at 12.00 noon on Sunday 30 December 2012.

   (d)Thereafter:

   (i)For one weekend each school term, commencing at 6.00 pm on the fifth Friday of the term and concluding at 6.00 pm on the following Sunday, or Monday if a long weekend; and

   (ii)For one week in each NSW school holiday period, other than the Christmas school holiday period, commencing at 12.00 noon on the first Sunday following the child’s last day at school in the preceding term and concluding at 12.00 noon on the following Sunday; and

   (iii)For two weeks in the NSW Christmas school holiday period:

   (A)In the holidays of December 2013/January 2014 and in alternate years thereafter, commencing at 12.00 noon on 26 December and concluding at 12.00 noon two weeks later; and

   (B)In the holidays of December 2014/January 2015 and in alternate years thereafter, commencing at 12.00 noon on the third last Sunday of the holidays and concluding at 12.00 noon on the last Sunday of the holidays.

5. For the purposes of implementation of Orders 4(a) and 4(b) hereof:

   (a)The parties shall forthwith:

   (i)Confirm their respective registration at E Centre; and

   (ii)Contact D Centre and complete all registration requirements at that centre;

   (b)The parties shall comply with all reasonable requests and directions of staff at E Centre and D Centre;

   (c)The father shall bear the costs of E Centre and D Centre and pay such costs promptly when required to do so;

   (d)The time spent by the child with the father shall commence and conclude at the times designated by E Centre and D Centre; and

   (e)The mother shall cause the delivery of the child to, and collection of the child from, E Centre and D Centre at the commencement and conclusion of the time spent by the child with the father.

6. For the purposes of implementation of Orders 4(c) and 4(d) hereof, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at Suburb G, NSW, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.

7. Unless otherwise agreed, Order 4 is suspended if:

   (a)The father fails to attend for two consecutive visits of the child to D Centre pursuant to Order 4(b) hereof; or

   (b)The father fails to cause the collection of the child from the mother on two consecutive occasions pursuant to Orders 4(c) and 4(d).

8. Within 28 days of the date of these orders, the Independent Children’s Lawyer shall:

   (a)Select a suitably qualified counsellor to provide counselling and therapy to the father to assist him to understand, among other things:

   (i)The child’s interests are separate from his own interests;

   (ii)The child’s interests in the successful implementation of these parenting orders are paramount;

   (iii)His interests must yield to the interests of the child;

   (iv)The importance to the child of his compliance with these orders; and

   (v)The importance to the child of an absence of conflict between the parties.

   (b)Notify the parties of the name, address, and contact details of the counsellor she selects pursuant to Order 8(a).

   (c)Provide to the counsellor copies of:

   (i)The affidavit of the Family Consultant affirmed on 5 September 2011;

   (ii)The reports of Dr H dated 25 February 2011 and 25 August 2011;

   (iii)These orders; and

   (iv)The reasons delivered by the Court for these orders.

9. Forthwith upon notification pursuant to Order 8(b), the father shall do all such things and sign all documents as may be necessary to commence counselling and therapy with the appointed counsellor, and to participate in that counselling and therapy for 18 months or for as long as is deemed necessary by the counsellor, whichever is the lesser, and for that purpose:

   (a)The father shall meet the cost of such counselling and therapy; and

   (b)The father shall waive confidentiality, and irrevocably authorise the counsellor in writing to:

   (i)Consult with the mother, at the mother’s expense, about the father’s progress with the counselling and therapy;  and

   (ii)Make files, notes, reports, and other documents available for inspection and production on subpoena, in the event of future litigation.

10. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner, or as otherwise agreed:

    (a)By the father being able to send letters, cards, and/or gifts to the child no more frequently than once per calendar month, and by the mother promptly sending to the father:

    (i)Written acknowledgement of receipt of the father’s written communication, and

    (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

    (b)By email no more frequently than once per week.

11. Pursuant to s 68B of the Family Law Act 1975 the father is restrained from entering upon or approaching within 200 metres of the mother’s residence and any school attended by the child.

12. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

13. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

14. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

15. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

16. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

17. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period or compliance with Orders 8 and 16 hereof, whichever is the later.

18. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

19. Costs are reserved for 28 days.

20. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1277 of 2010

Ms Freeman

Applicant

And

Mr Baggs

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings represent another protracted episode of disagreement between the applicant mother and respondent father about the only child of their relationship.

2. The parties have litigated and obtained two prior sets of final parenting orders in 2004 and 2007, which have failed to quell their grievances.

3. There is no dispute that the child should continue living with the mother. The controversy surrounds the circumstances under which the child spends time and communicates with the father and whether the father should share parental responsibility for the child with the mother.

Background

1. The child B (“the child”) is the subject of these proceedings. He was born in 2002 and is now aged nine years.[1]

   [1] Mother’s affidavit, par 6; Family Report, par 4.

2. The parties have been arguing about him in litigation for a large part of his life.

3. After a relationship of little more than a year the parties separated in about September 2002,[2] when the child was only several months old.

   [2] Mother’s affidavit, par 5; Father’s affidavit, pars 2-3.

4. Parenting proceedings were instituted almost immediately in the Local Court of NSW at Suburb I. Interim parenting orders were made in those proceedings by that court in October 2002,[3] which provided for the child to live with the mother (Order 1) and have supervised “contact” with the father for three hours per fortnight (Order 4).

   [3] Mother’s affidavit, par 22.

5. Those parenting proceedings were eventually concluded by this Court on 11 October 2004 when final parenting orders were made with the consent of the parties.[4] Those orders provided for:

   a)The parties’ “joint responsibility” for the long-term care, welfare, and development of the child (Order 1);

   b)The child to live with the mother (Order 3); and

   c)The child to have daytime “contact” with the father each alternate weekend, with the prospect of overnight contact to be considered upon the child’s attainment of 3 years of age (Order 4).

   [4] Mother’s affidavit, par 22.

6. Fresh proceedings were urgently commenced by the mother about a year later on 10 November 2005 when the father detained the child.[5] Interim parenting orders were made on 16 November 2005,[6] which provided for:

   a)The discharge of the orders made in October 2004 in so far as they regulated the child’s “contact” with the father (Order 1.1);

   b)The child to have overnight “contact” with the father each alternate weekend, commencing from a date in November 2005 (Order 1.2); and

   c)Referral of the dispute to a further interim hearing before the Court in January 2006 (Orders 3-4).

   [5] Mother’s affidavit, par 53.

   [6] Mother’s affidavit, par 22.

7. The further interim hearing proceeded early in the new year and orders were pronounced on 6 February 2006.[7] The Court ordered that the child live with the father each alternate weekend, and also for one 25 hour period between the alternate weekends (Order 3).

   [7] Mother’s affidavit, par 22.

8. The second set of parenting proceedings were concluded by this Court on 18 June 2007 when final parenting orders were again made with the consent of the parties.[8] Those orders provided for:

   a)The child to live with the mother (Order 2.1);

   b)The mother to have “long term parental responsibility” for the child (Order 2.2); and

   c)The child to spend time with the father each alternate weekend from Friday afternoon until Monday morning, for one night in the intervening week, for half of school holidays once the child commences school, and on Father’s Day (Orders 2.3, 2.5, 2.9, 4).

   [8] Mother’s affidavit, par 22.

9. The consent orders made in June 2007 provided for the exchanges of the child between the parties to occur at a venue in a northern Sydney suburb. As the father pointed out in his affidavit, that was because the parties both then lived in the northern suburbs of Sydney.[9]

   [9] Father’s affidavit, par 77.

10. The father, who had previously lived in various residences in Sydney and on the south coast of NSW, relocated to live and work at J Town on the far north coast of NSW, rendering implementation of the June 2007 orders impractical because of the parties’ geographical separation.[10] The orders provided for exchanges of the child in Sydney on a weekly basis and that could clearly not occur if the parties live so far apart.

    [10] Mother’s affidavit, par 77.

11. The father notified the mother by text message that he had moved to “the tweed shire” in December 2007,[11] which is approximately when the father ceased regular interaction with the child.[12]

    [11] Mother’s affidavit, pars 26(f), 76.

    [12] Mother’s affidavit, pars 12, 78-91.

12. The father remained in J Town until June 2008,[13] and on his return to Sydney immediately attempted to resume seeing the child. The father went to the child’s school for that purpose.[14]

    [13] Father’s affidavit, pars 17-18.

    [14] Mother’s affidavit, pars 92-96.

13. In July 2008, the mother, her husband, whom she married in 2005, and the child relocated their residence from Sydney to K Town on the mid north coast of NSW.[15] They had been contemplating the move for some months, in the knowledge that the father was still living on the far north coast, but the father returned to live in Sydney contemporaneously with the mother’s move to K Town.[16]

    [15] Mother’s affidavit, pars 8, 13, 29-30, 97-101.

    [16] Mother’s affidavit, pars 26(g), 103.

14. The mother notified the father in writing of their decision to relocate in July 2008,[17] as was required by the June 2007 orders.[18] She also notified the father in writing of the child’s new school.[19]

    [17] Mother’s affidavit, par 102; Father’s affidavit, par 31.

    [18] Order 2.15 made on 18 June 2007.

    [19] Mother’s affidavit, par 106.

15. Following the mother’s relocation with the child to K Town and the father’s return to Sydney from J Town, the orders made in June 2007 remained incapable of practical implementation.

16. At the mother’s suggestion, the parties laudably agreed to exchange the child between them at a point roughly equidistant between their households at L Town, just north of Newcastle, on a less frequent basis. That arrangement prevailed over following months up until April 2009.[20] It is not correct, as the father asserted,[21] that the child was seeing him in accordance with the orders made in June 2007 over that period.

    [20] Mother’s affidavit, par 102; Father’s affidavit, pars 37-58.

    [21] Father’s affidavit, par 27.

17. In early April 2009 there was an unpleasant confrontation between the parties when the father collected the child from the mother and the father then failed to return the child at the conclusion of that weekend.[22] The father contended mechanical problems with his car precluded him returning the child to the mother at L Town,[23] but the mother was suspicious his explanation was a ruse,[24] so she therefore drove to Sydney to collect the child from the father.[25]

    [22] Mother’s affidavit, pars 117-122; Father’s affidavit, pars 59-61.

    [23] Father’s affidavit, pars 59-63.

    [24] Mother’s affidavit, pars 120-122.

    [25] Mother’s affidavit, pars 123-125.

18. That incident marked the end of the parties’ co-operation. Although the mother proposed to the father that they participate in mediation, she was no longer willing to exchange the child with the father at a point half way between their homes.[26] The mother demanded the father collect the child at K Town, which thereafter occurred rarely.[27]

    [26] Mother’s affidavit, pars 128-129.

    [27] Mother’s affidavit, pars 12, 129, 134-137, 146; Father’s affidavit, pars 66-68.

19. The child spent some time with the father in the school holidays in December 2009 and January 2010 by arrangement between the parties.[28]

    [28] Mother’s affidavit, pars 144-148; Father’s affidavit, pars 69-71.

20. At some indistinct point in time, the father elected to move from Sydney to live at M Town on the south coast of NSW. The father was living there by March 2010 at latest.[29]

    [29] Mother’s affidavit, pars 26(j), 164-165.

21. The child did not see the father again after January 2010 until the father attended his school at K Town in April 2010 wishing to collect him, following which the mother consented to the child spending some time with the father.[30] The father, however, did not return the child to the mother.[31] The father again attributed his failure to return the child to mechanical difficulties with his car,[32] but that explanation is plainly inconsistent with what he told the mother in a telephone conversation at the time.[33]

    [30] Mother’s affidavit, pars 12, 150-159.

    [31] Mother’s affidavit, pars 163-175.

    [32] Father’s affidavit, par 82.

    [33] Mother’s affidavit, par 164.

1. That incident was the catalyst for the mother to commence the current proceedings seeking fresh parenting orders.[34] The proceedings were instituted by the mother on 20 May 2010.[35] She sought orders designed to ensure that the communication and time spent by the child with the father was the subject of supervision, for a variety of reasons she explained.[36]

   [34] Mother’s affidavit, par 161.

   [35] Mother’s affidavit, par 16.

   [36] Mother’s affidavit, pars 17-19, 184-187.

2. On 18 June 2010, interim orders were made suspending the existing orders made in June 2007 which required the child to spend time with the father. Those former orders remained suspended until the proceedings were allocated a first day hearing before the Court for less adversarial trial on 27 April 2011.[37]

   [37] Mother’s affidavit, par 22.

3. On that day, further interim parenting orders were made, which provided for:[38]

   a)The child to live with the mother (Order 2);

   b)The child to spend supervised time with the father at E Centre, F Town for two hours every third weekend (Orders 3 and 4); and

   c)The child to communicate with the father over the internet via Skype once per week (Order 5).

   [38] Mother’s affidavit, pars 22, 217.

4. The designation of the contact centre at F Town was intended to meet the convenience of the child and both parties, given that the mother lived at K Town and the father represented to the Court his intention to imminently return to J Town.[39]

   [39] Family Report, par 23.

5. The mother fulfilled her obligation to register at the contact centre in compliance with the interim orders, but the father did not do so promptly.[40] Once the father eventually registered with the contact centre, the child only ever spent time with the father there on one occasion.[41] That occurred on 23 July 2011.[42] The father apparently abandoned his idea of returning to J Town and he was unwilling to travel every three weeks from Sydney to F Town to enable the child to spend time with him.[43] The father did not respond to an offer by the mother to utilise a substitute contact centre at Newcastle to avoid him having to travel so far to F Town.[44]

   [40] Notation B made on 23 June 2011; Notation C made on 29 July 2011.

   [41] Family Report, par 13.

   [42] Mother’s affidavit, par 219; Father’s affidavit, par 98.

   [43] Mother’s affidavit, pars 220-227.

   [44] Mother’s affidavit, par 221, Annexure AU; Family Report, par 23.

6. Consequently, other than for his interaction with the father at the contact centre on the single occasion in July 2011 and when in the company of the Family Consultant in August 2011, the child has not spent any time with the father since April 2010.

7. Despite the unsatisfactory implementation of the orders made in April 2011 requiring the child to spend time with the father, the child has continued to communicate with the father each week via Skype. The parties agreed that form of interaction has also been unsatisfactory, but they had very different perceptions about why that was so, attributing blame to one another. The mother blamed the father for his insightless behaviour and the father blamed the mother for her interference.[45]

   [45] Mother’s affidavit, pars 197-216; Father’s affidavit, pars 92-97, 102.

8. The matter therefore proceeded to trial with the parties gravely distrustful and highly critical of one another, which situation has endured and even intensified over the many years since the termination of their relationship.

Proposal and primary evidence of the mother

1. The mother pressed for the orders set out within her “Further Amended Amended Initiating Application” filed on 5 October 2011, which provided for:

   a)The child to live with the mother (Order 2);

   b)The mother to have sole parental responsibility for the child (Orders 3 and 4);

   c)The child to spend only supervised time with the father at a contact centre, with the frequency of such visits to be unilaterally determined by the mother (Order 5);

   d)Restraint of the father from attending at or near to the child’s school and the mother’s home (Orders 11 and 12); and

   e)The child to communicate with the father only in written form (Order 14).

2. Although the mother’s proposal entailed indefinite supervision of the time spent by the child with the father at a contact centre, in final submissions she conceded transition to the dispensation of supervision was ultimately plausible, depending upon the success of psychological therapy she desired the father to undertake.

3. In support of her proposal the mother relied upon:

   a)Her affidavit filed on 2 November 2011;

   b)The affidavit of her husband, Mr N, filed on 27 July 2010; and

   c)The affidavit of the maternal grandmother, Ms O Freeman, filed on 2 November 2011.

Proposal and primary evidence of the father

1. The father began the trial pressing for the orders set out within his Amended Response filed on 31 October 2011, which provided for:

   a)The child to live with the mother (Order 1);

   b)The parties to have “joint parental responsibility” for the child (Order 2);

   c)The child to spend time with the father, without the constraint of supervision, each alternate weekend and for half of all school holidays (Orders 3(i) and 3(iii)), with changeovers to be effected in Sydney (Order 3(v)); and

   d)The child to communicate liberally with the father over the internet via Skype and by telephone (Orders 3(ii) and 3(iv)).

2. By the time of final submissions it was conceded by the father’s counsel that his initial proposal was inapposite. The father acknowledged his need to participate in counselling and tendered a minute of order to that effect.[46] The father also conceded the child should spend time with him under supervised conditions at a contact centre for a period of time, but submitted the graduation from supervised time to unsupervised time should occur without undue delay.

   [46] Exhibit F1.

3. The father did not abandon his proposal for the allocation of equal shared parental responsibility, but did not make any submission as to how such parental responsibility could be usefully shared by the parties. In essence, while the father did not consent to an order allocating to the mother sole parental responsibility for the child, he did not meaningfully oppose it.

4. The father relied upon:

   a)His affidavit filed on 31 October 2011; and

   b)The affidavit of the paternal grandmother, Ms P Baggs, filed on 4 November 2011.

Proposal of the independent children’s lawyer

1. During the trial the Independent Children’s Lawyer tendered a provisional minute of orders,[47] which was shown to and unsurprisingly adopted by the Family Consultant, given that the proposal for indefinite supervision of the time spent by the child with the father at a contact centre was reflective of her recommendation.

   [47] Exhibit ICL1.

2. The proposal of the Independent Children’s Lawyer was rudimentary. It did not specify the frequency of the supervised time that should be spent by the child with the father.[48]

   [48] Exhibit ICL1, Order 4.

3. The difficulty experienced by the Independent Children’s Lawyer in formulating appropriate parenting orders was made plain in final submissions, when her counsel was unable to articulate specific orders and resiled from the provisional proposal.

4. Instead, the Independent Children’s Lawyer advocated simply for a broad outcome under which the father must engage in therapeutic counselling as a condition precedent to the child spending time with him, and that the time spent by the child with the father should initially be supervised at a contact centre and then later by the paternal grandmother. Dispensation of the supervision was ultimately envisaged, but the circumstances under which the staged transitions would occur were not refined.

5. The Independent Children’s Lawyer resolutely supported the mother’s proposal for the allocation to her of sole parental responsibility for the child.[49]

   [49] Exhibit ICL1, Order 2.

6. The Independent Children’s Lawyer did not adduce any evidence of her own, but did rely upon:

   a)The evidence of the single expert witness, Dr H, neuropsychologist, contained within her two reports dated 25 February 2011 and 25 August 2011; and

   b)The evidence of the Family Consultant, contained within her Family Report, annexed to her affidavit affirmed on 5 September 2011.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations

Section 60CC(2)(a)

1. It is common ground the child enjoys a meaningful relationship with the mother from which he derives immeasurable benefit. The quality of that relationship must be retained for the child’s best interests.

2. However, the benefit derived by the child from his relationship with the father was an issue of some controversy.

3. Despite the Family Consultant’s opinion about the ambivalence of the child’s relationship with the father,[50] the parties and Independent Children’s Lawyer mutually considered the child presently does have a meaningful relationship with the father, even though they have had little physical interaction over the last 18 months. The mother and maternal grandmother both admitted in cross-examination the child loves the father, and the mother confirmed that to the Family Consultant.[51]

   [50] Family Report, par 99.

   [51] Family Report, pars 24, 31.

4. The real issue about the child’s continuing relationship with the father is the child’s derivation of future benefit in the face of the father’s unrestrained behaviour, which is now beginning to cause the child some anxiety.

5. The child is conscious of the manner in which he conducts himself, so as not to “hurt[ing] dad’s feelings”. He feels pressured to interact with the father, even when not inclined to do so. He is conscious of the father’s propensity to be enraged, particularly at the mother and his step-father. The child clearly feels the responsibility for those problems lies with the father.[52]

   [52] Family Report, pars 61-68, 99.

6. I accept the Family Consultant’s evidence that the child is now at an age where “he has the ability to understand how relationships should and should not function” and that he is now “beginning to express his disappointment” that the father does not behave within socially acceptable parameters like other fathers. Similarly, I accept the Family Consultant’s opinion that bearing witness to violent and abusive behaviour of the father is liable to have “detrimental and long-lasting effects” upon the child, which means the child’s “emotional and psychological wellbeing” must be considered paramount to the joy the child derives from his loving relationship with the father.[53]

   [53] Family Report, pars 69-70.

7. Consequently, it is necessary to turn to the various allegations that potentially compromise the child’s relationships with the parties, but particularly his relationship with the father.

Section 60CC(2)(b)

1. The parties each made a raft of allegations against one another as to how the child is exposed or subjected to the risk of physical and psychological harm by their respective abuse of him, neglect of him, or commission of family violence in his presence.

2. Some of the allegations are histrionic and are easily rejected when subjected to logical scrutiny. That process is best facilitated by consideration of the allegations individually rather than compendiously.

   Allegations against the father

3. In her affidavit, the mother plainly stated:[54]

   I have dire concerns regarding [the father] spending any time including supervised time with [the child] or communicating with [the child] via Skype or phone, for reasons mentioned in points 17, 18, 19 (a through q) and for reasons set out in this Affidavit.

   [54] Mother’s affidavit, par 19.

4. There are a number of observations to make about that statement.

5. First, the remainder of the mother’s affidavit contained evidence which elaborated, but did not expand, the grievances identified by her in the few nominated paragraphs of her affidavit.

6. Secondly, in paragraph 17 of her affidavit, the mother asserted her concern about documents produced on subpoena, relating to the father, which she had read. That material was obviously not available to her when she decided circumstances warranted her commencement of these proceedings in May 2010. That information came to her knowledge subsequently, but it had no material influence on the orders she originally proposed when commencing the proceedings in May 2010. She proposed permanent supervision of the time spent by the child with the father from the beginning of the proceedings, in ignorance of that material.[55]

   [55] Initiating Application filed 20 May 2010.

7. Thirdly, the material produced on subpoena about which the mother expressed concern was furnished to the single expert for consideration, and the single expert relevantly concluded in her reports:

   There was no indication that [the father] has sustained a loss of intellectual functioning due to head injuries or any other factor.[56]

   The results of current neuropsychological assessment indicate that [the father] has a sound level of intellectual ability with no indication of a deficit in cognitive abilities due to head injury. His attention, verbal and visual memory and processing speed were all intact. Assessment of his higher order functioning or executive reasoning abilities did not identify any specific area of deficit in problem solving, judgment or self regulation.[57]

   It is the writer’s opinion that there are no significant concerns regarding [the father’s] current mental health status which would preclude him from having access to his son.[58]

   [56] Report dated 25 February 2011, page 4.

   [57] Report dated 25 February 2011, page 6.

   [58] Report dated 25 August 2011, page 5.

8. Fourthly, in paragraph 18 of her affidavit, the mother simply relied upon the concerns expressed by the Family Consultant about the father in the Family Report, which concerns arose, in part, from the evidence she adduced. Despite the circularity of the mother’s deduction, the Family Consultant certainly does endorse the worries of the mother.

9. Lastly, the contents of paragraph 19 of the mother’s affidavit are largely a collection of her perceptions and opinions about the father’s shortcomings, but are not necessarily facts. Some of her comments date back to 2002. The parties agreed upon final parenting orders, for a second time, in June 2007. Those orders were ratified by the Court. That agreement would not have been reached, and the Court would not have approved the agreement, unless the agreed orders reflected the best interests of the child. Grievances which pre-date that agreement must have merged in the Court’s orders. Only events which have occurred since those orders were made could logically compromise the continuing appropriateness of the orders.

10. One of the allegations made by the mother is that the child complained to her of being “physically hurt” by the father.[59] When asked in cross-examination, the mother explained that was a reference to an incident in November 2007 when the child informed her of the father playing roughly with him.[60] The mother telephoned the father to speak with him about the complaint,[61] which conversation the father admitted occurred. The mother must have been satisfied with the father’s explanation he had only been playing a game with the child because she did not act to curtail or sever the child’s relationship with the father as a consequence. On the contrary, one of her current grievances is that the father did not continue to diligently adhere to the existing parenting regime, because shortly afterwards he moved to J Town.

    [59] Mother’s affidavit, par 19(d).

    [60] Mother’s affidavit, par 70.

    [61] Mother’s affidavit, par 72.

11. The Family Consultant expressed a view that the father posed a “potential physical and emotional risk” (emphasis added) to the child because of his “demonstrated aggressive and hostile behaviour toward the mother and in other social circumstances”.[62] She added that the father “may also be directly hostile toward [the child] if [the child] is not agreeing with a sentiment expressed by the father”.[63]

    [62] Family Report, par 102.

    [63] Family Report, par 103.

12. While I generally accept the veracity of the Family Consultant’s opinions, I reject any suggestion that the child is exposed to the risk of physical harm caused by the father’s physical abuse of him. The Independent Children’s Lawyer submitted the father posed no risk of physical harm to the child and I accept that submission. There is no evidence of any past physical abuse of the child by the father and no proper basis for its inference as a risk. Relevantly, the Family Consultant acknowledged the child “feels the father will not hurt him”.[64] That is an important consideration.

    [64] Family Report, par 99.

13. The only persons who have been subjected to the father’s aggression and hostility over the last decade or so are the mother, her husband, the maternal grandmother, and the Family Consultant. The father has a past history of aggression and belligerence involving the paternal grandparents and other persons, extending back to his childhood,[65] but I am not satisfied those antiquated events are a valid basis for any prediction about how the father will act in the future as a parent to the child.

    [65] Family Report, pars 26, 89-90.

1. There is a common feature among the persons who have been subject to the father’s unbridled aggression. Each of them is perceived by the father to be staunchly opposed to his enjoyment of an unimpeded relationship with the child. That observation is not intended as justification for the father’s behaviour, which has been reprehensible. Rather, it serves to contextualise the father’s conduct. The evidence does not rationally permit an inference that the father is now ordinarily and indiscriminately hostile – only that he is prone to such behaviour when he feels persecuted over an issue of immense importance to him.

2. That really is the gravamen of the mother’s fear and the Family Consultant’s concern. They apprehend the father will remain pre-occupied with his sense of injustice and that his hostile behaviour towards the mother, her husband, and her family will continue unabated because of his enduring dissatisfaction about any parenting regime for the child which is foisted upon him.

3. Self-evidently, if such circumstances did transpire then the child would certainly be aware of the aggravated conflict and he would undoubtedly suffer psychological harm because of it. The Family Consultant also considered it a risk that the child would begin to mirror the father’s destructive behaviour, using the father as a role model.

4. The child is already aware of the animosity.[66] His acquisition of greater maturity will only make him more aware and make the deleterious consequences more acute.

   [66] Family Report, par 63.

5. The Family Consultant opined that the father’s aggressive behaviour and lack of willingness or capacity to control his behaviour posed a risk of emotional harm to the child.[67] I accept that opinion as inevitably correct. Given that such a risk exists, the vexed issue is how to ameliorate the risk, which is addressed later in these reasons. It is presently sufficient to identify the existence of the risk as a consideration of prime concern.

   [67] Family Report, pars 99, 102.

   Allegations against the mother

6. The father conceded in cross-examination that the mother had done “a good job” in raising the child, whom he was satisfied was happy and healthy.

7. In making that concession, the father was obviously forgetful of the allegations he made to the Family Consultant about the mother only a few months ago in August 2011. At that time, the father told the Family Consultant the mother badly neglected and mistreated the child, which included permitting or causing the child to eat food from a dog’s bowl, that the mother’s husband sexually abused the child, and that members of the maternal family were a danger to the child.[68]

   [68] Family Report, pars 45-47.

8. When reminded of those allegations in cross-examination, the father said he had no recollection of making the allegations of physical endangerment or those about the child’s neglect and mistreatment. He added that he could not be heard to reasonably complain about the child’s treatment within the mother’s household because he had already admitted how well she had raised him. The father had no option but to concede such logic. As for the allegations of the child’s sexual abuse by the mother’s husband, the father glibly said he was no longer concerned about it.

9. The father has always proposed parenting orders under which the child lives with the mother and spends regular time with him. Such orders are inimical to the allegations made by the father against the mother.

10. The Family Consultant was not challenged in cross-examination about the accuracy of her reports of the allegations made to her by the father against the mother. Nor could she have been, as the father did not deny making them. It necessarily follows that the Family Consultant correctly recorded the father’s florid allegations about the mother, which proved to be specious.

11. I am not satisfied the mother poses any risk of physical or psychological harm to the child on account of any abuse, neglect, or family violence allegedly perpetrated by her.

Best interests of the child – additional considerations

Section 60CC(3)(a)

1. The child told the Family Consultant of enjoying his time with the father at the contact centre and of his desire to spend more time with the father away from the contact centre.[69] The child expressed a wish to spend alternate weekends with the father, with the venue to alternate between their homes and surrounding locales.[70]

   [69] Family Report, pars 64-67.

   [70] Family Report, par 71.

2. The child is not yet 10 years of age. I do not consider he is sufficiently mature to offer a view in which great weight should be reposed by the Court. His expressed wish to spend each alternate weekend with the father is likely a product of his awareness that the father has proposed such an outcome, or that past parenting orders so provided.

Section 60CC(3)(b)

1. The nature of the child’s relationships with the parties has already been addressed under s 60CC(2)(a) of the Act.

2. Besides his relationships with the parties, the child has positive and loving relationships with members of the maternal family, and also with the mother’s husband and his step-sibling.[71] That was not the subject of debate.

   [71] Family Report, pars 63, 96, 99.

3. Despite the Family Consultant’s uncertainty about the quality of the child’s relationships with the paternal family,[72] I am satisfied the evidence proves the child still loves and has fond memories of the paternal grandparents. He expressed to the Family Consultant a desire to see more of them.[73]

   [72] Family Report, par 14.

   [73] Family Report, par 64.

Sections 60CC(3)(c), (4)

1. The Family Consultant concluded the mother had demonstrated a willingness and ability to encourage a close and continuing relationship between the child and the father.[74] I am satisfied that is correct. Examples of her conduct prove it. In mid 2008, when the mother moved to K Town and the father moved back to Sydney, the mother offered to meet the father at L Town to exchange the child between them. In July 2011, when the father decided to cease travelling to see the child at the contact centre at F Town, the mother offered to use a substitute contact centre in Newcastle to ease the travel burden on the father.

   [74] Family Report, pars 22, 100.

2. The father gave evidence of the mother having made spiteful comments to him on occasions in past years,[75] but even if accurate, those events were intermittent and were provoked by the mother’s frustration with the father’s failure to reliably comply with Court orders. I do not accept such isolated episodes of exasperation demonstrate the mother’s lack of commitment to the relationship between the child and the father.

   [75] Father’s affidavit, pars 22, 40, 61.

3. Even now, despite the acrimony between the parties, the mother conceded the child loved the father and should ordinarily spend substantial and significant time with him. Her lingering concern was for the child’s emotional safety if there was no improvement in the father’s behaviour. The mother was clearly content for the child’s relationship with the father to be fostered, provided the child’s emotional development was safeguarded.

4. Unfortunately, I am not similarly persuaded the father has a correlative willingness and ability to encourage a close and continuing relationship between the child and the mother. His unwillingness or inability arises out of his overwhelming sense of being marginalised in the child’s life by the actions of the mother, which I am not satisfied is an objectively valid impression.

5. Although the father denied it in cross-examination, I am satisfied he has denigrated the mother and maternal family members to and in the presence of the child. The evidence of his ill-tempered and profane criticism of the mother and maternal family, in the presence of the child and otherwise, is abundant.[76]

   [76] Mother’s affidavit, pars 69, 86-87, 91, 113, 118, 127, 142-143, 147, 174-175, 185, 189, 196,

6. The only manner in which the father demonstrates a willingness and capacity to support the child’s relationship with the mother is by his acknowledgement that the child should continue to live with her.

Section 60CC(3)(d)

1. The orders do not entail any significant change to existing circumstances, or at least circumstances which should exist under the orders of April 2011.

2. Just as the interim orders in April 2011 provided, the orders now made require the child to spend supervised time with the father at a contact centre. The slight difference in frequency is immaterial. The transition from the provision of supervision by the contact centre to supervision provided by the paternal grandmother will not likely have any material affect upon the child. The ultimate movement to a regime of unsupervised time with the father, including during school holiday periods, will be similar to the regime experienced by the child under the orders made in June 2007.

3. I have little doubt the child will cope with those changes without difficulty.

Section 60CC(3)(e)

1. Neither party evinces an intention to relocate from their current respective residences on the NSW mid north coast and the NSW south coast.

2. There was some dispute in the evidence about the duration of the driving time between the parties’ residences. The mother estimated 8 hours,[77] the father estimated 6 hours in cross-examination, and the Family Consultant stated 6.5 hours.[78] It was announced as an agreed fact during final submissions that the driving time is 6.5 hours.

   [77] Mother’s affidavit, pars 15, 164.

   [78] Family Report, par 9.

3. The father is troubled by back pain,[79] which he asserted limited his capacity to drive long distances. The father admitted he drove the three hour journey between his home on the south coast and Sydney every week in order to enhance his trade qualifications and to see the paternal grandparents. The father was satisfied he could drive to Newcastle to spend time with the child in a contact centre, but he was adamant he could drive no further. The father also conceded it was not in the best interests of the child to require the child to endure regular return travel to a contact centre in Sydney to spend time with the father.

   [79] Father’s affidavit, pars 75, 90, 100.

4. Acceptance of the father’s evidence on that issue means the supervised time spent by the child with the father in a contact centre must occur at a venue in Newcastle. For a visit of only a few hours duration, the father cannot drive further north and the child cannot be expected to drive further south. That is a practical difficulty that presents in determining proper parenting orders.

5. The parties acknowledged the contact centre at Newcastle has a waiting period of five months, which compounds the problem of determining a suitable venue. Unless the father is able to travel to the current contact centre venue at F Town to enable the child to spend time with him, it necessarily means the child will spend no time with the father until the waiting period at the Newcastle contact centre expires. The orders cater to the potentiality of the father being able to travel to F Town.

6. The father asserted he suffers parlous financial circumstances, but conceded in cross-examination that such circumstances would not preclude his ability to comply with the orders providing for supervised time to occur at the Newcastle contact centre.

Section 60CC(3)(f)

1. The mother has the capacity to provide for all the needs of the child, including his physical, emotional, and intellectual needs.

2. The focus of interest in the proceedings was the father’s capacity to provide for the child’s emotional needs. One recent incident in particular underscored the father’s lack of insight into the emotional needs of the child.

3. During the course of the interviews with the Family Consultant, the father seized an opportunity to speak conspiratorially with the child, telling the child words to the effect “Don’t tell anybody but I’m coming to get you back. They won’t let me see you”. Following that conversation the child’s mood changed perceptibly.[80] I do not accept the father’s benign version of that incident, to the effect that he merely told the child he missed him.[81] It is inherently unlikely the child would have given the mother a false account of the conversation contemporaneously with its occurrence. In addition, the child’s change in demeanour, as observed by the mother and Family Consultant, tends to corroborate the child’s version of the event and contradict the father’s account.

   [80] Mother’s affidavit, pars 188-190; Family Report, pars 38-40, 73.

   [81] Father’s affidavit, pars 86-87.

4. The child was understandably disturbed by such information being secretly imparted to him by the father, fearing he would be taken by the father from his school. His anxiety was not unreasonable. In the past the father has appeared at his school unannounced demanding to take the child with him. Both the Family Consultant and single expert considered such an incident would have had a dramatic effect upon the child, undermining his trust in the father and elevating his anxiety. The experience was obviously very unsettling for the child and the father showed marked immaturity in dealing with his frustration in that way.

5. Because of behaviour such as that, and for other reasons which are elaborated under ss 60CC(2)(b) and 60CC(3)(i) of the Act, the father has an impaired capacity to fulfil the child’s emotional needs.

Section 60CC(3)(g)

1. The mother professed in her affidavit some concern about the father’s alleged past alcohol abuse, involvement with illicit and prescription drugs, and mental illness.[82]

   [82] Mother’s affidavit, par 19.

2. The single expert found no evidence of cognitive deficit in the father and said nothing to corroborate the mother’s fears of the father’s impairment by mental illness. There is no satisfactory evidence of any mental illness suffered by the father.

3. Nor am I satisfied the evidence demonstrates the father’s current engagement in a lifestyle of alcohol misuse and illicit drug use, either at all or to an extent that such a lifestyle impairs his capacity to care for the child.

Sections 60CC(3)(h), (6)

1. Neither party identified themselves or the child as Indigenous Australian.

Sections 60CC(3)(i), (4)

1. The mother demonstrates a proper attitude to the child and the responsibilities of parenthood. She recognises the importance of the child’s relationship with the father, which is only tempered by her reasonable concerns about the stability of the father.[83] She also recognises the importance of the child’s relationships with members of the wider paternal family. The mother has maintained contact with the paternal grandparents and offered the opportunity for the child to spend time with them.[84] I am not satisfied the mother is “hot and cold” about that commitment, as the paternal grandmother alleged.[85]

   [83] Family Report, par 33.

   [84] Family Report, par 27; Mother’s affidavit, pars 228-237.

   [85] Affidavit of Ms P Baggs, par 24.

2. The father remains aggrieved by the mother’s relocation to K Town,[86] even though it occurred over three years ago. The father believes the mother relocated to K Town to alienate the child from him.[87] While that may be the father’s honest perception, I do not accept his perception is factually accurate. The mother’s decision to move to K Town was made at a time when she believed the father was living in “the tweed shire” on the far north coast of NSW. By moving to K Town from Sydney, the mother was moving closer to where the father was living. In any event, the father’s perception is contradicted by the mother’s efforts to foster the child’s relationship with him, which were previously discussed as a consideration under s 60CC(3)(c) of the Act.

   [86] Family Report, par 54.

   [87] Family Report, par 45.

3. The parties’ evidence about the father’s payment of child support for the child is difficult to reconcile. Unfortunately, the inconsistency was not usefully explored in cross-examination. The mother gave evidence that, until January 2011, the father had not paid child support since April 2009 and it was necessary for accrued arrears to be enforced against him.[88] The father inferentially admits his payment of a lump sum to clear arrears, but asserted he paid child support until 2010, and now currently pays a small regular amount.[89]

   [88] Mother’s affidavit, pars 238-239.

   [89] Father’s affidavit, par 99.

4. Although the father gave evidence he is currently unemployed and receiving a Centrelink benefit, he admitted paying no rent for his current accommodation and he has no other dependents apart from the child. He had employment in J Town in recent years and is currently studying in Sydney to enhance his trade qualifications. The father’s current financial contribution to the maintenance of the child is paltry, but the state of the evidence does not permit a conclusion he is in current breach of any child support assessment and so I draw no consequential adverse inference of a poor attitude by the father to the responsibility of parenthood.

5. The emotional instability of the father was a central issue in these proceedings. Such instability manifests itself in heightened aggression, which is inconsistent with a proper attitude to the child and the responsibilities of parenthood.

6. The mother’s affidavit was replete with instances of the father’s abrasive and confrontational behaviour towards her and members of her family over a long period of time.

7. It might be, as the paternal grandmother believes, that the mother “knows which buttons to push to make [the father] get upset”,[90] but that admission simply serves to corroborate that the father is ill-tempered and labile.

   [90] Affidavit of Ms P Baggs, par 5.

8. However, the evidence demonstrates the father is easily provoked by not only the mother.

9. The Family Consultant also bore the brunt of the father’s aggravation. During his interview in August 2011 the father was described as “aggressive, uncooperative, hostile and intimidating”.[91] He became so enraged that he was shouting and frothing at the mouth.[92] The father admitted only that he was confrontational, arrogant, and rude to the Family Consultant. He denied he was aggressive.

   [91] Family Report, par 34.

   [92] Family Report, par 35.

10. I am satisfied the father minimised the seriousness of his offensive behaviour. The Family Consultant said she understood litigants in the position of the father were often anxious and sometimes defensive, but her interview with the father was one of the most unpleasant she had ever experienced in several years. She found the father intimidating and utterly without insight, with the father’s demeanour at the first interview[93] no different from that at the second.

    [93] Family Report, par 37.

11. Even in the formal setting of the Court, throughout his evidence in the trial the father was irascible and agitated.

12. The father’s aggression is a by-product of his sense of persecution. His perception of injustice permeates all of his thoughts about parenting issues related to the child. He is unable to segregate his thoughts between the issues that relate to him and those that relate to the child and moderate his behaviour accordingly.[94] I accept the Family Consultant’s opinion that the father demonstrates rigid, concrete thinking and lacks insight about how his behaviour affects others.[95]

    [94] Family Report, pars 35-36, 102.

    [95] Family Report, pars 19, 36, 57-58, 102.

13. The father seemingly entertains a belief that he is personally wronged unless he is able to see the child on his terms. That conclusion is amply exemplified by historical events.

14. When the father chose to move to J Town in late 2007 it was inevitable he would see less of the child. When he returned to Sydney, he went to the child’s school in K Town demanding to take the child, despite the hiatus in their interaction over the preceding six months.

15. Following the father’s retention of the child in April 2009, the mother refused to continue meeting the father at L Town for changeovers, and directed the father collect the child from K Town. The father then rarely made himself available to collect the child from K Town, diminishing the child’s interaction with him.

1. Some time prior to March 2010, the father decided to move to the south coast of NSW, putting even more distance between himself and the child and making their interaction even more intermittent. There is no reason for the father to live on the south coast. He simply chooses to. He lives alone and is unemployed.

2. Interim orders were made in April 2011 providing for the child to spend supervised time with the father at a contact centre in F Town. That venue was specifically chosen to accommodate the father’s intention to relocate back to the north coast of NSW. He did not do so. He only saw the child at F Town once. Worse still, he then inexplicably failed to accept the mother’s offer to make the child available to him at a contact centre in Newcastle.

3. When questioned about his apparent disinterest in seeing the child at the contact centre, the father told the Family Consultant “It’s up to me if I see him! If I choose to use [the contact centre] again I will”.[96]

   [96] Family Report, pars 42-43.

4. The father’s attitude to communication with the child is also unsatisfactory. He last had telephone communication with the child well over two years ago when he was living in Sydney and he does not send letters or cards to the child.

5. The child loves the father and has undoubtedly been disappointed by the father’s unreliability in maintaining steady interaction with him. When the child’s feelings of disappointment were discussed with the father by the Family Consultant the father became infuriated and vehemently rejected any suggestion that he had been responsible for letting the child down.[97] If the father’s response was genuine, it is striking proof of his lack of insight into how his behaviour affects the child.

   [97] Family Report, par 51.

6. The father asserted his belief he was “fighting for [the child’s] safety and well-being”.[98] Regrettably, the father is the only one responsible for compromising the child’s “safety and well-being”, and he also is the only one “fighting”. I am satisfied the mother does not want to fight. The father needs to alter his mind set from confrontation to resolution.

   [98] Family Report, par 51.

7. The critical question which flows from the findings about the father’s lack of insight and the extent to which his conduct poses a risk of psychological harm to the child is whether the risk can be satisfactorily averted, so as to enable the child to safely enjoy his relationship with the father.

8. The Family Consultant was quite pessimistic about the prospect of averting the risk. She candidly said in both the Family Report[99] and in cross-examination she thought it was extremely unlikely the father could be shifted in his thinking.

   [99] Family Report, par 104.

9. The Family Consultant was critical of the father’s honesty with the single expert,[100] which appears to have influenced her adverse opinion about the father’s capacity for change. The Family Consultant’s opinion also seemingly remains influenced by her nagging doubt about the father’s cognitive capacity,[101] even though the single expert, who was engaged specifically to offer an opinion on that issue, unequivocally concluded the father had no cognitive deficit. I accept the submission of the father’s counsel that such extraneous considerations should not have influenced the Family Consultant’s opinion to the extent they seemingly did.

   [100] Family Report, pars 85-88.

   [101] Family Report, pars 89-94, 103.

10. By comparison, the single expert was much more optimistic about the father’s capacity for change, and the Independent Children’s Lawyer urged the Court to take a similarly optimistic view.

11. The single expert’s clinical opinion was that the father should receive psychological support and counselling,[102] which she discussed in greater detail during cross-examination. The single expert said the counselling should address the separation of the father’s own interests from those of the child so as to increase his awareness and insight. It was her view that, provided the father was prepared to faithfully engage with the counselling, he could experience marked change in his perceptions within a period of six months. In the event the father did experience such change, the single expert saw no impediment to the transition to an arrangement under which the child spent unsupervised time with the father.

    [102] Report 25 August 2011, page 5.

12. I do not accept the mother’s criticisms of the single expert’s evidence as being “nebulous” and “not concrete”, but all the same, some caution should attend the opinion of the single expert. There is no guarantee the father will experience marked change in his perceptions through submission to counselling, and even if he does, there is no guarantee he will experience such improvement within a time frame of only six months.

13. There is, however, a valid evidential foundation for the single expert’s optimism about improvement in the father’s behaviour. He has no cognitive deficit to impede his education through counselling, and when being questioned about the single expert’s recommendation for him to undertake counselling, the father volunteered “I think I need some”. If the father recognises that fact, and is willing to participate faithfully and not merely in a token way, as he asserted he was, then the prospect of his enlightenment about the issues discussed in these reasons is obvious.

14. Enlightenment of the father, if that occurs, will probably cause a paradigm shift in his attitude to the mother, her husband, and other members of the maternal family. The father’s attitude – which really amounts to a siege mentality – and the repugnant behaviour it induces in him underpin the conflict between the parties. If that problem can be corrected there appears no reason why the parties cannot return to the equilibrium manifest in the consent orders made in June 2007.

15. The father’s participation in therapy is therefore an indispensible component of the parenting regime laid down by the orders.

Section 60CC(3)(j)

1. The mother adduced evidence in her affidavit of past family violence perpetrated by the father,[103] and the father blandly denied it. Amazingly, he said he had never been hostile and aggressive towards the mother.

   [103] Mother’s affidavit, pars 31-35, 48-49.

2. Despite the clear contradiction in the evidence, the issue was barely touched in cross-examination. That was an overt indication of the relative unimportance of the issue in the particular circumstances of this case.

3. The mother consented to final parenting orders in June 2007 under which the child was to spend substantial and significant time with the father, subject to changeovers occurring at public venues. Since those orders were made, according to the evidence adduced by the mother, the father has been intermittently abusive, rude and unco-operative, but not physically violent. The mother did not file a Form 4 Notice of Child Abuse or Family Violence, as she should have done if the commission of family violence was an abiding concern in this litigation (Family Law Rules 2004 (Cth) (“Rules”) rr 2.04B, 2.04D). Although the mother was self-represented at the trial and may not be familiar with the Rules, she was legally represented for most of the litigation and her lawyers would have been aware of the Rules.

4. The evidence permits a finding that the father did engage in conduct towards the mother at times in past years that would meet the definition of “family violence” within the Act (s 4), and I make that finding despite the father’s denial of it. However, the paucity of the untested evidence and the apparent disinterest of the parties and Independent Children’s Lawyer in the issue as a salient consideration justify the Court desisting from making any specific findings of fact about its frequency and potency.

Section 60CC(3)(k)

1. The father admits he was previously bound by a family violence order for the protection of the mother,[104] but there are no family violence orders currently in existence.[105]

   [104] Father’s affidavit, pars 6, 10.

   [105] Family Report, par 5.

Section 60CC(3)(l)

1. The Independent Children’s Lawyer submitted, correctly in my view, that it was imperative for the Court to make orders designed to minimise the potential for further litigation.

2. The parties have been embroiled in litigation concerning the child for most of his life. There have now been three separate sets of parenting proceedings, covering an aggregated period of about five years, and the child is still only nine years of age. The orders in these proceedings are the third set of final parenting orders made between the parties in respect of the child. As was discussed during final submissions, paradoxically, the parties’ current enmity towards one another appears more virulent than it ever was. The stress has adversely affected the mother’s health,[106] and there is no doubt the father is similarly stressed by the prevailing circumstances.

   [106] Mother’s affidavit, par 162.

3. The Court cannot say with any sense of confidence that further proceedings between the parties about the child are improbable, but the orders are intended to finally end the parties’ dispute.

Section 60CC(3)(m)

1. The father has an adult son from a prior relationship, whom he apparently does not see. The mother adduced evidence of that,[107] presumably for the purpose of drawing some parallel between the father’s alleged inconsistent commitment to the child in these proceedings, but the issue was not addressed in the Family Report and was not raised with the Family Consultant for her consideration and comment. In the circumstances, the mother’s uncorroborated suspicions prove nothing and I disregard the evidence as irrelevant.

   [107] Mother’s affidavit, par 11.

Parenting orders

1. The presumption of equal shared parental responsibility does not apply because of the finding of past family violence. Even if the presumption applied the evidence would rebut it. The Court is therefore at large in determining how parental responsibility for the child should be allocated.

2. The Family Consultant recommended that the mother have sole parental responsibility for the child, since the father has not prioritised the child’s needs above his own and has failed to communicate respectfully with the mother.[108] The mother and the Independent Children’s Lawyer propose an order for the mother to have sole parental responsibility for the same reasons.

   [108] Family Report, pars 107, 109.

3. The mother always kept the father informed of her residential address, and in cross-examination the father conceded he has always had the mother’s email address. Notwithstanding his knowledge as to how he could contact the mother, in the absence of personal interaction with the child since April 2010, the father still failed to make any inquiry of the mother about the child’s academic and social progress. The last inquiry he made was of the child’s former school during 2008. One can therefore only wonder about the level of the father’s interest in participating in decisions which fall within the embrace of parental responsibility.

4. The parties do not communicate and do not wish to. Parental responsibility for the child must therefore be allocated solely to the parent with whom he lives, and it is inevitable the child must live with the mother. It should not be overlooked that the consensual outcome of the last proceedings in June 2007 provided for the mother to have “long term parental responsibility” for the child and for the child to live with her.

5. Attention must then turn to the circumstances under which the child spends time and communicates with the father.

6. The Family Consultant said in cross-examination there was real benefit in the child spending time regularly with the father, provided it occurred under safe and contained conditions. She thought the child would look forward to a regular regime of interaction with the father, so long as the father committed to compliance. That supplementary evidence gave some context to the opinion she expressed in the Family Report to the effect that the child should not spend “significant time” with the father.[109]

   [109] Family Report, par 105.

7. The evidence of the Family Consultant about the frequency of the time spent by the child with the father was somewhat convoluted. In the Family Report she recommended the mother be vested with sole discretion to determine the frequency with which it occurred,[110] but in cross-examination she firstly said it would be “too prescriptive” for her to comment upon the frequency and then later said monthly visits would be appropriate if the parties could commit to that frequency. She described monthly visits as a “good compromise”. Both parties said in cross-examination they could and would commit to monthly visits between the child and the father.

   [110] Family Report, pars 108, 110.

8. I reject the idea that the mother should be delegated unilateral control of when the child spends time with the father. The mother’s final proposal was that the child should only spend supervised time with the father once every three months, which offered clear insight into her opinion about the appropriate frequency of visits. The Family Consultant thought quarterly visits would likely be too infrequent for the child’s benefit. The father was also understandably opposed to the mother having such unfettered control when the idea was canvassed with him in cross-examination. The father’s disapproval of infrequent interaction with the child, as dictated by the mother, would inevitably lead the parties into conflict and likely cause the mother to then completely sever the child’s interaction with the father due to her perception of the father’s continuing hostility.

9. It properly falls to the Court to decide the frequency of the child’s interaction with the father. The frequency should initially be monthly. That was ultimately the Family Consultant’s recommendation and was also the frequency with which the parties were mutually willing to cope and considered was beneficial for the child.

10. The Family Consultant remained concerned about the father’s reliability, fearing that he would not adhere to any parenting regime. She considered that future inconsistency on the part of the father would be emotionally damaging for the child.[111] It was also a stated concern of the single expert when she was cross-examined. She described as “disappointing” the father’s failure to ensure the child could regularly spend time with him at the F Town contact centre pursuant to the orders made in April 2011. She stated the father should have endured any privations for the benefit of the child. The father had no option in cross-examination but to admit his past unreliability.

    [111] Family Report, par 106.

11. The Family Consultant’s solution to the perceived problem of the father’s future unreliability was the imposition of an order requiring the father to confirm his intended attendance at the contact centre on two occasions within the week prior to each visit.[112]

    [112] Family Report, par 106.

12. I concur the father’s commitment to the regime imposed by the orders is important for the child, but I do not accept the best way to ensure that is by enforcing an increased level of communication between the parties. That will likely induce resentment in the father and anxiety in the mother. Accordingly, subject to the parties agreement otherwise, the orders provide for self-executing suspension of the orders for the child to spend time with the father if the father fails to attend to meet with the child on two consecutive visits.

13. For reasons discussed under s 60CC(3)(e) of the Act, the contact centre venue will be Newcastle once the existing waiting period expires, and F Town until then. The self-executing suspension of the orders will not apply to the preliminary phase when the child is able to spend supervised time with the father at the F Town contact centre because the father has already confirmed his potential inability to attend that centre.

14. Although the Family Consultant stridently expressed the view in the Family Report that the time spent by the child with the father should be supervised in a professional setting,[113] by inference indefinitely, she said in cross-examination that the child could transition to spending unsupervised time with the father “all going well”.

    [113] Family Report, pars 105, 110.

15. The time spent by the child with the father will not “all go well” unless the father experiences a fundamental shift in his thinking, which can only occur through his willing engagement in counselling.

16. The single expert said in cross-examination that the therapy the father must undertake should be directed to the separation of his own interests from those of the child. But the therapy should also be about prioritisation, not just separation. The father should be educated about the paramountcy of the child’s interests and the subjugation of his own interests.

17. The father has had a counsellor in the past, but he has not consulted with her for some time. Whatever benefit the father perceives he derived from that counsellor in the past, it has not assisted him to process and rationalise the issues in this litigation. Accordingly, I am not satisfied the father’s former counsellor should be used to try and achieve the education required of and by the father. The counsellor should be chosen independently by the Independent Children’s Lawyer.

18. The correlation between the father’s participation in counselling and the child’s transition from spending supervised time to unsupervised time with the father became a fundamental issue in the proceedings.

19. The parties and the Independent Children’s Lawyer posited a number of alternatives, all of which entailed the compilation of a report by the father’s counsellor after a given period of therapy by the father, and analysis of that report by a third person to determine whether or not the child should then transition to spending unsupervised time with the father. I reject all of those alternatives because they suffer from the same vices.

20. The father’s counsellor will form a supportive alliance with the father to enhance the prospect of success of his therapy. If and when called upon to write a report on the father’s progress the therapist would be asked to abandon his or her therapeutic role and adopt a forensic one. The risk of partiality is patent. The counsellor would realise that recommending against dispensation of supervision would disappoint the father and compromise the therapeutic relationship between them. Even if assiduously impartial, it is unlikely the mother would accept the counsellor’s opinion at face value. Moreover, who is to say the counsellor is properly placed to make a decision about whether the child should thereafter spend time with the father without supervision? That is a decision for the Court based on all the available evidence, properly tested.

21. Similarly, who would review the counsellor’s report? The mother should not be entrusted with that role because, even if she could approach the task objectively, the father would not trust the honesty of her judgment. The mother said in cross-examination that a positive counselling outcome for the father “could be a possibility” in persuading her agreement to the child’s transition from supervised to unsupervised time, but the terms of her answer clearly show she does not presently contemplate that outcome as a “probability” even if the counselling had the desired effect. Appointment of some other psychologist or psychiatrist to review the report would simply introduce another layer of professional interpretation and compound the abdication of responsibility by the Court.

22. I am convinced that only the Court can make the decision about whether the need for supervision may ultimately be dispensed with. The critical question is whether that decision should be made now on the available evidence or delayed until the father’s completion of a course of therapy. The latter option would necessitate the Court now making only interim orders and adjourning its consideration of final parenting orders to a later time. I have come to the conclusion the Court should make final orders now. The anxiety of the child and the conflict between the parties will only be perpetuated by another battery of interim orders. The existing evidence properly permits an inference the father will experience acquisition of insight and awareness through counselling, warranting a current decision about the future dispensation of supervision in expectation of the father’s improvement.

1. The orders require the father to submit to counselling for 18 months, or any lesser period the counsellor deems fit, for the father to meet the cost of the counselling, and for the father to waive the confidentiality of his therapeutic relationship so that the mother can confer with the counsellor over the father’s progress. I reject the form of counselling order proposed by the father[114] because it does not meet those criteria.

   [114] Exhibit F1.

2. In order for the chosen counsellor to have the necessary background information to undertake the task required of him or her, the orders permit the Independent Children’s Lawyer to furnish to the counsellor copies of the Family Report, the reports of the single expert, the orders and these reasons.

3. The possibility of the mother’s future dissatisfaction with the extent of the father’s emotional rehabilitation cannot be ruled out, and further litigation may ensue, but that is a lesser evil than allowing the current litigation to drift on interminably in the hope the father’s progress will be sufficiently convincing to the mother to result in agreement about future parenting orders. Unless agreement is reached between the parties, nothing is gained by that option because the Court is otherwise simply delaying the determination of the litigation to take account of further contested evidence.

4. The orders therefore provide for the child to experience transition to spending unsupervised time with the father after a period of counselling, in expectation the counselling will have the desired effect. The decision about the duration of the counselling, and hence the confinement of the child to only supervised time with the father, is relatively arbitrary. The Independent Children’s Lawyer urged the Court to make an order imposing a finite period of supervision, without nominating the duration of such period. The single expert said it was conceivable the father could experience material change within as little as six months, but that was a best case scenario. A period of 18 months supervision is selected for abundant caution.

5. However, at the mid point within the 18 month period of supervision, the time spent by the child with the father will metamorphose from supervision at a contact centre to supervision by the paternal grandmother.

6. The father could not be heard to reasonably complain about that because he said in cross-examination he expected to stay with the child at the home of the paternal grandparents in Sydney in any event. Such a graduated step in the supervisory regime was positively urged by the Independent Children’s Lawyer. Despite the mother’s reservations about the capacity of the paternal grandmother to manage the father, I am satisfied the paternal grandmother does have that capacity. In cross-examination she persuasively said she would prioritise the child’s needs above the loyalty she feels towards the father. Her evidence convinced me she was sufficiently independent and reliable to accept the responsibility of supervision, despite aligned family members not generally being ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781).

7. The time spent by the child with the father under the supervision of the paternal grandmother will need to be configured differently because of the extra distance the child will have to travel. The child will experience a return journey of twice the distance when travelling to the paternal grandmother’s home in Sydney rather than to the contact centre in Newcastle. That would be too burdensome for the child on a monthly basis, so the frequency of visits must necessarily abate. The duration of the visits will however be extended to compensate. Those occasions will be confined to one weekend each school term and a period of consecutive days during each school holiday period

8. Once the designated period of 18 months expires, the child will graduate to a regime of spending unsupervised time with the father. For consistency, that time will incorporate one weekend each school term and one week during each school holiday period other then the Christmas school holidays, in which there will be two weeks. The transition to unsupervised time should not distress the mother. She said the father’s past behaviour caused her to despair, but not resent the father. If the father’s unacceptable behaviour can be corrected then she will have no need to despair and the family may revert to parenting arrangements similar to those they thought appropriate in June 2007.

9. When the child begins spending time with the father outside the environs of a contact centre, irrespective of whether or not supervised by the paternal grandmother, the orders require the parties to exchange the child between them at a public venue at Suburb G, NSW. That venue is just north of Newcastle and situated close to the main highway leading north from Sydney to the north coast. It is a place approximately equidistant between the homes of the mother and paternal grandmother.

10. Communication between the child and father by Skype has not proven successful. Both parties complained about their dissatisfaction with the arrangement in their affidavits, and the child is also anxious about it.[115] The Family Consultant did not specifically mention communication by Skype in the Family Report, mentioning only telephone and written communication. She was against telephone communication and in favour of only written communication.[116] The Family Consultant was asked about communication by Skype in cross-examination and she said it was a satisfactory form of communication only if the parties’ conflict about its implementation could be regulated. The parties’ evidence on the issue proves that it cannot be regulated in a manner which is acceptable to them both so I decline to make an order providing for the child to communicate with the father via Skype. I also decline to make an order for telephone communication for the same reasons.

    [115] Family Report, pars 30, 61, 62.

    [116] Family Report, par 112.

11. Communication between the child and father can only occur in written form to obviate the prospect of dispute between the parties. The mother envisages the need for written communication between the child and father.[117] The orders therefore make provision for written communication, including by way of email.

    [117] Further Amended Amended Initiating Application, Order 14.

12. The mother sought an injunctive order prohibiting the father from approaching within one kilometre of her home and within 200 metres of the child’s school.[118] She was not cross-examined about the proposed order and it was not the subject of any submission by either party or the Independent Children’s Lawyer. The evidence discloses that the father has previously attended the child’s school unexpectedly and discord has resulted. The injunction is therefore made, but utilising a uniform distance of 200 metres.

    [118] Further Amended Amended Initiating Application, Orders 11-12.

13. The mother sensibly sought an order precluding denigration of the parties in the presence of the child. An order is made to that effect.

14. The orders require the parties to undertake a post-separation parenting program. The evidence is silent as to whether either party has previously done so. Nothing can be lost by requiring them to undertake such a program, which may assist to attenuate the hostility which presently prevails between them.

15. The remaining orders requiring notifications between the parties about injury to the child, academic progress of the child, and their respective contact details could not be the subject of rational dispute. Those orders are self-explanatory.

16. The Family Consultant recommended the child undertake therapeutic counselling to “address his trauma in being exposed to violence and abuse”,[119] and an order to that effect was proposed by the mother.[120] The Family Consultant said in cross-examination the child was emotionally fragile, but she also said he was achieving well academically and was developing within normal parameters. In those circumstances, I consider it best left to the judgment of the mother, as an incident of her sole parental responsibility for him, as to whether the child undertakes any form of counselling.

    [119] Family Report, par 111.

    [120] Further Amended Amended Initiating Application, Order 13.

17. The mother sought a supplementary order about her authority to procure a passport for the child.[121] There is no need for such an order. The mother has sole parental responsibility for the child in all respects.

    [121] Further Amended Amended Initiating Application, Order 4.

18. For those reasons I am satisfied that the orders set out at the commencement of this judgment meet the child’s best interests.

I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 December 2011.

Associate: 

Date:  21 December 2011

     200, 210-212; Affidavit of Mr N, pars 16, 18-19; Affidavit of Ms O Freeman, par 8;
     Family Report, pars 62, 63, 65, 68.