GAFFNEY & BATEMAN

[2015] FCCA 3089

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAFFNEY & BATEMAN [2015] FCCA 3089

Catchwords:
FAMILY LAW – Parenting – high conflict parents – parental responsibility – equal time and substantial/significant time not in child’s best interest – fourteen year old child placed to live primarily with the mother.

Legislation:

Family Law Act 1975

Cases cited:
Champness & Hanson [2009] FamCAFC 96
R v R:  Children’s Wishes [2000] FLC 93-000
Re F: Litigants in Person Guidelines (2001) FLC 93-072

Applicant: MS GAFFNEY

Respondent: MR BATEMAN

File Number: MLC 925 of 2009

Judgment of: Judge McGuire

Hearing dates: 9, 10, 12 and 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Melbourne

Delivered on: 20 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Sweeney

Solicitors for the Applicant: Mills Oakley Lawyers Pty Ltd

Solicitors for the Respondent: In Person

Counsel for the Independent Children's Lawyer: Mr Eidelson

Solicitors for the Independent Children's Lawyer: Taft Lawyers

ORDERS

1. All extant orders in respect of the child X born (omitted) 2001 (“X”) be discharged.

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

3. X live with the mother.

4. X spend time and communicate with the father as follows:

   (i)Each second weekend from 4.30pm on Friday until 7.00pm Sunday commencing Friday 8 January 2016 and fortnightly thereafter;

   (ii)During term and long summer school holidays but commencing in the first term holidays 2016;

   (a)In 2016 and in even numbered years thereafter for the second half of such holidays;

   (b)In 2017 and in odd numbered years thereafter for the first half of such holidays.

   (iii)If X is not otherwise with the father on the Father’s Day weekend then from 4.30pm on the Saturday until 7.00pm on the Sunday of such weekends provided that should X be otherwise with the father on the Mother’s Day weekend then time with the father cease at 4.30pm on the Saturday;

   (iv)In any event from 3.00pm on Christmas Eve to 3.00pm on Boxing Day in 2015 and each alternate year thereafter provided that, in any event, X spend from 3.00pm on Christmas Eve to 3.00pm on Boxing Day with the mother in 2016 and in each alternate year thereafter;

   (v)If not otherwise with the father pursuant to these orders then on the father’s birthday and on X’s birthday for periods of not less than four (4) hours as agreed between the parties but failing agreement then between 3.30pm until 7.30pm.

   (vi)By telephone at any reasonable time and with X to be able to telephone the mother at any reasonable time whilst in the care of the father.

5. The mother is to keep the father advised at all times of the names and addresses of X’s General Practitioner.

6. The mother be and is hereby restrained from changing X’s school enrolment or enrolling her in another school unless she provides the father with not less than forty-two (42) days notice in writing of her intention to do so and advising the father of the intended enrolment(s).

7. Each of the parties inform the other prudently of any urgent medical or dental treatment required for X.

8. The mother, as soon as practicable, make an appointment for X to attend with Ms L, Psychologist, and the mother ensure X’s continued attendances on Ms L as directed by Ms L unless Ms L should advise in writing that X attend another psychologist or that X’s psychological therapy cease and, if so, the mother forthwith provide the father with copies of such correspondence provided that otherwise each of the parents be and is hereby restrained from terminating X’s therapy with Ms L.

9. The order appointing the Independent Children’s Lawyer dated 7 April 2015 be discharged in three months from the date of these orders.

10. The Independent Children’s Lawyer is directed to forthwith and as soon as practicable meet with X to explain the nature and terms of these orders.

11. Each of the parties be and is hereby restrained from providing a copy of these orders and/or reasons to X and from providing or allowing X to come into the possession of any Affidavits or Expert Reports filed in these proceedings.

12. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 925 of 2009

MS GAFFNEY

Applicant

And

MR BATEMAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the child of the parties, X, born (omitted) 2001, aged 14 years. 

2. X currently lives on a week-about arrangement between her parents following interim orders made on 15 April 2015.

3. There have been previous proceedings between these parents resulting in consent orders on 28 July 2009 providing that X (and her now adult siblings, Y and Z) live with the mother and spend time with the father for five nights each fortnight.  Later there were final orders made by consent on 21 May 2013 establishing the week-about arrangement.

4. Mr Bateman represents himself.  Prior to the taking of evidence he was provided with copies of section 60B and section 60CC of the Family Law Act 1975 (Cth) (“the Act”). The Court also went to some length to explain the procedure of a family law trial to Mr Bateman with an invitation for him to seek assistance at any time in respect of matters of procedure.[1]  Mr Bateman conducted an extensive, thorough and well-prepared cross-examination of Ms Gaffney.  My observation was that Mr Bateman understood the relevant issues for the Court’s consideration.  At all times Mr Bateman conducted himself in a professional and courteous manner to both the witnesses and to the Court.

   [1] Re F: Litigants in Person Guidelines (2001) FLC 93-072

5. Ms Gaffney was represented by solicitors and Counsel at the trial.

6. The Court had the benefit of an Independent Children's Lawyer represented by experienced Counsel.

Mother’s Case

1. The mother seeks orders whereby X live primarily with her and spend time each second weekend and one half of school holidays with the father.  She says that the arrangement for equal time has not worked for X’s benefit given that X is a child who has suffered ongoing and serious emotional health problems including self-harming and suicidal ideation. The mother argues that Mr Bateman is rigid in his own parenting views and that X is influenced with her father’s opinions.  The mother says that the most obvious examples of Mr Bateman’s rigidity are, firstly, his opinion that X’s psychologist, Ms L, is incompetent and that he has consequently withdrawn and/or tacitly allowed X to withdraw from important Court-ordered and ongoing therapy with Ms L.  Secondly, Ms Gaffney argues that the father’s rigidity and forthright opinions allow him some justification in breaching Court orders.  In essence, she says that X’s fragile and vulnerable mental state is due in large part to the nature of her relationship with her father.

2. The father’s case is essentially a mirror of that of the mother.  He says that the mother is emotionally manipulating of X and that the child has expressed as much in “voting with her feet” in electing to live with him on occasions and notably for a period from late January or early February 2015.  Mr Bateman urges the Court to be careful that this mother may present as an altruistic and objective parent to the Court but that she will revert to her former manipulative self following this trial.

3. Mr Bateman says that X, at soon to be 15 years of age, has expressed a wish to live with him and that the Court should sanction those views given her age, maturity and ability rationalise her best interests. 

4. Throughout the interlocutory stage of the proceedings the father’s case was that he intended to relocate from X to live in the (country omitted) with him and his current wife, Ms H, who hails from the (country omitted).  However, when the matter was called on for trial, Mr Bateman announced that he was no longer pursuing the relocation of his daughter.  When challenged as to this late change of mind in cross-examination, he responded that he had considered the expert evidence of the family reporter and psychiatrist in determining not to proceed with that part of his application.  Interestingly, however, and significantly, in cross-examination Mr Bateman continued to give indications that he believed that X’s best interests would have been served by her moving with him and his wife to the (country omitted).

5. Each of the parties seeks an order for sole parental responsibility of X based on mirror arguments that communication with the other parent is so problematic and the impact of parental conflict on X is so great that the child’s best interests are served by one or the other of the parties exercising parental responsibility. 

6. Whilst each of the parties agrees that the Court ought not to order a continuation of the equal shared time for X between them, they were made aware that it is not for the Court simply to choose between the two options put by the parties.  Rather, the obligation of this Court is to make orders which attend to X’s best interests and are reasonably practicable.  In that sense, it is entirely appropriate for the Court, if necessary, to formulate its own orders.

7. X’s siblings, Y and Z, are now 23 and 21 years of age respectively.  The best evidence before me is that they each now enjoy a reasonable relationship with both parents although Z, at least, seems to have been estranged from the mother for a year or so in his mid-teens and whilst living with the father.  There is also evidence that Z has suffered mental/emotional issues requiring counselling.  I have in evidence before me the files of his psychologist, Ms T, whose notes suggest that Z, like X, had become embroiled in and impacted by his parents’ intractable conflict.

The Evidence

1. The mother relied on her three affidavits sworn 19 March, 15 April and 19 October 2015.  She did not adduce affidavit evidence from any witnesses. 

2. The mother’s affidavit material was notable by its negativity towards the father.  She was consequently subjected to intensive and challenging cross-examination from Mr Bateman accordingly.

3. The mother is a (occupation omitted).  She is originally from (country omitted) and English is not her first language.  Mr Bateman’s cross-examination was successful in demonstrating that the mother was, as he alleges, selective, embellishing, and at times, misleading in her affidavit evidence. 

4. I did, however, have the benefit of seeing and hearing each of the parties give their evidence in Court.  My observations of the mother in this sense were more positive.  She gave her evidence in a more child-focused way than she had done in her affidavits.  She was prepared to make concessions.  Her evidence in the witness box did not have the same emphasis on criticism of the father and formulaic negativity as do her affidavits.  Mr Bateman in his final submissions asked me to make findings of credit against the mother on account of my observed deficiencies in her affidavits.  Whether or not this is the case, I observed a mother who was objectively focused on her daughter’s mental health problems and one willing to engage in the resolving of these issues.

5. The father also relied on three affidavits affirmed 31 July, 10 April and 18 October 2015. 

6. It was put to me by the mother’s Counsel in final submissions that I should find the father to be the “supreme manipulator”.  It was submitted that I could find that Mr Bateman concocted psychological manipulation of X, Ms Gaffney and even the Court in that he never seriously intended to relocate to the (country omitted), but made such an application knowing that the mother would contest it and then be able to attribute blame to her in X’s eyes.  On the balance of probabilities, I cannot find that this is the case and accept that Mr Bateman was indeed influenced to withdraw his relocation argument by the observations and comments of the expert witnesses.

7. My observations of Mr Bateman were of a complex person of significant intelligence.  I conclude, however, that he does love his daughter dearly and fundamentally wants what is best for X.  Mr Bateman, however, is extraordinarily forthright, assertive and rigid in his viewpoints.  Undoubtedly, this personality trait has led to conflict with the mother who, although stoic, is more passive in her demeanour.

8. Mr Bateman candidly conceded that he would breach Court orders if he thought it to be in his child’s best interest to do so.  He was reluctant or even unable to accept fault on his part (although conceding that he was “perhaps 10 per cent to blame for X’s mental health issues”) whereas, his focus and energy during the trial was on attributing blame to the mother.

9. Mr Bateman’s opinions in respect of his daughter’s mental health treatment are demonstrative of his personality.  He is adamant that the psychologist, Ms L, is professionally incompetent.  Equally, he is adamant that the mother has “exaggerated X’s mental health issues for her own ends”. 

10. Mr Bateman has on occasion unilaterally held-over X from her mother and contrary to Court orders.  Similarly, he has unilaterally stopped X’s therapy with Ms L. He continues to lack insight into the effect on X of such unilateral actions. He maintains self-justification for his actions and any concessions forthcoming from him during the trial were given reluctantly and only when no other option was available.  Nevertheless, I repeat that my observations were of a loving parent who I accept wants what is best for his daughter.  The pity is that he can only accept other people’s viewpoints, whether it be X’s mother or professionals, if they accord with his own without question or challenge.

11. Mr Bateman, for the most part, gave his evidence consistent with his personality.  He was confident and assertive and at times to a stage of being gratuitous in his comments and retorts to Counsel.

12. Mr Bateman has an ally in his wife, Ms H.  She too is a confident and assertive personality.  I have no doubt that she too is altruistic in wanting what is best for X.  My impressions, however, were of someone so confident in her role with X that she might be unable to understand the direct effect on X’s mother or perhaps more subtly on X herself.  She is undoubtedly an active participant in the parenting of X and apparently attends meetings more commonly the domain of parents and comments to the Court suggested an almost patronising understanding of her position relative to that of X’s own mother. 

13. In summary, Mr Bateman and Mr H are united in their belief that the mother is primarily responsible for X’s mental health and woes, but equally appear to lack insight into the impact on others, notably X herself, of their own rigidly-held opinions.

Dr F

1. Pursuant to an order of 15 April 2015, Dr F was instructed to conduct a psychiatric assessment on each of the parents and X and also to comment on the psychiatric capacity of the parents to provide ongoing care for X together with any other psychiatric issues relevant to the future care of X that he considered important.

2. Dr F’s affidavit is dated 6 November 2015 and annexes his report in respect of X.  A previous affidavit of 21 October 2015 contains the reports in respect of the parents.  Neither the parties nor the Independent Children's Lawyer required Dr F for cross-examination.

3. Dr F found no evidence of any major mental illness in the mother, although he did note that:

   She did display some degree of distress during the interview, which would be commensurate with an Adjustment Disorder of the Anxiety Type (which) I consider to be non-pathological and explicable in view of the reality matters. 

   He found no evidence of personality disorder or any active medical problems.

4. In his final paragraph Dr F opined:

   Ms Gaffney presented as a concerned mother who recognises that children do best with two cooperative parents.  She is clearly most fearful about losing an appropriate association with her daughter, X.  She would appear to be a lady who considers the “properties” of her personal relationship with “(omitted)” which appears to be derived from her upbringing and her religious persuasion.  She has strong views about the historical roots of family. 

   I have found nothing to suggest that Ms Gaffney is other than a concerned and competent mother.

5. Dr F interviewed Mr Bateman who informed the doctor that he had been diagnosed with depression and placed on antidepressants for the past 12 months.  Dr F noted that Mr Bateman suffered no perceptual disorder and that his capacity to relate is unimpaired. 

6. Dr F observed Mr Bateman to be “of above intelligence”.  Interestingly, and despite his own revelations, Dr F found no evidence of a depressive disorder or anxiety.

7. Dr F noted at page 26 of his report:

   I found no evidence of formal lack of insight with regard to himself.  He acknowledged the psychological stress that he was under.  He would appear to hold distinct views about the legal process, practitioners and other associates involved in the process.  There is perhaps a question over the validity of his comments.

   He appears to be well aware of the matters under consideration and obviously has his own pertinent views.

8. Dr F found no evidence in Mr Bateman of major mental illness but might fulfil the criteria for “Adjustment Reaction of a Depressive nature, reactive to reality matters”.  Dr F found no evidence of personality disorder. 

9. Under the heading “Opinion” Dr F states:

   My ultimate opinion, with respect to the welfare of X, clearly must be delayed until I have seen the other parties.

   At this point, I find no evidence that Mr Bateman is other than a concerned and capable father.

   There are factors that have arisen in my interview with him that may raise further questions.  Firstly, I note that he has recently remarried.  The significance of this in the short and long-term for X requires consideration.  The proposal that X should live in another country and, as I understand it at this time, her father does not have employment in that country, requires consideration. The significance of substantial geographical separation from the mother will need to be factored in.

10. Dr F interviewed X. X disclosed that she had commenced self-harming by cutting her thighs with a razorblade between the ages of 11 and 13 and that she had told her sister of this but not her parents.  X claimed that she had not self-harmed for the last year.

11. X reported to Dr F that she had been interviewed by Ms L who had acted as a mediator between her parents.  X reported that she felt that Ms L did not listen to her point of view and that she had “sided with her mother”. X told Dr F that she “wished her father to have sole parental responsibility”.  She also said that she wanted to be able to move to the (country omitted) and that she did not wish to see Ms L.

12. Under the heading “Clinical Presentation” Dr F notes:

    X acknowledged that she had been stressed and that matters at school and in the family were particular factors.  She also felt distressed about her mother “pressurising her”.  X informed me that she didn’t like things to change quickly and that she had only been told yesterday, by her mother, that she was coming to see me.

    She stated that she copes with the stress by doing art therapy, playing her (hobby omitted) and hopes to take up the (hobby omitted).

13. Dr F noted that X admitted that she experienced “having heard a voice when nobody is present” but that this last occurred in 2014.  She apparently recognised the voice as being her own but did not wish to discuss the content of the “conversation”. 

1. Dr F noted that X:

   Denies having had any physical domestic trauma in her life and apart from the matters surrounding the Family Law Court, denied any emotional traumas.

2. The interview with Dr F was conducted whilst X was living in a 50/50 regime between her mother and her father and, when she had an expectation of moving to (country omitted). 

3. On page 5 of the report and in respect of X’s mental state Dr F says:

   I found no objective evidence of any dysthymic (that is abnormal) mood disturbance.  She did become tearful when talking about her self harming.  She was prepared to continue to talk about it at some level when she was able to fairly quickly compose herself.  And again she was tearful at times when talking about seeing mental health professionals who had evoked memories of her distress.  She made the point to me that she didn’t see the point in talking about her sense of distress.

   I found no evidence of any thought disorder and indeed I considered she was able to put things together in a fairly congruent way given her age and experience.

   We had discussed earlier her “hallucinations”.  I do not consider that what she has described constitute “true hallucinations”, certainly not the sort one finds in drug abuse or schizophrenia.  Rather they are what has been termed “pseudo-hallucinations”;  that is they occur in subjective space and are recognised as being something that emanates from one’s self, such as one’s own voice.  That is she had insight into the experience and was able to distinguish reality.

   I found no gross disorder of judgment for a 14 year old girl ...

   I did not consider that X showed any lack of insight or awareness about the situation or what was being considered.

4. Dr F says at page 8:

   I consider that X does understand the advice/information and have sufficient maturity to understand what is involved with respect to her father having sole parental responsibility.  I consider that she has sufficient maturity to understand what is involved and the implications.

   The question whether X has an adequate understanding of the advice/information she has been given and has gleaned herself with respect to relocating the (country omitted) seems to require further exploration.  The question of her maturity to understand what is involved and the implications are not entirely clear to me.

   X has been able to communicate to me her views about her father having sole responsibility and also about her views on relocating the (country omitted). 

   The question does arise as to whether X is basing her view about relocating to the (country omitted) on her own values system.  The issue as to whether such a relocation has a romantic component and whether it has a component of assisting her father to better his life does need consideration.  I am aware that allegations of undue influence being brought to bear on X have been made. 

5. Dr F explored X’s relationship with Ms L and says in his final paragraphs:

   X seems to be firm in her own mind about not wishing to continue with Ms L.  It has to be said that in therapy, the patient can develop an antipathy towards the therapist and this indeed can well be part of and at times a focus of therapy.  If the therapeutic relationship is so confounded as to be no longer viable, for whatever reason, it does seem to me that it is forlorn to pursue it with an unwilling patient.  X struck me as being open to appropriate plain speaking and did declare a distinct antipathy to the sense of anybody patronising her.  If X is to terminate therapy with Ms L, it is advisable that X be prepared to have two or three sessions with Ms L so that determination can be conducted properly.  It is more mature to part with regret if not sadness rather than to part in anger.

   I am of the view, however, that X would benefit from an independent, mature person who would be prepared to listen to her point of view and the reasons behind her desired decisions.  It would be in X’s best interest if she were prepared to engage in such a dialogue and accept that she is likely to be challenged without that necessarily meaning that she is being opposed.

Mr V – Family Report

1. Mr V’s report is annexed to his affidavit of 6 November 2015.

2. Mr V noted that at the time of the interviews Mr Bateman was asserting that X wanted to live with him and to do so in the (country omitted).  Mr Bateman at [16] repeated his case to Mr V to the effect that Ms Gaffney was “more preoccupied with growing and developing her (employment omitted), and that much of Ms Gaffney’s behaviour now is driven by her feeling that she missed out on X’s earlier life”.  Mr Bateman reports, as he does to this Court, that he considers Ms Gaffney to be primarily responsible for X’s serious mental health issues by reason of her manipulation and pressuring of X. Mr Bateman reports to Mr V of his loss of confidence in the psychologist, Ms L.

3. Ms Gaffney also reports to Mr V in similar terms to her case to this Court.  She says that Mr Bateman is unable to genuinely put X’s needs ahead of his own.  She describes Mr Bateman as a person of very strong views and opinions who disregards the feelings and wishes of others.  Ms Gaffney reports that she fears X’s situation to be replicating that of Z who was alienated from her for a time and suffered serious mental health issues.  Contrary to Mr Bateman, Ms Gaffney praised Ms L’s work with X and felt that they had developed an excellent relationship.  Ms Gaffney attributes blame to Mr Bateman in the cessation of that relationship.

4. Mr V’s observations and reports in respect of X are both enlightening and disturbing.  He describes her at [40] as “superficially confident and conveyed a pseudo mature demeanour”.  At [41] Mr V observes:

   The flavor  of X’s presentation was that it was superficial.  The only times that genuine emotion was conveyed was when talking about her parents, their conflict and her triangulation in the midst thereof.  She found it difficult to restrain her sense of exasperation, feelings of irritation and feelings of hopelessness.  She gasped and grimaced when talking about her parents and their conflict, and how difficult it was for her to have to exist in the middle space between them, and especially when confronted with such different versions of the truth.  X told me that her parents have very different views about virtually everything and so the emotional middle ground for her is intolerable.

5. X reported to Mr V that she wanted to live with her father and to do so in the (country omitted).  However, in analysing her views Mr V noted at [42]:

   There was a superficial air of maturity that lacked substance.  She conveyed no reflection about the impact of leaving Australia, her mother, her siblings, her school or her friends, and she conveyed what I would consider to be at best, a highly idealized view of life overseas that reflected her father’s enthusiasm.  There was simply no basis on which X could formulate the views and the strength of the views she maintained.

6. The impact on her of her parents entrenched conflict is made graphic in Mr V’s report at [43] as follows:

   The most obvious theme to emerge from my assessment was her parents’ conflict and its impact upon her.  She described her parents as hating each other, that they agreed on nothing and that earlier on in separation, things were particularly difficult and she would often be physically caught between them as they wanted to assert their own views.  She conveyed a sense of genuine exasperation when asked to described (sic) what it was like living in her family.  She told me that she lived in a constant battle zone and walked a constant tight-line between her parents;  she told me that she feels like an only child because her siblings are older, conveying a sense of almost abandonment.  The reality however is that her sister lives with her mother and her brother spends time with both parents, and so why she feels the way that she does requires greater understanding.

7. And at [45]:

   Clearly, much of X’s emotional time is spent trying to manage her parents and their relationship.  If only to emphasise the problem for her she told me, “I try to listen to both sides and then figure out what is best for me, especially when they’re having conflict” and she spoke in a quivering voice at this time.  She explained that the hardest thing for her was figuring out what is true and what is a lie.  This provides to her little comfort, having been embroiled in the process for such a long time…

8. Significantly, X expressed to Mr V a view that the expert professionals enlisted to assist her, namely Ms L and Ms L, were favourable to her mother and against her father.

9. Mr V addressed a situation in early 2014 when Ms Gaffney travelled to (country omitted) with the older two children.  Ms Gaffney in her evidence to the Court maintained that she had sought Mr Bateman’s permission over a lengthy period of time and including in sessions with Ms L.  Mr Bateman denies any request and claims that the trip came as a surprise to both him and X.  To Mr V [51] X reports:

   She told me that she would really like to have gone, but that her mother abandoned her and left her behind.  This is very staunchly not the view of Ms Gaffney, and exploration and the unpacking of this issue might in and of itself provide enormous illumination as to the attitude, interest, investment and manipulation imparted by either parent.

10. Mr V’s conclusion in respect of X’s psychological makeup is perplexing, but relevant to the issues of credit before me and forms the fundamental basis of consideration as to X’s best interests moving forward.  At [52] Mr V says:

    Psychological assessment of X revealed an emotionally vulnerable girl, who has been immersed in an intolerable family situation where parental conflict has escalated symmetrically.  She appears to spend much of her time trying to emotionally manage her parents, any discussion about which caused her tears.  Her experience of her parents places her in a doubled bind such that the paradox of what is and is not the truth is overwhelming.  She seemed to have acquiesced to the reality that her parents are not able to elevate her needs ahead of other considerations and therefore concluded that the only way in which good decisions would be made are by her making decision for herself; she impressed as pseudo mature, over empowered and emotionally less mature.

11. Armed with Mr V’s unchallenged evidence, the Court adopts, with the comments of Counsel for the Independent Children’s Lawyer in his final submissions, that it is astounding that two intelligent parents, having dealt with and hence pre-warned by the situation of Z, and having the benefit of Mr V’s report, together with that of Dr F and the experienced advice of Ms L and Ms L, would allow this trial to proceed to its conclusion where a Court imposed determination will, in all likelihood, achieve little where X will have further entrenched in her mind the conclusion that her parents are simply incapable or unwilling to make decisions for her life and relieve her of the stressors observed by Mr V.

12. Mr V’s report discloses his meetings with the professionals, including Ms L who provided individual therapy for X and Ms L, who has counselled the parties.  Ms L is reported as viewing Mr Bateman as disagreeing strongly with her therapeutic observations and interpretation whereas Ms Gaffney was more inclined to accept therapeutic advice and strategies.  Ms L understands that X was withdrawn from therapy by Mr Bateman and without consultation with Ms Gaffney, Ms L or Ms L herself and “at a time when X was stabilising and her relationship with her mother was improving.” Ms L is reported as observing X to “portray her mother as all bad and her father as all good”, notwithstanding the observation that Ms Gaffney showed a greater capacity to empathise and to understand X’s emotional experience.

13. Ms L engaged the parties and X in family therapy. It was Ms L who initiated X’s referral to Ms L.  Ms L is reported as observing parental conflict and the embroilment of the children.  Ms L shares Mr V’s views as to the difficulties manifested for X in an equal-time care arrangement.  Ms L also reports of Mr Bateman’s criticism and negativity of Ms L as indeed he repeated to this Court.

14. Mr V also spoke with Dr D from the (omitted) Child and Adolescent Mental Health Service (CAMHS).  Mr Bateman’s evidence is complimentary of this service as opposed to his opinion of Ms L.  Dr D is a child and adolescent psychiatrist.  He noted “that X’s presentation was atypical in the sense that her emotional distress and her specific symptoms did not fit with functional disturbance”.  He did not diagnose a psychotic illness but saw X as presenting like “a professional patient”.  Dr D also saw X as caught between her parents and, like Mr V, considered whether X’s mental health symptoms might remit if she lived with one parent rather than equally between them.

15. Mr V also spoke with Ms S who is providing art therapy for X.

16. Mr V’s conclusions can be summarised as follows:

    ·     That X cannot live in an emotional middle ground between her parents;

    ·     That X should live primarily with one parent or the other (but he offered no specific recommendation);

    ·     That whilst X is superficially mature and able to rationalise her own best interests, caution should be taken in giving credence to such views where the child is embroiled in entrenched parental conflict.

17. Neither the parties, nor Counsel for the Independent Children’s Lawyer initially sought to cross-examine Mr V.  However, given some of his concerning observations of X and his apparent rejections of options such as “parallel parenting” the Court had questions of Mr V who appeared by telephone and it eventuated that there was some testing of his evidence.  The tenor of Mr V’s oral evidence confirmed that he places the source of X’s psychological problems on the parents.  As he insightfully observed; “it is very difficult to make orders as to how people behave”.

18. Mr V confirmed that the factual platform confronting this Court was such that any form of equal shared parenting or presumably substantial and significant time would not be in X’s best interests.  Mr V was firmly of the view that X should have a strong primary home base with one parent.  In that sense, he was also asked whether, in these particular circumstances, X’s best interests could only be served by an order where she lives with one parent and has no direct contact with the other given the counter-allegations of manipulation and/or alienation.  Mr V, however, considered that X herself might reject such a regime which would, of course, deny her any practical relationship with one parent. The inferences from Mr V’s evidence are that X wants a relationship with each of her parents and, although the conflict is unlikely to abate, her exposure to such conflict can be minimised by an order that she live mostly with one or the other parent.

The Relevant Law

1. Section 60CA of the Act provides that the Court should have X’s best interests as its paramount consideration. Those best interests are determined by referencing the parties’ proposals and the probative evidence to the mandatory considerations under section 60CC(2) and (3) of the Act. This is done against the background of the objects and principles of the legislation as set out in section 60B as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA of the Act gives a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child and particularly in relation to the important long-term decisions that parents are called upon to make for their children such as education, religion, medical procedures and the like. This, of course, fundamentally requires parents to cooperatively parent their child. Both the parents in this case properly concede that their own relationship is toxic and generally uncommunicative. The negativity with which each party ran their cases before me with an emphasis on deflecting blame to the other was palpable and corroborative of their intransigence.

3. Each parent seeks sole parental responsibility for X. Nevertheless, I retain the discretion to make an order for equal shared parental responsibility should I consider such to be in X’s best interests.  If there is an order accordingly then I am mandated to follow a statutory and intellectual course of consideration as to different parenting regimes or options.  Firstly, I must consider whether X living in an equal-time arrangement between her parents is both in her best interests and reasonably practicable.  Neither parent pursues this option although it is effectively the status quo.  Mr V vigorously argues against this option.

4. If I determine that equal-time is not both in X’s best interests and reasonably practicable then I turn to consider whether X living in a regime of “substantial and significant time” with each parent is both in her best interests and reasonably practicable.  This effectively would mean X spending both weekend and week-day time with each of her parents.  Although each of Mr Bateman and Ms Gaffney in opening submissions suggested that X might spend time on a weekday evening with the non-primary parent, this argument was not developed on the evidence and did not receive support in final submissions from either the Independent Children’s Lawyer or either parent.

5. Of course, if the presumption of equal shared parental responsibility is rebutted as being contrary to X’s best interests then this statutory, mandatory course of consideration is not applicable.

Section 60CC Factors

Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. This is a primary consideration for the Court. The evidence is conclusive that X’s relationship with each of her parents is currently rendered unsuccessful by reason of the pressures suffered by this child from being imbued with entrenched and bitter parental conflict.  Quite simply, X suffers psychological manifestations because of her confusion, divided loyalties, and enmeshment in each of her parents’ diametrically opposed views as to her parenting.  The synonyms regularly offered in the definition of “meaningful” do not apply to X.  Her relationship with each of her parents could hardly be termed “successful”.  Her relationships are not “positive”.  In the sense of her parents’ presenting as role-models, these relationships are not “important” for X, rather, the very fact and nature of these relationships is the source of X’s problems.  Those relationships for X will not become “meaningful” unless and until the other parties to the relationship develop the insight into their own contributions to this young lady’s deep seated emotional traumas.

1. Each of these parents, to a large extent, bases their argument on a belief that their own relationship with X is positive whilst the other parent’s relationship with the child is negative.  As such, the way in which this matter was argued to its conclusion, with reference to the mother’s negative and blame-attributing affidavit material and the father’s negative and blame-deflecting cross-examination, in itself defines the ordeal suffered by X where she undoubtedly thinks she is limited to a relationship with only one or the other parent.  Significantly, the subsection references the meaningful relationship of the child with “both of the child’s parents”.  Nevertheless, and despite it being a primary consideration, it is but one of numerous factors to be addressed in ultimately determining the child’s best interests.  As a Full Court observed in Champness & Hanson[2]:

   The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents.  This is an incorrect assumption.  The Court’s obligation is to make the orders most likely to promote the child’s best interests.  In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. 

   [2] [2009] FamCAFC 96

2. In simplistic terms, X will be unable to have a full, successful, enjoyable or meaningful relationships with either of her parents until she is relieved of her misunderstanding as to her own obligations in respect of the parents and her unhealthy involvement in the parents’ own destructive conflict.

Section 60CC(2)(b) - The need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence.

1. The psychological harm inflicted on X is not from family violence within the strict definition in the Family Law Act.

Section 60CC(3)(a) – Any views expressed the by 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. Mr V reports X as having a preference to live with her father.  She is forthright in those views.  At [48] Mr V reports:

   X was contemptuous of the Court and told me that whilst the Court could tell her what to do that it couldn’t control her physically and that she could “pack her stuff and walk to her father’s house” anytime she wanted.

2. Similarly, at [50] of the family report:

   X conveyed a sense of defiance in relation to the Court and her mother, and towards anyone else who shared a view different to that she shared with her father.

3. Such assertiveness, however, should be seen against Mr V’s assessment of X as being emotionally vulnerable and immersed in an intolerable family situation. This is a child who has been confronted with the strong and intractable views of at least one and perhaps both of her parents.  Her ability to independently and voluntarily rationalise her views must be seen within this context.  Rather, Mr V describes X as “superficial” and “emotionally vulnerable”, not sound bases for rational decision-making.

4. In respect of the now discontinued application for relocation, and where X gave a view in favour of her father’s proposal, Mr V says at [75]:

   Psychological assessment of X reveals an immature girl who presents a superficial air of maturity; she is not in my opinion mature enough to make a decision of the enormity of relocation.  I caution that when seen individually, X is likely to be believable, even convincing and it is likely that others might suggest that she is mature, that she has a clear picture of what she needs for herself and that her wishes should be respected; I could not disagree more with this view.

5. At [80] Mr V further offers:

   X has made it clear that her intention is to live with her father regardless of whether this is in Australia or elsewhere.  I suspect there has already been some discussion in relation to this given X’s enthusiasm to attend (omitted) College in order to complete the International Baccalaureate.  It is significant that Mr Bateman has spoken about her need to move from (omitted) to a more affordable area:  it may be that there have been some preliminary discussions in this regard.

6. I must also consider the impact on X and her relationships with others when making orders which are contrary to her stated preferences.[3]  I am mindful that X has made statements to the family reporter of her intention to disregard Court orders should they be contrary to her preference.  I must, of course, also take into account the history, ability and willingness of the parents themselves to abide by Court orders and not to give actual or tacit “consent” to X taking matters into her own hands.  As I have said to the parents during the course of this trial, Courts do not expect that parties to such emotional litigation will always be enamoured with the orders that we make.  Courts do not expect that parties will agree with the orders that Courts make.  Nevertheless, a Court should be able to be confident that the orders that it makes in respect of children, being from a basis of a child’s best interest, will be adhered to and it is a serious matter to encourage or even “permit” a child to act contrary to a Court order.

Section 60CC(3)(b) – The nature of the relationship of the child with: (i) each of the child’s parents; and  (ii) -other persons (including any grandparent or other relative of the child.

[3] R v R:  Children’s Wishes [2000] FLC93-000

1. The evidence is that X, publicly at least, is aligned with her father.  Whether she is so by objective reasoning is a matter at the very basis of this Court’s consideration. As mentioned above, Mr Bateman is forthright and essentially unmoveable in his views.  He has demonstrated this in respect of removing X from her therapy with Ms L.  The irresistible tenor of Mr V’s report is that X is very much aware of her father’s views.

2. Interestingly, Ms Gaffney’s evidence is that X has settled into her home on the current week-about arrangement and that the relationship between X and her mother is a calmer and more successful one.  Mr Bateman, of course, argues that Ms Gaffney will lapse into her manipulative ways once the litigation is at an end.

3. On the evidence before me I am satisfied that X’s relationship with each of her parents is one of dependency. This is not “dependency” in the sense that is often used in these Courts, but more one where X feels the weight of her parents’ expectations in that she misconceives that it is open for her to have a relationship with only one of her parents.  The psychological and emotional impost on one so young must be overwhelming.  The result is that X has not been allowed to develop free, open and enjoyable relationships with each of her parents for fear of the reaction from the other. In this sense, I am of the view that Mr Bateman’s rigorous and more assertive sense of right is of greater influence on X than that of the mother.  In addition, the similarly strong personality of Ms H in the father’s household must inevitably compound the effect on X.

Section 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) - to spend time with the child; and (iii) - to communicate with the child.

1. Mr Bateman has acted unilaterally on a number of occasions in respect of X.  He has withdrawn her from her professional relationship with Ms L.  More recently, he has tacitly allowed X herself to withdraw from Ms L and for this to happen only approximately two weeks prior to this trial.  Mr Bateman himself admits that he has and would act contrary to Court orders if he thought subjectively that it was right to do so.  The similar defiant stance related by X to Mr V does not pass unnoticed.

2. Mr Bateman was able to convincingly mount a case arguing that he had included Ms Gaffney in important decisions for X. He did so by the tendering of email communications.  However, my enduring observation and understanding of Mr Bateman is of a person who determines to make decisions of his own volition.  Any attempts to then include the mother have an air of tokenism or be made without anticipation of serious debate or negotiation.  To this end, his admissions against interest in the witness box were, in my view, reluctant and only forthcoming if he viewed them to be of little damage to his argument.  To the contrary, he was keen at all times to justify his actions even when confronted with contrary evidence from professionals.  A notable example is that Mr Bateman withheld his daughter in late January 2015.  He did not come to Court to seek the sanction of the Court or to change the orders.  Rather, he waited until an application was brought by the mother, which, of course, resulted in a significant gap of time for X with the mother. Communications/ emails tendered by him from prior to the subsequent Court hearing carry a flavour of being self-serving and condescending rather than legitimate attempts at equal participation.

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

1. Ms Gaffney is employed as a (occupation omitted).  She has a significant income. 

2. There was much cross-examination of Mr Bateman as to his actual income and, more particularly, his income potential.  He has university qualifications.  My observations were of an articulate intelligent and resourceful individual.  His income is minimal and he receives significant child support from Ms Gaffney on account of the current week-about orders.  Ms H has (occupation omitted) qualifications, although she is not a (occupation omitted).  Her income is also relatively minimal.

3. Mr Bateman purports to have commenced a business or perhaps two separate businesses. They involve (business omitted). His evidence was unconvincing and generally unsatisfactory in respect of a commitment to financially supporting his daughter aside from the child support received from Ms Gaffney.

4. The mother was criticised in cross-examination by Mr Bateman in understating her income for child support purposes in one particular year.  I accept her response that there was no intention on her part to deliberately avoid her child support obligations.

5. Both parents have shown a commitment to financially supporting X’s education.  She attends a government school.  The parents have an arrangement whereby each will attend to X’s school fees in alternate years and to the costs of her extra-curricular activities in the other years. Importantly, however, X has displayed some prowess in music and appears to be more than capable in her academic pursuits. She has shown interest in choosing the International Baccalaureate for her years 11 and 12 studies.  There have been discussions as to X attending a private school.  On the evidence before me, the costs of private school fees would inevitably fall on Ms Gaffney as Mr Bateman’s evidence did not give confidence that he would soon be in a position to contribute to any greater extent. History suggests that this might provide yet another fertile field for parental dispute.

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: (i) either of his or her parents; or (ii) 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 father, of course, intended to relocate X to the (country omitted).  Such a change would not be insignificant for a 14 year old girl.  That proposal is no longer pursued although notice of the change of intention was not provided until the very start of the trial.  Despite Counsel for the mother leaving it open for the Court to find that the proposed relocation to the (country omitted) was not bona fide and never intended by the father, I prefer Mr Bateman’s evidence that he did intend to relocate his daughter.  This then raises other serious questions as to the insight of Mr Bateman into the obligations of parenthood and the needs of his daughter.  He says that he only withdrew his relocation application upon the provision of the reports from Mr V and Dr F setting out the detriments of such a proposal for X.  Mr Bateman was cross-examined intrusively as to how he could contemplate the relocation of X who is a child torn in her relationship between her parents, and where she would be removed from one parent and her two siblings. These are not the usual precursors to a successful relocation.  Despite some valiant attempts, he was left to concede that his insight into his daughter’s needs by such a proposal remains seriously impeached.

2. X currently lives in a week-about arrangement between her parents.  Mr V says that this contributes to her distress.  Ms Gaffney, however, says that she has observed recently X being more adept in her transiting between parents and settling into each home.  Nevertheless, both parents, the Independent Children’s Lawyer, and Mr V all advocate for a change for X whereby she have a primary base and effectively spend each second weekend and half of school holidays with the other parent.  This would constitute a change for X who has shared her time between her parents except for periods when she has been over-held.  It is undeniable that the nature of a relationship between a child and a “contact parent” (to borrow former terminology) is of a different type than for a child living in a parent’s household even on an equal-time basis.  The view of Mr V is that such a change could be positive in that it would allow X to be settled in the home of one parent or the other and perhaps be empowered by reason of understanding that such would be a Court imposed order and thereby relieving her of the responsibility of being the decision-maker.

3. Whatever orders are made for X’s living arrangements, she needs to be relieved of the burden of her parents’ conflict. This is the “change” which will be of benefit to her.  She will then be enabled to develop and maintain positive relationships with her parents and perhaps there will develop an understanding that mere equality of time for a child with a parent has little nexus to a successful relationship where quality is the defining ingredient.

Section 60CC(3)(f) – The capacity of: (i) each of the child’s parents; and (ii) 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 parents can attend satisfactorily to X’s physical needs.  Ms Gaffney has a far superior income and may be more able to provide for X’s education at a private school if indeed this is ultimately X’s choice.  The toxic nature of the relationship between the parents may be relevant as to whether Ms Gaffney is willing to make such substantial financial commitment if X was to continue to live primarily with the father and, in particular, if Mr Bateman continued his propensity to make unilateral decisions in respect of important matters in his daughter’s life. Mr Bateman’s current financial situation suggests a reliance on child support from Ms Gaffney in order to support X in his household. The course if cross-examination from both sides suggests that these financial/ child support issues feature heavily for both parents.

2. However, it is the capacity of the parents’ to attend to X’s psychological needs which is at the very crux of this matter.  On the evidence before me, X has obviously reacted psychologically in an extreme and often dangerous way to her parents’ overt conflict.  She has taken on board the positions of each parent.  This is so despite there being no diagnosable psychiatric condition.  The best evidence is that these “symptoms” would be alleviated and probably disappear if the conflict ceased.  X has been described as vulnerable.  If so, then she is likely to bear greater weight from her parents’ conflict than might some more rigorous children. Undoubtedly she sees that she is the subject of the dispute. Her loyalties are divided and actively sought. This must be an intolerable load on such young shoulders.

3. The ultimate question, however, is the insight of the parents in their understanding of these difficulties of which they are the authors.  The mother’s affidavit material is highlighted by negativity towards the father and if this is indicative of her attitude to him then it is completely understandable that X might be influenced against her mother’s views.  Similarly, the father, although perhaps more clandestine and cleverer in his attempts to veil his behaviour, is also almost entirely negative of the mother.  His attempts to convince the Court of his altruism towards her were unconvincing.  Indeed, Mr Bateman is more prone than the mother to act on his self-righteous conclusions.  It is he who withdraws X from professional therapy.  It is he who over holds X.  In this sense, his capacity to understand and attend to his daughter’s psychological and emotional needs is seriously impeached.

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

1. X’s mother is from (country omitted).  I prefer the evidence of the mother that she raised with Mr Bateman the possibility of taking X and her siblings to (country omitted).  I accept that she may not have done so contemporaneously with the purchasing of the tickets, but I reject Mr Bateman’s assertion, if indeed it was, that the prospect of X travelling with her mother to (country omitted) had never been mentioned to him.

2. My findings generally in respect of Mr Bateman are of parenting in a self-centred way and as “of right”.  I cannot be confident that he would be able to objectively facilitate and encourage X’s relationships with her mother’s extended family which would probably involve travel at some time to (country omitted). Although he raises legitimate safety issues, such cultural heritage in relationships are important in establishing an identity for X and in this sense I find the mother to be more capable and objective whereas Mr Bateman gives the impression in his evidence of being uncompromising as he does generally.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child…

1. Not relevant in these circumstances.

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

1. As mentioned above, Mr Bateman’s parenting is fundamentally based on his own subjective but strongly held views.  He is generally intractable in those views and hence empowered and entitled in his parenting.  This causes him difficulty in objectively “standing back” and being able to see the impact of his strong opinions on his daughter’s psyche.  His evidence in the witness box that he might concede “10 per cent of the blame” for his daughter’s problems was palpable in its misunderstandings of the vulnerability of his daughter and the effect on her of his dominant personality.

2. The mother is less overtly culpable in this regard than the father.  I am able to conclude on the evidence, however, that X would be only too aware of the mother’s negative and critical view of Mr Bateman. The fact that she is not so assertive in her pronouncements does not lessen the impact on her daughter.

Section 60CC(3)(j)(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. Not relevant in these circumstances.

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

1. As indicated above, a Court should be confident that its orders will be adhered to. Judges in the Family Law jurisdiction are not so presumptuous as to believe that they can make optimum orders whereby “everybody lives happily ever after”. To the contrary, children’s issues before Courts inevitably involve a recipe of imperfect ingredients and the Court is left to make orders which, on balance, result in the best (but not the perfect) result for children.  This is a matter which has involved previous blatant breaches of Court orders.  As made clear to Counsel and Mr Bateman during final submissions, one of the options for the Court is for the Court to place X into the primary care of one parent but to make no orders for time with the other parent whilst this would offer X respite from actual conflict, it would, in my view, be a result that X would find difficult to comprehend and to deal with.  Nevertheless, continued breaches of orders eventually leave Courts with only such ultimate options.

2. The legislation places clear obligations on parents in respect of the adherence to Court orders.  These are positive/active obligations and go further than simply passive acceptance.  Frankly, whatever orders the Court makes, it is incumbent on both of these parents to assist in the adherence of the Court orders.  This is their positive obligation.

Findings and consideration

1. I am easily able to find that X is a deeply troubled and vulnerable young lady.  The evidence of Dr F, however, that she suffers no diagnosed mental illness should have been both a relief and education for the parents. Sadly the latter does not seem to have been the case. If she has not expressed her displeasure to her parents for their conflict and her involvement in it by direct language then she does so by her emotional responses of self-harm and suicidal ideation.

2. X’s relationship with each of her parents is troubled and unhealthily dependent by reason of the parents’ behaviour and nothing inherent in the psychological makeup of the child.  Her relationships with her parents are characterised by her negative responses.  I am satisfied that she has an alignment to her father, but only by reason of his own strong personality.  In no terms can X’s relationships with either parent be described as “successful” or “meaningful”.

3. I am satisfied that X has a stated preference to live with her father.  I am not satisfied, however, that any great weight should be placed on X’s stated wishes or views.  I accept that she is a vulnerable personality. The influences on her both directly and subliminally are such that she would be unable to independently and voluntarily rationalise her best interests.

4. The negativity of each parent and their propensity to deflect blame to the other compromises their very parenting capacity.  The father’s lack of insight in purporting to prosecute a case to this Court to remove his daughter to live in the (country omitted) away from her mother and siblings is demonstrative of his lack of insight.  If I am incorrect in this regard and, as argued before me, that the father’s manipulative ways were evidenced in a relocation application never intended to be prosecuted but to place maximum actual and emotional grief and guilt on the mother and/or X then he would indeed be, as put to me by the mother’s Counsel; “the supreme manipulator”.  I do not, however, go so far as make this finding and prefer that he has, rather, shown a distinct and unfathomable lack of insight into a child’s needs.

5. I am satisfied that the mother is more able to attend to X’s needs in a financial sense simply by reason of her greater income and that, by reason of the parents’ continuing animosity, X’s education opportunities may be more varied if she is to live with her mother.

6. I am not satisfied that these parents have yet fully understood the impact on their child of their continued conflict.  In this regard, I find the father to be more culpable and more intractable.

7. I have considered X’s own defiant attitude towards Court orders in the event that she is to be placed primarily with her mother. On consideration, however, I accept Mr V’s opinion that some hope can be gleaned from X understanding that she has been relieved from the decision-making responsibilities.  I accept the evidence of the mother that X has been far more settled in her home of recent times.  Further, my observations of the mother were of some stoicism and a greater insight into her daughter’s needs than shown by the father and, as such, I have some confidence that the mother might positively deal with any initial resentment shown by X. Overall I find that the mother is more likely to address any changes for X with a child-focus relative to the father whose delineated sense of right and wrong colours his ability to stand back and see the vulnerabilities and needs of his daughter. Whilst I cannot have any confidence in any objective responses by the father to any orders that are not in the terms of his application, I can only repeat my comments made above as to the responsibilities of parenthood, including to the adherence of Court orders.

8. On consideration and balancing of all of the evidence, and given the options that are available to me, I am satisfied that X’s best interests are served by her living primarily with her mother. Given my comments in respect of the ongoing non-communicative and non-cooperative relationship between the parents I will make an order for sole parental responsibility in favour of the mother.  Whilst both of these parents have much to offer their daughter by way of their experience, worldliness, and intelligence, I simply cannot be confident that an order for equal shared parental responsibility would not result in further conflict at each and every juncture. I will make orders, however, which obligate the mother in respect of notice and advice to the father in relation to matters of importance in X’s life including any proposals to travel overseas.

9. The issue of time-with and communication for X with the father remains a difficult one for the Court.  Ordinarily, and armed with these reasons, and relieved of being the decision maker, one would hope that X would be able to positively and independently pursue a successful and enjoyable relationship with her father.  She has, however, been emotionally wounded by conflict. She is clearly imbued with her father’s viewpoints. It is likely that she will anticipate a negative reaction from her father. Mr Bateman has given the Court no confidence that he will objectively and in a child-focused way respond to any disappointment for him in not achieving his desired result in these proceedings.  All of these factors combine to give concern as to whether the current issues of X will simply be continued or even compounded by the live-with orders I intend to make. As such, and in line with the submissions of Counsel for the mother, I intend there to be a moratorium on X’s time with the father, but not for so long as sought by Counsel for the mother.  X will, however, need some time away from exposure of parental conflict. I expect that she will need time to assimilate the change and the rationale of my intentions and sentiments in these orders.  I do, however, intend to continue the appointment of the Independent Children’s Lawyer for a period. X will soon be 15 years of age and it may be that a new stability in her life might better allow her to understand that the self-centred conflict between the two most important people in her life is not in any way her fault.  I propose to make an order whereby X spend time each second weekend with the father from after school on Friday until 7 pm on Sundays.  I do not consider it be in X’s best interests to spend weekday evenings with the father due to the stress of differing parental influences on her.  This may well change, however, if the parents themselves are able to reach an understanding as to X’s needs and can join in a more flexible regime.

10. There will be orders for X to spend half of each school holiday period with each parent, but commencing in the first term holidays of 2016.  The orders for time for X with the father will be suspended until the weekend of Friday 8 January 2016 but allowing for some time at Christmas.  Thereafter for the duration of the summer holidays 2015/16 X will spend each second weekend with her father in the terms as set out above. 

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  1 December 2015