Galantas & Diakos (No 2)
[2022] FedCFamC1F 843
Federal Circuit and Family Court of Australia
(DIVISION 1)
Galantas & Diakos (No 2) [2022] FedCFamC1F 843
File number(s): SYC 1522 of 2011 Judgment of: HANNAM J Date of judgment: 2 November 2022 Catchwords: FAMILY LAW - Final parenting - Where child’s relationship with the father significantly deteriorated over the years - Where the salient matter to be determined is whether the child will receive a benefit from the rekindling of a meaningful relationship with the father - Where mother and ICL propose orders for no time - Where significant weight is attached to the child’s strongly articulated wishes to have no relationship with the father - Where there is no evidence to suggest mother or maternal family is alienating the child from the paternal family and the expert is of the view that the child’s resistance to the father arises from his lived experience in the father’s care - Where expert also expresses concerns about father’s mental and psychological functioning - Where there is a need to protect the child from harm arising from neglect in the father’s care - Where it is not necessary to resolve the question of risk related to the father’s past alleged sexual abuse given the expert’s opinion about the primacy in these proceedings of the child’s strong views and position - Where, in accordance with the expert’s recommendation, orders are made that support the child’s wish to have no time with the father unless the child initiates contact. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 65D Cases cited: G & C [2006] FamCA 994
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 201 Date of hearing: 6 - 8, 24 June 2022 Place: Parramatta Counsel for the Applicant: Ms Giacomo Solicitor for the Applicant: Shelly Legal Solicitor for the Respondent: Adam Jones Solicitor Solicitor for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
SYC 1522 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GALANTAS
Applicant
AND: MR DIAKOS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
2 november 2022
THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.Any outstanding parenting application is dismissed.
Parental responsibility
3.The mother hold sole parental responsibility for the child X born … 2010 (“the child”).
Live with
4.The child is to live with the mother.
Spend time with
5.Subject to the next Order, the child is to spend no time with the father.
6.Notwithstanding the previous Order, the mother may facilitate the child spending time with the father as solely determined by her having regard to the child’s expressed views.
Passport and overseas travel
7.The mother is permitted to remove the child from the Commonwealth of Australia on any occasion she deems appropriate in the absence of consent of the father.
8.Pursuant to section 11 of the Australian Passports Act 2005 the mother has liberty to apply to renew and obtain an Australian passport for the child in the absence of the consent of the father and insofar as it is necessary this order operates as an authority for her to do so.
Injunctions pursuant to s 68B
9.Pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Family Law Act”) the father, Mr Diakos born … 1978 (“the father”), is restrained by injunction from:
(a)Contacting or attempting to contact Ms Galantas born … 1982 (“the mother”) by any means, including through a third party, other than with her prior written consent;
(b)Contacting or attempting to contact the child by any means, including through a third party, other than with the mother’s prior written consent;
(c)Approaching or coming within 100 metres of the child;
(d)Approaching or coming within 100 metres of any place where the child might reside from time to time;
(e)Approaching or coming within 100 metres of any place where the child might attend school; and
(f)Approaching or coming within 100 metres of any place where the mother might work from time to time.
10.The restraints in Order (9) are suspended in the event that the mother facilitates the child spending time with the father pursuant to Order (6).
11.Pursuant to section 68C of the Family Law Act, the injunction in Order (8) above is for the personal protection of the child.
12.If a police officer, which includes a member of the New South Wales Police Force, believes on reasonable grounds that the father, at whom the injunction is directed, has breached the injunction they may arrest him without warrant.
13.A copy of these Orders may be given to any school, care facility or other place where the child attends and to his treating practitioners.
Restraints
14.Each parent is restrained from:
(a)Questioning or interrogating the child about the time he has spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(b)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship, with the parent’s knowledge or in their presence;
(c)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(d)Permitting the child having access to any of the documents filed in these proceedings; and
(e)Communicating any information intended for the other parent through the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galantas & Diakos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
introduction
The parties (“the mother” and “the father”) have been engaged in a dispute in relation to their only child, a son aged 12 (“the child”) for almost the entirety of the child’s life.
Final orders were made in the Federal Magistrate’s Court (as it was then known) in 2012 which provided for the mother to have sole parental responsibility for the child, and that the child live with her and spend gradually increasing time with the father reaching an endpoint of alternate weekends and half school holidays.
The mother contends that the time the child spent with the father pursuant to these orders was inconsistent due to the father’s erratic and concerning behaviour. It is her case that over time the child’s relationship with the father severely deteriorated and the child became increasingly reluctant to spend time with him. The child has not spent time with the father since February 2018.
It is the mother’s contention that the child will not receive a benefit from having a relationship with the father. The ICL agrees with the mother’s contention that it is in the child’s best interest for orders to be made that provide for the child to spend no time with father. Both the mother and ICL contend in accordance with the expert’s opinion that particular weight should be attached to the child’s strongly articulated wishes to have no relationship with the father.
The father who participates in these proceedings through a litigation guardian seeks orders that would see the child’s time with him restored. He contends that he poses no risk to the child and that it will benefit the child to have a meaningful relationship with him and his paternal family.
The question for me to determine is which of the proposed suites of orders is proper, having regard to the child’s best interests as the paramount consideration.
background
The parties were married in late 2008 and separated in mid-2010, two months after the child was born.
Following separation the mother and child have lived with the mother’s parents (“the maternal grandparents”) while the father has lived at times with his parents and other paternal family members (“the paternal family”) and otherwise independently.
In March 2011, the father filed an Initiating Application in the Federal Magistrates Court as it was then known seeking parenting orders.
The parties were divorced in early 2012.
Final parenting orders were made with the consent of the parties in July 2012 (“the July 2012 orders”) which provided that the mother have sole parental responsibility for the child and that the child live with her. The July 2012 orders also provided for the child to spend time with the father in a graduating regime, commencing with supervised day time only and increasing to four nights per fortnight and half school holidays from the commencement of Term 3 in the first year the child attends school.
The mother began experiencing difficulties with implementing the July 2012 orders soon after they were made. She contends that these difficulties resulted from the father’s erratic and aggressive behaviour. She was unable to communicate with the father directly about basic issues such as the child’s toileting and it became common for the parents to utilise their extended families to communicate with the other party on their behalf. The father denies that there were any issues in implementing the July 2012 orders.
Throughout 2013 the mother received emails and text messages from the father about topics that she considered strange and totally unrelated to the parenting arrangements for the child. At this time the mother also learned that the father was not complying with the July 2012 orders as the child’s time with him was not being supervised by the paternal family as required.
From around November 2013 the child began expressing his dislike for the father in the maternal home.
In 2014 the father’s emails to the mother were in her view increasingly bizarre. She consequently no longer felt comfortable communicating directly with the father and instead began to communicate with the father’s brother (“the paternal uncle”) by email.
From June 2014 the father began complaining to the mother that she was attempting to turn the child against him and the paternal family. It is the mother’s case that the father was making these allegations at the suggestion of the extended paternal family.
In June 2014 the child reported to the mother that the father had measured the child’s penis. The mother deposes that she advised the paternal grandmother that this was inappropriate but the paternal grandmother dismissed the conduct as a “macho guy thing”. Throughout 2014 the child informed the mother on numerous occasions that he did not want to spend time with his father.
Throughout 2015 the father continued to send the mother bizarre emails which were totally unrelated to the care of the child. The mother also alleges that the father engaged in other highly unusual behaviour such as attending her home and yelling at the maternal grandmother about matters related to the child’s dental care.
Some of the foregoing allegations about his communications with the mother and conduct are denied by the father but these disputes in my view do not require resolution for reasons that will be explained. The father does not deny that other events occurred as the mother alleges but disputes the significance of these matters to the child’s increasing expressed reluctance to spend time with him.
From 2015 concerns were also raised about the adequacy of care provided to the child in the paternal household. In March 2015 the mother was informed by the child’s class teacher that the child arrives at school late and without food when spending time with the father.
On 30 July 2015 the mother received an email from the child’s school principal requesting contact details for the father in order to discuss with him the school’s concerns that the child was being sent to school without food. The mother further deposes that the principal informed her that the child is also exhausted after spending time with the father and falls asleep during class.
In August 2015 the maternal grandmother met with the paternal grandmother to discuss the school’s concern that the child was being sent to school without food. It is the mother’s case that the paternal family believed that these concerns were raised because the teachers were “out to get” the father because of his cultural heritage.
In the same month the mother again met with the child’s class teacher who informed her that the child was still being sent to school late and without food by the father.
From August 2015 the child started reporting that he “hated” the father and asking that the mother not send him to the father’s house saying “I don’t want to go. I hate him he is just on his computer all night and I can’t sleep”. She maintains that complaints by the child along these lines intensified over the ensuing months. In October the child returned home from school distressed and crying and made several complaints about the father including that he embarrass him, he is “weird” and makes other students at school feel “weird”. The child informed the mother that he had no lunch to eat at school and that he did not want the father to take him to school.
On 25 December 2015 the child informed the mother that he never wanted to spend time with the father again as he is “not his family” and he is “weird”.
During 2016 the father started attending at the mother’s home unannounced and would shout, causing neighbours to check on the mother’s welfare after he left. During the same year the child became increasingly frustrated and resistant to spending time with the father and informed the mother on multiple occasions that he is scared when he attends the father’s home. Throughout the same period the mother was informed by the school that the father continued to send the child to school without food and that she was required to arrange with the school for food to be kept at the school and made available for the child when this occurred. School staff also apparently had concerns about the child’s hygiene which, together with other matters related to neglect of the child, were notified to the Department of Family and Community Services as it was then known (“the Department”) as mandatory reporters.[1]
[1] Exhibit 5 (Magellan Report dated 9 July 2018) records that the Department received one report relating to “Neglect: Hygiene” on 9 September 2016.
In March 2016 the mother was informed by the child’s school that the child had begun to make threats of self-harm at school and was acting aggressively. The mother deposes that around this time the child began to experience nightmares and would often talk about unusual topics and reported to her that the father would make him watch videos regarding conspiracy theories. The mother deposes that the child would become very fearful and anxious when he discussed the conspiracy theories.
The mother contends that on several occasions in 2016 the father returned the child to her several hours after changeover time, sometimes as late as midnight. On other occasions when the child was due to spend time with the father, the father was late to collect the child or did not collect the child at all without prior notice to the mother or maternal family.
In October 2016 the child begged the mother not to send him to the father’s home and asked if he could “talk to the Judge about not going back” in an apparent reference to his requirement to spend time with the father pursuant to court orders. The child further reported to the mother that he had told the father that he hates him and does not want him to pick him up from school.
In late 2016 the family were allocated a family support service (“the family support service”) as a result of the notification to the Department that had been made about the care of the child.
In 2017, the child continued to make complaints to the mother about spending time with the father and also reported that the father and paternal family were denigrating her in their household. The father appeared to the mother to have become obsessed with the idea that people from the child’s school were against him and began sending an increasing number of messages to the maternal grandmother that raised concerns to the mother about the father’s mental health.
Some of the foregoing matters about the father’s conduct, communications and the adequacy of care provided by the paternal family between 2015 and 2017 are disputed by the father. It is common ground however that the school did raise concerns about the child’s presentation albeit that the father claims that these matters first came to his attention in late 2017. At that time the family support service which had been engaging with the mother commenced engagement with the father. The father agrees that staff from that service informed him they had received concerning reports from the child’s school, including that the child was attending school tired and without appropriate food. The father deposes that during the course of his involvement with the family support service, the service informed him that they held concerns in relation to the child’s apprehension and anxiety around bathing and showering, a concern also held by the father.
There also appears to be no dispute between the parties that from around the commencement of 2018 the child was expressing great reluctance and resistance within the maternal household to spending time with the father. However, the reasons for the child expressing this resistance, the question of whether these statements reflected the child’s true feelings at the time and the strength of the child’s expressed views are matters of significant dispute between the parties.
It is the mother’s case that the relationship between the child and the father had seriously deteriorated by this time and that a significant reason for this deterioration was the father’s ongoing bizarre conduct. She says there were three occasions in early 2018 when the father attended her home and made bizarre comments in relation to the child’s school and the family support service who were at the time assisting the family. The father on each of these occasions also verbally abused and threatened the mother.
In February 2018 the child informed the mother that he had begun to call the father by his first name and had asked the father to stop picking him up from school as the father embarrasses him.
In early February 2018 the family support service attended the mother’s home and informed her that they were finding it difficult to work with the father and that he seemed to be fixated on the idea the service was colluding with her. At the same meeting, the child informed caseworkers from the family support service and the mother that he did not wish to attend the father’s home.
In February 2018 the family support service ceased engaging with the father. There appears to be no dispute that by this time the child’s behaviour within the paternal home had become increasingly oppositional. There was an incident at about this time when the child broke a shower screen at the father’s home when showering, an activity that was increasingly difficult in the paternal home. There had also been longstanding difficulties with the child’s faecal soiling that were subsequently identified as relating to encopresis.
On 22 February 2018 the mother attended her local police station seeking that police apply for an Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of herself and the child. Police declined to do so and the child consequently commenced his few days in the father’s care the next day in accordance with the July 2012 orders.
The mother deposes that on 26 February 2018 the father attended her home unannounced and began screaming, making comments that the family support service, the child’s school and the mother were involved in a conspiracy. The father contends that on this day when he dropped the child to school he was informed by the child’s teacher that the child required his swimming costume and he consequently attended the mother’s home to collect this item. The father deposes to being at the mother’s home for only a few minutes and making comment to the maternal grandmother that he should have been informed that the child required his swimming costume. Later this day the mother attended upon local police who issued a provisional ADVO against the father for the mother’s protection.
The mother did not send the child to school for a week from 27 February until 5 March 2018 as she feared that the father may collect the child from the school.
The parties attended a Local Court on 1 March 2018, a date on which the provisional ADVO issued by police expired. The ADVO proceedings were then adjourned to 5 April 2018 and following a short hearing, the magistrate declined to make an interim order for the mother’s protection. The application for ADVO was subsequently withdrawn by police and dismissed on the adjourned date.
The mother deposes to a conversation between the maternal grandmother and the child on 1 March 2018 in which the child was informed that he was to continue spending time with the father in accordance with the 2012 final orders. The mother says that when the child was told that his time with the father was to continue the child told the maternal grandmother that he would kill himself if required to spend time with the father. The mother deposes that the child also told her on this day of an occasion when spending time with the father in the past when the father had become angry and threatened to kill the mother.
On 2 March 2018 police attended the mother’s home and the child repeated his comments that he would kill himself if he was forced to attend the father’s home. The child was taken to a doctor two days later and continued to make similar comments.
On 7 March 2018 the child informed the mother about another past event when he was taking a shower at the father’s home and the father entered the bathroom and took photos of him in the shower. The child reported that he told the father to stop but the father continued to take photos and when questioned by the child why he was doing this, the father said “for family memories”.
On 10 March 2018 the mother informed the father and paternal family that she would not be making the child available to spend time with the father.
On 13 March 2018 the mother was telephoned by the child’s school principal who informed her that the father had attended the school and that the principal believed the safety of the school community would be at risk if the father attended the school again.
The mother had informed a Departmental officer of the child’s recent complaints about the father on 7 March and this officer met with the child at his school on 16 March to discuss the matter. The mother deposes that the Departmental officer informed her that in the course of this conversation, the child further disclosed that the father washes the child’s penis in the shower when the child has asked him to leave the bathroom and that the father wrestles the child when he does not want him to and touches him in the private parts.
The mother deposes that on two occasions in late March neighbours informed her and the maternal grandmother that they had seen the father parked outside her home.
On 27 March 2018 the mother filed an Initiating Application seeking a change to the parenting arrangement.
On 28 March 2018 the father and paternal uncle attended a meeting with the Departmental officer who informed the father of the disclosures made by the child. The mother deposes that after this meeting the Departmental officer contacted her by phone and informed her that the father had denied the alleged conduct. When the mother informed the child on this day that the father had denied the allegations, the child reported to her that the father had “strangle(d)” the child’s penis in the shower. The child explained further that the father had gripped his penis with his hand and quickly motioned up and down repeatedly for one to two minutes. When asked by the mother whether the child had asked the father to stop the child informed her that he told the father to stop, threw the shampoo and it was on this occasion that he broke the shower screen.
The following day the child’s most recent disclosures were reported to the Department. The child’s reported complaints were considered by the Department as allegations of sexual abuse. On 12 April 2018 the child’s complaints were referred by the Department to the Joint Investigative Response Team (“JIRT”)[2] and on the following day the child was interviewed by members of this specialist team.
[2] The Joint Investigation and Response Team, made up of officers from police and Community Services investigated allegations of serious child abuse.
On 1 May 2018 the father was interviewed by a Departmental officer in relation to the allegations.
At the first court event on 16 May 2018 the proceedings were transferred to this Court for consideration of placement in the Magellan Program.[3] On this day a request was also made pursuant to section 91B of the Family Law Act 1975 (Cth) (“the Act”) that the Department intervene in the proceedings and an ICL was also appointed.
[3] The Magellan program is a Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 23 May 2018 the proceedings were allocated to the Magellan Program and a Magellan Report[4] was ordered. That report dated 9 July 2018 was released to the parties on 10 July 2018 (“the Magellan Report”)[5].
[4] A Magellan report sets out the involvement of the Department with the family.
[5] The Magellan Report dated 9 July 2018 was marked as Exhibit 5.
According to the Magellan Report, between 20 May 2010 and 16 June 2018 the Department had received 26 reports in relation to the child concerning allegations of “domestic violence, risk of psychological harm, child inappropriate sexual behaviour, neglect, psychological mistreatment, physical abuse, and sexual exploitation”. The Magellan Report details that five reports of sexual abuse received between March and June 2018 were then currently under investigation with JIRT and that the Department had substantiated three reports of psychological harm received in March and April 2018. Unfortunately, the Magellan Report does not provide any detail of the reports that were substantiated.
On 26 June 2018 a second interview of the child was conducted by JIRT. In the same month the child began counselling with a psychologist (“the child’s psychologist”). That psychologist has continued to provide counselling to the child up until the present time.
On 13 August 2018 an order was made suspending the child’s time with the father until the completion of the JIRT investigation.
The proceedings were relisted for further case management on 11 December 2018 following the completion of the JIRT investigation and on this day it was ordered that a further Magellan Report be prepared to include details of the most recent JIRT investigations. With the consent of the parties, the order suspending the child’s time with the father was continued until further order and the parties were ordered to attend upon a family consultant for the purpose of the Child Responsive Program.
On 12 March 2019 the update Magellan Report dated 25 February 2019 (“the update Magellan Report”)[6] was released to the parties. The update Magellan Report confirms that the child was interviewed by JIRT on 13 April and 26 June 2018 and details that:
[The child] disclosed that [the father] has taken photos of him naked in the shower and said they were for ‘family memories’, has pulled on his penis (which [the child] described as ‘strangling his penis’) and said he was cleaning it even though he wasn’t using soap, and [the child] had told him he doesn’t need help. He also disclosed that [the father] doesn’t let him shower at night before bed, so he has to shower in the morning and [the father] leaves the door open when he has a shower.
[6] The update Magellan Report was marked as Exhibit 6.
According to the update Magellan Report the father was informed on 6 August 2018 that JIRT had substantiated on the balance of probabilities the sexual abuse disclosures made by the child. It can also be gleaned from the update Magellan Report that a further notification of psychological harm was made to the Department in June 2018 which was also substantiated.
On 15 March 2019 the Child Responsive Program Memorandum was released to the parties.
At a subsequent court event it was agreed between the parties that the expert who had been appointed to the earlier proceedings provide an update report on the current circumstances for the child and family. Orders were made in accordance with this agreement and the family met with the expert in October 2020 for the purposes of her assessment.
The expert’s report dated 30 November 2019 was released to the parties on 9 December 2020. The expert’s report is a matter that I will return to later in these Reasons. It suffices to say at this stage that the expert recommended orders which supported the child’s wishes for no time with the father and further recommended that the child continue his counselling and that the father undergo a psychiatric assessment.
At a court event on 16 February 2021 following release of the expert’s report it was noted that the father appeared to be a person who may require an appointment of a case guardian. The possible need for a case guardian arose from verbal interchanges at various court events (including 16 February 2021) between the bench and the father who at times in the proceedings represented himself, the contents of the expert’s report, documents provided by the father to the expert and documents filed by the father himself in the proceedings. The father was informed of the Court’s concern and provided an opportunity to seek legal advice about the appointment of a case guardian and for the filing of any necessary application for the appointment of a case guardian on his behalf in the proceedings.
On 29 March 2021 an Application in a Case was filed seeking the appointment of the father’s brother (“the paternal uncle”) as case guardian for the father. On 11 May 2021 a Registrar made orders as sought for the appointment of the paternal uncle as case guardian even though the father had not obtained a psychiatric assessment as recommended by the expert. The Registrar also made directions to ready the matter for final hearing.
On 16 September 2021 the father filed an Application in a Proceeding seeking interim orders that the child spend supervised time with him and that the parties and the child commence family therapy. In her response filed 1 October 2021 the mother sought that the father’s interim application be dismissed. The father’s application was overtaken by further events as follows and no steps were taken to list it for hearing.
On 2 November 2021 the father filed a further Application in a Proceeding seeking leave to provide certain documents to a nominated “expert” for the purpose of obtaining a psycho-sexual assessment. With the consent of the parties this application was dealt with in chambers by way written submissions. On 3 December 2021 I dismissed the father’s application for Reasons given at the time.[7]
[7] Galantas & Diakos [2021] FedCFamC1F 253.
The hearing
The final hearing commenced on 6 June 2022. At final hearing the mother gave oral evidence that the child has now commenced high school and is doing well at school, both academically and socially. The child continues to attend upon his psychologist on a weekly basis. The mother gave evidence that the last time the child stated that he would kill himself if he had to see his father was in April 2022 and that he remained adamant that he did not wish to see his father, informing her of the same a week before the commencement of the hearing. The mother said she observed that when the child is stressed he continues to have issues with toileting and stated that this last occurred in 2021. The mother’s evidence is that if orders were made that provided for child to spend time with the father she would find it difficult to facilitate such orders for several reasons including impracticality due to the child’s age and size, her concerns regarding his physical safety and her ability to emotionally assist the child in these circumstances.
At final hearing the father gave evidence that he had not undertaken the psychiatric assessment as suggested by the expert and denied that he had any mental health issues. It remained the father’s position at final hearing that he accepted the child had made strong statements that he did not want to spend time with the father but these statements did not reflect the child’s true feelings. The father contended that once the proceedings were complete the child’s relationship with him could be restored.
The maternal grandmother gave evidence consistent with the mother’s evidence and the paternal grandmother and paternal uncle gave evidence supporting the father’s case.
THE AREAS OF DISPUTE
It is apparent from each party’s evidence that there are some factual disputes between them. However, it is equally clear from cross-examination of the expert (to which I will return) that neither party contests the significant factual matters upon which the expert based her opinion. In particular, there is no dispute as to the seven matters (set out in dot points) on page 27 of the expert’s report upon which she recommended that orders be made that support the child’s wish to have no time with his father unless the child initiates that contact. Those seven matters are:
·The child’s long held, often repeated and adamant views.
·The child’s age, advanced cognitive reasoning and chronic history of the emotional disorder, encopresis.
·The parents’ lack of capacity to resolve their difficulties with each other.
·The child’s repeated exposure to litigation throughout his life.
·The mother’s chronic fears and anxieties.
·The father’s vulnerabilities.
·The polarisation between the extended maternal and paternal families.
Although the father in particular approaches the dispute as if the issue of most significance is the question of whether he sexually abused the child, neither the mother nor the ICL seek a finding that this has occurred or that the father poses an unacceptable risk of harm on this basis. It is noteworthy at this stage to observe that the expert does not herself take into account the question whether the father did or did not sexually abuse the child in formulating her opinion as to final orders that are in the child’s best interests.
Accordingly, as the matters of greatest significance in the opinion of the expert (which I accept for reasons I will explain) do not relate to contested facts, it is not necessary to resolve disputes of that nature which are apparent in each party’s evidence.
THE EXPERT’s evidence
Expert’s report
The expert interviewed the family and the child over two days in October 2020 and her report dated 30 November 2020 was released to the parties on 9 December 2020. At the time of the interviews the child had not spent any time with the father for over two years and for this reason the child was not observed with the paternal family.
According to the expert’s report, the child presented as a ten year old with above average intelligence and very strong views about not spending time with the father. The expert observed that the child was articulate about how he did not “relate” to his father, who had not shared positive activities with him. The child referred to his anxiety that, if he spends time with the father, the father will be angry and hurt him for making the disclosure. The expert opines that the strength of the child’s feeling can be seen from his “message to the judge” which when asked by the expert the child unhesitatingly said:
I don’t want to go to [the father]’s house. I really don’t want to see him. Whatever you say to me or my family, I’m not going. You can’t drag a ten year old kicking and screaming. I think [the father] is incredibly irresponsible [referring to a particular incident]. He’s never taken pride in anything – his bed (was) covered in banana skins and paddle pop wrappers. I hate him because of what he has done to me. I’ve lost so much time because of the Court case, not been able to draw, sleep. I hope he goes to hell.
(As per the original)
The expert observed that the child seemed close to tears after making this statement which she opines shows the child’s clear resistance to spending time with the father. The expert opines the child’s resistance is also clear through repeated comments he has made to the mother to the effect of “make me go, I’ll kill myself”, a threat the expert states should not be tested.
For the purpose of preparing her report, the expert had discussions with the child’s psychologist who at that stage had been treating the child for over two years. The expert opined that the child’s disclosures of abuse and neglect were reported by the child’s psychologist to have emerged gradually which the expert opines is consistent with an experience of abuse. The child’s psychologist also reported to the expert her belief that the child’s issues with toileting were caused by the child experiencing flashbacks to his abuse experiences when he needed to clean his buttocks.
The expert opined that although the child would naturally be influenced by the mother’s and other family members’ fear and anxieties, it was clear to her that the child has a mind of his own and a maturity beyond his years. The child reported to the expert that he wanted to make his own choices and not feel “like a piece of property, (which) everyone (was) fighting” over.
When the mother was assessed for the purpose of the report she presented as being stressed and distressed over the ongoing experience of having the father present in the child’s life as well as in her and her parents’ lives. The mother described traumatic symptoms associated with her experiences with the father and reported to the expert concerns about the father’s conduct, along the same lines as the concerns she deposes to in the proceedings.
The mother described to the expert concerning behaviours by the father which the expert considered were highly suggestive of him having a major mental illness. The mother reported to the expert that the family support service caseworkers also held concerns about the father and referred to the mother and the child being “at risk” from him. The expert opined that the mother remained hyper-vigilant and fearful of the father.
The expert opined that it was not apparent to her that the mother was manipulative or mendacious, or was coaching the child to make false allegations about the father abusing him. The expert further opined it was appropriate that the mother attended to the child’s allegations but did explain that contamination of the child’s disclosure could have occurred if the mother then asked the child leading questions.
The maternal grandmother and grandfather participated in the assessment and were interviewed by the expert both with and without the mother. The maternal grandparents presented as affable and caring grandparents who reported similar concerns in relation to the father’s behaviour as those reported by the mother. When asked, the maternal grandparents suggested to the expert that the best outcome of the court proceedings would be for orders to be made for the child not to spend any time with the father and that an injunction be made preventing the father from making any contact with the child or the maternal family. The maternal grandparents reported that they felt anxious that if the child spent time with the father that he would be “in trouble” either from the father or at his own hand as the child had stated that he would kill himself if he were to spend time with the father. The maternal grandmother reported that the child had not wanted to spend time with the father for many years and during this period she had urged the mother to not make the child available for his time with the father.
The father was interviewed by the expert both with and without the paternal grandmother and the paternal uncle who had accompanied him to his interview with the expert for support.
The expert reported that throughout the interview the father spoke in an overinclusive, tangential manner and brought up his religious views more often than unusually occurs in an assessment. The expert further reported that the father referred to himself in positive terms, made good eye contact and his mood seemed euthymic, showing no indication of a lowered or elevated mood. The expert noted that prior to the father’s interview, in response to a request for a chronology the father provided a disorganised assortment of documents, some typed with handwritten notes in the margins, which caused the expert to question whether English was the father’s first language or whether the documents were demonstrative of a thought disorder.
The father reported to the expert numerous criticisms of the Department’s investigations in relation to the allegations of abuse made against him and stated to the expert that “he had the evidence to overturn” the Department’s decision to substantiate the allegations. The expert observed that she had difficulty following the father’s train of thought as he recounted events relating to the Department’s investigation.
The father reported to the expert that there were “no problems” with the implementation of the July 2012 orders for seven years. The father stated that he was “pretty punctual” and “only few times late, not regularly”. Without prompt, the father informed the expert that when he “realised the teacher was spying for [the mother]” he needed an “ingenious solution” and took a different route and arrived at the school early for several weeks.
When asked about the nature of his relationship with the child, the father reported that he “was smitten with him” and described that he spoilt the child, expressing “it was like he was a little boss, fetched him what he asked for” (sic) and that he required the paternal grandmother to discipline the child.
The father reported to the expert that he was surprised to hear that a caseworker from the family support service needed to be escorted to her car to be protected from him as he was adamant he had not “show(n) any violence or think of any threat”. The father conceded that he had argued with a caseworker using “smart aleck behaviour” and had told another to “do your job”. He also reported that he had contacted a caseworker as he wondered whether the mother was “setting him up” in regards to the swimming costume incident which led to an ADVO application being made by the mother the following day.
The paternal grandmother stated to the expert that the mother had “accuse(d) (them) of evil” making allegations against the paternal family such as that the child “suffered hunger” in their care. The paternal grandmother explained to the expert the morning routine of the child when in the care of the father included that he was provided with breakfast by her or the father who also made lunch for the child.
The paternal grandmother reported to the expert that the child could be “difficult” when he was in the care of the father, as he was “addicted to the computer’ and “argued about going outside”. The paternal grandmother recalled that the child experienced issues with bathing in the paternal home, that he arrived in dirty clothes and she bought him new ones and that his room would smell of “poo”. The paternal uncle also referred to the child’s “behavioural problems” and opined that the maternal family were the cause of such problems as the child spent the majority of his time in the mother’s care. Both the paternal grandmother and uncle raised concerns that the child had been “trained to lie” by the mother since he was an infant child and that the mother had been reluctant to allow the child to spend time with the paternal family.
In her report, the expert observed that the father’s presentation was a matter of concern as there were several behaviours which raised questions that he had a chronically disordered mental state or a neurodiverse brain or both.[8] The expert opined that her concern about the father’s mental functioning arose from the following observations:
[8] The expert subsequently explained in cross-examination that “neurodiverse brain” or “neurodiversity” is a more current expression for people who have autism and other neurological disorders. The expert explained the expression relates to the changes or differences between the brain of a person who has autistic spectrum disorder and the normal brain.
·The father’s appearance was dishevelled and he was dogged in his self-belief.
·The father used idiosyncratic, overinclusive language, and at times became thought disordered. The expert opined that this was evident in articles the father had written online under an alias and in a text to the mother that she was “making a Rubik’s cube puzzle”.
·The father’s apparent religiosity and preoccupation with early history and the establishment of the various forms of the Christian religion (though the expert made clear it must be emphasised that one cannot pathologise these behaviours if many others share similar beliefs and interests).
·The father’s global functioning, with concerns that it was below his early potential. The expert observed that the father currently lives in shared accommodation and previously with his mother after the parties’ relationship broke down.
·The father’s paranoid ideation (which the expert considered was apparent, for example in the father’s allegation that the child’s school was spying for the mother).
·The father’s difficulty appreciating the impact he had on others.
·The father’s past mental health history including a questioning of a diagnoses.
·The allegations raised by the mother and the child.
·Concerns expressed by the Department when there was substantiation of the child’s allegations.
The expert opined that she had no doubt that the father loved the child the best he could. However, the expert stated that she saw no evidence that the father ever parented the child independently and observed that there are currently no provisions for the child to stay with him (though the father acknowledged this and said this would be rectified if the child could stay with him).
The expert opined that she could postulate several differential diagnoses of psychiatric disorders which may be attributable to the father given the observations described at [91]. Should the father wish to pursue the issue of diagnoses, the expert recommended that he undertake a psychiatric assessment over several sessions with a treating forensic psychiatrist who has access to the expert’s report. With respect to his parenting, the expert did not assess that the father has the capacity to address the rupture in his relationship with the child to meet the child’s needs in the most challenging developmental stage being adolescence.
The expert finally opined that it was not apparent to her that there were adequate reasons to oppose the child’s wishes and that she supported the child’s wish for no contact with the father unless the child chose that it occur. She also opined that the mother and her parents, who are the child’s primary caregivers, need the support of orders which do not permit the father or anyone acting for him to contact them. She did not see any evidence that the mother or members of her family had alienated the child from the paternal family.
Oral Evidence
When cross-examined the expert maintained that she could not see any particular evidence that the child’s view of his father had been influenced by the mother or any other family members and opined that the child’s wish to not spend time with the father came from his own personal sense of what he wanted. The expert further explained that in her opinion the child’s strong wishes were a product of protracted parental conflict and his desire for that conflict to be brought to an end. The expert identified that the child understood that his parents were not able to co-parent in a way that suited him, or any other child, and as a result wanted it all to end. This view, the expert explained, “was entirely reasonable given the length of time things had continued”.
At the time of her report, amongst other things, the expert recommended that the child’s views should be supported due to the child’s age and his advanced cognitive reasoning. In her interview with the child the expert asked the child whether he had any positive memories with the father, to which the child gave examples that the father had taken him to the pool and to an amusement arcade. The expert explained under cross-examination that she was impressed with how the child emphasised that these activities were not activities which he shared with his father as the father sat in a “parent chair” and did not engage with him, and explained that this was a sophisticated way of thinking, especially for a 10 year old. The expert agreed that the child’s age and advanced cognitive reasoning would be even more pertinent reasons to support the child’s wishes now that he is two years older than when interviewed.
The expert was asked whether her opinion concerning the significance of the child’s encopresis would change if the Court found this disorder had resolved since the time of preparing her report. The expert said it would not as the fact that the disorder was previously present remains a reason to support the child’s views as it is indicative that the child has been inappropriately stressed and distressed for a significant part of his life.
It was put to the expert by counsel for the mother that the ICL seeks an injunction preventing the father from finding out where the child attends school. The expert was also advised that the maternal grandmother gave evidence in the proceedings that the child had expressed to her and his school friends fears about the father finding out where he goes to school. The expert advised that such injunction would be an appropriate precaution. The expert agreed if the child was informed of such an injunction, or an injunction preventing the father approaching him at his school or home this information would reinforce the child’s view that the father poses a risk. The expert also explained however that such order would inform the child that he is being listened to and that “the adults have heard his fears and worries”. The expert pointed to reports that the child has sought the assistance from his friends at school to “protect” him and explained that the child is “wanting that support” and “reassurance that he’s believed and that he won’t have to be with his father”. The expert expressed concern that if such order was not made and the father was aware where the child attended school, that it would be very difficult for the father “not to somehow be accidentally going past that school for a fair bit, just in case he might glimpse his son”.
The expert agreed if the father were permitted to send letters to the child there is a real concern that those letters will be in a similar form to the documents provided to her which were disorganised and caused the expert to question whether the father had command of the English language or whether they were demonstrative of a thought disorder. The expert also expressed concern that if the father sent letters to the child the father would attempt to pass on his interests to the child as a means to connect with the child which, in the opinion of the expert, would likely have the opposite effect and cause some anxiety for the child who is likely to find such letters intrusive.
Similarly, the expert expressed that a provision for gift giving would have an impact on the child’s life. The expert stressed that the child needs certainty and predictability in his life and explained that a provision for gift giving would not allow the child to have this or to have a sense that the parenting dispute had been finalised. The expressed stated that orders which allowed the child to recognise that the parenting dispute had been finalised would allow the child to continue with his development without underlying anxiety that something unexpected would occur in his life. The expert also raised concerns of the impact of gift giving on the entire maternal family including a concern that it may “unravel some peace and certainty that hopefully [the child] is able to achieve”.
The expert is a registered child and family psychiatrist with extensive clinical practice dating back to 1989. From 2001 to 2017 she worked in the Children’s Court Clinic NSW and between 1990 and 2015 provided supportive and exploratory psychotherapy as well as child and family psychiatry. Since 1987, she has prepared expert reports for the Family Court. The expert also tutored at the B University in the Community Medicine Faculty and was an occasional lecturer and supervisor of trainee psychiatrists for the C College between 1989 and 2014.
The expert assessed the family on two occasions, in May 2012 and in October 2020. When interviewing the family in 2020 for the purposes of these proceedings, the expert spent two days assessing various family members. The expert had access to a wide range of material produced on subpoena as well as documents provided by the parties themselves. She was cross-examined in the proceedings by each of the parties and ICL and remained firm in her assessment and recommendations. The expert’s demeanour was measured and considered and she was clearly able to justify the opinions she held with reference to the evidence. In light of all of the foregoing I accept the evidence of the expert and attach considerable weight to it.
THE LAW & DISCUSSION
The Objects of Part VII of the Act and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.
The Objects 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.
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).
The Court is to make such parenting orders that are considered proper (section 65D). According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of a child as the paramount consideration.
The primary considerations (under section 60CC(2)) are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[9] approved the interpretation of the phrase by Brown J in Mazorski & Albright[10] and also agreed with the reasoning of Bennett J in G & C[11].
[9] (2009) FLC 93-405; 41 Fam LR 483.
[10] (2007) 37 Fam LR 518.
[11] [2006] FamCA 994.
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
In accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added).
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
This subsection has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with both of the child’s parents and the relevant line of authority emphasises that the focus of the enquiry is whether the child under consideration does receive a benefit from having a meaningful relationship with both parents.
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In my view, the question of whether the child will receive a positive benefit by the Court making orders to foster a relationship with the father as the father seeks is the most salient matter to be determined in these proceedings. In attaching most weight to this matter it is also to be remembered that currently the child has no relationship with the father. In other words the focus of the question is whether the child will receive a benefit from the rekindling of a meaningful relationship with his father.
There is also a need to protect the child from harm of the type contemplated in the second of the primary considerations. In particular, there is a need to protect the child from harm arising from being subjected to neglect in the care of the father. There is clear evidence that the school were concerned about this domain of harm and that the Department considered it sufficiently concerning to recommend the engagement of a family support service to assist the father in this regard. Although the mother was also supported by this agency there is no evidence to suggest this was associated with any concerns about neglect of the child in her household. There is also no evidence to suggest that the concerns of the school in relation to neglect in the father’s household were not genuine and that they were in some way influenced by the mother or maternal family as had been suggested by the father.
So far as the need to protect the child from physical or psychological harm from being subjected to abuse is concerned, I do not consider it necessary to make a finding about past alleged sexual abuse as the father seeks. The mother had also sought at the commencement of the final hearing that I assess whether the father poses an unacceptable risk of harm to the child on this basis, though in final submissions the unacceptable risk was framed in another way. In any event, I do not consider that it is necessary or in the child’s best interests that I assess the magnitude of the asserted risk of harm from sexual abuse in the circumstances of this particular case for the following reasons.
There was considerable focus in the course of cross-examination of the expert on the question of the need to make a finding in relation to unacceptable risk arising from sexual abuse. It is to be remembered that while the father appeared to run his case on the basis that the central question to be determined was whether he did pose such a risk, the expert had expressed an opinion and formulated her recommendation on the basis of seven matters (summarised as seven “dot points”) (set out at [71] of these Reasons), none of which included sexual abuse or the risk of harm arising from sexual abuse. The expert explained in her oral evidence,[12] that she was conscious she did not include the child’s allegation of sexual abuse in her seven dot points.
[12] Transcript page 12, 24 June 2022
When asked specifically whether it would be of greater assistance to the child if the entire topic of sexual abuse is not addressed, the expert initially referred to the “burden and insult trauma” to a child who has been sexually abused and also to the “even greater tragedy” if a child is burdened with a belief that he has been sexually abused when that has not occurred. Ultimately, the expert agreed however that any explanation to the child of the effect of the court orders (which she considered should be given by the ICL in this case) should not include a discussion about the allegations of sexual abuse.
The expert was asked about whether a finding as to unacceptable risk helps or assists the child as opposed to meeting a parent’s need for exoneration or to be proved correct. The expert confirmed that “trying to exonerate a parent or confirm the parent’s beliefs…shouldn’t be a focus, providing the question of risk of course is always addressed”. She also confirmed that in her opinion she had provided a number of other reasons why the child should not have a relationship with his father “unless he sought it”. The expert was of the opinion that as those other reasons are sufficient to support orders in accordance with the child’s views that he have no relationship with the father it is not necessary to resolve the question of risk. In relation to the same matter the expert later said:
Your Honour, I – I don’t think it would be helpful to [the child] to have – have this matter explored any more than you believe it to – it is necessary to do having heard all the evidence. I don’t believe it would assist [the child] and I’m saying that because – because I don’t think it’s the right – and it might be for some matters – but I think in this matter I don’t think it would – it’s the right circumstances or the right time in [the child]’s life to approach the subject…that come from the court – from the proceedings as opposed to if [the child] should approach the – approach the topic with a counsellor.
The expert ultimately said quite firmly that it was not necessary for her recommendations themselves to touch upon the question of sexual abuse except that this allegation was the context in which the whole dispute arose. In summary she remained of the view that her assessment and recommendations (the dot points referred to in [72]) which relate to other matters of themselves justify her recommendation that it is not in the child’s best interests to have a relationship with the father unless the child seeks it. I accept the opinion of the expert in this regard and do not consider it necessary to make findings as to the matter of alleged sexual abuse including the risk of harm in this regard.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
Nature of the child’s relationship with each parent and other significant persons
There is no doubt that this child has the adamant view that he does not wish to have any relationship with the father. It is equally clear that this view has been long held and often repeated. According to the mother’s evidence, the child first started expressing his dislike for the father in late 2013. The father does not deny that the child has stated such views from an early age but it is his case that these views have been influenced by the mother or that there is least that risk that this has occurred.
I accept the mother’s evidence about the lengthy period over which these views have been expressed by the child. Her affidavit is replete with ongoing reference to the child complaining about the father and his “weird” conduct and communications from late 2013. Over time the child’s complaints intensified, and by October 2015 the mother gives unchallenged evidence that the child returned home from school distressed and crying making ongoing complaints about the father embarrassing him, the father being “weird” as well as complaints about the father’s care. By Christmas 2015 the child told the mother that he never wanted to speak to the father again as he is “not his family”.
By 2018 the child’s expressed reluctance and resistance to spending time with the father had intensified even further and in February of that year the child informed the mother that he had begun to call the father by his first name. The child’s request of the father to cease collecting him from school also does not appear to be a matter in dispute.
By February 2018, on both parties’ evidence the child’s behaviour within the paternal home had become increasing oppositional and both parents agree that there was an incident at about this time when the child broke a shower screen at the father’s home.
After March 2018 when the mother ceased facilitating the child spending time with the father, the child’s complaints about the father and his conduct were repeated in other settings such as to Departmental officers, members of the JIRT team, to his psychologist and to the expert. Although it was a feature of the father’s evidence and in particular the submissions made on his behalf that the Court should carefully scrutinise the child’s allegations of sexual abuse, the child’s views about not wishing to spend time with his father relate to a range of experiences the child reported about his father’s care, exposure to his father’s unusual beliefs and media related to these beliefs, as well as exposure to neglect. The expert’s view generally, while acknowledging the influence of the maternal household and the child’s capacity to exaggerate as to some matters, is that these beliefs arise from the child’s lived experience in the father’s care.
The father did not challenge the evidence in relation to his beliefs, and written and oral information given by the father to the expert are consistent with his interest in a range of subjects that the child complained of including an interest in conspiracy theories. Similarly, information that the father published on social media (including under an alias) and media that he identified of interest to him is consistent with the material complained of by the child and which gave rise to a concern in the expert about disordered thinking.
There also appeared to be no dispute that some of the other matters the child disclosed to his mother that caused him to feel uncomfortable had occurred such as the father taking photographs of the child in the shower. The father’s presence at the school and the embarrassing effect upon the child and the school’s concern about neglect in the paternal household were also matters that were not ultimately disputed, although the paternal family had other explanations for the presence of these difficulties. For example, it is the father’s case that any neglect of the child and the particular difficulties with the child’s hygiene and aversion to showering had come about in the mother’s household as she was the parent who had greater responsibility for the care of the child.
Although for the reasons given I make no positive finding about the veracity of the child’s account of sexual abuse which has been disclosed in numerous settings, I am satisfied that the child has held a firm belief for an extensive period of time that he was sexually abused by his father. He also fears that if he returns to spend time with his father then he will suffer some reprisals. The child has consistently threatened for some time to kill himself if he is required to spend time with the father. I accept the submission by the mother’s counsel that not only should statements along these lines not be tested in accordance with the expert’s opinion, but such statements are an expression of the strength with which the child holds these particular views.
Pursuant to section 60CD(2) of the Act the Court may inform itself of “views expressed by a child” for the purposes of this consideration in various ways. The section provides that a Court may inform itself of these child’s views:
(a)By having regard to anything contained in a report given to the court under subsection 62G(2); or
(b)By making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c)Subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
The views expressed by the child to the expert for the purposes of her report are summarised in his “message to the judge” set out in [75] of these Reasons. That message is both articulate and strongly expressed and consistent with statements made for the past nine years set out in the previous paragraphs. In her report, the expert said that the child presented as a ten year old with above average intelligence, that he was self-aware and articulate and that when he referred to an alleged incident of abuse in the shower chose not to continue to discuss those events and did not impress the witness as being “rehearsed or glib” about his allegations.
The expert observed that the child would naturally be influenced by his mother and other family members’ fears and anxieties and had no doubt that the child has a capacity to exaggerate and was not always factual in his recount of events. However, the expert assessed the child as articulate about how he did not “relate” to his father, who had not shared positive activities with him. The expert was well aware of the influence in the maternal household but remained firm in her view that it was not apparent to her that the mother was manipulative and mendacious, or had coached the child to make false allegations.
One of the features of the child’s views given in his interview with the expert was the fear that the father is “going to be really angry and hurt me if I go back”. The child’s resistance to seeing the father was apparent to the expert in his statement “you can’t drag a ten year old kicking and screaming”. Of particular significance to the expert was the child’s declaration to his mother “make me go, I’ll kill myself”, a threat which the expert opined should not be tested over this issue.
Under cross-examination the expert remained firm about her opinion that the child’s views were an authentic reflection of his reasons for not wanting to have a relationship with the father and identified particular features of the child’s statements from which she drew her conclusion. Ultimately, the expert framed her opinion and recommendations in terms of this matter being most salient and effectively the determinative consideration in these proceedings when she recommended that the Court make orders to support the child’s wish to have no time with his father unless the child initiates that contact.
In his Outline of Case filed immediately prior to the commencement of the final hearing the ICL notes that he spoke with the child three days previously. The ICL records in this outline that the child’s views are unchanged from those expressed to the expert. The ICL records that “with some vehemence” the child indicated to the ICL that he did not wish to have any contact with his father and when the ICL queried whether the child would be willing to receive any gifts or cards from the father, emphatically replied that he would not.
In all of the foregoing circumstances and attaching particular weight to the opinion of the expert, I consider the child’s views as particularly weighty in determining this dispute.
The child has no relationship with his father or paternal family members. The orders proposed by the father, if made, do not provide for any support for the child such as through family therapy for the child’s relationship with him to be rekindled.
The mother has been the child’s caregiver throughout the child’s life. The expert opines that the mother and the maternal grandparents who support her in this capacity “need the support of orders which do not permit [the father], or anyone acting for him to contact them”.
Although the influence of the mother is a significant feature of the father’s case, as a whole, the expert was not challenged on her opinion that she saw no evidence that the mother and maternal family have alienated the child from the paternal family.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
These are not particularly salient matters in this dispute. The parents separated when the child was a very young infant and it was agreed between them that the child would live primarily with the mother. It appears to have also been agreed from an early stage that it was in the child’s interests to spend significant time with the father.
Although the mother refers to difficulties in facilitating the July 2012 orders for the child to spend time with the father and describes the child’s resistance from an early age, there is no dispute that she did ensure for many years that the child did spend time with and communicate with the father for many years despite the child’s resistance until that was brought to an end in March 2018.
The father has not taken the opportunity to participate in long-term decision making concerning the child for many years as the July 2012 orders which were made with the consent of the parties’ provided for the mother to have sole parental responsibility for the child. The orders consented to in these proceedings also provide that this continue.
Although the father has at all times expressed a desire to be involved in the child’s life there is no evidence that he fulfilled his obligation to maintain the child through payment of child support to the mother or by providing any financial assistance in supporting the child. There is also evidence that the father did not adequately fulfil his obligation to provide the child with the basic necessity of food for the child on school days when in the father’s care.
Likely effect of change in the child’s circumstances
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
The most significant effect that will be brought about if orders are made as sought by the mother and ICL is that the dispute about whether the child is to have an ongoing relationship with his father will be brought to an end. The ongoing dispute between the parents and the impact of the ongoing litigation between them upon the child’s wellbeing is a matter considered by the expert as one of the seven cumulative reasons for giving effect to the child’s wish to end his relationship with his father.
Submissions made on behalf of the father were particularly directed to the alleged negative effect upon the child of a cessation of his relationship with the father and paternal family, particularly as the father contends that the child’s views about him are based on an unfounded belief in the child that he has been sexually abused by the father. Although the expert was clearly of the view that it is ‘tragic’ and highly detrimental for a child to believe that he has been the victim of sexual abuse if this has not occurred, the expert was firm in the view that all the child’s other reasons for not wanting to have a relationship with his father appeared to have come about as a result of the child’s lived experience.
In the circumstances of this case, I do not accept submissions made on behalf of the father that the orders proposed by the mother and ICL would only reinforce the child’s false belief about his father. Rather, as explained by the expert, such orders would show the child that his experience of the father’s care has been listened to and understood and that his need for orders that finally sever his relationship with the father are what he wants and needs.
In my view, and in particular having regard to the expert’s evidence, any orders that effectively require the child to spend time with his father (as the father seeks) if actually implemented would be catastrophic for the child. I accept the submission made on behalf of the mother that if the child were to spend time with the father as he proposes a likely impact upon the child will include emotional harm arising from likely exposure to negative views in the paternal household about the mother to whom the child is particularly close and attuned to her feelings.
Moreover, although I have significant doubt whether such orders would be able to be implemented given the child’s age, physical strength and strong resistance I attach particular weight to the view of the expert that the child’s threats to harm or kill himself if he were required to spend time with the father should not be tested.
I also accept the submission made on behalf of the mother that there are further practical difficulties with respect to the father’s proposal that the child’s time with him be initially supervised. As identified, there is no evidence that the supervision service nominated by the father in his proposed orders is willing to supervise children of high-school age and with a parent who has been substantiated by the Department as the person causing harm.
The child has also expressed a particular concern about the father becoming aware of where he goes to school and that the father may harm him. Although the father’s lawyer said in final submissions that the father has known where the child goes to school for some years, there is no evidence to this effect. In my view, even if the father has been aware of the child’s school for some time, one explanation for him not causing any difficulty and seeking the child out to date may be because he currently remains hopeful that orders will be made for the child’s relationship with him to be restored. If this is correct, the greatest risk for the child may arise if orders are made as sought by the ICL and mother as such orders will bring about an end to the child’s relationship with the father and paternal family. The expert quite firmly expressed the view that the injunctions proposed by the mother and ICL are appropriate and necessary for the child’s feeling of safety and security.
Capacity of each parent and any other person to provide for the child’s needs
Maturity, sex, lifestyle and background of the child and either parent or any other characteristics of the child that the Court thinks relevant
The expert considered a number of matters relevant to sections 60CC(3)(f) and 60CC(3)(g) in her seven reasons for giving effect to the child’s views. In this regard, the expert identified matters related to the capacity of the father to provide for the child’s needs and characteristics of the father which she described compendiously as “the father’s vulnerabilities”.
When assessed by the expert, the father presented as a “mild mannered but determined 41 year old man who was overweight and untidily dressed”. Although the expert described him as articulate, she recorded that during the interview the father spoke in “an overinclusive, tangential manner” and once “pulled himself up when he went off on a tangent”.
The expert recorded that prior to the assessment, when requested to provide a chronology of events since 2012, the father sent “a disorganised assortment of documents, with two headed “chronology”. The expert observed that some of these papers were typed and had multiple handwritten notes in the margin and some of the material caused her to question the father’s command of English (which the father subsequently confirmed was his first language) and/or whether these matters were demonstrating the father’s thought disorder. In relation to these concerns the expert provided a number of quoted extracts from the father’s comments about his “ordeal” in the court process, his reasons for representing himself at the time of the assessment and his views about the involvement of the Department.
The expert records that at one stage during the assessment the father spoke in a verbose, pressured manner and that as he kept talking she was having difficulty following his train of thought. The paternal grandmother and paternal uncle who had accompanied the father confirmed that this was the father’s usual style of talking.
The expert records that when observed to speak to the paternal grandmother and paternal uncle in the waiting room, the father spoke “in a monologue, at length about [ancient history]”. When asked about this lengthy monologue the paternal uncle responded that he and the father shared an interest in history and that if he was not interested in the father’s latest historical research he would tell him so and the father would not continue talking about it.
When referring to evidence he had compiled to overturn the substantiation of the child’s “false allegation” the father mentioned writing a 190 page document in which he “built up a thesis”. The father said that he put his “legal hat on” when writing this document in an apparent reference to having studying contract law while doing an undergraduate degree. After giving this explanation to the expert the father then made the comment to the paternal uncle “god left provision for it” to which the paternal uncle made no response.
During his assessment with the expert the father was shown documents which the mother had brought to the interview including an online platform profile and a page of a “history” that he had written. The father acknowledged watching media that may be regarded as containing conspiracy theories but was adamant that he had not shown such media to the child. The father was also asked about a social media post he had made using an alias. The father agreed he had written the post in question and said that he had written some articles about church traditions as he felt the need to do so and wanted to get feedback from others.
When the father was interviewed alone he appeared to the expert to be pleased to finally ‘have time to present his case”. The expert records that the father “gave a laborious detailed account of issues, jumping around subjects and sometimes undoing what he said”. The expert directly quotes in her report many of the matters reported by the father about the history of the child’s parenting arrangement, the nature of his relationship with the child, characteristics of the child and his interaction with him, his caregiving and the involvement of the Department, the child’s school and the family support service. The expert records that at various stages the father “went off on a tangent” from the matter under discussion referring to a puzzle and to Christianity. At one point the father described his personality as “a bit frantic”. The father provided information about his current living arrangements (living in a shared house with other men) and work in respect of which he reported he was currently on a trial with a company which was “cryo-trading…speculating on markets”. To a query about his social supports the father mentioned his family and friends but described himself as an independent person and said that his faith was important to him, adding that he “sees a purpose in all of this” and wondering if it was “god’s test”.
When asked how he would describe his usual self the father suddenly became teary and cried. The father also described himself as “philosophical and stoic” and also stated that he normally tried to be “non-judgmental”.
In her summary, the expert reported that the father’s presentation was a matter of concern as there were several behaviours that raised questions about a chronically disordered mental state or a “neurodiverse brain” or both. The matters which gave rise to this concern are set out in [91] of these Reasons.
So far as the father’s parental capacity is concerned, the expert opined (as recorded in [92] of these Reasons) that she saw no evidence that he had ever parented the child independently. The expert also did not assess the father as having the capacity to address the rupture in his relationship with the child to meet the child’s needs in adolescence which she described as “the most challenging developmental stage”
Under cross-examination the expert expanded upon shortcomings in the father’s capacity to meet the child’s needs. She said that children tend to feel more comfortable with the parent that they share interests with, can talk easily to and who is appropriately emotionally responsive to them. The expert considered that each of these matters are relevant difficulties with respect to the father.
Under cross-examination the expert was informed that the father had not undergone a psychiatric assessment for the purposes of gaining a diagnosis of any relevant psychiatric disorder and continued to deny that he had any mental health issues. She was asked to explain some of the matters that had raised questions for her about the father’s mental functioning recorded in her report such as that the father’s appearance was “dishevelled” the relevance of his apparent religiosity and her statement that “one cannot pathologies such behaviours if many share similar beliefs and behaviours”. The expert made it clear that she did not make her case about her concerns for the father’s mental health just on these last mentioned matters.
The expert was cross-examined about the father’s apparent religiosity and preoccupation with early history and the establishment of various forms of the Christian religion and her view that these matters would only be considered pathological if the father’s belief and ways of looking at things and preoccupations are idiosyncratic and particularly if bizarre or odd.
The expert said that she had no doubt that some of the father’s language was idiosyncratic and she thought this feature was an example of thought disorder. She explained that the form of thought as opposed to the content is very diagnostic in mental health disorders. The expert reiterated that the father’s form of thought, that is, the way he was expressing his ideas, was quite concerning to her and that is why she thought he should consider having a further psychiatric assessment over several sessions with a treating forensic psychiatrist. As the father had not pursued a psychiatric assessment of this type as suggested, the expert was unclear about what to make of the father’s eccentricity and could not definitively say whether it had something to do with a mental illness, a neurodiverse brain or both.
The expert was not challenged under cross-examination about her opinion that the father’s presentation raised questions about a chronically disordered mental state or a neurodiverse brain or both, or about her opinion concerning the father’s lack of capacity to address the rupture in his relationship with the child and to meet the child’s needs in adolescence.
The expert was asked under cross-examination about her views concerning an order to provide for the father to send letters or cards to the child. The expert agreed that this would give rise to a concern that the father would communicate with the child in the same manner as he had adopted in the various documents provided to her for the purposes of the assessment. The expert had particular concern about the father passing on or trying to connect with the child through his interests which would in her view actually do the opposite and cause anxiety to the child. The expert agreed that the child is likely to find the father’s communication through letters quite intrusive at this point in time. When later questioned by the father’s lawyer about the same topic, the expert said that the child needs to understand that there is some certainty and predictability in his life as this is needed to gain an understanding of what is going on in the world and how to respond to the world. She said ‘when you have chaos, when you have unpredictable circumstances, it is really hard to organise yourself to respond in a way that is adaptive and helpful to you”. The expert explained that if the child understands that everything in relation to his parenting is finalised and that he no longer has to think about and worry about anything unexpected coming in to his life and he can get on with his development, intrusions such as contact from the father or a physical reminder of him is likely to cause anxiety.
The expert also reminded the Court that the focus should not be upon the child in isolation but upon the child and his current caregivers. The expert opined that the mother’s aversion to any contact or physical reminders of a very difficult part of her life and the anxiety that such reminders cause for her is particularly important. In summary, the expert was concerned about the negative impact upon the child and the rest of the family if gifts were to arrive at the maternal household especially if this were to this cause an unravelling of the peace and certainty that the child is hopefully able to achieve through the making of orders that support his wish to have no relationship with the father.
The mother’s chronic fears and anxieties are another reason given by the expert to make orders that support the child’s wishes not to have a relationship with the father. These matters are also are also relevant to the matters under consideration in these subsections.
In her report the expert assessed the mother presenting as stressed, pleasant and thoughtful. She was described as articulate but her narrative was “disorganised”.
The mother provided a detailed chronology of events concerning the child following the July 2012 orders. She paid particular attention to an allegation that the father was “still obsessed” with her and that he sent her constant emails including telling her to check out irrelevant matters on the internet that she was not interested in.
The mother described matters about the father’s behaviour that caused her to have the view that the father’s mental health had deteriorated in 2016 and told the expert of the father’s inappropriate behaviour and comments in the presence of the child which caused the child to become embarrassed and highly averse to spending time with him. She described the child becoming distressed and clingy after returning from spending time with the father and the difficulties she had in having the paternal family assist with her concerns such as getting the child to school on time and giving him appropriate food.
The mother made numerous allegations about the care provided to the child by the father and the paternal family, the father’s declining mental state and her belief that the father through his control of her was continuing to perpetrate domestic violence against her. The mother described all of the events in 2018 which led to her decision not to make the child available to spend time with the father, to seek the assistance of police and the Department and to engage a psychologist to help the child manage his difficult circumstances.
The mother described her developing anxiety over time and the symptoms she experiences as court events become closer such as a reduction in her sleep, her working memory, extreme hypervigilance, rumination over how to keep the child safe and bad dreams. The mother told the expert of a diagnosis she had received in 2014 of Post-traumatic Stress Disorder (“PTSD”) and of anxiety. When asked the outcome she wanted from the proceedings the mother replied that she did not want the father anywhere near the child as the child is not safe with him and she repeated her determination to keep the child safe.
In the summary in her report, the expert records the mother a presenting as “stressed and distressed over the ongoing experience of having [the father]’s presence and legal proceedings” in the life of herself and her parents. It is recorded that the mother described traumatic symptoms associated with her experiences with the father. It is also recorded that the mother remained hyper-vigilant and fearful of the father. As previously noted, the expert opined that the mother and her parents, as the child’s caregivers need the support of orders which do not permit the father or anyone acting for him to contact them.
The expert was not challenged under cross-examination about her assessment that the mother had chronic fears or anxieties or the significance of these matters in recommending orders that support the child’s wish not to have any relationship with his father. When asked about the father’s vulnerabilities under cross-examination the expert said that the word “vulnerability” could equally apply to the child given his chronic history of developmental stress and strain and also to the mother given her chronic fears and anxiety.
The particular characteristics of the child that the expert considered relevant in recommending that orders be made that support his views and which themselves arise under s 60CC(g) are the child’s age, advanced cognitive reasoning and chronic history of encopresis (an emotional disorder).
The child was ten when assessed by the expert and presented then as “open, bright [and] mature”, “assertively articulate”, “above average intelligence” and “self-aware”. Under cross-examination the expert agreed that the child’s age and advanced cognitive reasoning are issues that would be more pertinent now that the child is 12 than they would have been when the child was 10. She was not challenged about her assessment as to these matters.
The next personal characteristic of the child that the expert considered relevant is his chronic history of encopresis.
The expert was asked under cross-examination whether her view about this matter would be affected if the Court were to find that this disorder had largely resolved. The expert said it would not and explained:
The fact that it was present, I think, should influence the decision of the adults still. The fact that this boy has had a disturbance that created this disorder should inform us adults that he has been unduly stressed – inappropriately stressed and distressed for a significant part of his life, and, of course, it did cause some complications, because not only was there the conflict between his parents about the issue of his soiling, but also it resulted in the involvement of [the Department] and concerns at the school, etcetera. So it – it – it should be part of, I believe, the reasoning of the decision that should – that the court makes.
The expert was not challenged about her opinion concerning the significance of the child’s chronic history of encopresis,[13] even if that condition had since resolved, or her understanding that the child had a chronic history of this condition.
[13] With respect to encopresis the father deposes in his evidence only that the child “had a hygiene issue, that he wasn’t coming to school clean”. He also deposes to a lengthy experience with the child being apprehensive and anxious about bathing and showering. It is his case that the child’s difficulty with cleanliness and hygiene “were emanating from his mother’s house”. When interviewed by the expert, the paternal grandmother reported that the child had not been taught or learnt how to clean himself after using the toilet and that this was the reason for his soiled underwear and was clear that the child had not learnt to clean himself and subsequently regressed to soiling. However, the expert was not challenged on her understanding that the child had chronic encopresis.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
There is no doubt that each of the parents shows a warm and loving attitude towards the child. It is regrettable that the father does not accept the opinion of the expert that it is in the child’s best interests for orders to be made that are consistent with the child’s desire not to have a relationship with him or the paternal family and that the father insists upon effectively challenging the authenticity of the child’s views. It is also unfortunate that the father maintains the unrealistic view that as soon as the proceedings are over the child’s attitude towards him will change and that the child will happily embrace the opportunity to reconnect with his paternal family.
The mother, in my view, shows a more realistic and sensitive attitude towards the child. I also consider her to have been a responsible parent as despite the negative impact upon herself of the child having a relationship with the father, she did not disrupt this relationship for many years until she reached the view that requiring the child to spend time with the father was detrimental, distressing and dangerous for the child. The mother was also not assessed by the expert to have alienated the child, that is, to have caused the child to align with her and reject the father without foundation.
I also accept the submission made on the mother’s behalf that it is to her credit that she said in oral evidence that if the child were to express a wish in the future to see his father, she will first explore the child’s reasons for that. She went on to say that if the child is not wanting to cause trouble by “confronting” the father but has a genuine curiosity about him, “it’s my responsibility as a parent to ensure that that happens”.
Family violence relating to the child or a member of the child’s family
Although the mother characterised her experience with the father following the July 2012 orders as that of a victim of the father’s control which would fall within the definition of family violence, this was not ultimately raised as a matter of significance by the mother and ICL in the proceedings. Although as I understand it, the father also denies any allegations of family violence, this matter did not feature in the submissions made on his behalf and thus has no particular significance in the determination of this dispute.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
This consideration differs to others set out in sections 60CC(2) and (3) in that it is not a matter to which the Court must have regard in determining what is in a child’s best interests. Rather, it is left for a court to determine whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to a child. In these proceeding this matter has particular significance as the expert identified the child’s repeated exposure to litigation throughout his life as one of the seven reasons for recommending orders which support the child’s wishes for no time with his father unless the child initiates it.
In my view, it is clearly preferable from the child’s perspective that these proceedings are brought to an end. As poignantly articulated by the child himself “I’ve lost so much time because of the court case..” and he feels “like I’m a piece of property” with everyone fighting. When asked by the expert about three magic wishes the child’s first wish was “for the case to be over”.
Under cross-examination the expert explained that she empathised with the child over his statements concerning the impact that the conflict between his parents and extended family had had upon him. The expert said:
I thought that [the child] had reached the point, and at that point, he was 10 years old, where he had just had enough of the conflict. He wanted to get on with his life. He could clearly see that his parents were never going to be able to coparent in a – in a way that suited him or would suit any child really, and he just wanted it all to end, and I thought that was entirely reasonable given the length of time things had continued for.
The orders proposed by the ICL, adopted by the mother, will result in the child having no relationship with his father or paternal family. For the reasons explained, this will come as a relief to the child as it is accordance with his adamant, clearly expressed and long held views. These proposed orders are those which are least likely to lead to the institution of further proceedings in relation to the child.
Any other relevant fact or circumstance
There are two other matters that the expert considered as significant reasons for grounding her recommendations for final orders. These are the parents’ lack of capacity to resolve their differences with each other and the polarised extended families.
When assessed, as previously noted, the child reported feeling like a piece of property with everyone fighting over him.
Although the father denies that there were any issues in implementing the July 2012 orders his affidavit is with replete with references to the child’s extended paternal family prior to the breakdown of those relationships and to the involvement of members of the maternal and paternal extended family throughout the entirety of the child’s life. For example, when the child was a small infant after the parties first separated the child’s time with the father was initially supervised by a maternal aunt and under the July 2012 orders the father’s time was to be initially professionally supervised and to occur in the presence of a member of the extended paternal family. When the child’s time with the father progressed to overnights it initially took place in the paternal grandmother’s home. The child was not to spend time with the father alone until the end of the first year that the child was to commence school.
In his affidavit, the father also deposes to making arrangements with respect to the child through the maternal grandmother and to the paternal uncle (who was case guardian for the father in the proceedings) informing him of email communication that the uncle had received from the mother about the child from at least mid-2017. The father deposes to the paternal grandmother assisting him in daily tasks associated with the child such as showering which caused particular difficulty. He also deposes to other involvement of the paternal uncle such as in communication with a caseworker at the Department.
The mother also deposes to the involvement of the maternal and paternal families in both caring for the child and in the events that caused a fracture in the child’s relationship with his father and extended family and the breakdown in relationships between the extended paternal and maternal family. As previously noted, the mother and child have lived in the maternal grandparents’ household since separation and the mother deposes to her inability to communicate with the father directly about basic issues to do with the child from a point in time shortly after the July 2012 orders were made. She also deposes that it became common for the parents to utilise their extended families to communicate with the other party.
It appears that the extended families’ dispute with one another came from the concerns raised by the school about the paternal family’s care of the child. It is clear from the account of the dispute given by the father, paternal uncle and paternal grandmother when assessed by the expert, in their affidavits filed in the proceedings and in oral evidence, that the paternal family considers that any concerns about the adequacy of care for the child arose in the maternal household as the child lived for the majority of his time in that household. Further, it appears that members of the paternal family appear to believe that the mother in some way colluded with the school and other authorities in creating a false narrative about conditions in the paternal home and caused or influenced the child to express negative thoughts about his paternal family. This continued as a theme throughout the final hearing.
In these circumstances, it appears beyond dispute that the parents do lack capacity to resolve the differences with each other and that the extended families are polarised. The expert was not challenged under cross-examination about her reasons for considering each of these matters as so significant that they are two of the seven matters to which she attached particular weight in recommending that the child’s wishes to not have a relationship with his father be supported through orders made by this Court.
One final matter that I consider relevant is that the father seeks an order that the mother keep him informed regarding all major decisions she makes concerning the child by notifying him by email within 48 hours of such decision being made. It is the clear opinion of the expert that the best interests of the child must be considered in the context of him living with his mother and his maternal grandparents and that it is beneficial and indeed necessary that the child and his maternal family be protected from any unnecessary intrusion that may be brought about through any ongoing contact with the father. In addition, this proposed order seems somewhat oppressive and is likely to be experienced by the mother as a continuation of some form of relationship with the father which she has found difficult and distressing. In circumstances where the mother has exercised sole parental responsibility for the child for much of his life and the child is to have no relationship with the father in the future, it is difficult to see how such an imposition on the mother is in any way beneficial to the child.
CONCLUSION
As there is no dispute between the parties that it is proper and in the child’s best interests that the mother hold sole parental responsibility for the child and that he live with her, the only matter for determination in this dispute is whether it is in the child’s best interests to rekindle his relationship with the father as the father proposes, or whether it is in the child’s best interests for that relationship to be formally severed through orders as sought by the mother.
Attaching particular weight to the opinion of the expert and to those of the best interests considerations which support the child’s wish to have no ongoing relationship with the father, I am satisfied that it is not in the child’s best interests for the Court to make orders to foster the rekindling of the child’s relationship with his father. For this reason, this is one of those rare cases referred to by the Full Court in McCall & Clark at [122] (as set out in [114] of these Reasons) where the fostering of the child’s relationship with a parent will result in no positive benefit to be derived by the child.
For all of the foregoing reasons, I make the orders as proposed by the ICL and adopted by the mother with one minor amendment to the restraint upon the father having any contact with or approaching the child or mother. I have amended this order so that it is suspended in the event that the mother chooses to facilitate the child spending time with the father pursuant to another of the orders proposed by the ICL and adopted by the mother. As submitted by the father in the course of final submissions, if these two orders are made as proposed without an amendment they are inconsistent with one another and would give rise to real practical difficulties in the event that the mother did facilitate any contact between the child and the father.
I certify that the preceding two hundred and one (201) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 2 November 2022
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