Garner and Hunt

[2014] FamCA 1018

FAMILY COURT OF AUSTRALIA

GARNER & HUNT [2014] FamCA 1018

FAMILY LAW – CHILDREN – Family Violence – Best Interests – Where there is a high level of conflict between the parents – where the child is a teenager – where the child wishes to have no contact with the father – where significant weight is given to the child’s views – where it is in the best interests of the child to live with the mother – where it is in the best interests of the child for no orders to be made for time with the father – where it is ordered that the mother have sole parental responsibility of the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Garner

RESPONDENT: Mr Hunt

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: BRC 2063 of 2009

DATE DELIVERED: 17 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25, 26, 27 & 28 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor of Counsel

SOLICITOR FOR THE APPLICANT: Mitchell Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT: Jones McCarthy Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

1. That all previous parenting Orders and any previous parenting plans entered into by the parties are discharged.

2. That the child, H, born … 2002 (“the child”), shall live with the mother.

3. That the mother shall have sole parental responsibility for all major long-term issues (as that term “major long-term issues” is defined in s 4 of the Family Law Act 1975 (Cth)) in relation to the child, but when making decisions about such issues she shall:

   (i)Advise the father in writing of the decisions to be made;

   (ii)Seek the father’s written input into the decision;

   (iii)Consider any written response from the father before she makes the decision; and

   (iv)Advise the father in writing of the decision she ultimately makes and the reasons for making the decision that she has.

4. That the mother shall, at her expense (assisted, if possible, by use of a Mental Health Plan and referral obtained from the child’s GP), facilitate the child’s attendance upon the psychologist, Ms U (or some other psychologist nominated by Ms U in the event that Ms U is unable to continue to see the child) for at least two appointments within the first two months after the date of this parenting Order and then, at least, on one occasion every six months thereafter until the child turns 18 years of age for the purposes of the child discussing and addressing, in a therapeutic setting, her willingness and preparedness to recommence and continue communication with and spending time with her father. 

5. That the child shall spend time with the father and communicate with him as may be agreed between the child, the father and the mother, with arrangements for the child’s time with the father and communication with him to be put in place only after the child has commenced consultation with Ms U as provided for in paragraph (4) hereof and only after Ms U’s communication with the father and the mother about such arrangements when Ms U and the child have agreed that such communication with each of her parents is appropriate.

6. That the mother shall continue to encourage the child to spend time with and communicate with her father until such time as the child reaches 18 years of age. 

7. That the father shall be at liberty to write letters and cards and send gifts to the child, particularly at Christmas and Easter time and for the child’s birthday, and the mother shall ensure that such letters, cards and gifts are passed to the child upon receipt.

8. That each of the mother and the father is restrained from denigrating the other parent to the child or within the hearing of the child.

9. That the mother shall provide copies of the child’s school reports and school photographs to the father as soon as practicable after they are received by her.

10. That the mother shall keep the father informed as to the child’s health and, in particular, she shall inform the father of any change in the child’s health brought about by serious accident or illness as soon as practicable thereafter.

11. That each parent shall keep the other parent advised of their current residential address, email address and telephone contact details and of any change thereto within 48 hours of any such change.

12. That the mother shall advise the father of any intended relocation away from the Gold Coast no later than two calendar months prior to any such proposed relocation, including detail as to the proposed place to which she and the child will be relocating.

13. That the father shall remain away from the child’s school and school events unless invited to attend by the child and the mother.

14. That the details of this parenting Order and the fact that the child’s own views have been given significant weight in the determination of the Order shall be explained to the child by the Independent Children's Lawyer with the assistance of Ms U (should the Independent Children's Lawyer consider that she requires such assistance to do so).

15. That after Ms U has seen the child on at least two occasions after the making of this parenting Order, she shall communicate the progress of the matter to the Independent Children’s Lawyer and the Independent Children's Lawyer shall thereafter be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garner & Hunt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2063 of 2009

Ms Garner

Applicant

And

Mr Hunt

Respondent

REASONS FOR JUDGMENT

1. High conflict is so often a hallmark of disputation between litigants in this Court. The breakdown of the closest of personal relationships can, and often does, engender intense emotional responses that sometimes lead to irrational and irresponsible action.  Unfortunately, children are too often caught up in, and become the victims of this conflict that can consume their parents for years after a breakdown of their relationship.  H Garner (“the child”), who is nearly 13 years of age, is one such child.

2. The child’s parents’ marriage ended around five years ago when the child was not quite eight years of age. Her parents’ separation at that time was not the start of the conflict between them. Their relationship had been an extremely volatile one, full of conflict, throughout its seventeen year history prior to that. Perhaps, given that history, it is not surprising that the parents have not been able to agree about parenting arrangements for the child since they separated. However, not only have they been unable to agree about the parenting of the child in that time, they have also not been able to agree on how their financial relationship should be determined or how their property should be divided between them. Counselling, mediation, obtaining advice and representation from very experienced accredited specialist family law solicitors, as well as the completion by them of a number of parenting courses have not been able to assist the child’s parents to actually resolve their conflict. To date, they have each spent hundreds of thousands of dollars in legal fees litigating their disputes. Indeed, they have spent money they do not even have, borrowing significant amounts from their extended families in order to continue to be legally represented throughout these proceedings.

3. The child’s parents litigated in the Federal Circuit Court (when it was still known as the Federal Magistrates Court) through 2010 and 2011, culminating in a trial of their competing property adjustment and parenting orders applications in the middle of 2011.  A final parenting order was made by Judge Demack on 2 June 2011.  Her Honour had been assisted by an Independent Children’s Lawyer (“ICL”) and a family report from an experienced social worker. That final order provided, most importantly,  for the child to live with her mother and to spend time with her father from after school on a Thursday to before school the following Monday each alternate week and for a block of two weeks during the summer school holidays each year. One might sensibly think that would have been the end of the matter. It was not to be.

4. Soon after that final parenting order was made, intense disagreement arose again. Litigation about the parenting of the child was recommenced and now, for over two years leading up to the trial in this matter, the parents have been litigating again, in this Court, about the child’s parenting.

5. The child has not spent any time with her father since 2012. The time she spent with him that year was limited and restricted. The dispute came before me for final determination through the medium of a trial that took place over four days from 25 to 28 November 2013. The mother wants me to order that the child continue to live with her and not spend any time with her father. The father wants me to order that the child live with him, not see or communicate with her mother at all for several weeks, and then only see her in a supervised setting for a time after that before beginning to see her on a limited, unsupervised basis. The position that each parent presents to the Court bears out their feelings towards each other as well as setting the parameters of the difficult task that the Court has the responsibility to undertake.

6. At the trial, the Court was assisted by an ICL, three very experienced barristers, a further family report from the same social worker who had seen the family during the earlier litigation, two reports from another social worker who I had sent the family to for therapeutic assistance in 2012, a report from a psychologist who had seen both the parents and a report from another psychologist who had very recently before the trial seen the child on two separate occasions.

7. Of course, the determination of parenting disputes in this Court is not about enforcing parental rights but rather is centred on the best interests of the subject child or children. As difficult as any determination of these parents’ dispute was going to be, I have, after much consideration, come to the conclusion that the child’s best interests, at this point in her life, where she is beginning what can be a tumultuous journey through adolescence, will be best served by acceding to her own repeated, apparently heartfelt requests not to have to go and spend time with her father. I am satisfied that the child deserves an opportunity to be able to focus on the path ahead into adulthood without the continued distraction of ongoing conflict between her parents that has already significantly affected her.  As fundamentally important as meaningful involvement of both parents in the life of a child is, sadly there are cases where the best interests of a child can only be met by circumscription of one or even both of that child’s parents’ involvement in her life until the child herself is mature enough to negotiate the nuances of the relationship with the parent. I am satisfied that this is one of those cases.

8. My judgement in this matter has been reserved for just under twelve months. I appreciate that will have caused the parents anguish and concern which would have added to the stress that involvement in this prolonged dispute would already have been causing them. The responsibility of having to hear and determine so many other difficult matters in this Court has led to this delay in delivery of the judgment. I regret this delay, sincerely hoping that this judgment provides a certain path ahead for the parties and, most particularly, their young, teenaged daughter.

Further detail of the history of the relationship

1. The child’s parents commenced their relationship as very young adults. The father was 21 years old and the mother was 19 years old at the time. The mother became pregnant six months into their relationship and gave birth to their first child, the child’s brother, D, who is now a young adult.

2. As I have observed, the child’s parents’ relationship was volatile from the start. They separated during this first pregnancy and a pattern of reconciliation and separation began that the couple never really overcame. In the early years, with their baby son in the world with them, they tried to negotiate this turbulent relationship through a move overseas and the establishment of a business there that subsequently failed, earlier agreements to marry that were broken before being carried into effect in 1997, apparent disapproval of the relationship from each other’s extended family members and a continual separation-reconciliation cycle.

3. During the mother’s subsequent pregnancy with the child H, another separation saw the father move back from Sydney to the Gold Coast where his family of origin lived and where he had grown up and gone to school. The couple remained living apart for about three years after the child’s birth, with the mother and the child living with the mother’s parents in or near Sydney during that time. The father would travel to Sydney from time to time during those years and would, during those visits, spend some time with the mother and their two children. The mother would sometimes travel to the Gold Coast to visit the father during that time. On one such visit, the mother was assaulted by the father’s sister.

4. The couple agreed to reconcile again, and in early 2005, when the child was turning three years of age, the mother and the two children moved to the Gold Coast to live with the father again. That reconciliation lasted no longer than about eleven months. Indeed, the mother claimed that they separated “millions of times in 2005”. A longer separation began again in or around November 2005. However, the couple and the children experienced this separation all living in the same home. They endured this very dysfunctional state for about eighteen months before once again reconciling as a couple in or around May 2007, only to separate finally in the early part of 2009. Again they remained, separated, living in the same home for most of 2009 with increasing tension and conflict during that period. 

5. Their highly volatile relationship included a high degree of verbal and physical conflict. Although there is disagreement between them about the extent of the problem, there is evidence that supports a finding that the father abused marijuana and alcohol over the years of their relationship. He readily concedes that he was definitely abusing alcohol quite significantly during the last three months of their relationship. I am satisfied that in making this concession the father was still minimising the real extent of his problem with alcohol.

6. The couple argued and had conflict about the father’s drinking, about money, about the time the father was spending away from the family, and about their fidelity or infidelity to each other. Their arguments led to physical confrontations on a number of occasions. The mother reported to the family report writer in May 2010 that there had been an occasion when the father had pushed her over backwards on the front lawn and she hit her head on the ground, another occasion when he had grabbed her and held her by the neck and another occasion when he had grabbed her and slammed her down on the bed. She told the report writer though, despite that, she was not scared that he would hurt her as he did not have a violent temper. Indeed, she told the report writer, candidly, that she had hit the father and slapped him on occasions. For his part, the father accepted that there had been one incident where the mother had slapped him and grabbed his hair, in response to which he had grabbed her by the neck and pushed her on the bed.

7. The children are reported to have informed the report writers of incidents of conflict, both verbal and physical, between the parents that they witnessed or heard in the confines of their home. I do not doubt the veracity of such reporting. I am satisfied that there was conflict and physical aggression in the relationship between the couple. I consider the father has minimised his role in that and over emphasised the mother’s role in it. I am satisfied that there was more than just one incident of physical violence between the couple during their relationship and that both parties perpetrated acts of physical violence against the other at times.

8. Unsurprisingly, the children were affected by their parents’ conflict. Both parents were reported by the family report writer in May 2010 as having agreed that their son had “exhibited unexplained medical symptoms…caused by the stress within the family.”  The parents could hardly have expected the children to remain immune from the impact of exposure to parental conflict, violence and family instability. Unfortunately, children exposed to such parental conflict rarely do.

9. The mother commenced Court proceedings in March 2009. The father’s emotional well-being continued to deteriorate. In July 2009, he took an overdose of sleeping tablets, after having written a note saying, “I’m sorry” and leaving it for the mother to find. Apparently, he telephoned and spoke to his mother after having taken the tablets and, sensing something was wrong, she rushed over to find him unconscious, before calling an ambulance to take him to hospital. He was admitted to hospital for observation for a short while, then was discharged into his parents’ care at their home. The mother arranged for the child to go to Sydney to live with the maternal grandparents in the few months following the father’s overdose.

10. The father began consulting a psychiatrist from mid-August 2009. He was diagnosed with an Adjustment Disorder with anxious and depressed mood with clinically significant symptoms.

11. The conflict between the parents continued to be significant through the latter half of 2009 as the father continued to go to the property occupied by the mother, ostensibly to continue operating his business from the shed on the property. Amidst allegations of harassing and intimidating behaviour by the father towards the mother, including his repeated, unwelcome, unilateral entry to the home, problems in the relationship of the father and his son continued and serious disagreement about the father’s contact with the daughter began to emerge.  In early 2010, the mother sought and obtained from the Court (the Federal Magistrates Court, as it then was) an Order granting her sole use and exclusive occupation of the property, restraining the father from going onto the property at all.

12. An application by the father to the Court in the first half of 2010 for orders providing for his children to spend time with him prior to the appointment with the family report writer that had been engaged by the parties was met with determined opposition by the mother. Judge Demack was clearly troubled by the facts as presented to her on that interim application. Of the mother, after having read her affidavit but not having seen her give oral evidence, her Honour went as far as saying:

    She has so little good to say of the father that it will be a complete puzzle to me as to how, on a final basis, I could work out a way for [the child] to have a meaningful relationship with her father if she wasn’t living with him.

13. Having said that though, her Honour did not make an order for the children to spend time with their father, and explained that by saying:

    The reasons that I am not ordering time is not because I am concerned with respect to the father’s capacity, the father’s mental health, the father’s ability to appropriately parent the child. It is wholly because I have no reason to believe that the mother will do anything other than sabotage, or attempt to sabotage, the child’s time with the father if it occurs in any way other than the way that she proffers.

1. Her Honour was clearly looking to the anticipated family report for assistance in the matter.

2. The family report writer, experienced social worker, Mr S, saw the family soon after that. He saw both of the children. D, who was 16 at the time, when speaking of his parents’ separation, complained that his father “used to be real cranky” and that “he would always be drunk.” D also reported that when there was conflict between his parents it was extreme and would   “go from one end of the house to the other.”  D is reported as generally being rather critical of his father, particularly in respect of his reliability, whilst, in contrast, he spoke warmly and fondly of his mother. Notably, Mr S reports D as telling him his mother is fine with him seeing his father and also that he knew his sister, H, “likes to see” her father and that she had been missing him.

3. Mr S reported H, eight years old at the time, (who had not seen her father for a couple of months at this time) as appearing extremely pleased to see her father when they were brought together. She ran to him, hugged him and sat closely with him. He did not observe any sign of anxiety or discomfort in her manner. Whilst she is reported to have been aware of fights between her parents and of her father holding her mother by the neck, she was not aware of why she had not been seeing her father at that time.

4. Mr S reported the child as saying she felt sad “’cause I really want them to be together again and live together.” He also reported her as missing her father and enjoying speaking to him on the phone. He noted that she reported having a photo of herself with her father when she was little that she looked at, and saying that she would like to visit her father. She is reported to have said that she would like to spend a week with each of her parents “because this would be fair.”

5. At the end of his first family report, Mr S opined that the parents would be unlikely to be able to form a cooperative relationship regarding the children in the short term. In respect of that, history now proves Mr S entirely correct. In respect of each of the children, Mr S expressed the opinion that the children’s security is firmly prefaced on their relationship with their mother and that any relationship they were to have with their father had to be contingent on the father abstaining from drinking alcohol or using drugs whilst the children are with him. He opined that D should be allowed some personal choice in respect of his relationship with his father and that the relationship could be developed informally. As to H, Mr S expressed the opinion that she should commence short periods of time with her father, gradually increasing over time to take place on alternate weekends up to the point of being from Friday afternoon to Monday morning on each such occasion.

1. On 6 August 2010, Judge Demack made an interim parenting order providing for D to spend time and communicate with his father as arranged between D and his father. That order also provided for H to spend short periods of time with her father, increasing to from after school Friday to Sunday afternoon each alternate weekend. It also included an injunction restraining the father from consuming alcohol or any illicit substance whilst the children were in his care.

2. Matters did not then progress smoothly towards trial though. The parents fought consistently over financial matters, including matters of disclosure and valuation, as well as the continued payment of the liability secured by mortgage over the home in which the mother and children lived and the liability secured by the motor car the mother was driving and the payment of private school fees to the school that D attended. At the same time, the father’s relationship with his son was far from incident free. The father actually admits that when D was 16 years old (sometime in 2010) the boy came over to the father’s place of residence at the time in a very agitated state, having argued with his mother, and that instead of calming the boy, extraordinarily, the father invited the boy to have a physical fight with him to sort things out between them.

3. As to the father’s time with the child H, the Court had to make orders providing for her to spend some time with the father on Christmas Day 2010 and on her birthday in 2011.

4. Numerous orders were made regulating financial matters in the lead up to the 2011 trial. The father did not comply with many of those. For example, he was ordered to keep paying the mortgage instalments in respect of the property the mother and the children lived in. He did not. Eventually, the mortgagee moved to exercise its power of sale. Despite the father’s opposition, the property was eventually sold privately, sanctioned by the Court, to Mr V, a friend of the mother’s. The car in the possession of the mother was, however, repossessed by the financier and lost to the mother. Many, many times the parties were before the Court, unwilling to compromise and running up significant legal costs. Private investigators were hired by both parties to conduct surveillance of the other party.

5. The trial of their competing parenting orders and property adjustment applications was set down for hearing in February 2011. It came on eventually before Judge Demack in early June 2011. I do not have an understanding of why the trial did not take place in February as originally intended.

6. When the matter came on for trial in June 2011, the father had been consulting his treating psychiatrist regularly throughout the first six months of that year. The doctor’s report suggests that the father was stressed and worried about his daughter and the legal proceedings, but that he was not considered by the doctor to be psychiatrically unwell.

7. There was clearly a lot of stress for all parties, the parents and the children, between August 2010, when the orders were first made that the child begin spending regular time with her father, and the time of the trial of the matter in mid-2011. The mother asserts that the child began her time with her father quite happily and looked forward to spending time with him. She asserts that as the time went by though, the child started expressing reluctance to go, asserting that she did not want to go to spend time with her father. According to the mother, the child started reporting that the father was still regularly drinking alcohol, particularly beer, whilst she was in his care, despite the injunction the Court had put in place against that. On the occasion of the annual motor car race on the streets of the Gold Coast in October 2010, the parties’ son, D, is reported to have also told the mother that he saw the father taking beer on to a boat that he and the child were to spend the day on, giving the mother more cause for belief that the father was acting in disregard of the injunction against drinking alcohol whilst the child was in his care. There is evidence that the mother was reporting these concerns to the ICL at the time. 

8. Then, and during the trial before me, the father denied the assertions that he was drinking during the time the child, H, was with him. His denials implicitly carry the assertion that either the mother was simply making up the allegations at the time or that the child was. I do not consider that either of them made up the assertions and I do not accept the father’s blanket denial that he ever drank when the child was in his care after the Orders of August 2010.

9. The father gave no evidence as to any steps he took to positively address the problem that he admitted he was having with alcohol consumption at the time the parties separated. The conflict between the parties was high through the second half of 2010 and first half of 2011 and the father was so stressed that he was regularly seeing his treating psychologist. I have no reason to accept his denials that he was continuing to drink alcohol during this time or to accept that he was capable, without help, of remarkably restrained abstinence on those occasions when the child was in his care. The mother’s evidence has the child describing behaviour by the father to try to mask his consumption of alcohol, down to the point of him even deleting photographs of him drinking taken by the child on her smart phone just prior to returning her to her mother’s care. I accept that evidence and reject the father’s denials.

10. Of further relevance, in this regard, the mother deposed to the fact that both she and the child sensed the odour of alcohol on the father’s person when they all attended at therapeutic counselling sessions with the social worker, Ms C, pursuant to my Orders in 2012, and that they actually complained of it to Ms C at the time. The father was confronted with the complaint and, according to the mother, he denied it only to be chastised by Ms C who said that she had also detected the smell of alcohol on his person. Significantly, in her oral evidence at the trial before me, Ms C said:

    On more than one occasion [the father] came to the interviews smelling of alcohol. He said he had been to lunch or something like that.

11. At the trial before me, the father accepted that he had turned up at one of Ms C’s sessions smelling of alcohol. He attributed that to wearing trousers that he had worn the day before to a wake for a deceased friend, over which someone else had spilt beer. He said he had not had them cleaned in the meantime before putting those trousers on again to wear to the appointment. He asserted that he had sent an email to Ms C subsequently in which he explained that. I do not accept that explanation as a truthful account as to how the father smelt of alcohol when seeing the mother and child at Ms C’s appointments. I am not convinced the father has yet come to terms with the problem he has with excessive alcohol consumption. I consider that the father demonstrated little insight into the problem he has with alcohol and just as little insight into the nature of the difficulties confronting him in his attempts to have a meaningful parent-child relationship with his daughter.

The expert opinion evidence that was before me

1. I had evidence in the form of written reports from the following experts:

   (i)Mr S, Consultant Social Worker. Mr S completed two family reports in June 2010 (before the trial in the Federal Magistrates Court) and again in May 2012 after the proceedings were reopened;

   (ii)Ms C, Social Worker and Family Therapist. Ms C prepared two reports in August 2012 and in December 2012, after I had ordered reportable family therapy to take place in the period leading up to trial;

   (iii)Ms P, Psychologist. Ms P had done a psychological assessment of the two parents in June 2013 at the request of the ICL;

   (iv)Ms U, Psychologist. Ms U interviewed the child and prepared a report in November 2013, just before the trial of the matter, at the request of the ICL.

2. Each of these experts also gave oral evidence under cross-examination by counsel for the parties at the trial.

3. Importantly, I consider, amongst the opinions expressed by Mr S in the conclusions of his first report was the view that the “children’s security is firmly prefaced on their relationship with their mother.” He expressed the view that any relationship that the children have with their father had to be based on an acceptance that the father “is not drinking or using drugs” and he said that it would be essential for the father to give the Court an undertaking not to consume any alcohol whilst the children are with him. These opinions, expressed quite clearly by Mr S, had to have been understood by the father at the time. Despite that, as I have stated, I am satisfied that the father did not cease drinking alcohol, most particularly whilst the child was in his care, and he became secretive and dishonest about that, placing the child under direct stress in respect of the issue. That stress, I have no doubt, contributed to the child’s apparently increasing resolve, over time, not to want to spend time with her father.

4. When Mr S reported on the family two years later, with a view to assessing the child’s alleged extreme unwillingness to now spend time with her father, he observed that the highly conflicted relationship between the parents that he had previously observed remained in place. This time, after his interview with the child, Mr S reports she told him she does not like going to spend time with her father. Mr S expressed the opinion that one of the obvious reasons for this is the child’s perception that her absence from her mother causes her mother emotional stress and that the child is undertaking a caretaker role with her mother. He considered that the child perceives her father to be superficial, acting differently with her when they are around other people than when they are alone. Interestingly, Mr S noted that despite her emotive descriptions of being fearful of her father, deeper investigation by more specific questioning by him revealed nothing more sinister than “playful games”.

5. That said, I found Mr S’s opinion in respect of that last matter to be a little at odds with his own reporting of the child’s differentiating to him between a ‘punching’ game the father told him about and the ‘punching’ she complained the father subjected her to when he was angry. She clearly asserted there to be a difference between the two. I accept that there was.

6. Mr S ultimately expressed the following view:

   Reducing or ceasing [the child’s] time with her father would be consistent with her wishes but would not resolve the problem. At the same time, the current situation is an emotionally untenable one over the long term as it is too stressful for her.

   To reduce [the child’s] stress, temporarily reducing her time with her father may help reduce her current stress. It would nevertheless be only a temporary salve.

   Some appropriate modelling by the parents of civility and regard for one another, and a modicum of respect offered to each as [the child’s] parent, would go a long way towards supporting [the child’s] emotional development and feelings of stability as she approaches adolescence.

   The solution lies with the parents … Reducing her time with her father temporarily is an option for consideration, but I do not make a definitive recommendation on this point.

7. It was that view that prompted me to order reportable family therapy for the couple and the child with Ms C. That began in May 2012 and went on through until December 2012. 

8. In her first report, Ms C observed that the child’s stated reasons for “discontinuing contact with her father” were that he “kept punching me and he got angry. He calls me names.” Ms C also reported that the child said her father refused to allow her to telephone her mother when she spent time with him and that he refused to listen to her. She also complained that her paternal grandparents refused to support her when she told them of his behaviour. Ms C reported that the child was unable to recall anything positive about her father. The child also reported concern about her father refusing to give her mother money.

9. Ms C reported that when she asked the child if she would want to spend time with her father if it was guaranteed he would not hit her or yell at her, her response was to still say no “because her father never changes.” Ms C reported that over time the child remained strong in her refusal to spend time with her father. Indeed, Ms C said that the child is “inflexible and firm in her refusal to spend time with him”.

10. At the end of her first report, Ms C recommended that a gradual progression to meeting with her father for brief periods in a safe, neutral venue, facilitated by Ms C and in her presence, would best suit the child and help rebuild trust between the child and her father.

11. Such a process was then put in place and was reported on by Ms C in a second report provided in December 2012. The child is reported to have enjoyed the activities provided for but continued to state that she did not want to continue seeing her father. Ms C reported that the child’s distress was so highly obvious that she elected to discontinue the process for the child’s sake.

12. Ms C interviewed the child’s brother, D, and he gave Ms C information that assisted her to form the opinion that it is also difficult for him to manage a relationship with their father. This led Ms C to the view that it must be even harder for the child to do so, given her younger age. Ms C went on to say that forcing the child to spend time with her father “is likely to reinforce trauma and require [her] to collapse into compliance betraying her own reality of distrust.” Ms C finished by saying she was “unable to endorse further father/daughter contact given that the child does not appear to have a secure attachment to her father and distrusts his capacity to keep her safe and respond to her emotional needs.” 

13. The report of Ms P, psychologist, was provided for the ICL in June 2013. She did a psychological assessment of both the parents. Whilst she expressed the opinion that there are no concerns in regards to the father’s psychological functioning that would impact his ability to parent, she did suggest that he lacked insight into his own responsibility for the part he had played in the historical context of the relationship he has with the child. This is a very significant factor, in my view. Having seen the father in the witness box, I accept Ms P’s opinion on the point.

14. Ms P also pointed out that there was clear evidence suggesting that the father would be “unsupportive of” the relationship between the child and her mother, if the child lived with him.

15. Ms P said there were no “specific concerns” about the mother’s capacity to safely and appropriately parent the child during the time the child spends with her. However, just as with the father, Ms P considered that the mother was unsupportive of the child’s relationship with her father. Ms P did, however, attribute this to the mother’s expressed concerns about the child’s allegations of being hit by her father and her belief that the child does not want to spend time with him.

16. Ms P expressed the view that “if sudden changes in parenting were to be made without [the child’s] input” it could be anticipated that the child would “exhibit signs of distress and emotional/behavioural disturbance associated with disrupted attachment.”

17. I also accept that opinion and am satisfied, therefore, such a sudden change could only be made if there are circumstances in which other factors relevant to the child’s best interests outweigh that likely consequence. In this case, although the father considers that the child’s feelings towards him have been engendered by the mother’s conduct without his own past behaviour being a factor at all, I do not accept that there are other such factors that justify making the sudden change that the father seeks.

18. The report of yet another psychologist, Ms U, was also obtained and put into evidence in this matter. It is dated November 2013, just before the trial. In contrast to Ms P’s report, this one was based only on interviews with the child. They were carried out over two one hour sessions.

19. Consistently with the previous expert reports, the child is reported to have maintained her position that she did not want to spend time with her father. She is reported to have attributed this to her father’s anger and physical aggression. She reported witnessing her father being violent to her mother while they were living together and that she is very fearful that “all the things her father was doing to her mother he will now continue to do to her.”  Ms U reported that when asked if there was anything she could say to her father she would say “I don’t want to see you again and I hate you.” Importantly, I consider, the child was asked what she would do if she changed her mind and wanted to see her father in the future. She is reported to have responded that her mother had told her that if she does change her mind she only needs to tell her mother and her mother will organise such contact.

1. Ms U offered the opinion that if contact between the child and her father was to recommence whilst she continues to present with anxiety and fear then there is a very strong possibility that the child’s anxiety and stress levels will increase and that the relationship that will develop between her and her father will be “extremely negative for her.”

2. Ms U also proffered the opinion that the child “was mature enough in the sessions to voice her own opinion.” She said that she did not feel that the child’s attitudes and emotions were influenced “by either parent” (which I took to mean, principally, the mother) and expressed the concluding opinion that the views expressed by the child not to have contact with her father were genuine. These opinions, which I accept, are very significant in the context of determining this matter.

The applicable legal principles and my application of them

1. The best interests of the child are to be regarded as the paramount consideration in deciding whether to make a particular parenting order in relation to a child (s 60CA). In determining what is in the child’s best interests the Court must consider the matters set out in subsections (2) and (3) of s 60CC. Those include two primary considerations and a relatively long, non-exclusive list of additional considerations which includes any views expressed by the child and any factors, such as the child’s maturity, that the Court considers are relevant to the weight that it should give to the child’s views.

2. How parental responsibility is to be allocated between parents is in this case, like in many, a matter in dispute between the parties and to be the subject of a parenting Order made by the Court.

3. In making the parenting Order, the Court must apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility for her (s 61DA(1)) unless there are reasonable ground to believe that a parent of the child has engaged in family violence or abuse of the child (s 61DA(2)).

4. The evidence establishes, in this case, that there has been family violence as between the parents. Of that, there is no doubt as both parents agree that there has. The statutory presumption is therefore displaced. In any event, the evidence also satisfies me that the level of animosity, conflict and disagreement that exists between the parents is such that it would not be in the child’s best interests to confer equal shared parental responsibility on both of the parents. They fail to be able to communicate meaningfully at all. They simply could not communicate appropriately in respect of the making of important parenting decisions in this child’s life. Therefore, to put in place an order that required them to jointly make decisions would not be in the child’s best interests in my opinion.

5. I have determined that the child’s attachment to and relationship with the mother is such that she should continue to live with the mother. That is consistent with the child’s views, strongly and consistently expressed, at an age where she is, I accept, mature enough for those views to carry significant weight in the determination process. It is also consistent with the need to protect the child from harm, as I am satisfied that she would suffer emotional harm if I ordered that she go and live with her father despite her views about that. As the mother is the parent with whom the child will be living, I am satisfied that she should have parental responsibility conferred upon her and that it should be conferred upon her solely.

6. I will, however, order that the mother must communicate in writing with the father in advance of the making of important parenting decisions about the child and must seek his views. She will also have to report back to him in writing as to the decision she makes and inform him of the reasons for her decision.

7. Despite the mother’s clear feelings towards the father, I do not accept the father’s case that it is solely the mother’s conduct that has turned their daughter against him or that, uninfluenced by the mother’s negative attitude towards him, his relationship with his daughter could thrive and flourish. I am far from persuaded in this case that placing the child in her father’s sole care with no contact with her mother is in her best interests as the father advocates.

8. In my determination, the most important matter to be decided in this case is the amount of time, if any, the child should spend with her father.

9. For the ICL, it was submitted that the child should only begin to spend time with the father “at such time, in such manner and such frequency as can be facilitated and deemed appropriate by [Ms U] with the focus on reintegration therapy.”

10. In her oral evidence, Ms U indicated that she was prepared to undertake “reintegration therapy” having done it before with families that needed it.

11. I am quite satisfied that it would be in the child’s best interests to have a healthy, meaningful relationship with her father if she possibly could as she grows into adulthood. However, in all the circumstances of this case, I am also satisfied that the timing and manner in which she begins to spend time with her father again should be something that the child herself determines, in conjunction with a professional with whom she is acquainted and has an existing relationship. 

12. Accordingly, I will be making a parenting Order that does provide for the child to spend time with the father and to communicate with him, but only in accordance with arrangements agreed upon between the child, the father and the mother after the child has, through Ms U, informed the father that she is ready and willing to see the father and to communicate with him.

13. I will order that the mother continue to facilitate the child’s regular attendance upon Ms U with a view to therapeutically addressing the issue of whether or not the child begins to spend time with and communicate with the father. Giving great weight to this young teenage girl’s own views, the parenting Order will provide for the child, in conjunction with Ms U, and then her father and her mother, to determine when and how she sees and communicates with her father. 

14. The ICL will be required to explain the outcome of these proceedings to the child and will not be discharged until Ms U has reported to her as to the outcome of at least two therapeutic attendances upon the child.

15. Each parent will be restrained from denigration of the other to, or within the hearing of, the child. The mother will be ordered to continue to encourage the child to spend time with and communicate with her father and he shall be given liberty to continue to write letters and cards and to send gifts to the child with the mother being ordered to ensure that any of these received are passed on to the child. The father will be ordered to stay away from the child’s school as, in the circumstances, his attendance there when she does not want to see him is not in her best interests, but the mother will be ordered to provide him with copies of the child’s school reports and photographs as the mother receives them.

16. The mother will also be ordered to keep the father informed as to the child’s health and any changes thereto and each parent will be required to keep the other informed as to his and her residential address, email address and phone number. Finally, as there was some evidence that the mother might at some point contemplate a move back to Sydney to be near her family, she will be ordered to give the father appropriate advance notice of such intention so that he may consider his position in respect of that matter, depending on the then existing circumstances.

17. For the ICL, it was submitted that the father should be required to do a Domestic and Family Violence Men’s Behavioural Change Program offered by Centacare before spending any time with the child. I have determined not to make such an order, considering it far better if the father chooses to participate in such a program voluntarily. Like so many of these things, mandated attendance at a behavioural change program is far less likely to be of benefit than voluntary attendance that is based on acceptance of a need for such behavioural change. Demonstrated behavioural change based on acceptance of the need for same, and development of insight on his part, will go a long way towards persuading the child, H, that she will get benefit from an ongoing relationship with her father.

18. I make the parenting Order set out at the commencement of these Reasons.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 November 2014.

Associate: 

Date:  17 November 2014