Gemmell and Gemmell

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEMMELL & GEMMELL

[2017] FCCA 1276

Catchwords:
FAMILY LAW – Parental responsibility – where a 13 year-old child should live – whether the mother is capable of facilitating and promoting a relationship between the child and his father – where the Court finds that the only way the child is likely to have a relationship with both parents is for him to live with his father.

Legislation:

Family Law Act 1975 (Cth), ss.68Q, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 11F, 65DAA(2), 65DAA(3), 61DA(1), 61DA(2), 61DA(4)

Evidence Act 1995(Cth), s.128

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Tait & Densmore [2007] FamCA 1383
Godfrey & Sanders [2007] FamCA 102
Prantage & Prantage [2010] FamCA 1198

Applicant:

MS GEMMELL

Respondent:

MR GEMMELL

File Number:

DGC 237 of 2014

Judgment of:

Judge Small

Hearing dates:

25 July 2016, 26 July 2016, 28 July 2016,

29 July 2016, 28 September 2016, 29 September 2016, 15 November 2016

Date of Last Submission:

15 November 2016

Delivered at:

Melbourne

Delivered on:

16 June 2017

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Mansfield

Solicitors for the Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Mr Whitchurch

Solicitors for the Independent Children's Lawyer:

Robert Halliday & Associates

ORDERS

All previous parenting Orders in relation to the child X born (omitted) 2004 (“the child”) are hereby discharged.
The father shall have sole parental responsibility for the child in the areas of health and education, and otherwise, the parties shall have shared parental responsibility for the child.
The father shall seek the mother’s input when making decisions in relation to the child’s education, or medical or allied treatment, but he shall have the sole responsibility for ultimately making those decisions.
The child shall live with the father from 12 noon on the first Saturday of the Term 2 school holidays in 2017 and for that purpose, the father shall collect the child from the McDonald’s restaurant in (omitted) and the mother shall ensure that the child is available to be collected.
The mother shall spend time and communicate with the child as follows:

A.If the mother lives within 45 minutes’ travel time of the child’s home, then during school terms:
(a)on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday commencing on Thursday 20 July 2017 with the mother to be responsible for ensuring that the child gets to and from school and that he attends (nationality omitted) school as enrolled; and
(b)from the conclusion of school on Thursday to the commencement of school on Friday in each alternate week commencing on Thursday 27 July 2017.

B.If the mother lives further than 45 minutes’ travel time from the child’s home, then during school terms:
(a)on each alternate weekend from 12 noon on Saturday to 7:00 p.m. on Sunday commencing on 22 July 2017 with the mother to collect the child from his (nationality omitted) school at the commencement of time and the father to collect the child from the McDonald’s restaurant closest to the mother’s home at the conclusion, and if the child is not attending (nationality omitted) school, then on each alternate weekend from the conclusion of school on Friday to 7:00 p.m. on Sunday with the mother to collect the child from school at the commencement and changeover at the conclusion of time to take place at the McDonald’s restaurant closest to the mother’s home.

C.Regardless of where the mother lives:
(a)from the third term school holidays in 2017 for half of the school term holidays each year by agreement and failing agreement the first half, from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd-numbered years, and the second half from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in even-numbered years;
(b)for half of the long summer holidays each year by agreement, and failing agreement, from after school on the last day of term to 6:00 p.m. on the day which is the middle day of the holidays in odd-numbered years and from 6:00 p.m. on the middle Saturday to 6:00 p.m. on the Thursday before the commencement of the next school year in even-numbered years;
(c)at Christmas, from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2017 and each alternate year thereafter and from 11:00 a.m. Christmas Day to 4:00 p.m. on Boxing Day in 2018 and in each alternate year thereafter;
(d)for (religion omitted) Christmas each year from 11:00 a.m. on 7 January to 4:00 p.m. on 8 January in 2018 and in each alternate year thereafter and from 4:00 p.m. on 6 January to 11:00am on 7 January in 2019 and in each alternate year thereafter;
(e)from the conclusion of school (or 3:30 p.m. if not a school day) to 7:30 p.m. on the child’s birthday in 2018 and in each alternate year thereafter and from the conclusion of school (or 3:30 p.m. if not a school day) to 7:30 p.m. on the day before the child’s birthday in 2019 and in each alternate year thereafter, save that if the child’s birthday falls on a weekend then the mother shall spend time with him by agreement between the parties and failing agreement from 10:00 a.m. to 2:00 p.m. in odd-numbered years and from 2:00 p.m. to 6:00 p.m. in even-numbered years;
(f)from the conclusion of school to 7:30 p.m. on the mother’s birthday should it fall on a school day and from 12 noon to 7:30 p.m. if it falls on a non-school day;
(g)by telephone between 6:00 p.m. and 6:30 p.m. on Mondays, Wednesdays and Saturdays when the child is not in the mother’s care, with the mother to make the call and the father to ensure that the child has access to a charged and working telephone and is available to take the call, and both parties shall ensure that the child and the mother have privacy for those calls; and
(h)at other times by agreement between the parties in writing.

The mother’s time with the child shall suspend if necessary on the following occasions:
(a)from 11:00 a.m. Christmas Day to 4:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter;
(b)from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2018 and in each alternate year thereafter;
(c)from 4:00 pm on 6 January 2018 to 11:00 am on 7 January 2018 and in each alternate year thereafter, and from 11:00 am on 7 January 2019 to 4:00 pm on 8 January 2019 and in each alternate year thereafter; and
(d)from 6:00 p.m. on the evening before Fathers’ Day each year.
When time is specified to begin or end at the conclusion or commencement of school, then changeover shall take place at the child’s school in the absence of the other parent.
All changeovers not otherwise specified in these orders shall take place at the McDonald’s restaurant closest to the father’s home at the commencement of time and at the McDonald’s restaurant closest to the mother’s home at the conclusion.
The mother is hereby restrained by injunction from allowing the child to come into contact of any kind, including by telephone or any other electronic means, with Mr R.
The father shall ensure that X attends upon his general practitioner within seven days of X coming into his care for the purposes of obtaining a mental health plan so that X can receive counselling to assist him in dealing with the change in his living arrangements and the conflict between his parents, and the father shall be at liberty to provide to the general practitioner and the counsellor and to no other person or organisation a copy of the Court’s Reasons for Judgment in this matter.
Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the child’s presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the child’s presence or hearing, save to explain the operation of these Orders to him, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing the child to access, read or have read to him any portion of the Court’s Reasons for Judgment in this matter; and
(d)using any form of corporal punishment in disciplining the child.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care and each shall authorise any medical or allied practitioner who treats the child to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the child, including the dosage prescribed, and ensure that such medication travels with the child.
The father shall authorise any school or the organisers of any extracurricular activities in which the child is enrolled, to provide to the mother at her expense, if any, all information, notices, photographs, reports and like materials and she shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.
The parties shall be at liberty to provide a copy of these Orders (but not the Court’s Reasons for Judgment) to the child’s school.
Subject to the provisions of paragraph (9) hereof, both parties, and their respective partners if any, shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited.
Pursuant to s.68Q of the Family Law Act 1975 (Cth), the court declares that, to the extent that any of these Orders conflicts with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
The Respondent father (“the father”) and the Applicant mother (“the mother”) and their servants and agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2004 from the Commonwealth of Australia.
The child X born (omitted) 2004 be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of three years.
Upon expiration of the period referred to in Order 21 above and subject to any further Order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
The Order of 7 August 2015 appointing the Independent Children’s Lawyer is hereby discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 237 of 2014

MS GEMMELL

Applicant

And

MR GEMMELL

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter between Mr Gemmell (“Mr Gemmell” or “the father”) and Ms Gemmell (“Ms Gemmell” or “the mother”) regarding their only child, X born (omitted) 2004 (“X” or “the child”).
Each parent wants X to live with her/him.
The issues to be decided in this case are:
A.   Whether X is at risk in either parent’s care;
B.   Whether X should live with his mother or his father;
C.What kind of time X should spend with the non-resident parent; and
D.   Who should have parental responsibility for X?

Background

The parties were both born in (country omitted), the husband on (omitted) 1971 and the wife on (omitted) 1972.
They married in (country omitted) on (omitted) 1999 and separated finally in Melbourne in October 2013 according to the father and November 2013 according to the mother. As far as the Court is aware, they are not divorced. X, who was born in (country omitted), is their only child.
The father had migrated to Australia in 1997 and is now an Australian citizen.
The mother migrated to Australia in 2002.
She returned to (country omitted) on holiday in 2003 and discovered while there that she was pregnant. Because of concerns about her health, she remained in (country omitted) and X was born there on (omitted) 2004.
The father travelled to (country omitted) two months after X’s birth for X’s christening, and the parties then returned to live in Australia until they separated in September 2010, when the mother took X back to (country omitted) with her with the father’s consent.
In May 2012 the father travelled to (country omitted) and it was decided that the mother and X would return to Australia. The parties reconciled in December of that year before finally separating in October or November 2013.
Since separation X has lived with his mother and spent time with his father, although that time has been a constant source of conflict between them.
Mr Gemmell has repartnered and lives with his partner in (omitted).
Ms Gemmell is adamant that she has not repartnered but has formed a close friendship with Mr R (“Mr R”). She and X shared a house with Mr R until an Order was made at the end of trial requiring her to ensure that X does not come into contact with him.
The court is unaware whether that Order resulted in Ms Gemmell moving from the rented home she shared with Mr R in (omitted) or whether Mr R found alternate accommodation.
English is the parties’ second language and Ms Gemmell was assisted at trial by a (nationality omitted) interpreter.
I am aware that the mother has issued a Contravention Application since I reserved judgment in this matter. I have not read any documents filed in that proceeding and am unaware of its outcome.

Procedural History

Previous proceedings were instituted by the father on 3 February 2014, when he sought orders that X live with him and spend time with the mother. He also sought a Commonwealth Information Order as he did not know where the mother and X were living, and a Watch List Order in relation to X.
The matter first came before me on 25 February 2014 in the Duty List when the Application was abridged so that an Airport Watch List Order could be made. I also made a Commonwealth Information Order on that day and the matter was then adjourned to a later Duty List date for further directions.
On 30 April 2014 the parties came before me, both represented by counsel, and were able to hand up final consent minutes for parenting Orders on that day.
Those Orders provided for X to live with his mother and spend alternate weekends, half school holidays and the usual special occasions with his father.
On 16 December 2014 the wife filed an Initiating Application in these proceedings seeking that X live with her, that the Final Orders of 30 April 2014 be suspended, that the parties attend s.11F counselling, that an Independent Children’s Lawyer be appointed for X and that the husband complete an anger management course.
On 23 February 2015, the parties returned before me on the first return date of that application and I ordered that an urgent s.11F report be prepared and adjourned the matter for mention on the afternoon of that interview.
On 27 February 2015, the parties returned before me after the s.11F conference and were able to sign consent minutes again. The consent minutes were detailed and made very specific arrangements for the father to spend time with the child, and included a Watch List Order. I ordered the parties to attend a further s.11F counselling session and adjourned the matter.
On 7 August 2015 the parties appeared before me after their second s.11F counselling with Family Consultant Ms O. The parties were again able to enter into consent minutes. I appointed an Independent Children’s Lawyer, set the matter down for trial and ordered that a full Family Report be prepared.
On 6 August 2015 the husband issued an Application – Contravention, claiming that the wife had breached the orders of 27 February 2015 by refusing to allow X to spend court-ordered time with his father on two occasions, including during school holidays, by refusing to allow him court-ordered telephone time on one occasion, and by denigrating him and discussing the proceedings with X.
That Application was still on foot at the time of trial.
The parties came before me in the Duty List on 30 November 2015 on the return of the Father’s Contravention Application. On this date, I gave the parties an earlier Final Hearing date due to the complexity and what I perceived to be the urgency of this matter. I also ordered the earlier return of the Family Report.
On 23 February 2016, the parties came before me for mention on the Father’s Application in a Case filed 15 February 2016, which sought an immediate change of residence, with the father claiming the mother was preventing X from spending time with him and otherwise interfering in the father-son relationship. The parties were again able to enter into consent minutes regarding the procedural issues surrounding the preparation the Family Report and a psychological report in relation to the mother’s mental health.
On 29 March 2016 the parties returned before me for Final Hearing. All of the parties were represented by counsel on this occasion, but the matter did not proceed, and the parties were able to enter into interim consent minutes on that day. I also handed down further interim parenting Orders regarding the child’s time with the father. I set the matter down for further Final Hearing in December 2016.
On 8 April 2016 the parties returned before me for mention when I made an Order that the matter be heard as soon as Family Consultant Ms J’s (“Ms J”) Report was prepared.
Ms J contacted my chambers to advise the timeline for the report and the matter was set down for trial in the week commencing 25 July 2016 for four days.
The trial began on 25 July 2016 with the father and the Independent Children’s Lawyer being represented by counsel and the mother being self-represented with the assistance of a (nationality omitted) interpreter.
On 26 July 2016 the matter was proceeding but could not continue due to the mother being ill. I requested that her interpreter accompany the mother to a doctor’s appointment and bring a medical certificate back to Court. The mother did so and the trial date of 27 July 2016 was vacated. The trial continued on 28 and 29 July 2016.
The matter was not able to conclude during that week and so was adjourned part-heard until 28 September 2016 when I heard it for a further two days, completing the evidence of the parties and their partners.
The evidence of the Family Consultant Ms J, who had prepared two Family Reports in this matter[1], began late on the afternoon of the fifth day of trial on 29 September 2016, but that evidence was not able to be completed, and the matter was again adjourned part-heard to 15 November 2016, when Ms J’s evidence was completed.
[1] The first Report is dated 24 March 2016 (“the first Family Report”) and the second updated Report is dated 20 July 2016 (“the second Family Report”).
In total, the trial of this matter took some six and a half days.

Witnesses were the mother, Ms B (“Ms B”), Mr R, the father, his partner Ms R (“Ms R”), and Ms J.
All witnesses except Ms B underwent cross-examination.
I reserved my decision at the conclusion of the trial.

The Issues and the Evidence

A. Whether X is at risk in either parent’s care

The mother claims that the father is a violent man who abuses alcohol, that he has physically assaulted X, and that X is at risk in his care.
She has called the police, or taken X to a police station on at least half a dozen occasions between July 2014 and April 2016 to report concerns about X’s welfare in the father’s care. These include:
·    In July 2014 the mother called the police and asked them to conduct a welfare check on X while he was in his father’s care because X had not telephoned her. The police visited Mr Gemmell’s home and were satisfied that X was safe at that time.
·    On 10 November 2014 the mother took X to a police station where he told a police officer that his father had taken his mobile phone away from him and had “flicked” his head. No further action appears to have been taken at that time.
·    During the long summer holidays in 2014/2015, the mother again sought a police welfare check because X had not telephoned her. Again, X was fine when the police checked on him.
·    On 10 September 2015 the mother again took X to a police station where he made a statement in support of his mother’s application for an Intervention Order against his father.
·    On 27 September 2015 the mother again sought a welfare check because, she said, X had not telephoned her. Again, X was safe when the police checked on him.
·    On 2 October 2015 the mother again asked the police to conduct a welfare check and X spoke to them when they arrived at the father’s home. No further action was taken.
·    On 2 April 2016 the mother took X to a police station to report that the father had assaulted him.
In addition, she has made notifications to the Department of Health and Human Services (“the Department”) about the father physically abusing X, and there have been several Intervention Orders made against the father, some of which name X as an Affected Family Member (“AFM”).
I note that at no time did the Department’s investigations ever proceed beyond the intake phase and all Final Intervention Orders were made by consent without any admissions being made.
That is, no formal findings have ever been made that the father abused X in any way.
I have read all the affidavits filed in these proceedings, and the exhibits tendered at trial, and have consulted my notes from the trial, and I can find no mention of the father being charged with any criminal offence in relation to his care of X.
He categorically denied any such abuse at trial, and I found his evidence clear and cogent, particularly that in relation to what was said to be the most serious incident, alleged to have occurred on 1 April 2016.
It is not in contention that when X returned to his mother’s care on 1 April 2016, he had a bruise on his right arm which was the size of a 20c or 50c piece. A photograph of the bruise is annexed to the mother’s affidavit sworn 11 and filed 12 July 2016.
The mother’s version of how X received that bruise was that X had told her when she picked him up from his father on 1 April 2016 that his father had come into the bathroom while he was dressing after showering and had pushed him hard so that he fell and injured his arm.
The father’s version of events is that he heard X cry out and went to the bathroom to see what was wrong. When he got there, X was in a “push-up” position on the floor of the bathroom and said that he had hurt his arm after tripping over the shower kerb. Mr Gemmell says that he asked X if he was all right and X had said that he was. After X dressed in his pyjamas, Mr Gemmell’s evidence is that he asked X if he were hurt or needed to see a doctor, and that X told him that he was “fine” and that he did not need to see a doctor.
The next day, the father says, he and X went to the swimming pool at about 1:00 p.m. and stayed for about two hours. He says that on their return to his home, X played on the computer until changeover at 5:00 p.m.
After X allegedly told his mother that his father had struck him, Ms Gemmell and Mr R immediately took him to the (omitted) Hospital in (omitted), arriving at about 7:00 p.m. on 1 April 2016. X was seen by a doctor at about 9:00 p.m. and his arm was then x-rayed and he was given pain killers before being discharged at about 4:00 a.m. on 2 April. The x-rays revealed no fracture or other damage to X’s arm.
Upon X being discharged from the Emergency Department he was taken home, and he slept for a few hours before he was taken to his GP for further assessment.
After leaving the doctor’s surgery, X was taken to the police station, where he was interviewed by police.
Documents subpoenaed from Victoria Police by the Independent Children’s Lawyer and entered into evidence at trial show the following entry on 2 April 2016:
1400HRS I received a call from Constable Mr C who stated he has spoken to the child and he disclosed that his father used all of his forced (sic) to push him this resulted in him hitting his arm on the sink in the bathroom and his arm becoming bruised. Mr C unsure if the bruise is consistent with the explanation.
An email from Constable Mr C later that day states as follows:
As discussed, I have attached 2 photographs of the bruise to X’s forearm.
I had a good chat to X, one on one. He stated that during his last visit with his father from the 30/03/16 to 01/04/16, his dad would “peep” on him when X was in the shower. X stated that His (sic) dad would open the shower door, look around for 2 seconds, say nothing, shut the door and leave. He stated that he confronted his dad on Friday morning whilst getting changed in the bathroom and asked his dad “why do you keep peeping” and he stated that his dad replied “none of your business” and shoved X with both hands with all of his strength. X stated that he was falling backwards but stopped himself when his arm hit the sink in the bathroom and he was able to grab onto the sink. He stated that his Dad walked away as if nothing had happened.
X stated that his parents broke up about 2 years ago after a trip that he and his mother took to (country omitted) that dad was not with them (sic). He finds that a mystery.
He said Dad was cool up until the breakup but stated that he’s a bit weird now. He stated that his mum would be angry that his dad would call and mum would have to pay for it and she would be angry that dad wasn’t paying for his schooling.
X confused as to why all this is happening but would choose mum over dad as mum doesn’t lie to him or hurt him and is a fabulous cook.
X stated that other than the bruise on his elbow, he has no other injuries other then (sic) what he calls “mental hurt”.
There was a male with X and his mother had that did most of the talking when the 3 of them were together. This male identified himself as Mr R ((omitted) 1960) and a Family friend. He seems quite intent on making sure that the father does not get to see X again. Mr R stated that HE (sic) has spent $40,000 of his own money on legal costs for X’s (sic) mother, on condition that her parents paid him back.
On 7 April 2016 X attended (omitted) Police Station with the mother and Mr R at 11:00 a.m.
The police records state the following in relation to that day:
Conducted VARE[2] statement with subject. CG SOCIT VARE #(omitted) refers.
During VARE, subject disclosed an incident that occurred at his father’s place in (omitted) on an access visit. Subject reported that on Friday the 1st April, 2016,(sic) his father entered the bathroom whilst he was getting dressed. Subject confronted his father about why he comes into the bathroom when he is in the shower. Father then pushed the subject with both hands in his chest causing him to lose his balance. As he was losing his balance his right arm hit the bathroom sink causing pain and bruising. Subject used his left arm to hold onto the sink so he didn’t fall completely over. After incident (sic), the subject went to his room where he stayed until the change over (sic) with his mother occurred. Subject told his mother of the incident on their way back to (omitted). She took him straight to the (omitted) Hospital where he received an x-ray and pain relief medication. Nil breaks or fractures reported, just soreness and bruising. Nil bruising sighted on arm during VARE.
Subject has knowledge of ongoing court battles between his parents and has a lot of anger towards his father for what he perceives lies (sic) and broken promises and the unknown reasons for their break up. The subject was fairly animated when describing the incident with his father.
Following VARE statement, family friend Mr R advised investigator that he also has photographs of injuries to subject’s arm from above incident and scratches / sores to subject’s hands (from another incident where subject slipped on rocks whilst his father was taking a photo of him on an access visit).
[2] Video and Audio Recording of Evidence.
The police interviewed Mr Gemmell at (omitted) on 11 May 2016. Any statement he made on that day does not form part of the subpoenaed documents and the police record simply says “Fully denied all allegations”.
His partner, Ms R, was interviewed through an interpreter on 20 June 2016. Her statement to the police states the following in relation to this incident:
15. On Thursday 31st March 2016 X went and had a shower at about 9-20 p.m. (sic). I was in our room making our bed and Mr Gemmell was in the living room watching TV. We were talking to each other about what was on TV.
16. Then I heard X’s (sic) voice, nothing else, saying aw aw (sic) and I said to Mr Gemmell oh do you think he has seen a spider. We are scared of spiders so that was the first thing that came to my mind.
17. Mr Gemmell got up and went to the bathroom. I stayed where I was but I could hear him knock on the door to the bathroom and he asked X if he was alright (sic). I didn’t hear what X said.
18. Then I heard the door to the bathroom open and that was the last I heard. I could hear there was a conversation but it was muted and I couldn’t hear what they were saying.
19. Mr Gemmell came out of the bathroom and X stayed in there.
20. Mr Gemmell came back to the living room and spoke to me and said that supposedly X fell over in the bathroom. I said to him how could that be, there is an anti-slip mat in there. Mr Gemmell said he was in a position when he entered the bathroom as if he was doing push ups. I asked if he was hurt and he said no he didn’t seem to be.
21. I didn’t see X again that evening, after the bathroom he went to his bedroom and read or did something.
22. I did hear Mr Gemmell go into his room to say good night and I heard him ask X if everything was alright (sic) and I heard X respond yeah yeah everything was alright (sic). X’s bedroom door was open when they were talking.
23. I was moving between the bedroom and living room at the time of this conversation, I was straightening up the cushions and blanket in the living room before going to bed.
Ms R then describes Mr Gemmell taking a photograph of X eating his breakfast the next morning. She says he was wearing a yellow T-shirt at the time, that X’s arms were bare, and that the photograph showed no bruising to X’s arms. That photograph forms part of the police records provided under subpoena, and there is no bruise visible on X’s arm.
However, there is a clear bruise about the size of a 50 cent piece on X’s arm in photographs taken at approximately 9:30 p.m. that evening when he was at the hospital.
Ms R was cross-examined at trial but her evidence in this regard was unshaken.
In further Victoria Police documents produced under subpoena issued by the Independent Children’s Lawyer and entered into evidence at trial, is the following “Case Progress Narrative” dated 10/09/2015, some six months prior to the incident described above:
THE AFM IS THE 11 YEAR OLD SON OF THE RESP. ON THE 15/09/15 THERE IS AN APPLICATION TO VARY A CURRENT IVO BETWEEN THE RESP AND THE AFM’S MOTHER BEING HEARD AT THE LVMC, TO HAVE THE AFM INCLUDED ON THE ORDER WHICH HAS FULL CONDITIONS. THE VARIATION WAS FILED BY THE AFM’S MOTHER ON THE 20/07/15. THE MOTHER HAS ALSO AGREED TO FAMILY LAW COURT (sic) FOR CONTACT IN AUGUST 2015 BETWEEN THE AFM AND THE RESP AS LONG AS THE RESP DOES NOT PSYCHOLOGICALLY HARM THE AFM. ON THE 10/09/15 THE AFM ATTENDED THE POLICE STATION TO MAKE A STATEMENT IN SUPPORT OF THE IVO APPLICATION MADE BY HIS MOTHER. THE STATEMENT PROVIDED HAD ALL THE EARMARKS OF THE AFM (CHILD) BEING COACHED, TO INCLUDE CERTAIN INCIDENTS WHICH WHEN ASKED THE AFM COULD NOT GIVE PARTICULAR DATES OR TIMES (sic). THE POLICE MEMBER OBTAINING THE STATEMENT NOTED THAT THE AFM KEPT A DIARY BOOK WHICH HE REFERENCED. THE AFM WAS INSISTENT ON SEVERAL OCCASIONS ABOUT PREVIOUSLY LYING TO THE COURT AND WANTED THIS INCLUDED ON THE STATEMENT. HE STATED “I’M REALLY SORRY TO THE COURT FOR LYING BEFORE AND I JUST HOPE THAT THE COURT CAN HELP ME IN SOME WAY TO PROTECT ME FROM MY DAD BECAUSE I DON’T WANT EVER TO SEE HIM AGAIN OR HAVE ANYTHING TO DO WITH HIM”. THE AFM MENTIONED BEING SHOVED IN THE BED ROOM (sic) AT THE RESP’S ADDRESS AND STATED HE SOMETIMES RECEIVED BRUISING TO HIS ARM WHICH HE COULDN’T ELABORATE ON. GIVEN THE FACT THAT THE AFM’S MOTHERS (sic) PARTNER HAS BEEN A GUIDING FORCE BEHIND THE PUSH FOR ORDERS AND ON OTHER OCCASIONS INSISTING BEING PRESENT WHEN THE AFM SPOKE WITH POLICE, POLICE FIND IT DIFFICULT TO BELIEVE THAT THE AFM’S FAMILY WOULD NOT REPORT INJURIES SUSTAINED BY THE AFM TO POLICE. THE AFM MADE MENTION IN HIS STATEMENT THAT THE RESP AND HIS NEW GIRLFRIEND FIGHT AND THIS MAKES THE AFM ANGRY AND DEPRESSED. WHICH SEEMS VERY ADULT TERMINOLOGY FOR AN 11-YEAR-OLD. ON PREVIOUS OCCASIONS WHEN THE AFM HAS ATTENDED THE POLICE STATION IT WAS NOTED THAT THE AFM’S MOTHER’S NEW PARTNER/FRIEND KNOWN AS MR R SEEMED TO COACH THE CHILD IN CONVERSATION, AND THE AFM WOULD LOOK AT HIM FOR APPROVAL WHIST (sic) HAVING CONVERSATIONS WITH POLICE. POLICE ON THESE OCCASIONS HAVE SPOKEN WITH THE AFM PRIVATELY AND NIL ASSAULTS OR CONCERNS WERE REVEALED. NIL ASSAULTS OBSERVED OR CONFIRMED ON THIS OCCASION.
And later in the same document:
SERVED WITNESS SUMMONS TO ATTEND LVMC ON AFM AND SON, NIL FURTHER ISSUES. AFM’S NEW BOYFRIEND AT ADDRESS AGAIN HE IS IN CONTROL OF SITUATION AND I HAVE NO DOUBT IS CAUSING THE ISSUES BETWEEN THE RESP AND SON. BOYFRIEND STATED HE HAD SENT SGT B FOR INFORMATION (sic) IN RELATION TO UPCOMING IVO HEARING IN MARCH 2016. SUPP REPORTS NOT REQUIRED AS FOR REPORTING NIL CRIMINAL CHARGES. MATTER IS NOW COMPLETE.
***END OF REPORT***
The alleged assault on 31 March 2016 must be seen in the context of both that document, which mentions bruising to X’s arm, and telephone conversations between X, his mother and Mr R in September and October 2015 which were recorded by the father.
Those conversations, professionally translated transcripts of which are annexed to an affidavit of the father sworn 13 and filed 26 April 2016, reveal that the mother and Mr R engaged in an active campaign to have X make false accusations against his father.
The mother and Mr R put words into X’s mouth and display a clear intention to collect as much negative information from X as possible.
Some short examples include:
29 September 2015
[…]
Female[3]:   Tell me, is he shouting at you?
[3] Ms Gemmell.
Child[4]:     Shouting…yes,…eh…yes.
[4] X.
Female:     Yes?
Child:       Ah…yes…no…
Female:     Yes?
Child:       Yes, one could say so…
Female:     So he does not treat you well?
Child:       He does not treating me well (sic).
Female:     Yes?
Child:       Uhm.
Female:     And…gosh…Did he hit you?
Child:       No, not yet.
Female:Ah, not yet. Does he threaten you and tells you (sic) to change your testimony against him?
Child:(hesitates)
Female:Does he talk to you about it?
Child:Yes, he talks to me about it.
And later in the same conversation:
Male[5]: Ah, you know, he will be up to various things…He has been like that so far, so what will change?
Child: That’s right.
[5] Mr R.
Male:What will change? So what are you saying? Are you afraid? Did he hit you?
Child:Not yet.
Male:Did he threaten you?
Child:Ah…yes, he threatened me once or twice.
Male:But he told you he would hit you, didn’t he?
Child:Not exactly that he would hit me…that he might get upset.
Male:Uhm. So that he might get angry with you […].
Later in the same conversation, it becomes clear that Mr R and X are aware that their conversation is being recorded.
Nevertheless, two days later, on 2 October 2015, the following conversation was recorded while Ms Gemmell and Mr R were driving:
Female: And what happened yesterday that you did not call?
Child:He did not allow me. Because yesterday we were at (omitted) (sic), and when we got back, he simply didn’t let me.
Female:And you talked today to the policewoman. And what did you tell the policewoman?
Child:I spoke to the policeman… I can hear that you are in the car.
Female: Yes, because we are on the way.
Child:Where to?
Female:It doesn’t matter.
Child:OK. Mum, tonight… you know, tonight at about eight do that.
Female:What?
Child:At eight I shall plead with dad to let me call you once again, and then – do it!
Female:X, can you pull over? Because I cannot hear what you are saying. Wait, because I cannot hear what you are saying.
Child:OK.
Female:(long silence). Yes?
Child:Mum, I will call you again at eight and tell you to call the police. Call the Police to put an end to it.
Female:X, and you told the policeman that everything is OK, yes?
Child:No, I said that it is as if everything was OK and that I don’t want to talk now because I am in public in MacDonald’s (sic).
Female:Well, the policewoman said that everything is OK. So how am I supposed to do it if you said so to the policewoman?
Child:I didn’t tell the policewoman that everything is OK. I said that I was presently in public and that I didn’t want to talk about it at that moment. And that policeman told me, because I spoke with the policeman, that if something happens to call 000 and ask to speak with the Police.
Female:OK. So will you do that?
Child:Yes, I shall do that.
Female:Will you do that today?
Child:I shall do that today.
Female:Because I can’t.
Child:OK.
Female:You have to do it.
Child:OK.
Female:OK?
Child:OK.
I note that it was on that day, 2 October 2015, that the police arrived at the father’s home to conduct another welfare check on X.
Further, the father deposes, in his affidavit sworn and filed 26 November 2015, that on 3 October 2015 the following occurred:
10. […] On that occasion, X attempted to take my mobile phone. When I asked him why he wanted it, he broke down, crying and distressed. He confided to me that the Wife and Mr R had instructed him to call the Police during the visit to tell them that I was mistreating him. X was conflicted as to what he should do. He told me that the Wife and Mr R tell him so many negative things about me, that he did not know what to believe. He went on to say words to the effect of, “I am sick of the Court and Police” and that it would be better if he were not alive. I was concerned for his mental wellbeing and so I contacted Kids Helpline to seek their advice. I discreetly rang them and spoke to one of their counsellors. I explained the nature of the parenting dispute, the comments made by X and my concern that he may self-harm. The counsellor asked me about what X had said. She asked to speak to X and they had a private conversation. The counsellor asked to speak to me again. She told me that X was stressed and upset, but that she did not think he would self-harm.
At trial, neither Ms Gemmell nor Mr R asserted that the annexure to Mr Gemmell’s affidavit sworn 13 April 2016 and filed 26 April 2016 was a false representation of what they had said to X, although Ms Gemmell did say she thought the translation was not good. They sought only to emphasise the illegality of him having recorded the conversations[6].
[6] On 6 May 2016, the Court issued a Certificate under s.128 of the Evidence Act 1995(Cth) in relation to the father’s having made those recordings.

In response to the mother’s contention that the translations were not good, I asked her interpreter, Ms B, to listen to some of the recordings in (nationality omitted) in open court and to compare them with the written translations. Ms B’s evidence, given under oath, was that the transcriptions were accurate translations of what was said on the recordings.
On the basis of that evidence, and the certification of Mr M, the NAATI Level 3 Accredited Translator who provided the transcriptions, I find that the transcriptions annexed to the father’s affidavit sworn 13 April 2016 contain true translations of the telephone conversations between the mother, X and Mr R as set out above.
One can only imagine the pressure the then eleven-year-old X was under during and subsequent to those conversations – pressure applied entirely by his mother and Mr R.
I have no doubt that the relationship between the mother and the father was volatile and that there was some verbal and emotional abuse involved in it.
However, there is no independent evidence before the court that Mr Gemmell abuses alcohol, that he was physically abusive to the mother during their marriage, or that he has inappropriately disciplined or physically abused X either during the marriage or since its breakdown. Indeed he has consistently denied all allegations in that regard, despite having consented to several Intervention Orders without making any admissions as to the allegations contained in the Application and Summons documents.
However, having seen both Mr R and the mother in the witness box, two things are clear.
First, Mr R appears to have an almost Svengali-like hold over Ms Gemmell, whether or not he and she are in an intimate relationship.
Both he and she deny that they are intimate partners. Nevertheless, Mr R is recorded as having told the police that he had paid more than $40,000 towards Ms Gemmell’s legal fees, and he is recorded in the police and Department of Human Services records variously as her “boyfriend”, as her “partner”, as her “de facto” and as X’s “step-father”.
Mr R accompanies Ms Gemmell almost everywhere, despite her holding a driver’s license, as her English, while improving, is less than fluent.
He swore three affidavits in these proceedings in support of Ms Gemmell and gave evidence at trial. It would appear from the trial affidavits sworn by him and Ms Gemmell on 11 July 2016 that he drafted both documents himself. Moreover, he acted as translator for her when she swore her affidavits at her solicitor’s office, despite not being an accredited interpreter, and the police records show that he was very much involved in the situation when Ms Gemmell took X to the police station on 2 April 2016.
Ms J states in her family report that Mr R acknowledged that he would like to have an intimate relationship with Ms Gemmell, but that he had said that she was not ready to have such a relationship.
Ms J states in her first Family Report:
68. Mr R did not present as a friend of X that would encourage and facilitate X’s relationship with his father. He stated that there is ‘more damage than benefit for X’ if he continues to have a relationship with his father. The writer suspects that Mr R and Ms Gemmell are in a relationship. If they are not in a relationship the amount of involvement of Mr R with this family is totally inappropriate. Whether or not they are committed to each other, it is possible that Mr R is threatened by the presence of Mr Gemmell in X’s life. A lot of difficulties in X’s spending time with his father may stem from this perceived threat on the part of Mr R.
It is not necessary, for the purposes of these proceedings, to decide whether an intimate or de facto relationship exists between Ms Gemmell and Mr R, but his influence over her and his integral involvement in her life are not in doubt in my view.
He was not able to say why he was so involved in the proceedings if he were not in an intimate relationship with Ms Gemmell, and his explanations of his part in the recordings referred to above were, to say the least, most unsatisfactory.
He denied having spoken to X about these proceedings when it was crystal clear from the overall evidence that that was not the case.
In fact, his evidence overall was unconvincing and I did not find him to be a witness of credit.
The only redeeming feature of his evidence was that he stated that he no longer believed his statement made to Ms J that there was more damage than benefit in X seeing his father. However, given the totality of his evidence, I was not satisfied that he had actually changed his mind in that regard.
The second thing that is clear from the evidence before the court is that Ms Gemmell shows no will to facilitate or promote any relationship between X and his father.
She does not believe anything he says and interprets everything he does in the most negative light possible.
At trial, Ms Gemmell’s evidence in relation to Mr Gemmell’s relationship with X was unshakeably negative, even when provided with evidence contradicting that view.
For instance, in late December 2015, Mr Gemmell was taken ill while X was spending holiday time with him, and Ms R had to take Mr Gemmell to hospital, where he was admitted and underwent surgery. That situation necessitated X returning to his mother’s care earlier than would otherwise have been the case.
The mother, and later X, both stated that they did not believe that Mr Gemmell had been ill, and that he had probably wanted to spend more time with Ms R without X. This is despite Mr Gemmell providing a written discharge document from the hospital showing that he had indeed undergone surgery at the time.
It is true that the mother has at times complied with court orders providing for father and son to spend time together, but she has shown herself to be perfectly prepared to sabotage that time in the most manipulative and damaging way to the detriment of her son.
Moreover, the mother was not a convincing witness at trial.
For example, under cross-examination from the father’s counsel, she denied having attended upon her doctor to complete forms to obtain a gun license.
When shown the subpoenaed medical records which stated that she had indeed done just that, Ms Gemmell simply told counsel that she would have to ask her questions more clearly.
Indeed, several times when her evidence was contradicted, Ms Gemmell blamed poor translations or claimed not to have understood the question.

Conclusion: Issue A.

On all the evidence before the court, I find, on balance, that X is not at unacceptable risk in the care of his father, although I will make orders restraining both parties from using any form of corporal punishment against him.
In contrast, I find, on the balance of probabilities, that X is at risk of serious psychological and emotional harm in the care of his mother because of the mother’s contempt for and hatred of the father which leads her to behave in a manipulative and subversive fashion in undermining X’s relationship with him.
He is also at serious risk of harm from the conflict itself, and both parents would do well to consider their own responsibility for and part in that conflict.

B. Whether X should live with his mother or his father

Ms Gemmell’s application has always been for X to remain living with her.
In Mr Gemmell's Response, and in several Applications in a Case filed during the proceedings, the father has sought orders that X live with him.
At the initial trial date, the position of the Independent Children’s Lawyer as set out in his Outline of Case Document filed on 29 March 2016 was unclear, in that there is no “live with” order sought in that document. In fact, the Independent Children’s Lawyer sought that the matter be adjourned so that the Family Consultant could have the opportunity to observe X and Mr Gemmell together. That is what actually happened on 29 March 2016, and the Independent Children’s Lawyer did not file an updated Outline of Case Document for the adjourned hearing on 26 July 2016.

The Law

The law in relation to parenting cases is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B(1) and (2) sets out the objects and principles underlying Part VII and I will set them out here in full for the benefit of the parties:
Section 60B(1) The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that when a court is considering whether to make any particular parenting order, the child’s best interests must be its paramount consideration.
Section 60CC then lays out a framework of “considerations” for the court to follow when deciding what orders might be in a child’s best interests and I will deal with each of those considerations in turn.
Section 60CC How a court determines what is in a child’s best interests
[…]
(2)    The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)     In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright (2008) 37 FLR 518, where Her Honour said at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Densmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. […] The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between X and each of his parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to him, and the parents are able to “lead by example” in that relationship, then the benefit to X in maintaining and developing those relationships must be a primary consideration of the court in considering what is in his best interests.
Ms J, in her evidence given at trial, stated clearly that her observation of X with both parents indicated that he had a close relationship with each, and that while he was somewhat ambivalent about his relationship with his father, she thought that he had been influenced by the mother and Mr R in that view.
However, in her first report, Ms J describes the relationship between X and his mother as “an emotional enmeshment”. In doing so she references a report by Mr D, X’s counsellor, written for the Court in January 2016[7], where he said:
At times, it has been apparent that X has become quite distressed about his mother’s concerns and that he has difficulty separating his own needs from his mother’s. This would suggest a level of enmeshment that is restricting X’s ability to see other options.
[7] Report attached to the affidavit of Mr D sworn and filed 12 February 2016. Mr D did not give evidence at trial.
At trial, the mother was referred to the judgment of Cronin J in the matter of Prantage & Prantage [2010] FamCA 1198, where His Honour noted at paragraph 8 that the social science definition of “enmeshment” was: “[…] a relationship in which the psychological boundaries between the parent and child are blurred and their identities are merged. A child can become highly attuned to and assume responsibility for protecting the parent”.
The mother had that definition translated for her at trial and she indicated to the Court that she understood what it meant, although she did not agree that that definition described her relationship with X.
It was Ms J’s view that, while a psychological assessment from Ms L, psychologist,[8] concluded that the mother was not suffering from any identified psychopathology or issue that warranted treatment:
71. […] The mother needs to accept that it is healthy for X to spend regular time with his father to understand and develop a different approach when confronted with challenges in his future. It would be emotionally detrimental to X if he is kept away from his father or he loses touch with his father at this stage of his development.
[8] Ms L’s report is annexed to her affidavit sworn 22 March 2016 and filed 29 March 2016. Ms L did not give evidence at trial.
I have found that the mother poses a risk to X’s psychological well-being, especially, but not only, if she remains under the influence of Mr R. To date, the parental role model she has presented to X has been less than exemplary. She has shown herself to be willing to manipulate her son to make false allegations against his father, even to the extent of influencing him to do so to police officers, which gives the Court grave concerns for her ability to provide a role model to X that would be in his best interests.
It is necessary for the Court to protect X from the psychological and emotional harm posed to him in his mother’s care, and s.60CC(2A) makes it absolutely clear that in balancing the benefit to a child of having a relationship with both parents and the need to protect the child from harm, the Court must give more weight to the need to protect the child.
I do not minimise the harm to X caused by the very existence of conflict between his parents.
There is evidence that the father has engaged in unseemly verbal abuse of the mother at changeover in X’s presence, and X must be protected from the harm that that conflict presents for him as well.
Therefore, I must make orders that protect X from harm while at the same time attempting to ensure that he is given the opportunity to derive benefit from his close relationship with both parents.
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X’s views are set out in the two Family Reports prepared by Ms J.
In those reports X is described as having various complaints about his father, although “most of his statements did not have a sequence, significance and was (sic) not accompanied by matching emotional responses. Most of the remarks made by him impressed as taken out of context from situations in the past that had occurred between the parents and him”.
At his interview for the first report, X “spontaneously” wrote the following letter, a copy of which is annexed to the first Family Report:
Dear judge
I would like to express my feelings about what is happening in my life to you.
Over the past 2 years (almost 3) I have felt a lot of sorrow. My father has been giving me headaches ever since these courts started and i (sic) have made a desicion (sic) which if made would let me live my life again. My father has probably been saying stuff about me having fun at his place which is completely False (sic). He has been lying not only to me about us going somewhere but never doing it, he has lyed (sic) about the fun part of his place. he (sic) has already done stupid acts such as using the police to scare me by saying Mum wrote a text message regarding the police coming to arrest him which made me go histerical (sic) so my point is this please make me never see dad again
with kind regards
X
At that first interview, X declined to meet with his father. Ms J says the following:
59. X did not wish to meet his father on the day. He gave many reasons as to why he did not want a face to face meeting with his father. His reasons ranged from being scared of his father to his father’s ability to change X’s mind with affectionate hugs.
60. Although X spoke big words that made others think that X was mature child who knew what he wanted, X seemed emotionally not fully emergent and was quite impressionable. He did not come across as a child emotionally traumatised, but seemed convinced that his mother and Mr R were right and his father was wrong. His reasons for not wanting to visit his father seemed insignificant and the reasons he gave were feeble.
Under the heading “EVALUATION AND RECOMMENDATIONS”, Ms J wrote:
61. X is 11 years old. He is a healthy, bright and intelligent child. He is described by the parents as a good child with stable, sociable nature and respectful to people around him. X is progressing well at school. He did not present as a child traumatised by past events in his life. However, like any normal child, he is tired of being in the middle of the conflicts between his parents. He wants them to resolve issues peacefully and without litigation so that he can enjoy his childhood without burdened (sic) by unnecessary worries.
In his interview for the second family report, which was held on 8 April 2016, X reported to Ms J the events of the previous week during which he sustained the bruised his arm described above. Ms J states the following:
5.X pointed at the place where he was supposedly bruised in the previous week. His skin appeared clean with no sign of even a fading bruise. He recalled that the bruise was the size of a 10cent coin.
6.However, as X continued the narrative and further questions were asked about the incident, X’s explanations kept changing. It seemed that he was making up (sic) as he went along and providing new details each time. In the process, X seemed to become increasingly frustrated and totally exhausted emotionally. He was hyperventilated (sic), pulled his hair anxiously and looked like he was struggling to free himself from the imaginary shackles that restricted his body movements. X at one point close to tears stated ‘I told everyone about all this. But now I am all alone. They have all turned against me.’ He thought that even the police did not believe him.
7.The writer decided not to continue questioning X, being mindful of his emotional wellbeing and to reduce his stress level as it looked like X was close to breaking point on the day.

At trial, Ms J stated that it was her opinion that “X is fighting his mother’s battles. He is his mother’s keeper.”
In light of that evidence, and of the fact that I have found that X’s mother and Mr R engaged in undue influence over him in relation to his father, X’s views carry a lesser weight than would otherwise be the case for a child of his age.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Both parents claim to have a close and loving relationship with X, although the mother denies that this is true of X’s relationship with his father.
The father’s evidence at trial was that X is often angry during their telephone time, and that he is sullen and withdrawn at changeover.
Under questioning from the mother, Mr Gemmell confirmed his affidavit evidence and agreed with the mother that there appeared to be “two X’s”: one who was happy and relaxed at his home; and the other who was withdrawn and angry when his mother was mentioned or changeover approached.
In the second Family Report, Ms J reports that X told her that he was bored at his father’s house, that his father did nothing with him, and that his father never took him anywhere.
However, during the observation session between X and his father, Ms J reports that it became clear from their conversation that X had gone out each day with his father during the few days he had spent with him earlier that week, and that they had engaged in several enjoyable activities together.
Ms J then writes:
10. X became quite angry and started to raise his voice and told his father that he did not like him fighting in Court. He stated that there were too many problems in his life without the Court making it worse. When the writer asked X how he wanted the problems in his life to be resolved, X stated that not seeing his father for ‘a week or a month or a year or for ever’ would solve the problem. He stated that even Mr R reportedly suggested that to be the only way to resolve the impasse in the current situation.
11. The father communicated to X that he loved and cared about X and his wellbeing. X started shouting and tears streaming down his face saying ‘do you really love me? And my mum? Mum really depended on you. Did you ever care about her?’ X continued to speak woefully and asked his father why he was not friends with his mother and why can’t they be like normal parents. It was clear that he wanted to take care of his mother.
12. It was also concerning that a couple of times X spoke about ‘suicide and killing himself’ as he felt that there would be no more fights about him between his parents. It was equally noteworthy that every time his father asked specifically if he wanted him to walk away, X responded ‘just for a while.’ Then he would change it to ‘one year to forever’. Mr Gemmell was gentle and caring in his approach but he seemed lost and helpless about how to assist X to feel better.
13. It was heart-wrenching to witness X crying with tears rolling down his face and repeating to his father ‘if you stop all this Court chaos, I don’t have to have all these accidents’. He indicated that he was scared that he would have ‘bigger accidents’ in the future.
The last two paragraphs of that extract from the second Family Report give the Court grave concern for X’s welfare.
At trial, under questioning by counsel for the Independent Children’s Lawyer, Ms J said that X had never said to her that he wished never to see his father again. She said:
I asked that his father asked do you want me to go away? X never said – never responded yes. He just changed the topic. He spoke something else, but he never said yes, Dad, you go away from me forever. So it does indicate that X has a good relationship with his father. He want (sic) to maintain relationship with his father, but he is not allowed to do so.
Under further questioning about X feeling his mother’s anxiety, Ms J said the following:
As I said, he is fighting his mother’s battles.
[…]
He is sorry for his mother. He wants to be protective towards his mother. He is protective towards his mother. Whether right or wrong, whether it should happen that way or not, that is the way it is, and no one can change that until X is able to grow – I mean, he grows up and becomes separated from his mother emotionally in a way that he can take care of himself. Until such time he is going to be like that. He worries for his mother. If he is completely taken away from her, I mean, it’s not a good option for him. Or he is left with his mother without a relationship with his father, thinking all kinds of negative things about his father. That’s not good for him, either.
From all of this evidence it would appear that X’s relationship with his mother is indeed overly “enmeshed” and that he takes on her anxieties. It is a close, loving, but overly and inappropriately emotionally involved relationship.
His relationship with his father is essentially a good relationship, but it is being actively undermined by the actions of his mother and Mr R. Any minor issue between X and his father is immediately blown out of proportion and becomes a major source of conflict between the parties in these proceedings.
It was Ms J’s clear evidence at trial that X is not at risk of physical harm in his father’s care, that his father is committed to his well-being and his education, and that his father is able to provide adequate parenting for him.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The evidence before the court is that before final separation in November 2013, the parties appeared to be able to make decisions together about X’s welfare. For instance, they decided together that Ms Gemmell would take X to live in (country omitted) after their initial separation in 2010. They were also able to decide on which school X was to attend upon his return to Australia in December 2012.
However, since final separation, it would appear that X’s father has been denied the opportunity to make those long-term decisions, with Ms Gemmell making the decision to move his place of residence from (omitted) to (omitted), and deciding unilaterally to send him to (omitted) School.
In addition, the evidence before the court is that the mother, either at the instigation or certainly with the encouragement of Mr R, has actively tried to prevent Mr Gemmell from developing a full and appropriate relationship with X.
For his part, Mr Gemmell instituted proceedings in this court in order to spend time with his son in February 2014. That shows a desire and a willingness both to share parental responsibility for X and to spend significant time with him.
In these proceedings, instituted by the mother in December 2014, it has been Mr Gemmell’s persistent case that X should live with him and spend time with his mother.
Both parents seek orders that X live with them which indicates that both want the opportunity to take parental responsibility for X, to spend time with him and to communicate with him.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
While the mother’s evidence contains complaints that Mr Gemmell has not appropriately supported X since separation, there is evidence that he has paid child support as assessed by the Department of Human Services (Child Support).
X’s mother has supported him, with the assistance of that child support and Centrelink benefits, since separation.
Both parents support X on a day-to-day basis while he is in their respective care.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In practical terms, this is perhaps the most important consideration for the Court in these proceedings.
If I make orders that X remains living with his mother, there is a very real chance that his time with his father will continue to be sporadic and fractured, even if I make a further order that the mother be restrained from bringing X into contact with Mr R.
If I make orders that X lives with his father, he will be separated, at least in terms of his general day-to-day living arrangements, from his mother with whom he has lived all his life.
It is Ms J’s view that whatever orders I make in relation to X’s day-to-day living circumstances, there are risks to X’s emotional health.
In her first Family Report, Ms M recommended that X live with his mother and have significant time with his father.
She did not make any specific recommendations in her second family report.
At trial, Ms J’s recommendation was that X should continue to live with his mother and spend significant time with his father, but that if his mother was unable or unwilling to facilitate that time, then he should live with his father and spend time with his mother.
It was Ms J’s evidence that she was not confident that the mother would be able to facilitate a relationship between X and his father given the history of the matter, and under questioning by counsel for the Independent Children’s Lawyer, she said that she had come to her current view in the following circumstances:
I came to see X. His position was very – almost dangerous. I believe that he was self-harming, and he was influenced to self-harm himself. Reading my report exactly – and also some information about the phone conversation between X and supposed to be mother (sic) and her friend Mr R. It is very clear if that is accepted by court as right evidence – it’s very clear that there is ongoing pressure and grilling, brainwash of X by anyway (sic) to get his father in trouble and stop seeing him, call the police, taken to the hospital. They do all sorts of things. That became clear during my interview with X, and he was extremely distressed. And he could harm himself in a real way. At that stage I was thinking definitely X should go and live with his father because he’s not safe in the care of the mother.
Ms J said it was only the fact that Mr Gemmell had said that he had been seeing X fairly regularly in the lead up to interviews for the second Family Report that had stopped her making that recommendation.
However it was her clear view that Mr R ought not to be involved in X’s life, and indeed when it was put to her that the Court might well make an order that X was not to come into contact with Mr R at all Ms J said: “I think that will be a good order. That will be a good one.”
I note that after all evidence had been received, I made interim orders on 15 November 2016 which included the following order:
18. Within thirty (30) days the Mother shall cease to share accommodation with Mr R (sic) Mr R and thereafter the mother is restrained by injunction from bringing the child into any contact, in any form whatsoever, with Mr R.
I am unaware whether the mother has complied with that order, but I will make such an order as part of these final orders as I am satisfied that Mr R presents a very real risk to X’s emotional health.
Young X has been through much turmoil in his young life. He was born in (country omitted), then came to Australia in his infancy, before being taken back to (country omitted) at about the age of six, and having no face to face time with his father until he was eight. He and his mother then returned to Australia and he lived with both parents until final separation when he was nine. Since then, he has been forced to suffer the consequences of his parents’ marital breakdown as his parents have been engaged in litigation about his care for all but a few months since they separated.
It is probable that whatever orders I make, until the parents can come to some adult decisions about how they conduct their relationship as X’s parents, he will continue to suffer until he is old enough to make sense of his life, and his parents’ behaviour, for himself.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Ms Gemmell lives in (omitted) and Mr Gemmell lives in (omitted). That is a distance of some 134 kilometres and between one-and-a-half and two hours’ drive via the (omitted) Freeway.
The distance does create some practical and financial issues for the parties. No matter the orders I make, if they continue to live in (omitted) and (omitted), the time the non-resident parent spends with X will necessarily be weekend and holiday time as it will be impractical for there to be weekday time.
However, the distance is not far enough to mean that there can be only holiday time, and I will be able to craft orders that provide for regular and frequent time between X and his non-resident parent.
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The Court has no concerns about the ability of the parties to provide for X’s material needs.
He is reported to be progressing well at school, so there are also few if any concerns about their capacity to provide for his intellectual needs.
It is in the area of X’s emotional needs that the Court has serious concerns.
I note that under cross-examination at trial from counsel for the Independent Children’s Lawyer, the father stated that he was very aware that if I made orders for X to live with him, that would be difficult for X and stated that he would ensure that X received counselling in those circumstances.
He seemed to have some insight into X’s emotional needs and to be prepared to obtain assistance for him when necessary.
I have already mentioned the risk I believe Mr R poses to X’s emotional health.
Without him in the picture, it is possible that Ms Gemmell might be able to separate her animus towards Mr Gemmell from X’s emotional need to have an uninterrupted relationship with his father, although I am not at all confident on the evidence before me that she is prepared or indeed able to do so.
Similarly, the fact that Ms Gemmell has issued a Contravention Application since judgment was reserved may be an indicator that Mr Gemmell is continuing the conflict between the parties, although, as I have stated, I have not read the documents filed in that proceeding.
When I made interim Orders on 15 November 2016, they included an order that the parents engage in the Parenting Orders Program.
There had previously been an Order made by consent for the parties to attend counselling, and the father had complied with that Order and contacted the counsellor recommended by the Independent Children’s Lawyer, but the mother had refused to participate, despite the Order being made by consent.
Again, I am unaware whether they have complied with the Order that they attend the Parenting Orders Program, but Ms J’s evidence was clear that they, and X, would benefit from some psycho-therapeutic intervention.
Indeed, I find that without such intervention, it is unlikely that the parties will ever get over their mistrust and dislike of one another, much to X’s emotional and psychological detriment as he enters his adolescence and moves towards adulthood.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I have already stated Ms J’s view of X’s outward maturity but inward immaturity due to the ongoing conflict between his parents.
Neither party impressed at trial as particularly mature, with the mother particularly presenting in a way that emphasised her inability to think differently from her present position and her tendency to completely disregard any evidence that did not accord with her view.
X needs to know his father as he enters and traverses his adolescence. Ms J’s evidence is that it would be to X’s detriment to have his father taken out of his life altogether.
Similarly, he will need his mother, and Ms J was also clear that even if he does not live with her, X needs to spend significant time with her.
Both parties are of (nationality omitted) background and X is (or was at the time of trial) attending (nationality omitted) School each Saturday during term times. As both parents share that background, there is no reason to believe that X will be deprived of his rich heritage and culture.
X is a very vulnerable young boy. He has been manipulated by his mother and Mr R to the extent that he is unclear as to what his own truth is. He has threatened to harm himself and Ms J believes that possibility remains. The conflict between his parents has seriously scarred him emotionally, but hopefully not irrevocably.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
X does not have any Aboriginal or Torres Strait Islander heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
X has been pulled apart by the continuing conflict between his parents. He has been involved in these proceedings to an extraordinary extent, with evidence of his knowing about details of affidavits and events that he could only have known about if a parent had told him.
The mother’s habit of calling the police if she cannot contact him, and of taking him to a police station to reinforce her concerns about the father’s behaviour without first checking with the father as to the reality of the basis for those concerns, displays an attitude to X and to her parenting of him that is anything but child-focussed.
Her manipulation of him, as evidenced by the recordings of her telephone calls with him, shows an appalling lack of parental responsibility and sensitivity to X’s needs. That her evidence at trial indicates that she cannot see anything untoward in that behaviour gives the Court great concern as to her capacity to parent X appropriately.
There is, however, evidence before the Court that the father behaves (or at least has behaved) less than appropriately at some changeovers. That does not display a mature attitude to his parenting role, as X is necessarily exposed to and damaged by that conflict.
While both parents clearly love X and say they want only what is best for him, it appears that neither is prepared to relinquish his or her own fixed position in relation to the other to focus on X’s needs and place them ahead of their own.
That does not augur well for X’s future emotional health.
(j)any family violence involving the child or a member of the child’s family;
The mother’s affidavit material is replete with examples of the father committing acts of verbal, emotional, and financial abuse of her during and after the marriage.
She says that he drank heavily and was particularly abusive when under the influence of alcohol, that he tightly controlled the family’s finances, and that he is verbally abusive and intimidatory at changeovers.
The father, unsurprisingly, denies all such allegations and says it is the mother who has prevented him from spending uninterrupted time with X.

Neither was able to be shaken on that evidence at trial, and while I have some concerns about the mother’s evidence, I am satisfied, on balance, that Mr Gemmell did engage in some behaviours that fall under the definition of family violence found in s.4AB of the Act.
What is not in dispute is that X has been exposed to the conflict between his parents from the beginning, and I note that exposing a child to family violence is an act of child abuse in itself under s.4AB(3) of the Act.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)     the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There have been several Family Violence Intervention Orders between these parties and mutual applications between the father and Mr R, the latest of which the Court is aware being that made on 1 March 2016.
When final Intervention Orders have been made, as far as the Court is aware, they have been made by consent without any admissions being made as to the allegations set out in the particular Application and Summons document.
What that means is that no findings of fact have been made by any Court in relation to those allegations.
What is clear is that Mr Gemmell has been the Respondent in most of those Intervention Order Applications, although I note that the Magistrates’ Court of Victoria declined to make an Interim Order including both the mother and X as an Affected Family Member in 2015.
At the time of trial, the mother had made another application for an Intervention Order against the father which names both her and X as Affected Family Members, and in the days before the commencement of trial, on 5 July 2016, Mr R had obtained an Interim Order against Mr Gemmell on an ex parte basis.
Mr Gemmell’s cross application for an order against Mr R did not result in an Interim Order being made at the hearing on 11 August 2016, and the matter was adjourned.
The Court is unaware of the outcome of those proceedings.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is almost always preferable to make final orders after a trial, and I will do so.
However, I have little confidence that that will be the end of the matter given the parlous state of the parental relationship.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances I believe to be relevant in these proceedings.

Conclusion: Issue B

On the basis of all the evidence before the Court in this matter, I find that it is in X’s best interests (or at least in his “least worst” interests) to live with his father and spend substantial and significant time with his mother to the extent that such time is practical.
I find that, on balance, it is highly unlikely that X will be able to have a meaningful relationship with both parents while he lives with his mother.
I urge the parties to seek a therapeutic resolution to their dispute rather than a litigious one. Only then could I be truly satisfied that X’s best interests are actually being served.

C. How much time X should spend with the non-resident parent?

Section 65DAA(2) of the Act provides that if a Court makes an Order for parents to have equal shared parental responsibility for a child, but does not make an order for equal time with each parent, the Court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
“Substantial and significant time” is defined in s.65DAA(3) as time that includes both weekend and non-weekend time, and which allows a parent to be involved in a child’s daily routine, and occasions and events of significance to both parent and child.

Conclusion: Issue C

The distance between the parties’ residences makes “substantial and significant time” somewhat difficult and impractical during term times as it would involve the mother spending some school days/nights with X.
Nevertheless, it is within the mother’s power to relocate so that she lives closer to X.
I will therefore make Orders in the alternative: one set accounting for her living within a 45 minute drive of X’s home, and the other set providing for time if she remains living more than 45 minutes away.
Of course, there will be Orders for “substantial and significant time” for school holiday periods and Orders for special occasions.

D. Who should have parental responsibility for X?

The mother seeks an order that she have sole parental responsibility for X, while the father wishes for X’s parents to share that responsibility.
The Independent Children’s Lawyer is silent on this issue.
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for that child.
In this case, the Court does have reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
That would be enough for the presumption not to apply, but even if I were wrong on that point, I do not believe that it is in X’s best interests for his parents to share equally in decisions about his long-term welfare.
It is clear from the evidence before the court that an order for equal shared parental responsibility would simply create further fertile ground in which these parties could play out their dispute in relation to X’s care.
The mother appears incapable of consulting with the father about X’s schooling or his health needs.
In those circumstances, where I have decided to make an order that X live with his father, I will also make an order that the father have sole parental responsibility for X in the areas of education and health, although I will require him to advise the mother of all decisions made in those areas. I will otherwise make an order that the parties share parental responsibility for X.

Conclusion

This is not been an easy case.
X is a very vulnerable child, and while he has two parents who love him dearly, they have allowed him to be caught up in the dislike and contempt they bear for each other.
X has made it quite clear that he wants his parents to get along and that he is envious of other children whose separated parents are able to do that. Ms J states very clearly that X’s best interests are served by his parents being co-operative.
Unfortunately, that does not seem possible in this case.
The decision to change the residence arrangements for a child who has lived all his life with one parent is not one easily reached.
The mother impresses as an emotional, manipulative, but intelligent and genuinely caring parent of X. I have no doubt that this decision will be difficult for her to accept, as the evidence before the court is that she simply is unable to accept information that does not accord with her view of the world.
It is to be hoped that she will be able to put her own feelings aside and encourage and facilitate X’s transition to his father’s care without the emotional burden to which he has been subjected so far.
In order to be able to do so, she will almost certainly need professional assistance and I urge her to obtain that assistance.
The father impresses as a somewhat unsophisticated man who genuinely wants his son to have a meaningful relationship with both his parents.
There is some evidence that at times he might have difficulty containing his temper, and it is to be hoped that he too will seek professional assistance in that regard.
X deserves all the help he can get, and I will make Orders for him to receive counselling/therapy in an attempt for him to make sense of his life and to be able to forge healthy relationships with both of his parents as he enters his adolescent years.

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 16 June 2017

[2017] FCCA 1276

16 June 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies