Gingham and Gingham

[2011] FamCA 223

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM [2011] FamCA 223

FAMILY LAW – CHILDREN – where matter originally came before Federal Magistrates Court – where interim orders made placing child with father – where no reasons given – where no final orders or judgment delivered – where child has subsequently not had any face-to-face contact with his mother in nearly four years – where the only contact between the child and his mother has been by way of telephone calls twice per week – where the child is now thirteen – where the child has repeatedly stated that he does not want to see his mother – where orders currently provide for no contact between the child and the mother, except for telephone calls twice weekly – where the father has sole parental responsibility for the child – with whom the child should live – with whom the child should spend time

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

AIF v AMS (1999) 199 CLR 160
Cotton & Cotton (1983) FLC 91-330
Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
U v U (2002) 211 CLR 238

APPLICANT: Ms Gingham

RESPONDENT: Mr Gingham

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon

FILE NUMBER: BRC 2720 of 2010

DATE DELIVERED: Brisbane

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE:

27, 28, 29 October 2010

15, 16, 17 February 2011 and 12, 14 April 2011

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Hamwood

SOLICITOR FOR THE RESPONDENT: Crowley Greenhalgh Solicitors of Brisbane

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER Christine Vachon Solicitor of Brisbane

Orders

IT IS DECLARED THAT:

1. The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of X GINGHAM, born in November 1997 (“the child”).

IT IS ORDERED THAT

Parental Responsibility

1. The father shall have sole responsibility for making all such decisions as might be necessary in respect of the child’s schooling including, but not limited to, the school which the child attends.

2. The father shall otherwise have sole parental responsibility for the child with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”), SAVE THAT prior to the father making the sole ultimate decision about each such major long-term issue he shall:

   a.Advise the mother in writing of the nature of the decision to be made and matters he is considering affecting that decision;

   b.Invite the mother to provide her succinct written input to that decision;

   c.Make the decision having considered the mother’s input;

   d.Inform the mother of his ultimate decision in writing.

3. The father shall have sole parental responsibility for the child with respect to all issues that are not “major long-term issues” as defined in the Act.

Live With, Time and Facilitation of Relationship

1. The child shall live with the father.

2. The child shall spend no face-to-face time with the mother save in accordance with the succeeding provisions of this order and save otherwise as he might request.

3. In the event that the child expresses a wish to spend time with his mother, the father shall do all such things as are reasonably necessary so as to effect that time occurring in accordance with the child’s wishes.

4. The father and mother shall, commencing on 1 August 2012, nominate in writing and seek to agree upon an appropriately qualified child and adolescent psychiatrist to be consulted by the child as and from 1 December 2012 with a view to the child discussing all such issues as he might choose and with a view to considering, with the assistance of that psychiatrist, the re-establishment of face-to-face time with his mother.

5. In the event that no agreement as contemplated by the previous paragraph of these orders is reached between the parties by 1 September 2012, this order shall be taken as the authority and request of the parties to Dr V to nominate such a psychiatrist.

10.  Each of the parties shall do all such things, sign all such authorities or other documents and the father pay all such fees as might be necessary so as to facilitate the attendance of the child, as and from 1 December 2012, upon the psychiatrist contemplated by paragraphs 8 or 9 of these Orders.

11.  The father shall do all such things as might be necessary to facilitate the attendance of the child upon the psychiatrist contemplated by paragraphs 8 or 9 of these orders and any time between the child and the mother as he or she might arrange or recommend.

12.  The Independent Children’s Lawyer is directed to forward a copy of these orders to Dr V and a copy of the reasons for judgment herein.

Communication

13.  The child is at liberty to telephone the mother twice per week (on Tuesday and Thursday or otherwise as agreed) and otherwise as he might choose, with such telephone calls to be initiated by the child, and the father shall do all such things as might be necessary so as to encourage and facilitate such calls.

14.  The father shall forthwith advise the Independent Children’s Lawyer, for communication to the mother, of the child’s residential and postal address and shall advise the mother in writing of any changes to either or both within 5 days of such change occurring.

15.  The mother shall provide to the Independent Children’s Lawyer within 7 days of the date of this order, for communication to the mother, an e-mail address and all other such details as might be necessary so as to permit the child to contact her as he might choose via e-mail, Skype, text message or other such electronic communication.

16.  The mother be at liberty to communicate with the child by letter or card (sent via pre-paid post) at all such times as she might choose and to forward to the child (via pre-paid post) any birthday or Christmas gifts.

17.  Save as otherwise agreed between the parties in writing, the mother shall not, except in accordance with the provisions of these Orders, initiate communication with, or seek to initiate communication with, the child.

18.  Save as otherwise agreed between the parties in writing and except for the mother providing in writing her contact details to the child’s school, the mother be restrained, and an injunction issue restraining the mother, from contacting any school which the child shall attend, and from causing or permitting others to contact, or trying to contact, the child and any school he attends.

Publication

19. Pursuant to s 121(9(g) of the Act, an account of these proceedings, namely these Orders and the Reasons for Judgment herewith, be authorised for publication by the Independent Children’s Lawyer to:

i.The principal of the child’s school;

ii.The child’s teacher or teachers;

iii.Any school counsellor or other counsellor or therapist attended by the child;

iv.Dr V and the psychiatrist contemplated by paragraphs 8 or 9 of these Orders.

Information about the Child

20.  The father do all such things and sign all such documents as are necessary so as to authorise and request Dr Y to provide to Dr L any information requested by Dr L in respect of the child (but only in circumstances where Dr Y considers it professionally appropriate to do so) for the purposes of informing the mother of the diagnosis, medications or other treatment given to X, including treatment and concerns, if any, about compliance with any such diagnosis and treatment or medication/s, with the cost of providing such information to be borne by the father, but limited to the amount of $500.

21.  The father shall as soon as reasonably practicable after the date of these Orders provide to the mother the name and address of:

i.The child’s treating doctor or doctors;

ii.Any counsellor, therapist or other health professional providing treatment to the child.

22.  The father shall as soon as reasonably practicable after the date of these orders do all such things, sign all such authorities or other documents and pay all such reasonable amounts as might be necessary so as to authorise and direct:

i.The child’s school to provide to the mother a copy of each and all letters, reports or other documents provided by the school to the father from time to time in respect of the child and any school photos, or certificates, achievement awards or the like given to the child;

ii.The child’s treating medical practitioners to provide a copy of any documents given to the father in respect of the child and details of any medications prescribed;

iii.Any doctor or hospital providing emergency treatment or providing or contemplating surgical treatment for the child to advise the mother of the nature of the condition suffered by the child, the nature of the treatment and the reasons for it;

iv.Any counsellor or therapist to provide to the mother the nature and extent of any treatment provided to the child PROVIDED THAT nothing in this Order is taken to require any such counsellor or therapist to provide any such information which, in their professional opinion, ought not be provided in the child’s best interests.

Non-Denigration

23.  Neither party shall, orally or in writing, denigrate the other to the child nor permit anyone in their presence to do so.

Leave to File Further Proceedings

24.  Neither the mother nor father shall file any application in respect of the child or these Orders without first obtaining the leave of the court and, in that event:

i.An affidavit shall accompany such application setting out the reasons why leave should be granted, with such affidavit referring to these Orders and the Reasons for Judgment delivered herewith;

ii.The application shall be served on the other party and the Independent Children’s Lawyer;

iii.The other party and the Independent Children’s Lawyer shall be at liberty, should either or both so choose, to:

(a)      Not file a Response; and/or

(b)      Not file an affidavit in response; and/or

(c)      Not appear at the hearing of such application.

IT IS FURTHER ORDERED THAT

25.  All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

26.  Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

27.  The Independent Children’s Lawyer is discharged subsequent to the completion of her obligations pursuant to these orders and upon the later of the expiration of the appeal period or the hearing of any appeal.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2720/2010

Ms Gingham

Applicant

AND

Mr Gingham

Respondent

REASONS FOR JUDGMENT

Introduction

1. X Gingham (the child) is now 13 years of age, having been born in November 1997. For the past three years, (the child) has lived with his father and his father’s new partner, Ms K. The child has had no face-to-face contact with his mother in that time; their only contact has been by way of telephone calls twice weekly. 

2. That situation results from a very unfortunate history. It is, I think, important to refer to aspects of that procedural history. It is convenient and expeditious to do so by incorporating a portion of ex tempore reasons delivered by me on 29 October 2010, which illuminate the unacceptable history of these proceedings.

   [1] This matter can be seen to have started its life in proceedings before the Federal Magistrates Court, commencing in 2007.  In November 2007, a parenting trial was conducted before Wilson FM over three days.  At the conclusion of that hearing, Wilson FM indicated that he would reserve his decision and deliver reasons at a later time. A small part of the transcript of that hearing is exhibited to the mother’s affidavit in this trial before me. It seems that the mother dispensed with the services of her then counsel and indicated to the court that, if Wilson FM was minded to make an order that gave significant care (using that term loosely) of [the child] to the father, that [the child] was, in effect, “better off being with him 365 days” and said to the Federal Magistrate that she would effect that by bringing [the child] to court. 

   [2] As a result of those events, an order was made by Wilson FM on 7 November 2007.  That order is, by its terms, plainly an interim order; it is expressed to be ‘until further order’.  The order provides:

   1.That the child, [X Gingham], born … November 1997, live with the father, effective immediately.

   The court further orders:

   2. That [Ms Q] [a family consultant whose report was before the Federal Magistrate] give the father such assistance as is reasonably required, for the purpose of facilitating order 1 and in explaining to the child that any time he will spend with the mother is dependent upon an agreement between the mother and the father.

   [3] It will be appreciated that the order contains no provision for time between [the child] and his mother. Nor does it provide that there should be no time between [the child] and his mother. 

   [4] It seems fairly clear that the mother, at least, and possibly the other parties, had an expectation (reasonable in the circumstances, as it respectfully seems to me), that the Federal Magistrate would deliver, within a reasonable period of time, both final orders and reasons for judgment. For all intents and purposes, the trial appears to have been concluded.

   [5] In that respect, it needs to be observed that the Federal Magistrates Court is a court created pursuant to Chapter III of the Constitution and is, by its legislation, a court of record. It is extremely unfortunate – to say the least – that there are no reasons for judgment for the making of the interim orders, which were made on that day. It is even more unfortunate that no orders, nor reasons for judgment, were delivered in respect of the three-day trial that apparently then concluded, either timeously or, in fact, at all.

   [6] In March 2009, the mother filed an application in a case before Wilson FM.  That application sought to re-open the proceedings before the Federal Magistrate and, in particular, sought to reopen those proceedings by reason, I gather, of new evidence, namely that [the child] living with friends of the father, Mr and Mrs [E], in [south Queensland], and attending a local school.  That application by the mother was successful. 

   [7] Subsequent to an order being made at that time permitting the re-opening of the proceedings, the matter was – again, strangely, as it respectfully seems to me – then adjourned, or otherwise dealt with by way of procedural orders, on four further occasions until, on 26 February 2010, Wilson FM transferred the proceedings before him to this Court.

   [8] The file reveals no reasons being given for the transfer of the proceedings to this Court.

   [9] Nor does any of the material before me, including the file, reveal any reasons why (or as to how) it was that the re-opened proceedings were transferred to this Court in the absence of orders being made by the Federal Magistrate, in respect of the substantive proceedings, which the Federal Magistrate reopened, nor why orders were not made in respect of those proceedings.

   [10] It will be appreciated, then, that, by the time this matter came before this Court, a “trial” had been alive, between these parties, for two years or more, without any final determination.

   [11] Of particular significance, in the proceedings before me, for reasons which are the subject of disputed assertions and counter-assertions of fact, the mother has, at the date of the proceeding before me, not seen [the child] for about three years or so. 

   [12] To say that this is unfortunate, whatever might be the merits or demerits of the case which she now seeks to agitate or, indeed, which the father now seeks to agitate, hardly adequately describes the situation. 

   [13] Procedural orders were made by this Court, attempting to have this matter heard and determined as soon as possible.  In the course of earlier procedural proceedings, in an attempt to give effect to that intention, the parties were asked to give their best estimate of the length of this trial.  All of the parties, including the self-represented mother, indicated that they thought the trial would go three days. 

   [14] With that in mind, on 22 June 2010, this matter was set down for three days, commencing 27 October 2010. It commenced, on that day, before me.  Given the time that had elapsed, it seemed appropriate to hear them as “fresh proceedings” in the sense that no determination has ever been made on a final basis.

   [15] During the course of the second day of that hearing, it became apparent to me that there was no reasonable possibility of the matter concluding within three days despite my sitting, on at least two of the days, extended hours. 

   …

   [17] When it became clear that the matter would take longer than three days, I canvassed two things with the parties.  First, I indicated that further hearing of the matter, was, due to the commitments that I otherwise have in respect of matters already set down for hearing, not able to be held until three days in mid-February 2011.

3. The mother, understandably enough, raises significant concerns about the manner in which earlier proceedings played a part in the child being in the father’s care and with him subsequently spending no face-to-face time with her.

4. I have expressed my consternation at this matter’s procedural history on numerous occasions. In my view, it is, with respect, plainly unacceptable. More importantly, it has, in my view, contributed to the situation currently faced by the child and his parents.

5. Having said that, it is also important to place the events at the “end of the trial” in November 2007 and the mother’s criticism in further context.

6. There are a number of differing accounts of what the mother did towards the end of the trial before Wilson FM November 2007. The mother described her actions in the following manner: 

   the trial had finished, submissions had finished, and … I put a proposal to his Honour that I would consent to [the child] being with the father, pending the handing down of the judgment, because it was not in his best interests to make interim orders that had more contact between the parents.  I saw that as being more stress in [the child’s] life, and if he could be minded of that.  I did it by consent after all of the final submissions were done, and I did it, in my mind, in [the child’s] best interest, because in the interim, for him to have more hostile change‑over, was not going to be beneficial for him.

7. The mother annexed a section of transcript dated 7 November 2007 to her affidavit filed 3 August 2010, which details the following exchange:

   HIS HONOUR: It’s most unusual, Ms [Gingham], to do so if you have legal representatives. I have made a note of the two matters to which Mr Slade-Jones has just referred and I think it’s better if we leave it at that.

   MS [GINGHAM]: I hear you, your Honour, but the court needs to understand that if you are minded to give primary care and primary contact to the father, I know it’s not going to work for my child and I, and if you do it, give him the full 365 days and I’ll do it by consent and I’ll bring him here this afternoon I’ll save you all the work. Neither my child and I will cope with any of those arrangements that have just been put by – anything less than one week around we’re not going to cope. It will be conflict for [the child] and I want the stress out of his life.

   HIS HONOUR: Yes. Thank you. Yes. I’ll consider my decision. I’ll just stand down briefly.

   MATTER ADJOURNED at 12:48pm ACCORDINGLY

1. Wilson FM then made an order by consent on 7 November 2007 that the child live with the father, effective immediately.

2. When I asked Ms Brasch, Counsel for the Independent Children’s Lawyer (“ICL”), what she considered to be the best evidence before me of what occurred at the conclusion of the proceedings before Wilson FM, Ms Brasch replied:

   The transcript … only tells one part of it.  The transcript only tells the … matter was stood down; obviously there is more.  The best evidence in fact will be that which fell from the mother in the witness box, a combination of Mr Hamwood’s cross examination, and mine, which is, his Honour stood down briefly, and the matter resumed.  She signed consent orders that the child was to go to the father, effective immediately, but the mother agreed on a question I asked her - she was the author of striking out some proposed orders for mother and child time.  She left the court.  Ms Vachon and the father went to [LP] to bring the [child] back to court.  She agreed with that, and she agreed with Mr [W’s] summary, in paragraph 17, that she did walk out before the trial ended.  She was asked that specifically, and to which she answered, “That’s paraphrased correctly.”  Now those questions come at different points in the transcript, but that, from the mother, in that summary, is perhaps the best evidence.

3. In fact, on 28 October 2010 during cross-examination by Ms Brasch, the mother stated:

   MS BRASCH: And you told Mr [W] that in fact you did walk out before the trial ended. Mr [W] reports you correctly doesn’t he.

   MS [GINGHAM]: He paraphrases me correctly. I did leave the trial proceedings at the end, but his wording isn’t correct, but his paraphrase is correct.

4. Mr [W] reported the mother’s description of events surrounding her leaving the Court in November 2007 in the following manner:

   [The mother] noted that at the Court hearing in November 2007, she consented to [the child] being in the care of his father, “pending the outcome of the decision of the Court, but no decision has been handed down yet.” She later stated that she had stayed for three days of the trial and had been “beat up on the stand.” She admitted that she did ‘walk out’ [my words] before the trial was concluded because Mr [Gingham], with the support of the Independent Children’s Lawyer (ICL), argued that she should only spend time with [the child] “for a few hours, under supervision”… [Words in square brackets in original quote].

5. The evidence surrounding the proceedings on 7 November 2007 is, then, somewhat confusing. The mother’s assertion as recorded in the transcript that if his Honour gave primary care of the child to the father, that she would give the father “full 365 days and I’ll do it by consent and I’ll bring him here this afternoon and I’ll save you all the work” and the subsequent interim “consent” orders gives context to the confused state of the proceedings when they “concluded” before Wilson FM.

6. Despite my attempts to expedite the trial, it ultimately proceeded over an additional five days on 15, 16, 17 February 2011 and 12, 14 April 2011.

7. These reasons pertain to the entirety of this trial, having taken place over some 8 days in October 2010, February 2011 and April 2011.

8. Extremely helpful evidence, was given by a reporting psychiatrist, Dr V. His evidence not only neatly and cogently encapsulates the stark issues for the child but also exemplifies the relevant Primary and Additional Considerations. That evidence will be referred to at some length late in these Reasons.

Proposals

1. Each of the parties provided written submissions which set out their respective proposals.

The Mother’s Proposals

1. The mother, who prepared her own material and at all times has represented herself, sets out her proposals under the heading “Final Orders Sought”. With the greatest respect, the orders are voluminous, cover a range of topics, and in many cases, it is difficult to understand their intent. It is, then, perhaps easiest and fairest to the mother, to detail the mother’s orders under headings which distinguish between those related to the parenting of the child and other, miscellaneous orders. It is also, I think, important to set out the orders in their entirety.

   Parenting orders and orders relating to [X]

   a)All previous orders be discharge (sic);

   b)It is declared that the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 is rebutted for the child [X] born [in November 1997];

   c)The father supply the child with a private tutor on each and every school day until such time that he achieves his optimum grades and potential of superior intelligence commencing immediately;

   d)The mother have sole parental responsibility with respect to major long term issues as that expression is defined in the Family Law Act 1975 in respect of the child;

   e)The mother and child attend joint counselling with a psychiatrist who specializes in ADHD at the commencement of semester 2 - with no less than one joint session per week and individual treatment as deemed appropriate by the provider of these services for the purpose of a successful re-integration plan of the mother and child;

   f)The father do all acts necessary to assist and enrol the child in the [Anglican Church Grammar School] commencing semester 2 including; enrolment in rowing, robotics and the military cadetship;

   g)The fathers admissions made on 7/11/07 to pay for the child’s private education be placed into an order of the Court under the Federal Magistrates Rules 2001 regulation 15.30 as follows: ‘The father be responsible for the payment of all education, fees, medical, sporting, private tutors, psychologist and psychiatrists, flying and associated costs incurred by the child and make payment within 7 days of receipt of any such account directly to the provider of such services’;

   h)The father provides the mother with a copy of the health care card to assist with this process and be responsible for all payments of health care insurance for the child;

   i)The child … remain in the primary care of his mother from the commencement of the school week to the conclusion of the school week and the mother have the sole parental responsibility for the major long term care welfare and development of the child with the child advising the school counsellor of the days he would like to reside with his mother during the week and the school counsellor to advise the mother of same with change over occurring on neutral grounds being the boarding school;

   j)The child be at liberty to spend time with his father during non school days at a time of his choosing to be advised by way of the child to his school counsellor who will inform the father of this request and the father to have parental responsibility during these periods for the minor and day to day care issues of their child;

   k)The child be provided with a mobile number and be at liberty to contact either parent at a time of his choosing with the father being responsible for payment of this phone account;

   l)The parents are at liberty to contact the child by way of phone, email and letter only at reasonable times and the father to supply the mother with the Childs email address;

   m)The parents have sufficient authority to attend and receive all school reports with any educational or medical provider, attend meetings and sporting events in a respectful manner and this authority is sufficient to meet with this compliance;

   n)The parents notify each other of any change in residential address or contact phone numbers including work once contact has commenced;

   In the alternative:

   a)It is declared that the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 is in the best interests of the child [X] born [in November 1997] and each parent is responsible for the day to day minor care decisions of their child with the major decisions being resolved by way of the application now before the court;

   b)The child would be at liberty to spend one week with his father and the next week with his mother at a time of his choosing during these periods commencing term 2 2011 to be advised by way of the school counsellor who will inform the parents of the Childs wishes;

   c)The father comply with all recommendations of medication of Dr [Y] and attend his office no less than every 3 months for the purpose of assessment and obtaining optimum medical and educational results for their child;

   d)The school is ordered to administer the medication in compliance with Dr [Y] advices whilst under supervision on each day that the child attends boarding school immediately after breakfast has been provided;

   e)The mother can on providing 60 days written notice to the father, take the child outside of the Commonwealth of Australia provided that she provide the other parent with a copy of their travel itinerary, return air ticket, and contact details.  The father will not withhold his consent to travel for the purpose of attending the mothers wedding or holidaying with the child only if the child wishes support such attendance as expressed to his counsellor;

   f)Ms [K] and the father attend a PPP programme within a month period and provide the court with a copy of a satisfactory certificate of completion;

   g)The mother provide a copy of one month proposal of holiday contact with her son to the counsellor for her sons consideration during non school periods which include my express wish for [X] to attend our family Christmas day lunch this year at home, along with my wedding and other fun excursions for the consideration of our child.  [The child] to inform the counsellor of any of these dates that he wishes to attend and the mother be at liberty to collect her child on these occasions from the boarding school.

   Miscellaneous Orders

   a)The father pay to the trust account of the child held by the mother the amount of $6000 per contravention breach;

   b)The father and Ms [K] be listed as a vexatious litigant under sect 118 Family Law Act and until further order the father Ms [K] their solicitors and agents be restrained and an injunction granted restraining the father and step mother from instituting any proceedings or be permitted to file any further applications that involve the mother;

   c)A further order that the father and Ms [K] be restrained and an injunction granted restraining them from denigrating the mother or child;

   d)Costs awarded in the favour of the mother;

   e)An order to strike out materials of Dr [V] numbered 38,39 A, and ICL 15, ICL Outline of submissions in addition to the last two reports of Mr [W] and [Ms R] by way of Voir Dire as a consequence of real and apprehended bias with the exclusion of any admissions made within the mothers submissions;

   f)Ms [K] provides the contact details and address of the whereabouts of the parrot and in the event the mother is unable to negotiate the return or requires compensation to the third party Ms [K] pay the amount of $1000 to the mother;

   g)The mother provide a copy of one month proposal of holiday contact with her son to the counsellor for her sons consideration during non school periods which include my express wish for [X] to attend our family Christmas day lunch this year at home, along with my wedding and other fun excursions for the consideration of our child.  [The child] to inform the counsellor of any of these dates that he wishes to attend and the mother be at liberty to collect her child on these occasions from the boarding school;

   h)An order to strike out materials of Dr [V] numbered 38,39 A, and ICL 15, ICL Outline of submissions in addition to the last two reports of Mr [W] and [Ms R] by way of Voir Dire as a consequence of real and apprehended bias with the exclusion of any admissions made within the mothers submissions;

   i)Ms [K] provides the contact details and address of the whereabouts of the parrot and in the event the mother is unable to negotiate the return or requires compensation to the third party Ms [K] pay the amount of $1000 to the mother;

   j)Any further orders his honor deems appropriate.

The Father’s Proposals

1. The orders sought by the father are outlined in the submissions filed on the father’s behalf:

   a)The father have sole parental responsibility for the child;

   b)The child live with the father;

   c)The child spend time and/or communicate with the mother only at the child’s request and subject to the father being satisfied that appropriate arrangements can be made for such time;

   d)The mother be restrained from “interfering with the child’s education and day to day care”;

   e)The mother be restrained from commencing further parenting proceedings without first obtaining leave of the Court “conditioned on her providing satisfactory evidence as to her psychiatric condition”.

The Independent Children’s Lawyer’s Proposals

1. In written submissions filed on behalf of the ICL, the following orders are proposed:

   a)All previous orders be discharged;

   b)The presumption of equal shared parenting be rebutted in the best interests of the child;

   c)The father have sole parental responsibility with respect to “major long-term issues” in respect of the child, provided that prior to the father making any major long term decision affecting the child, the father:

   i)Advise the mother in writing of the decision to be made and the matters he is considering;

   ii)Invite the mother to provide “succinct written reasons” regarding her preference on the relevant issue;

   iii)Make the decision having taken into account any written reasons provided by the mother and the child’s best interests;

   iv)Inform the mother in writing of his decision.

   d)The father have sole parental responsibility with respect to issues that are not “major long-term issues” in respect of the child;

   e)The child live with the father;

   f)The child attends boarding school with the father being able to choose the school and the mode of school attendance for the child;

   g)The mother be restrained and an injunction issue restraining the mother from contacting or trying to contact the child and any school he attends, and from causing others to contact or try to contact the child and any school he attends;

   h)Where a dispute arises between the parents regarding the interpretation of these orders, the parties must “in the first instance” list the matter or cause it to be listed before Justice Murphy, provided that:

   i)The parents comply with the relevant statutory requirements;

   ii)Justice Murphy is reasonably available to deal with the matter; but

   iii)Nothing in this order precludes either parent from applying to Justice Murphy to disqualify himself from further dealing with the matter.

   i)The father authorises Dr Y (and any subsequent paediatrician treating the child) to speak with and discuss the child’s treatment with the child’s previous paediatrician, Dr L;

   j)The father consents to Dr L advising the mother, in writing, of the child’s progress as provided for in the preceding order;

   k)The father is to meet the costs of Dr Y associated with complying with these orders and the mother is to meet the costs of Dr L associated with these orders;

   l)The Independent Children’s Lawyer be discharged.

2. It will be observed that neither the father nor the ICL seek orders specifying contact between the child and the mother, with the ICL seeking an injunction restraining the mother from contacting her son.

3. The disparity in the proposals clearly illustrates the primary issues in this case. Dr V, in evidence I regard as cogent, clear and correct, expressed the central dilemma in this way in answering questions directed by the mother:

   There are two issues. One is should [the child], at some stage, establish a relationship with his mother? The answer to that to my mind is, I think, yes because a child who has had a very close relationship with the mother, in an ideal world, should be given the opportunity to repair a ruptured trauma. How one does that, and the timeframe that one does that, is a completely different issue. I’m not saying that the Court can make any decisions about that. … I don’t believe that, if he breaks contact with you, he will never have contact with you because, ultimately, he only has one mother and when he grows older he will probably re-examine issues of his attachment needs and connection and issues of ‘who I am’ and will probably make moves to contact [you]. But I can’t determine the time frame.

   The second issue which I think is separate but intimately intertwined with that issue of this Court is if [face-to-face] contact was to occur, what are the negative ramifications…

   …

   Obviously the one that comes to mind is [the child’s] emotional state and how he is going to adapt to it. But I think the other issue is the administrative issues … trying to engender that is likely to raise a whole lot of other issues about the capacity of mum and dad to deal with that. And also, in terms of re-opening that whole issue of which parent is going to drive or make decisions around these areas. And it is my strong impression that, with due respect, it would be a nightmare working with [you].

4. As Dr V there encapsulates, there are, at the heart of this case, two primary issues. The first is whether a 13-year-old boy who is adamantly expressing a desire to have no time with his mother should, nevertheless, be ordered to do so. The second is whether or not such contact time would, if ordered, be emotionally harmful to [the child]. Obviously enough, within that central dilemma, there can bee seen a number of Considerations, both Primary and Additional, including:

   a)The meaningfulness of the relationship between the child and each of his parents.

   b)The need to protect the child from further harm.

   c)The nature of the relationship between the child and each of his parents.

   d)The views clearly expressed by the child.

   e)The ability and willingness of each party to encourage and facilitate a relationship between the other parent and the child.

   f)The impact of a change in circumstances on the child.

   g)The capacity of each of the parents to provide for the child’s needs.

   h)The relative maturity of the child.

Central Uncontroversial Findings

1. The following findings are, in my view, central and uncontroversial:

   ·    Prior to the proceedings in 2007, the child’s primary caregiver was his mother and the child’s primary attachment had been to his mother.

   ·    The parents are incapable of making joint decisions regarding the child’s welfare and basic needs, including, for instance, the school he attends.

   ·    For whatever reasons, there has been no face-to-face contact between the child and his mother since November 2007. The only contact that has occurred between them has been by way of telephone calls.

   ·    The child is currently attending S Boarding School in a rural area as a boarder. 

   ·    The child suffers from Attention Deficit Hyperactive Disorder (ADHD) and is required to take medication daily. As a result of earlier orders made by me, paediatricians consulted by the child at the instigation of the mother pre-2007 (Dr L) and the father post-2007 (Dr Y) communicate with each other and provide information to the respective parents. Both Dr L and Dr Y agree that the child suffers from ADHD (which Dr L says was diagnosed in August 2002). There is also a synergy in the treatment plans proposed by both paediatricians; both Doctors recognise the necessity for medication in any treatment plan for the child and they both emphasise the need for consistency and stability in the child’s home and school environment.

1. On 6 June 2007, Family Consultant, Ms Q, interviewed the child and subsequently prepared a Family Report. In that Report, Ms Q referred to a number of statements made by the child. When asked who he would want with him if he were stranded on a desert island, the child stated “my mum and dad”. When asked what he would change about his life, “that my mum and dad agree on things and they don’t fight”. Ms Q reported the child as going on to say that he thought his parents were “kind of fighting about the next school I go to”.

2. Ms Q offered her opinion as to the relationship between the child and the mother, at that point in time. When I put those opinions to the father in the witness box, he accepted them as being true at that time. For instance, Ms Q opined that:

   [The child’s] most significant attachment appears to be with his mother. She has undertaken the majority of his care for most of his life and this is apparent in the interactions he has with her. He is likely to miss his mother when he spends time away from her. Any changes to [the child’s] arrangements need to ensure that he continues to spend significant and substantial time with his mother.

3. The mother also relies on an affidavit of Ms F, who had previously been the child’s nanny, filed 3 March 2009 to demonstrate that even after the events of 7 November 2007, the child still wanted to be with his mother. In that affidavit, Ms F states:

   1) On, or during late 2008, I was walking the adjacent parklands to my property, and that of the former residence of minor [X] situated in [Brisbane].

   …

   5) When I enquired further as to how the minor was doing the child replied “I am working really hard at school mummy [Ms F] to get good grades, so that the Judge will allow me to go home to my mummy”.

4. Since Ms Q’s report and, more specifically, the apparent end of the trial before Wilson J in November 2007, a number of things have occurred.

5. First, the child has, effectively, told anyone who will listen to him that he wishes to continue living with his father and that he does not wish to have any meaningful face-to-face contact with his mother. So much is this so that the child refused, in the presence of a Family Consultant, to see his mother for the purposes of an assessment ordered by me in October 2010. Further, whilst the child has had telephone contact with his mother for some time, occurring twice weekly, the child is reported as saying that such contact is too frequent.

6. The child has, then, frequently and consistently expressed his views, the central theme of which is that he neither wants to see his mother nor in fact to have anything meaningful to do with her. Examples abound and include:

   ·     “I don’t want to see [the mother]. I’ve got better things to do on the weekend” (as reported by Mr W in his report dated 17 November 2009, par 49).

   ·     “I don’t particularly like seeing [the mother]. Would rather be with [Ms K] and Dad. [The mother] does nothing for me. I just stay at home with [the mother]” (as reported by Mr W in his report dated 17 November 2009, par 52).

   ·     “I’ve told [the mother] multiple times I don’t want to see her” (as reported by Ms R in the Family Report dated 14 February 2011, par 21).

   ·     “I wasn’t happy at my Mum’s and the Court recognised it. Since then I’ve had a great life” (as reported by Ms R in the Family Report dated 14 February 2011, par 24).

   ·     “I have a great life now. Every time [the mother] gets involved, she messes it up” (as reported by Ms R in the Family Report dated 14 February 2011, par 33).

   ·     “I’d like to ask the Court if I could please not have to call her and please could she not contract my school or my friends. I’d like her to go away. Also I’d like to ask not to have to see her or have any contact with her” (as reported by Ms R in the Family Report dated 14 February 2011, par 37).

   ·     When the child was asked by Ms R what he would say to his mother if he could say anything he wanted he replied “I do not want to see you. Could you please go away and leave me alone and not wreck my life. I don’t want anything to do with you” (as reported by Ms R in the Family Report dated 14 February 2011, par 38).

7. The tone and content of many, if not all, of those statements from a 13-year-old trouble me. I am also very troubled by the fact that (as the father agreed in the witness box) the evidence reveals that almost every statement by the child since coming into his father’s care is wholly negative of the mother and wholly positive of the father and his time with the father.

Evidence of Professors P and C

1. Each of Professors P and C prepared reports upon instructions from the mother and each gave evidence.

Professor P

1. The limitations inherent in Professor P’s report (dated 13 October 2010) are evident from his own evidence during cross-examination by counsel for the father, Mr Hamwood; the Professor said he was “flying blind” in relation to the child and “even worse” in relation to the father – a clear reference to the fact that he saw neither.

2. Dr V, in his report dated 18 October 2010, clearly articulated what I regard as the significant limitation on the information relied upon by Professor P when he said:

   He did not have access to the two comprehensive family reports or my psychiatric report. I also note that he did not have access to any collateral history from [the father] and there appear to be a number of significant details in [the mother’s] history that were omitted. The history, in particular, fails to understand the reasons why [the child] was in his father’s care, fails to fully explore her past psychiatric history and treatment and, more importantly, accepts all the history presented as incontrovertible fact.

3. I accept that evidence and, in my judgment, it provides very significant limitations upon the utility of the Professor’s report and the weight to be attached to the opinions within it. I consider the contents of Professor P’s report are of minimal assistance.

Professor C

1. An affidavit of Professor C was filed on 25 October 2010, annexed to which is a report by same dated 24 October 2010. The oral evidence of the mother suggests that she, or a person acting at her behest, obtained the report from Professor C.

2. Whilst the primary focus of the report is the mother’s mental health, Professor C does make statements regarding the father  including that the father “intermittently ceas[ed] the medication for ADHD for his son” and observes that such behaviour can “lead to depression/suicidal ideation during withdrawal”. Professor C also stated that he agreed with “the observations of Associate Professor [P] as to the difficulties in [the mother] re-establishing a relationship with her son” and concurred with the approach recommended by Professor P.

3. Whilst the list of information relied upon by the Professor, as set out at the beginning of the report, reveals that the Professor had available to him considerably more information than Professor P, Professor C’s report is, like that of Professor P, marked by significant limitations.

4. Not least of those limitations is the fact that, like Professor P, Professor C has not seen either the child or the father on any occasion. Secondly, it is plain – as the example in relation to medication just given illustrates – that Professor C has relied on the mother’s statements as a primary factual basis for many, if not all, of his opinions. As will emerge, I have reason to be circumspect about many aspects of the mother’s evidence.

5. Professor C’s report contains some criticisms of Dr V’s report. But, it is in my view plain, that such criticisms are the result of Professor C being provided with selected information.

6. As but one example, Professor C states that Dr V’s reference to the mother suffering from Multiple Sclerosis was “inaccurate” as the mother “emphatically denied ever having MS”. If Professor C had been provided with the mother’s earlier affidavits, he would have noted that, in 2007, the mother herself referred to having Multiple Sclerosis.

7. During oral evidence, Professor C said that he relied upon the mother’s information whenever a dispute arose between versions in the material. When, during oral evidence, the Professor was provided with a more detailed recitation of the evidence currently before the Court, the Professor stated that, in light of that evidence, it would seem that the mother has a “vendetta against the father”. 

8. It quickly became apparent that the Professor had not been aware of various statements by the mother including for instance, that she believed that the father and/or a partner of his had been behind an accident she was involved in the United States. Nor was Professor C aware that the mother had been involuntarily admitted to hospital as a result of concerns about her psychiatric health.

9. I place little weight on Professor C’s report; his opinions are, in my judgment, significantly affected by a lack of data from the father and, in particular, the child and his factual premises are coloured by the selectivity with which they were presented to him.

Other Expert Evidence

The mother and father’s mental health

1. Dr V provided four reports, completed over the past 3½ years.  

2. In his first report (dated 14 August 2007) Dr V stated that he:

   … could find no evidence of a diagnosable psychiatric disorder in the areas of Psychosis, Organic Brain Syndrome, Mood or Anxiety. There were some aspects of her history that raised the possibility of a Somatisation Disorder in view of her usual medical history.

3. Significantly, Dr V observed that “there were some aspects of the history, which in themselves might not be significant, but because of ongoing and unusual emotional responses and actions that would suggest that [the mother] shows features of having a Personality Disorder”. Further:

   … notable aspects of [the mother’s] personality shows features of dissociation (removal from conscious awareness of emotionally distressing thoughts), dependency and rigid obsessionality. Her rigid obsessionality affects judgment, as she can seem powerless to change a determined course of action despite obvious negative consequences as per the school experience.

4. Dr V also stated that “the most disturbing collateral history is the well-documented episode at [B School]... The lack of insight at a number of levels that this displays is of considerable concern”. I too consider this event significant and will refer to it in detail later.

5. At the time of writing this report, the mother was the child’s primary carer and Dr V observed “irrespective of the personality disturbance, it is clear that [the mother] is the primary psychological carer of [the child] and disruption of this attachment would have severe negative consequence for [the child]”.

6. In his second report (dated 10 September 2007) Dr V said that, as with the mother, he found in the father “no evidence of Thought Disorder, Psychotic thinking or symptoms of an Organic Brain Syndrome”.

7. Dr V asked the father about the mother’s allegations of domestic violence, to which the father replied “that he sometimes raised his voice and may have broken a glass or thrown things but never at her. Her (sic) reported that he has never physically touched [the mother] and the allegations that were mentioned in her Affidavits and in her report to me regarding injuring his (sic) ankle and urinating on her were false”.

8. The father also “denied any drink-driving offences or alcohol related offences in the United States or in Australia other than his speeding offence”. The mother attached to her affidavit filed 3 August 2010 a copy of the father’s traffic record which reveals that, contrary to what he told Dr V, the father was convicted of driving whilst under the influence of alcohol (being .071) having pleaded guilty to that charge.

9. Dr V concluded that the father “displayed good judgment and insight” and that there was “no maladaptive parenting in [the father], which would preclude him from caring for [the child]”.

10. Dr V completed two updated reports regarding both the mother and the father. On 18 October 2010, the Dr V gave a history of events since his last review in September 2007 which included the significant change in the child’s circumstances. The Doctor again observed that the father “showed no symptoms or signs of a Mood Disorder, Anxiety Disorder, Organic Brain Disorder or any diagnosable psychiatric illness”. According to Dr V, the father “presented as reasonably insightful and capable of self-examination and self-criticism”.

11. Dr V did state that:

    … [the father’s] concern about [the child’s] continued need for affection and the plans for boarding school next year suggests a mild blind spot on his part in understanding issues of bonding and attachment. This may reflect his early upbringing and education as well as some rural pragmatics of meeting children’s educational needs. It does not suggest that he is unfit to be his son’s main or only Carer.

12. Dr V “saw no reason to contradict” Mr W’s opinion that the father should retain sole parental responsibility of the child.

13. The mother did not attend the scheduled interview with Dr V for that report. As such, the Doctor was unable to prepare a comprehensive, updated report in relation to the mother. Dr V did, however, complete a report “on the basis of events that have occurred following my giving evidence in Court in 2007 so as to assist the Court in its deliberations”. Dr V reaffirmed his previous conclusion that the mother was suffering from a Personality Disorder and, more significantly in relation to this case, stated that:

    On the basis of the information available to me at this point in time, and considering the severe attachment trauma she has subjected him to, it is my opinion that there are characteristics of [the mother] that impinge on her capacity to provide reasonable ongoing care for [the child]. This is not to say it may not be in [the child’s] interests to mend the disrupted relationship that he has suffered with her.

14. Whilst not directly dealing with the mental state of either of the parents, Mr W asserted in his report (dated 17 November 2009) that:

    I agree with [the mother] in that she has not been diagnosed with a psychiatric disorder. My experience of [the mother] is that she has exhibited notable histrionic and narcissitic personality traits which have impacted upon her capacity to reason, judge, make decisions and to have empathy for her son.

    …

    From my experience of her general presentation, I have found her to be demanding, authoritative, rigid and generally a very difficult person to have a professional relationship with.

15. Dr V made similar observations of the mother. He was at pains to emphasise that the mother frequently becomes preoccupied with proving inaccuracies in various statements and accounts. After a lengthy period of cross-examination by the mother, during which the doctor was, as I saw it, trying to explain issues directly relevant to the child, the mother put a suggestion to Dr V that involved she and the father engaging in a form of joint process with the child, Dr V quite spontaneously said “with due respect it would be a nightmare working with you”.

16. The observations of each of those experts and particularly, the references to rigidity, obsession with detail and the tendency to be demanding are all entirely consistent with my own observations and impressions of the mother’s demeanour and material.

17. This rigidity and preoccupation with proving inaccuracies will be discussed in further detail below.

Abandonment/Attachment Trauma

1. According to Dr V, the events following on and directly following 7 November 2007 would have caused significant distress to the child. Dr V made the following observations regarding those events in his report filed 19 October 2010:

   It is my opinion that [the mother’s] unilateral cessation of contact with [the child] following the Court Case of 2007, showed a severe lack of empathic parent attachment. This, unfortunately, confirms my assessment of a Personality Disorder but also adds a dimension of an inability to put her child’s needs ahead of her own. That is, it shows a pathological degree of failed attachment and bonding.

   On accepting that [the mother] treads a difficult path in being both interested parent and being a self-represented legal person, nonetheless, the language she used to describe her son suggests further evidence of this attachment problem…

   A further example of apparent problems with parental empathy and attachment is noted in [the mother’s] proposition that [the child], who has already had some considerable disrupted attachments, should be placed in Foster Care rather than with his father so that she can be allowed to reattach to him without father’s perceived interference.

2. During oral evidence, Dr V further elaborated on this point:

   DR [V]: – I have difficulties in … attributing [the child’s] current antipathy to contact with … with mother as being due … to parental alienation.  If you were to ask me to hypothesise what a substantial and enduring factor there, I would suggest it’s attachment trauma in the sense that the child had - - -

   HIS HONOUR:   Which means what?  In - - -?

   DR [V]: ---Well, the child had a very close, trusting, enduring relationship with the mother, which was abandoned in a very short period of time, and which endured for a surprisingly long period of time.  I think the information that I had from the ..... that following the dramatic exit from court, and the giving of the care of the child to the father, there was really effectively no contact for many months, maybe six – nine – nine to 12 months, I don’t know the exact period of time.  And I would hypothesise that that would have been a incredibly painful, traumatic and damaging event that is likely to have resulted in a number of defensive psychological postures by [the child] in terms of reconciling how to deal with what he perceived as an abandoning mother, and that the issue of parental alienation I think, in the context of that, and given what available evidence we have, is a relatively minor event.

3. This evidence gives added emphasis, and in my view cogency, to Mr W’s often repeated opinion that the child’s own direct experiences of his mother are sufficient to explain his current views of her (as opposed to, for instance, the child’s exposure to comments made by his father and/or the father’s partner Ms K).

4. In what also can be seen to be consistent with that opinion, Dr V, went on to opine that the child’s belief that his mother abandoned him “is the primary emotional engine that is driving his rejection of [the mother]”.

5. In a similar vein, the Family Consultant, Ms R, during cross-examination by the mother, attempted to articulate to the mother the impact of her actions on 7 November 2007 (and immediately following) on the child’s current views. Ms R repeatedly stated to the mother that, as the child likely perceives it, she had “abandoned” him and that abandonment would have caused extreme trauma to the child. In a particularly telling exchange, Ms R said to the mother:

   You are missing one really important fact and I am going to say something that will hurt you. You abandoned him. For a child who was so close to his mother, to have his mother turn away from him. How distressing would that be? You inflicted a trauma on him by walking away from him.

6. Ms R went on to say that:

   … what has happened to [the child] is a very deep and wounding event. That is a pivotal event in a child’s life. I can follow logically that when something like that happens, a little boy would create a means of protecting himself.

7. Whilst Mr W did not directly address the issue of “abandonment” by the mother, he frequently reiterated, both in his report and during oral evidence, that the child’s own experiences of his mother were sufficient to explain his current views. In his report filed 17 November 2009, Mr W said:

   My opinion is that from what [the child] has told me, his own experiences with his mother, as he has experienced them personally (as opposed to what his father has told him) are responsible for his views and wishes concerning her.

1. Both the mother and father seek orders that the presumption be rebutted in their respective favour, although the mother proposes as an alternative that both parents share parental responsibility of the child.

2. The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.

3. A finding that the parties are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility is, in my view, a highly relevant matter in determining whether the best interests of the child require the presumption to be rebutted in this case.

4. Carrying out the tasks and obligations, required by the Act, on what might be a regular basis, especially where there is a high degree of conflict, carries with it potential significant difficulties and the potential to create significant further stress for the child.

5. The evidence clearly reveals a significant degree of conflict and mistrust between these parties and a frequent incapacity to put aside their own issues and concentrate on the child’s best interests. They have no capacity at all to co-operate about the child’s issues. Their personality characteristics are likely, in my view, to continue to present insuperable difficulties in this respect.  If the parents were to share parental responsibility equally, further significant conflict between the parties is in my view very likely. It is axiomatic that such conflict is contraindicated in the child’s best interests.

6. I am satisfied that it is in the best interests for the child, that the presumption contained in Section 61DA(1) be rebutted on the basis of the child’s best interests.

7. Parental responsibility is defined in the Act to mean “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the Court orders, each of the father and mother has parental responsibility for the child. A parenting order does not derogate from that save as is expressly ordered”.

8. An order for “sole parental responsibility” in favour of a parent may mean – at least arguably – that the other party has no rights, responsibilities and authority in respect of “major long term issues” for children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAE(1)).

9. The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).

10. The matters and findings just discussed do not necessarily lead to a conclusion that there should be an order for “sole parental responsibility” which might arguably have the effect earlier described. It seems to me that orders can be made which strike a balance; on the one hand removing (or significantly reducing) conflict by permitting of one parent to have the ultimate “say” but, on the other hand, permitting of input by the other parent. I propose to make such an order in this case.

11. As a result of the rebuttal of the presumption and a finding that an order for equal shared parental responsibility is not in the child’s best interests, the pre-condition to the exercise of the power to make parenting orders (see MMR v GR (2010) 240 CLR 461) is inapplicable. Accordingly, the issue of the child’s best interests is, to use the words of the Full Court in Goode & Goode (2006) FLC 93-286, “at large”.

Best Interests – Responsibility and Co-Parenting

1. The orders sought by the mother (insofar as they seek “parenting orders” as defined) are wholly contrary to the views of a mature, intelligent and thoughtful 14-year-old child. Those views have been, in part, shaped by his exposure to his father’s (and perhaps other adults’ – Ms K, Mr and Mrs E) comments and negative views of the mother and her behaviour. The father has, contrary to his evidence, failed to properly insulate the child from those comments.

2. However, in my judgment, the child’s exposure to those comments have played but a minor part in shaping his current views. Of far greater significance as contributors to his considered views are:

   ·His experience of his mother’s sudden absence from his life in circumstances where his parents had been in high conflict and his mother had, erstwhile, been his primary carer.

   ·His experience of his mother’s behaviours which have embarrassed and upset him deeply (the “[B School] incident” is the best example).

   ·His exposure to his mother’s obsessiveness.

   ·His experience of greater emotional and psychological peace and stability since coming into his father’s care.

3. I do not accept that the mother will be able to contain her emotions, including in particular, her need to establish what she believes and perceives to be a “true” picture of the father in the child’s eyes. She will not, by dint of her personality structure, be able to refrain from seeking to “win back” the child’s love and, in doing so, seeking to “set the record straight”.

4. Contrary to that (perhaps understandable) position and need, I consider the father was both sincere and correct in saying, in effect, that the mother needed to “back off” and let the child find his own way back to her. That is also, in effect, what Dr V said is likely to occur and I agree with him. However, I also agree, that the time frame within which that might occur is impossible to predict with any degree of accuracy. Whilst they are my views, they are also, I am confident, the views of the child (albeit framed by a 14-year-old). He, too, I strongly believe, wants to have the emotional freedom to find his own (emotional and psychological) way back to his mother.

5. Appropriate parenting does not involve permitting the children’s views (even mature children’s views) to be a veto over parental decision making. So, too, in the case of court orders. A child’s true views, though, need to be listened to. I believe I have done so in reaching the conclusions just referred to.

6. It will be appreciated that, expressed in terms of a Primary Consideration, I consider that the mother’s proposals involve the prospect of the child being exposed to psychological or emotional harm in the sense in which I have sought to describe it in these Reasons.

7. The mother’s proposal would involve, in my judgment, the prospect of that harm and also being deaf to the child’s strongly expressed views and what are, in my judgment, the underlying emotional and psychological reasons for those views.

8. Tragically the nature of the relationship between the child and his mother is fractured and in need of significant repair. The manner in which court proceedings have unfolded has, in my view, played a part. The unilateral decisions of the father (for example, sending the child to south Queensland) have also played a part. Each have, in my view, made a bad situation for the child worse. But, again, I think the overwhelming contribution to that situation has been the mother’s inability to “let go” of issues and to accord to the child the emotional freedom to be the boy and young man he wants to be and to have a relationship with his father on his terms.

9. All children are perfectly capable of listing the perceived failings and faults of their parents which, axiomatically, those parents will undoubtedly have. They do not need (or want) one parent to assist them in that process of assessment of the other parent.

10. The mother’s proposals represent very significant change for the child. Those changes are both practical (place of residence, school etc) but they are also substantial at an emotional and psychological level. I consider that the child is in a stable and peaceful emotional and psychological place now and disturbing that is likely to be highly detrimental to him.

11. The conclusion I have come to in respect of the mother’s inability to contain her need to redress perceived wrongs and to inculcate a perceived “accurate picture” of the father are, in my view, likely to be uncontained and to permeate every aspect of her relationship with the child, whether he was to live with her or to spend time with her.

12. I am by no means convinced that as the child matures and grows and seeks to find his own way back to his mother, that the father (or his partner) would seek to stand in the child’s way. Equally, however, I am not persuaded that the degree of the father’s emotional insight is such that he would lay the foundations necessary to permit the child to do so. At the moment a 13-year-old boy has, as it were, boxed himself into a corner, where he has told all and sundry that he does not want to spend any time with his mother. The child will need, at some point, to find a methodology whereby he can “climb down” from that position if his current position is to change in the future. Whilst I do not consider that the father (or his partner) will necessarily stand in the child’s way, I think a more proactive role is likely to be needed. I am not convinced that the father has the emotional insight to bring that about unaided. I consider that his unilateral actions in taking a highly troubled child to south Queensland to live with people who, in reality, he did not know well, exemplifies my concerns in that respect.

13. Dr V’s comment in the witness box to the effect that, with all due respect, “the mother would be a nightmare to work with” had real resonance for me as someone who has had the direct experience of managing the mother during the course of litigation in what was, plainly enough, an extraordinarily stressful and difficult set of tasks for her. Dr V’s comment was neither gratuitous nor a criticism of the mother; rather it was a comment on how the mother’s personality structure (or, as the doctor saw it, personality disorder) impacts upon her capacity to contain powerful feelings and put aside what she sees as past wrongs and injustices.

14. That is, in my view, certainly true with respect to “major long-term issues” as defined in the Act. The perpetual long-standing and intractable disputes relating to the child’s schooling (which, by reference to the mother’s proposed orders, it can be seen persist) is but one, albeit telling, example. I consider the parents utterly incapable of reaching any realistic consensus about any important issue in the child’s life. As I have earlier said, in my view, that does not lead to the result that one parent should be totally excluded from any such decisions but, in my view, it does lead to the conclusion that only one parent should be ultimately responsible for the making of those decisions. In my view, that parent should be the father. The orders will make provision for a consultation process to take place, so as to not exclude the mother from those decisions, but will also make it very clear that the father will ultimately be able to make those decisions alone.

15. Those sorts of issues also impact directly on what I regard as the extremely important issue of providing the means by which the child can take steps to facilitate a relationship with his mother on his terms.

16. If that was left to the mother alone, I consider it likely that the child would be bombarded with the relentless pursuit by her of what she considered to be necessary for him; in short, I consider it extremely likely that there would be “more of the same” with little regard for the need for the child to be allowed to dictate the pace and timing of the repair of their relationship. Equally, I have expressed concerns about the father’s capacity to initiate steps with the child so as to allow him to facilitate that process. Added to that difficult mix is the opinion of Dr V, which I agree with, that timing is impossible to predict with accuracy.

17. The issues just discussed lead in my view to a conclusion which would see orders that permit the child to continue to live with his father; to accept the child’s wish to not have face-to-face time with his mother for the time being; to permit him to continue to have telephone contact with his mother (two times a week and as he requests) and to communicate by email and letter.

18. Also, however, they lead to a conclusion that some steps should be put in place to provide a structure within which the child might be assisted to commence a process of repair of the relationship with his mother and, consequently, a re-approachment to her, but on his terms and at his pace.

19. It needs to be accepted that the timing of any such process is necessarily arbitrary. I take into account that the child is approaching 14. His level of development will increase exponentially as he progresses through his teenage years. I consider that I should put in place an arrangement to commence when he is 15. That will allow him 12 months with, I hope, the freedom to enjoy emotional and psychological peace. It will permit him to have a structure whereby he, as a 15-year-old, can commence to work through issues with his mother on his own terms. I contemplate a structure for the child (as distinct from a structure for the benefit of the mother or the father). I propose to put orders in place so as to facilitate professional assistance being afforded to the child at the father’s expense, to commence when the child turns 15 or as might be earlier initiated by the child.

20. I do not propose to go seriatim through all of the orders sought by the mother. It seems to me that some could be struck out on their face (for example the order sought for the striking out of materials on a “voir dire”). The thrust of the orders sought by the mother are, in my view, clear and I have attempted to deal with them in these reasons.

21. It ought be noted, however, that the mother seeks an order pursuant to s 118 of the Family Law Act 1975 (Cth). The father seeks an order that the mother be restrained from commencing further proceedings without leave conditioned on what might conveniently be described as a “psychiatric condition” and the Independent Children’s Lawyer seeks an order in relation to interpretation. Each of those orders, from their differing perspective, have, in my view, a similar theme. Plainly enough this litigation must be brought to an end in the child’s best interests. Equally clearly, this Court cannot continue to be a forum for the agitation and re-agitation of the same issues, and nor should either party be involved in the time, stress and expense of litigation about matters which, all else being equal, should be brought to an end by these final orders.

22. However, the issues discussed in these Reasons, suggest an element of hope over expectation in stating that aim.

23. I am not prepared to make the orders sought by the Independent Children’s Lawyer – it seems to me to potentially have the opposite effect to that which it is intended to cure. But, it seems to me that an order should be made requiring any party to seek leave of the Court before proceeding to have the Court determine any parenting order or any issue arising from these orders. I propose to so order and to include an order that requires any such application to be served upon the other party and the Independent Children’s Lawyer but for the application for leave to be heard without the necessity of the respondent or Independent Children’s Lawyer filing material or appearing at the application, should they so choose.

24. I order accordingly.

I certify that the preceding 256 (two hundred and fifty-six) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 13 May 2011.

Associate:

Date:  13 May 2011