GOLDING and GOLDING

[2024] FCWA 304

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GOLDING and GOLDING [2024] FCWA 304

CORAM: SUTHERLAND CJ

HEARD: [REDACTED]

DELIVERED : 17 DECEMBER 2024

FILE NO/S: 1533 of 2018

BETWEEN: MR GOLDING

Applicant

AND

MS GOLDING

Respondent

Catchwords:

FAMILY LAW - CHILDREN - Where parents have an extremely toxic parenting relationship and are unable to co-parent their 15 year old child - Where the child "voted with his feet" to live with the father and have no contact with the mother - Where the child cannot have both parents in the "same psychological space" without significantly increasing his anxiety and emotional distress - Consideration of with whom the child should live, spend time with and communicate with - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr D Rice
Respondent	:	Mr C Cole
Independent Children's Lawyer	:	Ms J Johnston

Solicitors:

Applicant	:	Griffiths Rice & Co
Respondent	:	Rattigan Kearney & Bochat
Independent Children's Lawyer	:	Bannerman Solicitors

Case(s) referred to in decision(s):

Banks & Banks (2015) FLC 93-637

Bielen & Kozma (2022) FLC 94-123

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Golding and Golding has been approved by the Family Court of Western Australia pursuant to s114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

INTRODUCTION:

1Since February 2018, [Mr Golding] (the father) and [Ms Golding] (the mother) have been engaged in almost constant litigation concerning their son, [Child A], who is now 15 ½ years old. The parties agree that their parenting relationship is extremely toxic, and they are simply unable to co-parent [Child A]. In September 2019, during the first tranche of the proceedings, the Single Expert Witness, [Dr D], predicted that the parties had such fundamental differences in their personalities, eventually the time would come when it would be easier for [Child A] to choose to live with one parent and have little or no contact with the other. Sadly, [Dr D's] prediction has come to pass. In November 2023, [Child A] ran away from his mother's home. Since this time, [Child A] has lived with his father and refused to have any contact with his mother.

2The mother sought orders in the terms of her Minute filed [in] November 2024. In summary, she sought that: (1) [Child A] live with her; (2) he spend time with the father each alternate weekend from after school Friday to the commencement of school on Monday, and during the school holidays on a week about basis; (3) [Child A] spend Mother's Day with the mother, and Father's Day with the father; and (4) [Child A] be permitted to phone and video call the parent he is not currently with, in accordance with his 'reasonable' wishes.

3The father sought orders in the terms set out in his Minute filed [in] November 2024. In summary, he sought orders that: (1) he have sole parental responsibility for [Child A]; (2) [Child A] live with him and spend time and communicate with the mother according to his wishes, and to be initiated by him; (4) [Child A's] school be authorised to provide the mother with copies of documents such as [Child A's] school reports and awards; and (4) [Child A] continue to attend [Supported Education High School].

4Mr Bannerman was appointed as the Independent Children's Lawyer (ICL) to represent [Child A's] interests. The ICL sought orders in the terms of his Minute filed [in] December 2024, which were similar to the orders sought by the father. In summary, the ICL sought orders that: (1) [Child A] live with the father and the father have sole parental responsibility for him; (2) [Child A] spend time with the mother in accordance with his wishes, and the father do all things to encourage [Child A] to spend time with his mother; and (3) the mother's consent to the issue of an Australian Passport for [Child A] be dispensed with and the Department of Foreign Affairs and Trade be authorised to renew or issue a passport for the child without the mother's consent.

5At the commencement of the trial, the father indicated that he consented to the passport orders proposed by the ICL, as well as the order that he encourage [Child A] to spend time with his mother. At the conclusion of the trial, the father and Ms Johnston, the counsel for the ICL,[1] both agreed that there be some additional orders made in the event that [Child A] continued to live with the father, including in relation to: (1) the provision of some medical information concerning [Child A] to the mother; (2) the mother being permitted to initiate some communications with [Child A] (for example, by way of cards and small gifts on some special occasion days); and (3) orders to facilitate the father being able to travel overseas with [Child A] for holidays.

[1] In these Reasons, for ease of reading, I will simply refer to the counsel for the ICL as "the ICL" and when necessary to do so, specifically refer to Mr Bannerman by name.

6For the reasons which follow, I am satisfied that final orders should be made, largely in the terms sought by the ICL.

THE EVIDENCE:

7Section 102NA (2) of the Family Law Act 1975 (Cth) (the Act) applied in this matter. Both parties were represented by legal counsel at the trial.

8For the purposes of the trial, the father relied on his trial affidavit,[2] and several updating affidavits.[3] He also relied upon the affidavit of his partner, [Ms B], filed [in] July 2023. The mother relied on her trial affidavit filed [in] January 2024 together with the affidavit of her friend, [Ms C], filed [in] November 2024. The ICL and both parties also relied, to a greater or lesser extent, on two reports by [Dr D], filed [in] September 2019 (in relation to the first tranche of the proceedings) and [in] December 2023 (in relation to the current proceedings).

[2] Filed [in] July 2023.

[3] Filed [in] February 2024, August 2024, and October 2024.

9The parties, [Ms B], and [Ms C] were cross-examined by opposing counsel and the ICL (save and except for [Ms C], whom the ICL chose not to cross-examine). I am satisfied that the father and [Ms B] on the one hand, and the mother on the other hand, were simply unable to give their evidence in a balanced manner, due to their incredibly negative and fixed views of each other. Sadly, even in the formal environment of the courtroom, the hatred between the parents, and between the mother and [Ms B], was palpable. I am also satisfied that [Ms C] was also largely unable to give her evidence in a balanced manner, due to her unwavering (and entirely blinkered) support of the mother. In particular, it was clear from her cross‑examination that [Ms C] blindly accepted the mother's narrative about matters, and she was either entirely unaware of, or chose not to reveal, the ongoing conflict between the mother and [Child A] (particularly in 2022 and 2023).

10By contrast, I considered that [Dr D] was very helpful, professional, and balanced in giving their evidence; and I had no hesitation in accepting their evidence.

FACTUAL BACKGROUND:

Basic background facts

11The father was born in June 1975 and is now 49 years old. He is a [Public Servant]. The mother was born in May 1976 and is now 48 years old. She works as a [retail agency worker] on a commission basis.

12The parties commenced cohabitation in late 1999 and married [in] April 2005. At the time of their marriage, the father was 30 years old, and the mother was 29 years old.

13[Child A] was born in June 2009. [Child A] has a mild intellectual disability and in addition, was diagnosed as having autism in May 2019.

14The parties separated under the one roof in February 2017 and then physically separated on a final basis in August 2017, when [Child A] was eight years old. After separation, [Child A] primarily lived with the mother.

15I am satisfied that after the parties' separation, their conflict rapidly escalated. Each party made family violence and other allegations about the other party, and both parties "weaponised" complaint and court processes, including not only proceedings in this Court, but also competing applications for Violence Restraining Orders (VROs) in the Magistrates Court of Western Australia, the mother making formal complaints to the father's employer [Redacted] presumably to have him criminally charged and/or sanctioned and/or dismissed from his employment, and the father seeking to have the mother criminally charged for various matters.

History of the proceedings and other relevant events

16The father commenced parenting proceedings in this Court in February 2018. The mother filed responding documents in March 2018, also raising financial issues. Mr Bannerman was appointed as the ICL to represent [Child A's] interests, and [Dr D] was appointed as the Single Expert Witness. I do not propose to set out a detailed history of the first tranche of the proceedings, save to record that:

17 Firstly, the parties were involved in numerous interim and contravention applications in 2018 and 2019.

18 Secondly, [Dr D] provided [their] first report in September 2019 ([Dr D's] first report). The salient parts of the report, which I accept, were as follows:

a)[Dr D] opined that the mother presented with very strong, conflicted views. She had a very strong hatred of the father but wanted [Child A] to have a father. She was not good at taking feedback. She tended not to see her part in the conflictual dynamic between her and the father and instead, blamed the father. Whilst the father raised concerns that the mother was mentally unstable, [Dr D] opined that the larger part of the problem was the mother's personality and hatred, rather than mental instability.[4]

b)[Dr D] opined that the father was friendly and somewhat talkative, presented as quite organised and plausible in his explanation, but was not overly reflective and also struggled to take on feedback.[5]

c)[Dr D] opined that "while both parents presented as quite high functioning, there was a level of animosity, including violence restraining orders (VROs) and counter-VROs, allegations and counter allegations, which in a nutshell, could be reduced down to [the mother] seeing [the father] as controlling and manipulative, and [the father] seeing [the mother] as controlling and mentally unstable, because of the way in which she deals with issues".[6] They exhibited a high degree of "nastiness" between each other.[7]

d)At paragraphs 18 and 19, [Dr D] reported that:

18. Whatever happens, both parents are going to be involved in [Child A's] life. [Child A] loves both parents and, although [Child A] is very aware that his parents fight and do not get on, he is able to transition between both parents. It will only harm [Child A] if the parents cannot sort things out. I note that through various restraining orders, communications have largely shut down. I would recommend the parties consider using email communication through the Our Family Wizard app … However, I do not see mediation or family therapy likely to be beneficial, because the underlying core problems stem back to personality differences which have been evident from the beginning of the relationship.

19. The sad outcome is that where such fundamental differences in personalities are evident, there will come a time when it becomes easier for [Child A] to take a side rather than transition between the two houses. With his intellectual disability, that is likely to be a little older than the normal 12 to 14 years age range, but at some point, [Child A] will find it easier to stay with one parent and not the other. While at this stage he is a little more aligned with the mother, because of the nature of his personality and the differing parent arrangements, it could go in either direction, unless the parties can settle down the conflict.

[4] [Dr D's] first report: [21] – [25].

[5] [Dr D's] first report: [27] – [30].

[6] [Dr D's] first report: [3].

[7] [Dr D's] first report: [16].

19 Thirdly, [in] October 2019 the Court made a number of orders, including final consent parenting orders which provided, inter alia, for the parties to have equal shared parental responsibility for [Child A], and the child to live with the father for five nights each fortnight and otherwise with the mother.

20In late 2019, the parties' competing VRO applications were dealt with at a trial before a Magistrate of the Magistrates Court of Western Australia. The father's application for a final VRO was granted; the mother's application for a final VRO was dismissed. In summary, in his Honour's reasons for decision,[8] the presiding Magistrate found, inter alia, that the mother: (1) had made strategic, baseless complaints to get the father into trouble; (2) the mother had acted maliciously in sending a photograph of [Child A's] anus/genital area and financial documents to a paternal family member; (3) the mother was unhappy with the parenting orders made by this Court and she took steps to try to deny the father access to [Child A], including by surveilling the father; and (4) the mother had breached the interim VRO protecting the father by sending him a "manipulative and self-serving" email, which "was an attempt forcefully by [the mother] to impose a detriment on someone other than her and it did not mark her as a person who was either easily pushed around or influenced but rather marked her as a pusher and influencer and a manipulative person."[9]

[8] Refer to the Transcript for the hearing [in] December 2019: at page 44 onwards of the father's trial affidavit filed [in] July 2023.

[9] Refer to the Transcript for the hearing [in] December 2019: at page 54 of the father's trial affidavit filed [in] July 2023.

21In late 2019 and 2020, the parties continued to engage in litigation in this Court, including the father filing a further contravention application and the parties filing interim applications regarding various issues. The father then commenced the current proceedings [in] November 2020 and the mother filed her responding documents [in] December 2020. At the time, the key issue in dispute related to where [Child A] would attend high school. [In] December 2020, the Court made orders (as sought by the father) for [Child A] to be enrolled at a [Supported Education High School] to commence in Term 1, 2021. However, subsequently, both parties made further allegations and counter-allegations against each other, bringing the existing live with arrangements into contention, and they filed multiple interim and/or contravention applications. [In] January 2023, following a defended trial, the mother was found to have contravened various parenting orders without reasonable excuse, and was required to enter a bond. Orders were also made for the father to have make-up time with [Child A].

22It was common ground that [Child A] was exposed to the parties' ongoing conflict and had some awareness of the ongoing court proceedings. I am satisfied that he was harmed by the ongoing conflict. For example, I am satisfied that in mid-2022 the mother took [Child A] to the airport for handover (contrary to the existing orders and specifically against the father's wishes). An incident then occurred between the mother and [Ms B], during which the mother physically manhandled [Child A] to prevent him getting out of her car. The mother conceded under cross‑examination that the incident was unjustifiable and appalling. As a further example, the mother also conceded that her actions in making [Child A] bend over while naked, taking a photograph of his anus/genital area and electronically distributing the photo to various people was retaliatory and inappropriate.

23I am satisfied that particularly in 2022 and 2023, [Child A] and the mother experienced increased conflict with each other and that at times, the mother reacted angrily towards [Child A]. The subpoenaed notes from [Child A's] NDIS therapist, [Mr E], recorded that [in] June 2023 [Child A] said that he was "sick and tired of his mother being mean and rude to him".[10] [In] October 2023 [Child A] told another student at his school that his mother had been physically hitting him. The student reported [Child A's] disclosure to school staff, who then made a notification to the Department of Communities. [In] October 2023, a Child Assessment Interview was conducted with [Child A] at school, during which he made disclosures about his mother and voiced his preference to stay with the father.[11] The Department then commenced some safety planning with the parents. However, in the meantime [in] November 2023, [Child A] left the mother's care and moved to live with the father.

[10] Exhibit S7: entry for June 2023.

[11] Department of Communities Memorandum to the court dated November 2023.

24I am satisfied that [Child A] acted himself to leave the mother's care but sought his father's assistance (over the telephone), including to navigate the public transport system to get to his father's house. The following day, the mother waited for [Child A] after school and then followed him onto public transport, ignoring [Child A's] shouted requests that she leave him alone. [Child A] again contacted his father by phone for assistance and eventually the mother stopped following [Child A]. The mother subsequently contacted the police, requesting a welfare check of [Child A] at the father's home. I accept the father's evidence that the attending police officers spoke separately with [Child A] [in] November 2023 to ascertain his wellbeing. [Child A] again made a number of disclosures to the police officers about his mother.

25The Department concluded that [Child A] had "self-selected" to live with his father and it had no concerns for [Child A] in his father's care.[12]

[12] Department of Communities Memorandum to the court dated November 2023.

26[In] or about November 2023, the father applied for, and obtained, a VRO protecting [Child A] from his mother. The father also facilitated [Child A] to make a criminal complaint regarding his disclosures to the police during the welfare check [in] November 2023.

27[In] December 2023, [Dr D] provided [their] second report.[13] The salient parts of the report, which I also accept, were as follows:

[13] The report was annexed to his affidavit filed [in] December 2023.

a)After providing [their] first report, [Dr D] had no contact with the family until October 2023, when court orders were made for [them] to do an updated report.

b)Aside from meeting with the parties for the purposes of [their] second report, [Dr D] met with [Child A] on three occasions: [in] October 2023 (when he was brought to interview by his mother), [in] November 2023 (when he was brought to interview by his father), and again [in] December 2023, after [Child A] had run away from his mother's home and was living with his father. [Dr D] also spoke with [Child A's] therapist through the NDIS, [Mr E], who (at the time) had seen [Child A] for 59 sessions over the previous 2½ years.

c)[Mr E] reported that [Child A] has had issues for a long time with his mother. [Child A] loves his mother, but over a long period of time, expressed that his mother is mean and rude to him. At the time of preparing the second report, the mother had ceased [Child A's] therapy with [Mr E]. [Mr E] considered that the therapy should continue; and [Dr D] opined that the therapy should be court ordered and both parties restrained from any involvement unless requested.

d)[Dr D] opined that a perusal of the court documents over the past four years since [their] first report revealed that the parties had engaged in significant conflict, with no sign of any resolution; and that "(T)here was not a shred of evidence that the parties are co-parenting on the same page."

e)At paragraphs 16 to 19 of [their] updated report, [Dr D] summarised the ongoing disputes between the parties as follows:

16. The dynamics have been extremely difficult. For example, the mother moving further away, making shared-care not overly viable and in the process she has wanted to move [Child A's] school, the parties disagreeing on the nature of the schooling, the father describing the current school as providing a good level of support for [Child A], [Child A] liking it and thriving in the environment, the mother arguing that [Child A] should be in a more mainstream programme because, while he has a disability, he is being held back in the current forum and would learn a greater level of independence and skill in the school she is proposing. I note that [Mr E] is of the opinion that the current school is meeting [Child A's] friendship needs and he would be devastated if he had to change schools.

17. The parties have had reoccurring issues around the father's time with [Child A]. In particular, in the first week of each term the parties have a fundamental disagreement as to whether or not the father should have his overnight visit, the parties disagreeing around interpretation and the situation resulting in the disagreement overflowing to the school. This argument wastes a lot of Court time and is a source of significant conflict. When I have read the previous Court appearance, the mother was clearly told what the interpretation was, but then it occurred again at the start of 4^th term. When I asked the mother about it, she believes that Magistrate [Redacted] interpreted the Order wrongly. It is clear that this has to be defined.

18. When talking to the mother, she makes it abundantly clear that she believes the father and his partner [Ms B] are adversarial, oppositional, and not supportive. When speaking to the father, he paints a picture of [Child A] not wanting to be with the mother, that he is not happy and that the mother mistreats [Child A], particularly due to her dislike of the father and [Ms B].

19. Perhaps one of the few areas where the parties agree is that the arrangements are not working for [Child A], that ultimately the mother wants [Child A] in the school near her, essentially wants parental authority and the father to have holiday time which does not interfere with school. The father believes that [Child A] is at risk, that he and [Ms B] should have full care of [Child A], and that the mother's time should be limited, and that he and [Ms B] should have parental responsibility. The mother described wanting full care over [Child A's] education and ideally [the father] having more time in the holidays. I could not determine if she thought he should have any time during the school term.

f)[Dr D] opined that the mother came across as quite bitter. She was of the opinion that [Child A] did not like to go to his father because they argue so much and that he is "forced to go". (I observe that the mother maintained her belief under cross-examination. However, I am satisfied that there was simply no cogent evidence that [Child A] disliked going to his father's home because the father and [Ms B] argued so much; and that rather, [Child A] enjoyed going to his father's home). The mother also complained that [Child A] had been physically violent to her, and she believed that the father had "trained" [Child A] in this regard. (I observe that the mother also maintained her belief in this regard under cross-examination). However, I am again satisfied that there was simply no cogent evidence that the father had trained [Child A] in this regard, as alleged by the mother.

g)[Dr D] opined that the father presented as concerned about [Child A], particularly in regard to [Child A's] wishes and [Child A's] view that his mother was difficult to live with and had been abusive to [Child A]. The father detailed a number of incidents which had occurred over the previous year, including: (1) the mother insisting on one holiday handover occurring at the airport, and then physically restraining [Child A] from getting out of the car; and (2) the mother locking [Child A] out of her house, him becoming distressed and knocking on the door so heavily that he cracked the glass and cut himself.

h)At paragraphs 46 and 47 of [their] updated report, [Dr D] then summarised the developments that led to [Child A] changing residence, as follows:

46. While conducting this assessment there has been another incident of maltreatment allegations. This has been documented, reported to CPFS and Police. Over the space of several days, [Child A] had been fighting with his mother, he then ran away. This resulted in mother and [Child A] fighting over a phone in at the station and [Child A] got very minor scratches. [Child A] was unhappy and had gone to his father's house. On the recording [sic] the mother was following him and the father, and [Ms B] were coaching him to get on the bus and then train and not go to the mother.

47. This situation is problematic in so many ways. It is clear that there is a conflict with the mother and [Child A] at times. The mother seems to be unreasonable and reactive at times. It is evident that [Child A] is on the receiving end of actions by the mother. The father is classing it as abuse and while it may meet the definitions it is turning parent‑child conflict into [sic] criminal actions and weaponizing the situation. The way in which the Father and [Ms B] deal with things is also undermining the mother's position. [Child A] is a special needs child caught in the middle of this. He clearly for a long time favours the father. However, this ongoing situation must be incredibly taxing on him.

i)[Dr D] described [Child A] as a big boy (I observe that the father put his weight at around 100 kilograms). However, his personality, because of his disabilities, means that he is a sweet and loving boy with a sensitive nature, tends to be quite literal (not inclined to lie), is fairly "simple" and is mentally more like a 10-year-old. [Dr D] opined that there is no question [Child A] has an intellectual disability, is a vulnerable young person and his emotional development is significantly younger than his chronological age. He was quite aware of his parents' relationship difficulties.

j)[Child A] was consistent in his views across his interviews. He told [Dr D] that he liked to go to his father's house and had a good time. He did not identify any particular problems when at his father's house. On the other hand, with his mother, [Child A] said: "I don't like the yelling and swearing. There's normally lots of it by mum. She gets mad about something, sometimes I don't even know why she's mad." When [Dr D] asked [Child A] what might make it work better at each of his parents' homes, he said that: "With dad, everything's fine. With mum, no swearing, no punching, her to tell me what I did wrong so I can learn from it." [Child A] also told [Dr D] that he did not fight with his father but sometimes he did with his mother. [Child A] also described having a good relationship with the father's partner [Ms B]. He also spoke positively about his current school, including his friends, and that he liked the teachers and his Education Assistant.

k)At the second interview (prior to [Child A] running away), [Child A] told [Dr D] that his preferred living arrangement was: "I would want to live with dad and my step mum, I'd stay at dad's every school day." He also said that he was really frightened about telling this to [Dr D], because he thought that "(M)um will get angry and shout" at him. [Child A] also told [Dr D] that he wanted "mum to be happy at whose house I live at and to not argue. I've been asking for this for a while. I don't like upsetting mum."

l)At [Child A's] third interview (after [Child A] had run away), [Child A] told [Dr D] about what had happened. [Dr D] opined that it was clear that it was [Child A's] decision to run away and was unaided (albeit his actions were not discouraged by the father and [Ms B]). [Child A] told [Dr D] that he was happy at his father's place and was adamant that he did not want to see his mother or talk to her and was sick of arguments and (her) mistreatment.

m)At paragraphs 62 to 67 of [their] report, [Dr D] concluded that:

62. What was evident in this re-assessment, is that there is a toxic, conflictual dynamic which has continued between these parties, and has not remitted. Each sees the other as the perpetrator of the problem. I note that the Court needs to be able to test the evidence and make some findings, but I can say from what I have assessed, that the mother tends to have quite rigid and fixed views, and appears to interpret things based on her framework rather than a balanced point of view. The father's arguments seem more plausible, but there are elements which suggest the child has been influenced in the process, especially the comments around the way in which [Ms B] discusses issues with [Child A]. Their position is of loving concern but does have implications for [Child A].

63. It seems to be a point of agreement that the mother has a greater level of conflict with [Child A] than [sic] the father does, and [Child A] has clearly been voicing a view of wanting more time with the father and [Ms B] for a long time. Since running away from his mother's home he wants nothing to do with his mother. I suspect that will wane in the coming months as under it all, he does love his mother.

64. It is evident that co-parenting is not viable. Both parents appear to agree with this. Ultimately, I see there needs to be a prime residence and, with the distance created when the mother moved, the child needs to go to school near whichever parent has prime care. My recommendations in a perfect world would be every second weekend, with a pick‑up and drop-off from school. The timing of arrangements should be very clearly specified, e.g. which parent has the first week of each of the short holidays, and that the parent who has the first week becomes the trigger point for where the weekend comes, e.g. the Court keeps the child with the mother. If the mother has the second week, the father would have the child the first week of the school holidays and the first weekend of term. While processes such as alternating who has the first week, e.g. even and odd number years, alternating between holidays etc, has merit in some cases. In this case I believe it should be fixed to be the same pattern every term. However, [Child A] has voted with his feet and this will not be possible until there has been some repair with his mother.

65. The issue of level of harm needs to be determined. I understand there are current police and CPFS investigations and their findings will be helpful in determining whether [Child A] should be seen as being at unacceptable risk. However, I see it more as parent-child conflict rather than illegal acts of malicious harm.

66. In my opinion, [Child A] is happier with his father and [Ms B] and given his age and proximity to the school, they should have majority care. He has voted with his feet and at his size and stage [sic] of development any other option will be hard to implement.

67. I think [Child A] needs at least three months to calm down before any attempt at forcing contact with [Child A] and his mother takes place. If [Child A] wants to call or spend time with his mother it should be encouraged and the Orders allow for it to be facilitated.

28Although the father understood from the investigating officer that the mother was arrested and charged with aggravated common assault of [Child A] in or about January 2024, he conceded that the mother was not, in fact charged. However, during 2024 the father has periodically chased up the investigating police officer about the status of the criminal complaint.

29Since moving to live with his father, [Child A] has refused to spend time with the mother and has rebuffed her attempts to communicate with him. Pursuant to the terms of the final VRO made [in] April 2024 protecting [Child A] from his mother, she is currently unable to communicate with [Child A] by any means, unless initiated or invited by [Child A].

30[In] March 2024, the Court made interim orders (by consent as between the father and the ICL; and not opposed by the mother) that: (1) [Child A] live with the father; (2) the father have sole parental responsibility for the purposes of decision-making regarding any therapies and NDIS information for [Child A]; and (3) [Child A] communicate with and spend time with the mother in accordance with his wishes and the father do encourage and facilitate such wishes. [Child A] recommenced his NDIS therapy with his new therapist in or about May 2024.

31In June 2024, Mr Bannerman met with [Child A] and then reported, inter alia, that: (1) [Child A] was positive about most things in his life and the only thing he wanted to be critical of was his mother; (2) [Child A] had a firmly held view that his mother had involved him in the court‑based disagreement with his father and [Ms B] and he sees things in a fairly black and white fashion; (3) although Mr Bannerman made a number of suggestions to [Child A] about reconnecting with his mother, [Child A] was not agreeable; and (4) trying to force [Child A] against his wishes was going to be difficult and likely counterproductive.[14]

[14] Exhibit I6.

32[In] August 2024, the Court made interim orders suspending the interim spend time with order made [in] March 2024 and in lieu thereof, making orders for the mother to spend time with [Child A], supervised by [The Supervision Agency]. At the end of the day, the supervised time did not proceed, as [Child A] simply refused to attend.

33Under cross-examination, and after having the opportunity to review further relevant documents, [Dr D] expanded on [their] first and second reports. In particular, I accept [their] evidence that:

a)[Child A] should continue to live with the father. As [Dr D] predicted in [their] first report, [Child A] reached the point where he voted with his feet to minimise the harmful impacts to himself of the ongoing warfare between his parents. [Child A] cannot have both of his parents in the "same psychological space" and to now do so (for example: by resuming some sort of shared care arrangement or permitting his mother to attend school events or sports activities) will significantly increase his anxiety / emotional distress.

b)Although [they were] critical in [their] second report of the father for "weaponizing" complaint processes and court proceedings, [Dr D] confirmed that the reality is that both parties engage in this type of conduct.

c)Each party continues to wholly blame the other for the current circumstances and they have no insight into their own inappropriate behaviours. [Dr D] considered that each of the parties bears a significant proportion of the blame, albeit the mother has "the larger share". In particular, [Dr D] opined that: Firstly, although the mother fundamentally believes that the father has orchestrated the current situation, her own behaviour has significantly contributed to [Child A] now living with his father and refusing to have any contact with her. The mother and [Child A] have experienced conflict in their relationship over a long period of time, and [Dr D] simply could not get [their] "head around" some of the things the mother has done in the past to escalate things for [Child A]. Secondly, while there was some justification for the father's concerns about [Child A] when in his mother's care, the father's views were "extreme". The father (and [Ms B]) held fixed beliefs that the conflict between the mother and [Child A] amounted to "abuse". They are unwilling to support [Child A] having a relationship with "an abusive parent" and through their conversations with [Child A], are likely to be reinforcing to the child that the mother's behaviour is "abusive".

d)Given their fundamental personalities, family therapy will not assist the parties at all to develop some insight to help them overcome their entrenched conflict and fixed views about the other being harmful to [Child A]. Given his intellectual disability, family therapy will also not assist [Child A]. However, [Child A] should continue with his NDIS therapy, which is vital to building his emotional skills.

e)Any attempt by the Court at "social engineering" (for example, making orders that require [Child A] to spend time with or communicate with his mother), effectively to force [Child A] to have a relationship with his mother, will not change anything and will not work (unless actively supported by the father – which is highly unlikely to happen, given his entrenched views about the mother). However, a "crack in the door" needs to be left open for [Child A] to eventually repair the relationship with his mother. Although unlikely to occur until [Child A] reaches adulthood, if at all, it would be to his long-term benefit, both in terms of having relationships with both of his parents and because "avoidance and disrespect" are not good or helpful behaviours for adulthood / adult relationships. In this regard, [Dr D] recommended that the mother be permitted to have some communications with [Child A], so that he is aware that she loves him and misses him.

f)[Child A] enjoys attending at the [Supported Education High School], the school is supportive of him and his special needs, his NDIS therapist reported that [Child A] was happy at the school, and in [Dr D's] opinion, it made perfect sense for him to stay at that school (rather than move to [the Mainstream Public High School] as the mother sought).

APPLICABLE LAW:

34These proceedings are determined pursuant to Part VII of the Family Law Act 1975 (Cth) (the Act). In reaching my decision I will be guided by the objects of that Part, which are set out in s 60B. They are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child to which Australia is a signatory. In deciding whether to make a particular parenting order in relation to a child, I must, pursuant to s 60CA, regard the best interests of the child as the paramount consideration. In determining what is in a child's best interests, I must consider the matters set out in s 60CC(2) as follows:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

35Section 60CC(2A) provides that in considering the matters set out in s 60CC(2)(a), I must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for them, and any family violence order that applies or has applied to the child or a member of their family.

36The issues that are joined between the parties will dictate which s 60CC factors are relevant. The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[15]

DISCUSSION AND CONCLUSIONS:

What arrangements would promote the safety of the child and each person who has care of the child (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm).

[15] Banks & Banks (2015) FLC 93-637, Bielen & Kozma (2022) FLC 94-123.

37I am satisfied that the parties have an extremely toxic parenting relationship, to which [Child A] has been exposed, and harmed, over an extended period of time. Both parties have sought VROs against each other (and [Ms B] also sought a restraining order against the mother protecting herself after the incident at the airport in mid-2022). The mother's and [Ms B's] applications were eventually dismissed. The father was granted a final VRO against the mother, which was subsequently extended. It has now lapsed. The mother has been convicted of one breach of the VRO protecting the father, relating to the email she sent him in 2019.

38I am satisfied that in November 2023, [Child A] voted with his feet to minimise the harmful impacts to himself of the ongoing warfare between his parents. [Child A] cannot have both of his parents in the "same psychological space" and to now do so will significantly increase his anxiety / emotional distress. The father obtained an interim VRO protecting [Child A] from his mother in November 2023. The interim VRO was made final in April 2024, for a period of two years. The final VRO (subject to any orders of this Court) severely restricts the mother's ability to have any contact with [Child A].

39Although the mother believes that [Child A] is at ongoing risk of harm in his father's care, I am not persuaded that there was any cogent evidence that this was the case. I am satisfied that [Child A] is happy and safe in his father's care.

40The father believes that the mother has physically and emotionally abused [Child A] and that she poses an ongoing risk of harm to the child. Under cross-examination, the mother eventually and grudgingly conceded that she and [Child A] had experienced conflict in their relationship. Although the mother maintained that [Child A] was physically aggressive to her at times, she denied often being angry with [Child A] or using physical or other inappropriate disciplinary measures with him. On the other hand, over an extended period of time [Child A] has made reports of inappropriate behaviour by the mother, including her being mean and rude to him, lots of shouting and swearing at him, throwing things at him, and hitting him. [Child A] has made such reports not only to his father and [Ms B], but also to [Mr E], a fellow student at his school, Department of Communities worker(s) who attended at the school to interview [Child A] in October 2023, police officers who attended to conduct the welfare check on [Child A] at the father's home [in] November 2023, and [Dr D].

41Under cross-examination, the mother maintained her belief that the father engineered or influenced [Child A] to make false reports about her to independent third parties. She also gave the rather bizarre explanation that [Child A] made the false reports about her because he felt unsafe at his father's home and regarded her as his safe parent. While I am not satisfied that the father encouraged [Child A] to make false reports, I consider it very likely that he did encourage [Child A] to make his concerns about his mother known to third parties, such as [Mr E]. On balance, I am satisfied that [Child A's] reports to the father, [Ms B], and other independent third parties concerning episodes of conflict with his mother are likely to be generally truthful; and that [Child A] was harmed by the conflict with his mother, in the sense of being distressed and confused by his mother's behaviour towards him. However, I am not persuaded on the available evidence that the mother's behaviour was criminal, as the father appeared to maintain.

42In my view, and notwithstanding some grudging concessions late in her cross-examination, the mother did not demonstrate any real insight into, or willingness to accept responsibility for, her own inappropriate behaviours towards [Child A] over an extended period of time. In future, were [Child A] to live with the mother or spend significant time in her care, I have little confidence that she will be able to appropriately manage her behaviour during any further conflicts she may have with [Child A]; and that she is likely to subject [Child A] to further inappropriate behaviour (such as shouting and swearing at him) and cause him further distress and confusion.

Any views expressed by the child.

43I am satisfied that over an extended period of time, [Child A] has consistently told various people, including his father, [Ms B], Department of Communities worker(s), police officers, and [Dr D], that he wanted to live with his father. However, having regard to [Child A's] comments as recorded in [Dr D's] second report, I am also satisfied that until late 2023, [Child A] was afraid to tell his mother of his views, because he thought that she would get angry and shout at him.

44In June 2024, during his meeting with Mr Bannerman, [Child A] was positive about most things in his life but was very resistant to having any future contact with his mother. Since this time, [Child A] has also refused to spend supervised time with his mother, and expressed his view to the supervisor that he did not want any contact with his mother.

45Under cross-examination, the mother maintained her belief that [Child A's] views had been "coerced" by his father and [Ms B]. I am not persuaded this is the case, and rather, I am satisfied that [Child A's] views have been shaped primarily by: (1) him reaching the point where he needed to vote with his feet to minimise the harmful impacts to himself of the ongoing warfare between his parents; and (2) his experiences in his parents' two households, including liking to go to his father's house and having a good time, as compared with the ongoing conflict with his mother in her home, including his mother yelling and swearing at him. However, I also accept that [Child A] has been exposed to his father's and [Ms B's] negative views and undermining comments about the mother, and this may have influenced his views to some degree.

46Although [Child A] suffers from a mild intellectual disability and autism, neither the parents nor [Dr D] maintained that these conditions precluded the Court from taking [Child A's] views into account or that the Court should give them little or no weight. I am satisfied that I should give significant weight to [Child A's] views.

The developmental, psychological, emotional, and cultural needs of the child.

47As I have earlier identified, [Child A] suffers from a mild intellectual disability and autism.

48Over the years, the parties have had innumerable disputes over [Child A's] education, extra-curricular activities, and healthcare. [In] December 2020, the Court made orders (as sought by the father) that [Child A] be enrolled to attend high school at [Supported Education High School] from the commencement of Term 1, 2021. [Child A] will commence Year 11 in 2025, which will include a vocational component. I am satisfied that [Child A] is well supported by the school, is happy at the school, is making reasonable progress, and would be very distressed if he were required to move to a new school. [Child A] also continues to engage in various extracurricular activities which he enjoys, including basketball and netball.

49In late 2023, the mother withdrew her consent to [Mr E] continuing to provide NDIS therapy to [Child A]. In my view, the mother's decision in this regard was not child focussed, and instead was a reaction to her dissatisfaction with [Mr E's] recording of [Child A's] concerns about her being mean and rude. [In] March 2024, the Court made orders, inter alia, for the father to have sole parental responsibility for the purposes of decisions regarding any therapies and NDIS information for [Child A]. In May 2024, [Child A] recommenced his NDIS therapy with another therapist. I am satisfied that it is vital that [Child A] continues to engage with his NDIS-funded therapy and other supports and that the father will take appropriate steps to ensure that [Child A] continues to receive them.

The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional, and cultural needs.

50Save for the following matters, I am satisfied that each party individually has the capacity to provide for [Child A's] needs: Firstly, I am satisfied that since their separation, the parties have amply demonstrated that they have no capacity to co-operatively co‑parent [Child A]. Secondly, each party's ability to consistently meet all of [Child A's] needs has been compromised, to a greater or lesser degree, by their extremely toxic relationship with each other and their fixed beliefs about each other. Thirdly, the mother did not demonstrate any real insight into, or willingness to accept responsibility for, her own part in her conflicts with [Child A] prior to November 2023, including that her behaviour caused [Child A] to be distressed and confused, and contributed to his decision in November 2023 to live with his father.

The benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so.

51I am satisfied that "deep down", [Child A] dearly loves both his parents. However, he reached the point in November 2023 where he could no longer cope with the ongoing warfare between his parents and opted to live with his father and have no contact with his mother. [Child A] cannot currently have both of his parents in the "same psychological space". It is currently not safe for [Child A] to do so, as it will significantly increase his anxiety / emotional distress. To that end, I am satisfied it would not be in [Child A's] best interests to make orders to enable the mother to attend at school events and at [Child A's] extracurricular activities, even subject to the condition (as suggested by her counsel) that she not approach [Child A].

52As I have earlier found, I am satisfied that [Child A] is happy and safe in his father's care. I am also satisfied that [Child A] has a close and affectionate relationship with [Ms B]. There is a real benefit to [Child A] in continuing to have a relationship with his father and stepmother.

53[Child A] currently has no relationship with his mother. Notwithstanding the potential long-term detriments to [Child A] of not repairing the relationship with his mother (as identified by [Dr D]) I am satisfied that it would be emotionally harmful to [Child A] (and ultimately futile) to try to force him to repair his relationship with his mother in the short to medium term, including by making orders for a change of residence (as sought by his mother) or for him to be required to spend time with and communicate with his mother. This is because I am satisfied that:

a)[Child A] is adamantly opposed to having any contact with his mother and to force him to do so will inevitably cause him to suffer significant distress and anxiety.

b)The father and [Ms B] hate the mother and hold fixed beliefs about her being an abusive parent. As such, they are highly unlikely to genuinely support and encourage [Child A] to repair the relationship.

c)The mother hates the father and [Ms B] and holds fixed beliefs about them, including that they have "coerced" [Child A's] views and encouraged [Child A] to make false complaints about her. The mother also has little, if any, insight into her own inappropriate behaviours towards [Child A]. As such I have little confidence that anything will change in the short to medium term, should [Child A] live with or spend time with his mother.

d)As Mr Bannerman told the parties in June 2024, trying to force [Child A] against his wishes would be difficult and likely counterproductive. In particular, I am satisfied that: (1) the father is highly unlikely to genuinely encourage [Child A] to have contact with the mother, if so ordered; and (2) the mother simply has no viable or realistic plan to make it happen.

54I am satisfied that, as recommended by [Dr D], a "crack in the door" needs to be left open for [Child A] to eventually repair the relationship with his mother, even though it is unlikely to occur until [Child A] reaches adulthood, if ever. To that end, I am satisfied that the mother should be permitted to send cards and/or small gifts to [Child A] each year on his birthday and at Christmas; and that the mother should be permitted to send [Child A] a text message (including a photograph) on a semi-regular basis, so that he knows that she does love him and misses him.

Anything else that is relevant to the particular circumstances of the child.

55Both parties sought an order for sole parental responsibility. The mother conceded under cross-examination that if [Child A] continued to live with the father, then the father should have sole parental responsibility.

56There are no other circumstances that I consider relevant in making the decision of what is in [Child A's] best interests.

Conclusions.

57Having regard to my findings at paragraphs 37 to 56 above, I am satisfied that it is in [Child A's] best interests for final orders to be made that: (1) [Child A] lives with the father; (2) the father have sole parental responsibility for [Child A]; and (3) [Child A] spends time with and communicates with his mother in accordance with his wishes.

58The father's position at the commencement of the trial was that he would consent to the order sought by the ICL that he do all such things to encourage [Child A] to have contact with the mother. Even though I have significant doubts about the father's willingness to genuinely encourage [Child A] to spend time with his mother, I am satisfied that the order is appropriate and in [Child A's] best interests – even if just as a subtle reminder to the father of the ongoing and long-term harm that is caused to [Child A] by the continuation of the parties' extremely toxic parenting relationship.

59By the conclusion of the trial, the ICL and the father (but not the mother) also agreed to orders being made: (1) requiring the father to give the mother notice of any significant medical issues or hospitalisations concerning [Child A]; (2) permitting the mother to text [Child A] and send him cards and small gifts on special occasion days, (and on the basis that the father would facilitate [Child A] receiving any such gifts and communications); and (3) to facilitate the father being able to take [Child A] overseas for holidays, without the necessity for the mother to give her consent to the travel (and thereby reduce the likelihood of further conflict and applications having to be made to the court to permit the travel). I am satisfied that these orders are also appropriate and in [Child A's] best interests. In particular, as I have earlier found, I was satisfied that the mother should be permitted to send [Child A] a text message (including a photograph) on a semi‑regular basis (as well as cards and small gifts on special occasions) and consider that monthly text messages are appropriate.

60The ICL sought an additional order that the father be restrained by injunction from allowing any cards or gifts sent by the mother to [Child A] to be destroyed or discarded (on the basis that even if [Child A] refused to accept them when initially sent, he may later have a change of heart). I am satisfied that this order is also appropriate and in [Child A's] best interests.

61The father sought a specific order that [Child A] continue to attend at [Supported Education High School]. Even though such an order is arguably redundant, given that the father will have sole parental responsibility, I am satisfied that the order sought is appropriate and in [Child A's] best interests, particularly as it will clearly put an end to the ongoing disputes between the parties about this issue.

ORDERS:

62I propose to make the following orders:

1.All previous orders in relation to the child, [CHILD A], born [in] June 2009 (the child) be discharged.

2.The Applicant, [MR GOLDING] (the father), have sole parental responsibility for the child.

3.The child live with the father.

4.The child spend time with and communicate with the Respondent, [MS GOLDING], (the mother) in accordance with his wishes.

5.The father do all such things as to encourage the child to spend time with and communicate with the mother.

6.The mother be at liberty to:

a)Send the child a card and/or a small gift for each of his birthday and Christmas each year.

b)Send the child a text message (including a photograph, if the mother so chooses) on the first day of each month.

7.The father do ensure that the child receives any cards, gifts, and text messages sent by the mother pursuant to the preceding Order; and the father be restrained by injunction and an injunction is hereby granted restraining the father from destroying or discarding any cards and gifts sent by the mother to the child pursuant to the preceding Order, or knowingly permitting any other person (including the child) to do so.

8.The father do promptly keep the mother informed about all significant medical matters concerning the child, including any hospitalisations of the child.

9.The child continue to attend at [Supported Education High School] (the child's school).

10.The mother be at liberty to obtain copies of the child's school reports, progress reports, merit awards and any other similar documents and this Order be regarded as authorisation for the child's school to release such documents to the mother.

11. The father do have liberty to remove the child from the Commonwealth of Australia for the purposes of holidays without need for the mother's consent, provided that:

a)No later than 14 days prior to departure, the father provide the mother with details of the travel itinerary, including the departure and return dates from and to Australia.

b)The father keep the mother informed of any changes to these arrangements.

12. To facilitate the preceding Order, the necessity for the consent of the mother to the issue of a passport for the child be dispensed with and subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the child to enable him to leave the Commonwealth of Australia for the purpose of holidays.

13. This is an order to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties [in] April 2024 in the Magistrates Court at [Redacted] being complaint number [Redacted], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.

14. The Deputy Registrar, Magistrates Court, 150 Terrace Road, Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at [Redacted], and the Chief Executive Officer of the Department of Communities.

15. The Independent Children's Lawyer be at liberty to provide a copy of the reasons for decision to the Single Expert Witness.

16. All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

17. In relation to material tendered as an exhibit into evidence in these proceedings:

a)all parties must collect the exhibits tendered by them ("their exhibits"), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today's date;

b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits;

c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

18. All material tendered as an exhibit and uploaded electronically by the court will be destroyed by the court without notice to the parties on the expiration of 42 days from this order.

19. In the event of an appeal being lodged prior to the expiration period of 42 days, then the three immediately preceding Orders above do not apply.

20. The matter be removed from the Defended List.

21. All outstanding proceedings be otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

17 DECEMBER 2024