GUAN & HORTON

FAMILY COURT OF AUSTRALIA

GUAN & HORTON

[2012] FamCA 499

FAMILY LAW - CHILDREN - Best interests of child – What time the child should spend with his father, if any – Whether the child would be exposed to an unacceptable risk if he were to spend time or communicate with his father – Mental health of both parties of concern - Whether the mother should continue to be permitted to travel overseas with the child each year - Whether the mother should have sole parental responsibility for the child or whether the parties should have equal shared parental responsibility

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422

APPLICANT:

Ms Guan

RESPONDENT:

Mr Horton

INDEPENDENT CHILDREN’S LAWYER:

Sarah Bevan

FILE NUMBER:

PAC

1115

2007

DATE DELIVERED:

5 June 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

19, 20 and 21 July 2011, 24 and 25 May, 5 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

First Stanza: Ms Aliosio

Second Stanza: Ms D’Addona
Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

First Stanza: Mr Cook
Second & Third Stanza:
Mr Horton in person

SOLICITOR FOR THE RESPONDENT:

First Stanza: Mr Amos Adams & Partners
Second & Third Stanza: Mr Horton in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Greenaway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bevan

Sarah Bevan Family Lawyers

Orders

That all previous parenting orders in respect to R Guan born … July 2005, with the exception of the order made in the Federal Magistrates Court on 14 October 2009, shall be and are hereby discharged.
That the mother shall have sole parental responsibility for the said child.
That the said child shall live with the mother.
That the father shall spend time with the child at Z Contact Centre on four (4) occasions in each year provided however in the calendar year 2012 there shall be two (2) such occasions. Such occasions are to be no less than two (2) months apart and none of the four (4) periods that the father shall spend with the child shall be arranged so as to fall during any New South Wales Public School Holiday.
That the father shall arrange such dates and times with the Centre and to notify the mother, giving her at least twenty-eight (28) days notice, of the time and date so appointed.
That in the event the father either:
a) fails to make two (2) consecutive appointments so as to comply with my orders; or
b) having made such appointments fails on two (2) consecutive occasions to attend for the time with the said child without reasonable excuse;
then the order for the father to spend time with the child shall stand discharged.
That any costs associated with the father spending time with the child at the Contact Centre are to be the sole responsibility of the father.
That the mother, within twenty-eight (28) days, shall arrange an appointment for the child to see a paediatrician for the paediatrician to examine the child and determine if the child is suffering from any medical or psychiatric condition. In the event that a diagnosis is made of any condition, then the mother shall faithfully follow all steps and do all things as recommended by the Doctor, including obtaining and providing medication for the benefit of the said child.
That the mother, within fourteen (14) days of this day, shall arrange an appointment to attend upon a psychologist nominated by her General Practitioner to assist her as recommended by that psychologist. The mother shall continue and conclude any course of therapy required and recommended by that treating psychologist.
That the father is hereby restrained from contacting or approaching the child’s school.
That the father is hereby restrained from attending at or approaching within one hundred (100) metres of the child’s place of residence.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Guan & Horton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1115 of 2007

Ms Guan

Applicant Mother

And

Mr Horton

Respondent Father

REASONS FOR JUDGMENT

Introduction

This matter concerns the time the father is to spend with the parties’ only child, R, (“the child”). Also in dispute is whether or not the father and mother are to have equal shared responsibly for their son. The father raises the further issue of whether the mother should be allowed, as she is at present, to take the child overseas to China in accordance with the existing Orders or, in his case, at all.

Brief background

A brief background of this matter is as follows:-
·The father was born in 1953.
·The mother was born in 1965.
·The parties met on 17 August 2003, married in October 2003 and separated in about January 2006.
·The parties were divorced in August 2007.
·There is one child, R, who was born in July 2005.

The parties’ applications

The parties’ applications have changed somewhat throughout the course of the hearing and submissions. The mother filed an Amended Application on 29 March 2011. In that, she sought sole responsibility for the child, for the father to spend time with the child each alternate Sunday at W Contact Centre for a period, graduating to the father’s time being each alternate Sunday between 10.00 am and 6.00 pm. That situation has changed significantly during the course of the hearing.
In her evidence, the mother had indicated that she proposed supervision of the father’s time with the child should continue beyond the child’s eighth birthday, consistent with her original proposal. In a short minute of order handed to me at the commencement of submissions, the mother sought the discharge of all previous Orders except that made in the Federal Magistrates Court allowing her to travel to China with the child. She sought that she have sole parental responsibility for the child, and for the child to spend time with the father at Z Contact Centre on three occasions in each year. She also sought the husband be restrained from attending the child’s school and her place of residence.
The father filed a Response on 22 June 2011. He conceded that the child should live with the mother and that he should spend time with the child from after school Friday until 6.00 pm Saturday, building up to concluding at 4.00 pm on Sunday afternoon, each alternate weekend and at specified times on the child’s birthday, Father’s Day, and his (the father’s) birthday each year.
Counsel for the Independent Children's Lawyer at the commencement of submissions handed to me a minute of the orders sought by the Independent Children’s Lawyer. It was the Independent Children’s Lawyer’s position in submissions that the mother should have sole responsibility and the father should not spend any time with the child but be at liberty to send to the child, at an address nominated by the mother, cards and letters which the mother must then pass on to the child. Also sought was an order that the mother’s current address was to be … Y Street, Suburb X, and in the event of any immediate change, that she notify the father of her new address.

The parties’ documents

The parties relied upon various documents in their respective cases.
In the mother’s case, she relied upon:-
·Her affidavit sworn 7 June 2011 and filed 9 June 2011;
·Her updating affidavit sworn 21 May 2012 and e-filed on 21 May 2012; and
·A Notice of Child Abuse filed 27 January 2010.
The father relied upon the following:-
·    An affidavit of himself sworn 8 June 2010 and filed 8 June 2010; and
·    A further affidavit of himself sworn 22 June 2011 and filed 22 June 2011.
·    I permitted him to hand to me at the commencement of submissions a document in which he set out certain aspects of his case. Whilst that was not evidence in the sense that it was on oath or tested, it was something that neither the mother nor the Independent Children's Lawyer had any objection to me seeing.

The reports

In addition to the affidavit material, there were before me two reports:-
· a Magellan Report dated 17 March 2010 and released on 29 March 2010; and
· a report of Dr R dated 12 February 2011 and released 18 February 2011.
There were also a significant number of documents tendered into evidence by the mother, the father and the Independent Children's Lawyer.

The hearing before me

The matter was heard in two parts. On the first occasion in July 2011, the father was represented by a solicitor, who had briefed counsel. On the second occasion in May 2012, he appeared unrepresented, but sought to continue with the hearing of the matter, rather than seek an adjournment or postponement.

The mother’s case

The mother’s case is, as I understand it, that she wishes the father to have a part in the child’s life. However, she asserts that the child needs to be protected from the father. She asserts that the father has, from time to time, injured the child, and in this respect, she particularly relies upon an injury that was observed on the child when he returned to her from his father’s care on 26 December 2009. The father’s time with the child has been very much curtailed since that date.
The mother gave her evidence in an apparently straightforward manner. As I say, she made it very clear that she wished the father to play a part in the child’s life. However, it seemed to me that the thrust of her evidence was completely contrary to that proposition as advanced. I formed the view that she would find any excuse to curtail or completely eliminate the father’s time with the child. I am concerned as to her own wellbeing. It will be recalled that in his report, Dr R had indicated that the mother should obtain some assistance for herself. The mother brushed that suggestion off. In her evidence given when the matter resumed, she asserted that she now felt all right and there was no need for anything of that nature.
The mother gave evidence of what she asserted were a number of episodes where the father had, in some way, injured the child.
Her evidence was that, initially, she believed her son should be a little older before the father should see him unsupervised. She said that she believed supervision should continue until the child could ask for help if he needed it. She said that the father had smacked the child and she had taken photographs.
She said that the child had, at times, come home from preschool bruised and that she was concerned and had told the police. There is a record of that report being made.
I am satisfied that the mother has never accepted that her child may have specific difficulties. Dr R, in his report, made it clear that he believed that it was appropriate and, indeed necessary, for the child to be seen by a psychiatrist or a paediatrician so that a proper assessment could be made as to any specific difficulty or condition affecting the child. Dr R was concerned that the child may be affected by Attention Deficit Hyperactivity Disorder and/or Oppositional Defiant Disorder. The mother has completely ignored the necessity or desirability of such a course of action.
The mother says her son always tells the truth, that he would not tell a lie to anybody, and particularly not to police. The mother said that she had never tried to alienate the child from his father. I am satisfied that the mother understands the concept of alienation. However, I am satisfied that, either deliberately or subconsciously, that is precisely what she has endeavoured to do. I am satisfied that she finds any contact with the father unpleasant. I am further satisfied that, despite her protestations, she would be only too happy if the father were not to be involved in any way with the child’s life, and thus not be involved with her in any ongoing situation.

The father’s case

The father’s evidence I found to be of particular concern. He gave evidence of his living arrangements. Initially, he had said that he was living in premises that his family permitted him to occupy. He said he paid no money by way of rental or fees. On the resumption of the hearing, it was made clear, by documents produced on subpoena from a real-estate agent (and tendered as Exhibit 1), that he was leasing the premises in which he lived, and that he was paying a significant rent of some $270 per week for his possession and occupation of that premises. His explanation for this was that his family reimbursed him for the rental monies he had paid.
I understand that the father may have a very deep-seated and dearly held belief as to the damage being done to the environment by members of the human race. However, I found this argument in answer to questions put to him to be an irrelevance. It was a belief, however, that he was determined to cling to.
I was concerned with his attitude as to non-payment of fines. His reason for non-payment of fines was that the government had kept stolen lands. I did not understand what was meant to be conveyed by this proposition. It is of note, however, that the father, having advanced a reason for not paying fines, was receiving benefits from the Commonwealth and financial assistance from the State, in the guise of Legal Aid from the Legal Aid Commission of New South Wales. Thus, his behaviour was clearly hypocritical.
I am concerned about his attitude towards police. He was stopped for a random breath test. A policeman not only has a right to require a driver to give a sample of his breath, but indeed has a duty to do so. The father said that he tried to joke with the policeman and say “You go first”. The policeman, quite understandably, deemed this to be a refusal to provide the appropriate sample and charged him accordingly. The father’s reaction to that situation was to accuse the policeman of bullying him.
Throughout the father’s evidence, he maintained he was the victim of a number of conspiracies. He said politicians were only motivated by money, the Courts were corrupt and the administration was corrupt. The focus or victim of any such conspiracy was inevitably the father. To my mind, that indicates some element of wrong thinking on the part of the father and an inability to accept reality.
He was questioned at length about his admission to a hospital psychiatric unit. I am satisfied that this arose as a result of him making to a member of Disability Services Australia comments which amounted to a threat to a Federal Magistrate. There is no doubt that the father was seriously affronted by the Orders made by the Federal Magistrate on 14 October 2009 in respect of the mother being allowed to take the child to China, firstly for a specified period, and thereafter, for a period in each year.
The father clearly felt that the learned Federal Magistrate’s decision was wrong. He lodged an appeal. The appeal was dealt with on about the 8^th of March 2010 and, as I understand it, he was admitted to the psychiatric unit some two days later. There was evidence to be found in Exhibit 3 (subpoenaed documents of the New South Wales Police) and in Exhibit 6 (subpoenaed documents from Disability Services Australia) that he had made what could only be regarded as threats. In his evidence before me, he had indicated that he said words to the effect that the Magistrate needed to be taken out of Court, pushed up against a wall and dealt with.
As far as I can ascertain from listening to the father, he (a) thinks that this is a perfectly proper course of action because of his deep dissatisfaction, and (b) that no one would be in any way alarmed by him saying these things. The psychiatric unit subpoenaed documents (Exhibit 5) also indicate that the father appears to have said things about the police, which on the face of them, were a threat to harm police.
One of the matters that he raised in the second stanza of the hearing was a stroke. It was his evidence that he had suffered a stroke, which had affected him very significantly. He said that the stroke had caused him to be forgetful, and indeed, in his submissions to me this afternoon and in his written document handed to me this same day, he seems to indicate that the whole of the difficulties that have arisen are because of a stroke that he suffered.
The difficulty with that proposition is, when asked about medical evidence that might confirm the fact of and the extent of any such stroke, he told me that this was what he believed had happened to him, and indeed, some of his friends had said that that is what had happened to him. He told me that a lady he knew, who was a practising psychiatrist had, as I understood his evidence, said that that which he had described sounded to her like a stroke.
For the father to advance the proposition that he had suffered a stroke, based on that material, I find hard to accept. I find the father has sought to use the claim that he had suffered a stroke as a convenient excuse for lapses of memory, and indirectly, as a method of explaining his behaviour when that behaviour has appeared somewhat extraordinary. An example of this is the episode involving the random breath test, where he suggested that the policeman take the breath test first. The father presents in such a way that the Court is entitled to have concerns as to the state of his mental health.

The evidence of the Family Consultant

Family Consultant Ms B gave evidence in respect of her supervision of the father’s time with the child on 11 and 25 October 2011. She makes it clear that, on those occasions, the child was happy in the presence of his father and that they appeared to react well together. I am satisfied that her observations are correct. I am satisfied the child was pleased to see his father, that he sought his father out, that he engaged in play and appeared comfortable and relaxed. I am concerned that the father had said to the child that the mother would not let him (the father) “come to your house” and there was some discussion about China, and the father had said to the child that he would not permit the child to go to China because his mother would not bring him back. At interview, the father also spoke of the need for the child to forgive his mother and for God to forgive the mother.

The evidence of the Chapter 15 Expert

The last witness to give evidence was Dr R. Dr R’s report is a document that has given me great assistance in this matter. That report concluded by making recommendations that the father should see the child, and his time with the child should be built up.
After Dr R was made aware of matters that had arisen in cross-examination of the father, such as the police episode, and the father’s evidence of storing the child’s vomit in the fridge for a two year period in some attempt to prove the mother had fed the child egg, which he says the child is allergic to, Dr R said that the father’s behaviour would best be described as “bizarre”.
I am satisfied that Dr R, as part of his evidence before me, considered whether or not there should be recognition time by the father with the child, or whether contact between the father and child should be limited to cards and letters to be sent by the father to the child. It is that latter course that has been adopted by the Independent Children’s Lawyer.
Dr R said that he was, indeed, leaning towards cards and letters until he could be satisfied the father had taken appropriate steps with regards to his mental health. Again, he said that the father’s activities (as described to him by the Independent Children’s Lawyer) had been bizarre or delusional. He said the risk of the child being let down by the father was significant.

He made a provisional diagnosis of the father being delusional and narcissistic. He went on to say that the father believes authority to be corrupt and that he has been unfairly dealt with. Dr R found that the father believed there was a conspiracy against him. He said the father was greatly concerned about the child travelling to China and not being returned.
The father said that it was for this reason that he had chosen not to see the child. I find this hard to understand. However, I record that the father now says that he will comply with whatever orders I make for him to see his son.

What do i make of the evidence of the parties & the witnesses

The evidence then left me with this impression of each of the witnesses. The mother, whilst saying that she wishes the father to play a part in the child’s life, does not wish this to occur. I am satisfied the mother believes herself to be well and has not taken any steps in accordance with the recommendations of Dr R to seek, for herself, any counselling, therapy or assistance. I am more concerned that the mother has not thought it necessary to take the child to be examined by an appropriate medical specialist as to any difficulties that may affect the child, and to determine, if necessary, the appropriate method of dealing with all or any of those conditions.
I am satisfied that the mother seeks to put off as far as possible, and if possible, totally eliminate, the father spending any time with the child, and certainly any unsupervised time with the child. I am satisfied that the mother, however, loves the child deeply.
I am satisfied that the father also loves the child. However, the totality of his evidence has caused me concern as to his capacity to play a meaningful part in the child’s life. I will return to this aspect later in my reasons for Judgment. I am also concerned the father has a deliberate mindset as to what he considers to be right and wrong and the actions that he will take when he considers something to be wrong.
His explanation as to why he had not seen the child, when he had the opportunity to do so, left me confused. As I understood it, he said that if he saw the child it was likely that the mother would take the child to China and not return. His application is to see the child on a regular basis and, within a relatively short time, have the child spend time with him each alternate weekend, overnight. The orders seem to be at complete odds with his expressed fear of the mother removing the child if he sees his son. Thus, that which is presently sought by the father cannot be reconciled with his expressed fears that the child might be removed from the Commonwealth of Australia if he endeavours to see the child.
I found the evidence of Ms B, of what she had observed and to which she had applied her expertise to provide an opinion and observation to the Court, was, in all the circumstances, a perfectly proper expression of her expert opinion.
Dr R was, indeed, most helpful. He set out in his report the matters that he observed and the concerns that he held as a result of the time he had spent with the parties and with the child. Significantly, in cross-examination, when material of which he had no prior knowledge was put to him, he was prepared to make proper and appropriate concessions and, in the light of the material that was indeed put to him, he changed his opinion as to what should occur. Having made, as I have said, a provisional diagnosis of the father being delusional and narcissistic, Dr R indicated that his choice would be for the father’s time to be either for identification only, or communication be by means of cards and notes sent by the father to the child.

The law to be applied

I turn to the law to be applied. The first of the matters to which I believe I should have regard to are the primary considerations set out in section 60CC of the Family Law Act 1975 (Cth). Section 60CC(2) sets out the primary considerations, which are (a) the need for a child to have a meaningful relationship with a parent, as against (b) the need to protect the child. This is a balancing exercise, whereby one consideration must be balanced against the other. Of assistance to me in determining which of those two matters might, indeed, take precedence are the matters set out as additional considerations in section 60CC(3) of the Act.
The first of the additional considerations are any views expressed by the child and factors underlying those views (subparagraph (a)). The child clearly is happy to see his father. The child clearly has an enjoyable time with him. I am satisfied that he also appeared very comfortable when in the presence of his mother, as observed by Dr R. However, the child has not expressed any view in the sense that he has made any meaningful statement to any person as to what he would wish to occur.
I turn then to the nature of the relationship of the child with each parent (subparagraph (b)). The child’s relationship with his mother has clearly been the sustaining relationship in his young life. She has been the person who has cared for him and provided him with all of his requirements to this time. The father, for a period of time, was involved in the child’s life. However, for a very significant period of time, that is, since December 2009, he has been absent from the child’s life, save for the two facilitated times in October 2011. That may well not be of his own choosing. However, I must record here that since Orders were made which enabled the father to spend time with the child at a contact centre, he has chosen not to do so. It seems to me, therefore, that the nature of his relationship with his son is, at the present moment, unknown.
So far as I am aware, there are no other persons, such as grandparents, aunts and uncles, who are in any way actively involved in the child’s life.
The willingness and ability of each of the child’s parents to facilitate and encourage a relationship (subparagraph (c)) is the next matter I must consider. I have found that, notwithstanding the mother’s protestations, she is indeed a person who has done her best to exclude the father from the child’s life. She has, as the case has continued, sought to have any orders that may be made provide for a longer and longer period of time to elapse before the child might spend any unsupervised time with the father. She asserts that it is her belief that father and son should see each other, but she has done nothing to encourage or achieve that situation.
The father in this regard is an unknown quantity. However, to my mind, this consideration does not apply to him as strictly as it would to the mother. That is, that the mother appears less willing to facilitate and encourage a relationship between father and son than, on the evidence, the father appears to be in relation to facilitating and encouraging a relationship between mother and son. He is not seeking to have the child live with him, although he made some suggestion of that at some stage during his evidence. It is to the mother that the major criticism under this section must fall.
As to the likely effect of any change in the child’s circumstances (subparagraph (d)), the father’s proposal, as I have outlined, is that he should immediately commence to see the child in an overnight situation. Thereafter, his time should extend and increase until the child is spending overnight alternate weekend time with him. This would be a very significant change in this little boy’s life. It would be a change that would take him away from his mother for longer periods than has been the case. I say that in the knowledge that Orders were made by Flohm J on 19 September 2008, giving the father time with the child.
However, I am satisfied that, whilst the child now has some idea of who his father is, and certainly enjoyed time with him in October 2011, to take him from his mother and place him with his father, as his father belatedly appears to seek, could well have a significant effect on this child.
I am unaware, and I lay the blame for this squarely at the mother’s feet, how the child would be affected by the conditions identified by Dr R as Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder, conditions which Dr R believes the child may suffer from. Dr R most forcefully recommended the mother should have investigated. She has not done so, and that must be a matter for criticism of her. The end result is that I am unable to say, with any certainty, what effect those conditions might have upon the child were he to spend time with his father.
The practical difficulty and expense of spending time and/or communicating with a parent (subparagraph (e)), to my mind, is of itself not a great concern in this matter. If I were to order supervised time, then a contact centre is apparently available. If I were to order time more in line with what the father seeks, there would at least be the ability and capacity for changeovers for that time to occur at a contact centre, or such other nominated place.
The capacity of each of the child’s parents (subparagraph (f)), which I couple with the attitude to the child and the responsibilities of parenthood (subparagraph (i)), are matters that cause me concern. In the mother’s case, as to her capacity, I remain concerned that she has not, for herself, sought any appropriate intervention. I repeat, probably to the point of boredom, my concern that she has not taken her son for the examination that Dr R indicated was, in his view, very important.
Having said that, I am satisfied that she has provided the essentials for her child, to a significantly high degree. She has accommodated him, clothed him she has presented him for school, and she has cared for him in a loving and careful way. I am concerned that, in the past, there appeared to be, in her mind, situations where preschools were dealing with her son in a physically inappropriate manner, which she said caused her concern. She made complaints about this. It also appears that she was not prepared to accept from the child’s preschool that her son exhibited behaviour which was, in circumstances and from time to time, wholly unacceptable.
So far as the father’s attitude to the child is concerned, I am satisfied that he loves the child. However, there are the matters that I have identified as to the potential for his mental health to be a factor that would, in many ways, tell against him spending time with the child that I must take into account. One of the other matters that I would take into account, as far as his attitude to the child is concerned, is the amount of child support that he has, or indeed has not, provided for the child from time to time.
So far as family violence is concerned (subparagraph (j)), it is the mother’s case that the father has been verbally aggressive to her from time to time. I have no doubt that both these parties have, from time to time, been quite forceful in what they have said to each other. I am not satisfied that the mother is a person who is overborne by the father. I am satisfied that in confrontations with him, and I am satisfied there were such confrontations, that she has given as much or as good as she has received from the father.
So far as the father being violent to the child is concerned, the mother has given evidence that she takes photographs and makes reports to police about the father harming the child. Clearly, something happened on 26 December 2009. The father gives an explanation, which I find hard to accept, about a toy truck and a Buddha, and the child having a small mark on his face when he was returned to his mother. It is the father’s case, as I apprehend it, that the mother in some way enhanced a photograph taken some little time later to show or demonstrate a bruise or mark far greater than that observed on the child when he left his father’s care. To my mind, this is a further indication of the father’s view that everyone is against him, and all things that appear to be to his detriment are the result of a conspiracy or activity by others to ensure that his rights are in some way infringed or dealt with to his detriment.
The next of the matters that I must take into account is the result that would least likely lead to the institution of further litigation (subparagraph (l)). This is very difficult to predict. In this case, I believe I am required to apply the factors that I have set out and reach a conclusion which balances the benefit to the child of a meaningful relationship with both parents as against the need to protect the child from any physical or psychological harm.
I am satisfied that the father’s position, presentation and situation at the moment is one that must cause me real concern. “Meaningful relationship” is, of course, not a matter that is easily defined. It is certainly not defined in the Act. What it means, so far as I am concerned, is that a child, in all the circumstances of the case, should know as much of a parent with whom he or she is not living as possible, while protecting the child.
As I have said before, it is to be remembered in this case that the father is not seeking that the child live with him, despite having raised that in the course of evidence before me.
The next of the matters I must turn to is section 61DA. That deals with the presumption of equal shared parental responsibility. The presumption shall not apply if there has been family violence. In this case, I am not satisfied that I can find established family violence such as would make the presumption inapplicable. I am satisfied, as I have said, that these parties have, at times, both been significantly confrontational. I am not satisfied, however, that that amounts to verbal abuse by the father upon the mother as she asserts.
I am satisfied that the child has, on occasions, returned from the father to the mother with marks on him. However, I am not prepared to find that those marks were inflicted on the child as a result of some form of abuse by the father. Rather, it seems to me, that the father was, when his son was with him on those occasions, inattentive and did not supervise to the required standard. Whether it was because of an inability to do so or a matter of choice by the father, I cannot determine. However, I am satisfied the child has suffered injury by inadvertence, rather than by deliberate action on the part of the father. I am satisfied that the mother has made much more than was necessary of these episodes.
Subsection (4) of that section, however, makes it clear that the presumption for equal shared parental responsibility may be rebutted on the evidence. In this case, I have the evidence of both parties. The mother, in my view, makes it abundantly clear that she wants nothing to do with the father. She does not wish to speak with him. She does not wish to have any dealings with him whatsoever. The father says, from a position where optimism overrides reality, that the mother really is quite sensible and that if she were, in fact, shown the error of her ways, then everything would be all right. I do not accept this.
Further, I do not find that the father would necessarily be prepared to deal with the mother in an appropriate and proper fashion if they were required by operation of the Act to together and collaboratively deal with significant issues such as education, religious upbringing and matters of that kind that would affect their son’s life. To my mind, to require these parents to deal with each other and communicate with each other, so as to discharge the functions of equal shared parental responsibility, would be the imposition of a sentence. I am satisfied that, were I to do this, it would have an effect upon the mother that, in turn, would affect her capacity to care for her son.
I am satisfied that there is absent in this case, on both sides, a level of trust such as I would believe necessary for equal shared parental responsibility to function at a satisfactory, much less optimum level, for the benefit of the child.
Accordingly, in this situation, I do not propose to order that the parties have equal shared parental responsibility. In my view, the person with whom the child is to live should thus have the responsibility for making those significant decisions concerning the child. There is no challenge on the father’s part that the appropriate person for the child to live with is the mother, and in those circumstances, I would propose to order firstly, that the child live with the mother, and secondly, that the child be under the sole parental responsibility of the mother.
The question then becomes one of the time the child is to spend with each parent. As I have said above, it is clear there is no contest that the child is to live with his mother. The question remains then as to what time the father is to spend with his son, if any. The Act makes it clear that if equal shared parental responsibility is conferred then I must turn to a consideration of whether there is to be equal time with each parent or significant and substantial time with a parent.
Their Honours of the Full Court in Goode & Goode[1] made it clear that, even if there is not an order for equal shared parental responsibility to act as a trigger, those matters still need be examined and determined for the benefit of the child. There is no suggestion here of equal time. It is not sought by any party in the proceedings, nor in the circumstances of this case, would it be in any way appropriate.
[1] [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422
I turn then to the issue of substantial and significant time. This is another phrase that has some difficulty in definition. I am satisfied that “substantial and significant” is not to be based on a quantity or length of time, but rather it is a qualitative concept with which we are dealing. In this present situation, the question is this:- Should there be no time as proposed by the Independent Children’s Lawyer? Should there be some supervised time as proposed by the mother, or should there be significant overnight time as proposed by the father?
Working in reverse order, I am satisfied that in all the circumstances of this case, for the father to spend the time he submits is appropriate with the child, would not be in the child’s best interests. I am concerned that if the father were to have unsupervised time with the child until he has dealt with his own issues, the child could well be exposed to significant danger because of the father’s attitudes and because of the prospect of a repeat of the father’s past actions.
In saying this, I repeat, I am satisfied that the father loves his son. However, there remains, in my mind, the conclusion that much of what the father has done is being done to prove himself right and the mother wrong in the ongoing contest between them. To my mind, his stand of saying that he would not see the child at the contact centre because he was not allowed to hug or physically interact with the child is a matter of concern.
It seems to me that what the father is saying is that unless he can have things as he wants them, on his terms and subject to his conditions, he will not do anything that he does not believe proper. Whilst one might commend him for the firmness of his convictions, this indicates that he has put proving his point before the welfare of his son.
The Independent Children’s Lawyer says there should be no time between father and son. Counsel for the Independent Children’s Lawyer relied upon Dr R’s concluding comments in oral evidence. Dr R, as I have said, resiled from his earlier views because of information that was put before him in the course of his time in the witness box. The end result was that his opinion was that the father should have what he described as identification time with the child or no time at all, with only contact via cards and letters.

CONCLUSION

I have come to the conclusion that no time with the father is not in the best interests of the child. I have come to the conclusion, balancing all the matters that I believe I am required to take into account, that the father should spend some time with the child, but I have come to the further conclusion that time must be limited and subject to conditions.
My view is that I can more or less follow the proposals of the mother in this case. However, I am satisfied that, in the circumstances of this case, instead of three occasions in each year, there should be four occasions in each year. What I propose to do is order that the father shall spend time with the child for four occasions in each year, such periods to be no less than two months apart, to be arranged by the father with the contact centre and to be notified to the mother, with at least 28 days notice. I propose to order that the father would be liable for payment of all fees in respect of such time.
A matter that was raised in submissions was whether or not there should be telephone time. The father proposed he should be allowed to speak with his son on two occasions in any week. I am satisfied that such time, whether the father rang the child or the mother, or whether the child or the mother rang the father, would enable the father to speak to the child inappropriately, putting his grievances about the mother and in general to the child. As was pointed out to me by Counsel for the Independent Children’s Lawyer, the father’s statement to the child that he (the child) needed to forgive his mother and God needed to forgive his mother, is something that, if repeated to the child, could be detrimental to him.
Further, having observed the father in the witness box as I have, I have no faith in his capacity to control himself, or to ensure that his conversation with the child stayed within appropriate bounds, if he was of the view that something of importance needed to be communicated to the child. I am satisfied that, in such a circumstance, he would go ahead without any thought as to the effect of what he was about to say might have upon the child.
I do propose to order that the mother have the child undergo the tests recommended by Dr R at recommendation 8 of his report. I also propose to order that the mother attend upon a psychologist nominated by her General Practitioner for assessment and thereafter that she accept any assistance as identified by that psychologist. I am satisfied that an order is required. Her assurance that she is well is not sufficient to remove concerns as to the difficulties she herself may be experiencing.
I have given very considerable thought to whether or not I should order the father to undergo or undertake any form of diagnostic care or therapy. I have decided that I will not make such an order. If the father cannot see that it would be to his benefit to seek appropriate help, then an order to my mind is not going to be useful. The father may well consider in the future that if he undertakes appropriate therapy, he may then be in a position to convince a Court that his situation is so different from what it is at the moment and that he is at that future time able to play a greater part in his son’s life.
I will make an order that if he does not attend for two consecutive periods of time, or arrange for two consecutive periods of time, then his time with the child will cease. I accept that he has given me his assurance that he will obey any order that I make for him to see his child. I further accept that, at this point of time, he means what he says. However, I am concerned that, on his past history, he may well again withdraw because the terms and conditions imposed upon him are not to his liking. For him to do this on a repeated basis would cause the child further distress and the loss of someone who had come back into his life, albeit on a limited and very prescribed basis.
The cure to that, of course, is that the father (a) makes appointments for him to spend time with the child at the contact centre, and (b) keeps those appointments.
I will not remove the Order made by the learned Federal Magistrate allowing the mother to travel overseas with the child. I am aware that this has been a matter of great distress for the father. I still do not, I confess, fully understand what it is he says that causes him this distress, whether it was food that the child might eat overseas or whether it was the mother not returning the child.
However, the fact of the matter is that the mother has taken the child to China twice and has returned with the child on both occasions. I am satisfied that, in all the circumstances, it is appropriate that the mother be allowed to continue to do this. I will therefore leave on foot, in its entirety, the suite of Orders made by the Federal Magistrate on 14 October 2009.
Finally, I am satisfied that the restrictions proposed by the mother, restricting the father from approaching the child’s school and the mother’s place of residence, are necessary. I believe that there are times when the father is simply unable to logically see what is best, and I am satisfied that when he believes that he is in the right, he will act in pursuance of that belief no matter how the rest of the community might view his actions.
I then make the orders as set out at the commencement of these reasons for Judgment.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 5 June 2012.

Legal Associate:

Date: 3 July 2012

[2012] FamCA 499

5 June 2012

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