HADDOX & HOYT

[2014] FamCA 661

FAMILY COURT OF AUSTRALIA

HADDOX & HOYT [2014] FamCA 661

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Where the child was diagnosed with depression, attempted suicide and inflicted self-harm – Child’s views – Where the child presently refuses to see the father – Where the child, because of his vulnerability to unstable psychological health, may be deprived of the ability to cope satisfactorily with any orders which are repugnant to his views – Child to live with the mother – Where no provision made for the child to spend time with the father – Whether the child spends time and communicates with the father shall be determined by the mother as an incident of her sole parental responsibility for the child

FAMILY LAW – CHILDREN – Parental Responsibility – The presumption of equal shared parental responsibility does not apply – Where there are reasonable grounds to believe the father perpetrated family violence – Where the evidence of parental conflict proves the parties are unable to communicate for the purposes of making decisions relating to “major long-term issues” – Mother to have sole parental responsibility

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Goode & Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Haddox

RESPONDENT: Mr Hoyt

INDEPENDENT CHILDREN’S LAWYER: The Family Law Firm

FILE NUMBER: NCC 790 of 2011

DATE DELIVERED: 18 August 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 7 & 8 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B Kelly

SOLICITOR FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: The Family Law Firm

Orders

1. All formal orders relating to the child, D (the child), born … 1999, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   (a)       the mother’s residence; and

   (b)       any school attended by the child.

5. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

6. For the purpose of implementation of Orders 4 and 5 hereof, leave is granted to the parties to provide a sealed copy of these orders to the principal of any school attended by the child.

7. The mother shall notify the father of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

8. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

9. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10. Each party shall forthwith inform the other, and keep the other informed, in writing of their mobile telephone number.

11. The father shall forthwith deliver up to the mother the child’s current Australian passport.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14. Any and all outstanding applications are dismissed.

Notation

(A)These orders intentionally make no provision for the child to spend time and communicate with the father, nor do they prohibit such interaction. Whether and, if so, how the child spends time and communicates with the father shall be determined by the mother as an incident of her sole parental responsibility for the child.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 790 of 2011

Ms Haddox

Applicant

And

Mr Hoyt

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting arrangements for a child who is now 15 years of age. His misfortune of being caught between two embittered parents has caused him to suffer serious psychological harm.

2. The applicant mother and respondent father have limited insight about the way in which their conduct has triggered their son’s mental ill-health. Whatever insight they do possess has not enabled them to avert the crisis now confronting him. It therefore falls to the Court to make orders designed to quell the parties’ dispute and remedy the child’s predicament.

Short background

1. The parties separated after a very short relationship not long after their child was born in 1999.

2. Both parties have other children with other partners, some of whom are older and some of whom are younger than the child.

3. Past proceedings between the parties in respect of the child were concluded when parenting orders were made with their consent by the Federal Magistrates Court (as the Federal Circuit Court then was) on 24 January 2003. Those orders provided for the parties to have “joint parental responsibility” for the child, for him to live with the mother, and for him to have “contact” with the father each alternate weekend, during school holidays, and on other special occasions.

4. The current proceedings were commenced by the mother over 10 years later in March 2013. It should not be thought that the hiatus of litigation over that period implied harmonious parental relations between the parties and a happy childhood for the child. The parties’ initial co-operation deteriorated to a point where the initiation of these fresh proceedings was overdue and motivated by an event which signified the child’s complete inability to cope with any more conflict.

5. On 4 November 2013, when barely 14 years of age, the child attempted suicide by hanging himself. He was found by the mother and an elder half-sibling, cut down, treated by ambulance officers who were summoned to the home, and then admitted to a child and adolescent psychiatric unit (“B”). That event was the culmination of his emotional disturbance over the preceding two years, during which he was counselled for his diagnosed depression.

6. Following that incident the mother terminated the child’s interaction with the father on advice from both B and the NSW Department of Family and Community Services.[1] The father was informed why such action was taken,[2] but he did nothing to redress the situation. Although invited to telephone the child, the father desisted and chose only to send Christmas presents that year through the mother’s solicitor.[3]

   [1] Mother’s affidavit, paras 15-16; Family Report, para 14

   [2] Mother’s affidavit, para 18, Annexure C

   [3] Mother’s affidavit, paras 19-20; Family Report, para 15

7. When the mother commenced the proceedings some months later in March 2013 the father responded, simply seeking restoration of the orders formerly made in 2003.

8. Interim orders were made with the consent of the parties in July 2013, providing for the child to spend a few hours with the father and his partner (“Ms C”) each alternate Sunday and for them to have frequent telephone communication. To the extent such orders were inconsistent with the existing orders made in 2003, the former orders were suspended.

9. There were frequent problems with implementation of the interim orders in the first few months,[4] before compliance was abandoned altogether. Unfortunately, the child has not spent any time with the father since September 2013 and not even communicated with him since December 2013.[5]

   [4] Mother’s affidavit, paras 21-31; Family Report, paras 24-26, 32-35, 53

   [5] Mother’s affidavit, para 45

Proposal of mother

1. The mother pressed for the orders set out in her Further Amended Initiating Application filed on 29 May 2014. She proposed that the child live with her and that she have sole parental responsibility for him.

2. The mother further proposed that any time spent by the child with the father should only occur in accordance with the child’s wishes, though she seems to harbour an expectation, or perhaps a hope, that arrangement would result in the child spending no time with the father at all.[6]

   [6] Family Report, para 54

Proposal of father

1. The father pressed for the orders set out in his Response to Initiating Application filed on 29 April 2013. He simply sought restoration of the final parenting orders previously made on 24 January 2003.

2. When the father conferred with the Family Consultant in December 2013 he considered the possibility the child might live with him instead,[7] but that was not a proposal he made at final hearing.

   [7] Family Report, paras 42, 43, 60

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer did not reveal his proposal until the commencement of final submissions.

2. Initially he adopted the mother’s proposal in all respects, but later changed his mind about the nature of the order regulating the child’s future interaction with the father. Instead of an order requiring the parties to heed the child’s expressed wishes, the Independent Children’s Lawyer proposed there be no order at all regulating the manner in which the child spends time and communicates with the father.

The evidence

1. The mother relied upon her affidavit filed on 22 April 2014.

2. The father relied upon his affidavit filed on 7 March 2014 and the affidavit of Ms C filed on 4 June 2014.

3. The parties and the Independent Children’s Lawyer also relied upon the Family Report dated 19 December 2013. The Family Consultant was not required by the parties or Independent Children’s Lawyer for cross-examination so the contents of the Family Report are accepted as unchallenged evidence.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. The Family Consultant described the child’s relationship with the mother as an “extremely close and supportive relationship”.[8] That is unsurprising since the child has always lived with her. Clearly the child has a meaningful relationship with the mother from which he derives considerable benefit. The orders must ensure that continues.

   [8] Family Report, para 21

2. By comparison, the state of the child’s relationship with the father and the benefit he derives from it was not so clear cut.

3. The child’s relationship with the father has been vexed for quite a while. The plausible reasons for their estrangement are discussed later in these reasons. Regardless of the reasons why, they have spent little time together over the last few years. The last time they did so was in September 2013.[9]

   [9] Mother’s affidavit, para 45

4. The father told the Family Consultant the child had hugged him affectionately on the few occasions they were together over the two years preceding the Family Consultant’s interviews in December 2013.[10] If he was thereby implicitly asserting he and the child really do have a strong relationship, it was a relatively superficial analysis of the situation. The father realises the child does not presently wish to spend any time with him.

   [10] Family Report, para 56

5. In all probability, the child’s relationship with the father is indeed meaningful to him, though not as meaningful as the relationship he enjoys with the mother, and currently he does not derive as much benefit from his deteriorated relationship with the father.

6. The orders made by the Court should enable retention of the link between the child and the father, but not artificially force an improvement of their relationship and risk its complete disintegration. The father probably knows that is the best approach. He told the Family Consultant he intends “keep[ing] the door open” to the child and will welcome him back once he is “ready to start over”.[11]

   [11] Family Report, para 64

Section 60CC(2)(b)

1. The mother forthrightly told the Family Consultant of her belief the father poses a threat of “emotional, psychological and physical harm to [the child]”,[12] but puzzlingly, she did not adduce any direct evidence in chief of any physical abuse, sexual abuse, or family violence perpetrated by the father.

   [12] Family Report, para 47

2. Allegations of physical abuse, sexual abuse, and family violence, which could potentially cause the child physical or psychological harm, were only raised obliquely in the evidence. However, the mother adhered to her belief about those risks of harm during final submissions and so the evidence needs to be addressed.

   Physical abuse

3. The child reported to B staff in November 2012 that he had been subjected to physical and emotional abuse by the father over a long period of time,[13] though the allegation was not apparently formally investigated by police or any other authority. The child made the same style of allegation to the Family Consultant in both June 2013[14] and December 2013.[15]

   [13] Mother’s affidavit, paras 14, 17, Annexure B; Family Report, para 13

   [14] Family Report, para 21

   [15] Family Report, para 73

4. The Family Consultant imputed the child genuinely believes the father is abusive and that his paternal half-siblings are at risk of harm with the father.[16] However, the paucity of direct evidence precludes any findings about whether the child’s belief is reasonably held, even if genuine.

   [16] Family Report, para 78

5. Significantly, the father refuted any such allegations of abuse to the Family Consultant.[17] The allegation of his physical abuse of the child was tentatively raised with him in cross-examination and he refuted it. No evidence was adduced to contradict his denials and there was no proper basis to reject his evidence as inherently improbable.

   [17] Family Report, para 22

6. Despite the apparent contradiction between the indirect evidence of the child’s allegations of abuse against the father and the father’s direct denial of the allegations, the contradiction is plausibly explicable by their differing perceptions of past events.

7. There have undoubtedly been physical confrontations between the child and the father in the past. In December 2011, the child ran away from the father’s home. The father pursued him, threw him over his shoulder, took him home, and scolded him. The child resisted by “kicking and screaming”. The incident was so confronting that Ms C threatened to summon police if they both did not calm down. Ms C also conceded the father occasionally smacked the child. While the father may have regarded that as a legitimate form of discipline, the child may have perceived it as physically abusive. Such discipline may be, but is not necessarily, “abuse” of the type contemplated by s 60CC(2)(b) of the Act.

8. It may be the child is much more apprehensive of the father’s confrontational and abrasive style than the father actually appreciates. The father has the capacity to appear aggravated and hostile, though that is not apparently always his demeanour.

9. The Family Consultant pleasingly observed of the father in December 2013:[18]

   [The father] presented as punctual, polite and cooperative. He listened carefully to feedback from the Family Consultant and gave considered and careful answers to questions that were put to him. At no time during the interview did he present as angry or intimidating.

   [18] Family Report, para 55

10. Unfortunately, he did not always present that way in Court, as he was irascible and argumentative even under mild pressure. He conveyed the clear impression of a man who had no time for the pesky intrusion of this litigation into his life.

11. There was reliable evidence of the father presenting in the same way to the mother and child. For example:

    (a)When the child first resumed spending time with the father under the interim orders made in June 2013 the child’s greeting of the father was met with frigid frankness. Their conversation started thus:[19]

    [19] Mother’s affidavit, para 21

    Child:  How are you?

    Father:  Alright until this bullshit started.

    (b)Not so long afterwards, when the child was spending time with the father in September 2013, there was an altercation between them about the child’s behaviour, which grew to involve the mother. The argument between the parties then took over and, in the presence of the child, the father was grossly disrespectful to the mother.

    He said to her either:[20]

    Fuck off and don’t interfere.

    or:[21]

    Don’t interfere you fucking piece of shit.

    [20] Father’s affidavit, para 5

    [21] Ms C’s affidavit, para 23

1. On those occasions, the father was unable to muster any empathy for the child’s emotional vulnerability. He was fixated on his own inconvenience and his perception of the mother’s interference. It is likely those examples are typical of the manner in which the father reacts to provocation. Little wonder then that the love the child probably feels for the father might be tempered by his reservations about the father’s blunt affect. That, however, is a consideration under s 60CC(3) of the Act, not s 60CC(2)(b) of the Act.

2. The state of the evidence is not sufficient to warrant a finding the child is at unacceptable risk of either physical or psychological harm through his subjection to “abuse” by the father.

   Sexual abuse

3. The child’s school records disclosed the mother reported to the school that the child had been both sexually and physically abused by the father.[22]

   [22] Family Report, para 19

4. The mother adduced no evidence at all about the child’s sexual abuse by the father, or alternatively, about any risk of the child’s sexual abuse by the father. Nor were any such allegations of past abuse or future risk put to the father in cross-examination for his approbation or rejection, as they should have been if the issue was to be pursued.

5. There is no basis at all to find the child is at unacceptable risk of harm through subjection to sexual abuse by the father. Indeed, no such submission was made. The indirect evidence about it in the Family Report was an anomaly.

   Family violence

6. The father denied any allegations of family violence when he spoke with the Family Consultant, but contemporaneously admitted he lost his temper with the mother and swore at her.[23] He also admitted his anger with the mother over his perception of her non-compliance with the orders made in 2003.[24] In cross-examination the father conceded he had spoken disrespectfully to the mother in similar terms on other occasions.

   [23] Family Report, para 56

   [24] Family Report, para 63

7. The mother adduced no evidence in chief of her subjection to family violence by the father. Nor was the allegation raised with the father in cross-examination. Nonetheless, there was an obvious undercurrent of acute hostility between the parties, which extends back over years.

8. Most likely, the dispute over the past occurrence of family violence between the parties is attributable to their differing perceptions about the nature of their interaction, much like the differing perceptions of the child and the father about the nature of their interaction.

9. Since these proceedings were commenced after amendment of the Act by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), relevantly, the definition of “family violence” encapsulates any violent, threatening, or other behaviour that coerces or controls the mother or causes her to be fearful (s 4AB).

10. Although the mother did not expressly say so in evidence, the father’s admitted loss of temper causing him to swear at her was liable to amount to an instance of “family violence”. It is unnecessary, as the father seems to misunderstand, for there to be a frank physical assault before family violence has occurred.

11. Nevertheless, unpleasant interchanges between the parties are only liable to occur when they are in physical proximity, such as when exchanging the child between them. On the mother’s own admission, she has not seen or heard from the father since December 2013 when he sent an unremarkable text message to her.[25] In such circumstances, while the risk of the child’s exposure to family violence between the parties remains, it could not be said to be an unacceptably high risk. The risk could be satisfactorily contained by ensuring the parties’ conduct is monitored at a busy public venue whenever occasion arises for the child to be exchanged between them.

    [25] Mother’s affidavit, para 50

Best interests of child – additional considerations

1. At the child’s advanced age of 15 years, his views should and will carry considerable weight. The father understands that should be so. He told the Family Consultant he was “willing to be guided by [the child] as to what arrangement would best suit him”.[26]

   [26] Family Report, para 64

2. The child unequivocally told the Family Consultant in December 2013 he wanted to remain living with the mother. At that time, he was still unready to spend time with the father, but envisaged his view may later change.[27]

   [27] Family Report, paras 43, 72, 73

3. The mother deposed to the child telling her before then, in October 2013, he did not wish to spend time with the father,[28] but she adduced no evidence of the child’s expressed views since his more recent meeting with the Family Consultant in December 2013.

   [28] Mother’s affidavit, paras 33, 37

4. In December 2013 the child notified the father by text message that he wanted to live with him,[29] but the child admitted his message to the father was disingenuous and was only intended to hurt the mother.[30] The child has not spent any time with the father since September 2013 and nothing changed after that event in December 2013. By implication, the child’s views about spending time with the father remain unchanged.

   [29] Family Report, paras 32, 58

   [30] Family Report, para 72

5. The child’s views should probably be given even more weight than would ordinarily be the case because his vulnerability to unstable psychological health, which is explained in greater detail below, may well deprive him of resilience to cope satisfactorily with any orders which are repugnant to his views.

6. The child began threatening to harm himself in early 2012, when still only 12 years of age. He was diagnosed with depression and he consulted with both the Child and Adolescent Mental Health Team and another counsellor.[31]

   [31] Mother’s affidavit, paras 9-11; Family Report, para 9

7. Six months later in September 2012 the child was consulted by a social worker after he threatened to stab himself and harm his maternal half-siblings. He was experiencing suicidal ideation and not attending school. His behaviour was described as “impulsive, destructive and oppositional”.[32] That event occurred one week after he witnessed the death of a neighbourhood friend in a motorcycle collision.[33]

   [32] Family Report, para 12

   [33] Exhibit M1

8. He attempted suicide by hanging himself in November 2012 and was again admitted to B for a short while.[34]

   [34] Mother’s affidavit, paras 12-13; Family Report, para 13

9. His behaviour did not improve when he returned to live with the mother. In January 2013 he resorted to stealing and destroying property within the mother’s house. His rages would sometimes last for days and he needed to be medicated with an anti-depressant.[35]

   [35] Family Report, para 17

10. In September 2013, some days after the child witnessed a confrontation between the parties during his visit with the father, he tried to hang himself from a clothesline and he was again admitted to B for a week.[36]

    [36] Mother’s affidavit, paras 27-32; Family Report, para 27

11. He was discharged into the care of the maternal grandmother, but the following month in October 2013 he climbed onto the roof of the mother’s home and remained there for 5 hours until “talked down by police negotiators”. He was conveyed to a local hospital and then taken back to B.[37]

    [37] Mother’s affidavit, para 35; Family Report, paras 28, 30

12. As at December 2013 the child was still inflicting injuries by cutting himself, usually on the arms. On one occasion the mother found the child locked in the boot of her car “attempting self-harm with a blade” and he returned to B.[38]

    [38] Family Report, paras 30, 35

13. In late December 2013 the child was charged by police for intimidating and destroying the property of his adult half-sister.[39] In June 2014, pursuant to the provisions of the Mental Health Act 2007 (NSW), the charges were dismissed conditionally upon the child’s compliance with a treatment plan and he was discharged into the mother’s care.[40]

    [39] Mother’s affidavit, para 52; Exhibit M2

    [40] Exhibits M3, M4

14. Despite such an alarming history, there is no evidence of the child ever having been diagnosed with a psychiatric disorder that could account for his erratic behaviour. Most likely Ms C was correct when she deposed in her affidavit:[41]

    …[the child’s] behaviour deteriorated because of all the changes going on in his life and the conflict between his mother and father.

    [41] Ms C’s affidavit, para 24

15. Whatever may be the cause of the child’s behaviour, the mother has understandably been at her wits end dealing with it and she has occasionally allowed her exasperation to get the better of her. For example, when the child attempted to hang himself in September 2013 she told him she wanted nothing more to do with him, which only heightened his agitation and despair.[42] When the mother attended Court in December 2013 she was prepared to relinquish care of him to the father because she felt unable to deal with him anymore.[43]

    [42] Family Report, para 27

    [43] Family Report, para 32

16. The expression of those sentiments should not be fairly regarded as anything other than momentary outbursts of emotion. She really has the child’s best interests at heart and wants him to live with her. She conceded to the Family Consultant she finds it difficult to manage the child and she recognised she needed assistance,[44] which is hardly surprising. The mother later took steps to acquire such assistance by consulting counsellors and she is now feeling better equipped to cope.[45]

    [44] Family Report, paras 43, 45

    [45] Mother’s affidavit, paras 56-57

17. The father’s opinion of the family’s predicament is one-dimensional and, despite his trenchant criticism of the mother, he has never volunteered to step in and take a greater role in the child’s care.

18. The Family Consultant found the father “tended to blame the mother for [the child’s] mental health and behaviour”,[46] which belief the Family Consultant found to be “firmly entrenched”.[47] She was undoubtedly correct. The father’s repeated refrain at the hearing was the mother’s responsibility for the child’s behaviour and attitudes. He had inordinate difficulty considering the problem from any other perspective.

    [46] Family Report, paras 22, 43

    [47] Family Report, para 57

19. The father considers the child’s resistance to him is due to the mother’s alignment of the child against him. While his belief in the mother’s fault for the problem may be genuine, there was no evidence at all to reasonably vindicate his belief. There is just as much evidence, and perhaps more, to suggest the child’s resistance could be born of his own adverse experience of the father’s behaviour or his reaction to the unrelenting parental conflict.

20. The mother’s attitude towards the father was similarly myopic, though she did not express it either so frequently or with the fervour of the father. She told the Family Consultant of her belief the father is “mainly responsible for [the child’s] current problems”.[48]

    [48] Family Report, para 47

21. Poignantly, the Family Consultant recognised:[49]

    Unfortunately, the parents are stuck playing ‘the blame game’ and tend to lose focus on what is important here – [the child’s] well-being.

    [49] Family Report, para 76

22. The Family Consultant sagely recommended:[50]

    There is little point in adding to the emotional and psychological burden that [the child] already carries by critically examining the conflict between the parents and apportioning blame – at this point in time the most crucial issue is [the child’s] mental health and how best to stabilise it.

    [50] Family Report, page 2

23. In December 2013, the Family Consultant found the child’s mental health to be “fragile and unstable”.[51] That seems an apt description in light of the earlier summary of his psychological history over the past two years.

    [51] Family Report, page 3

24. Turning to the prospect of the stabilisation of the child’s mental health, unlike the father, the mother has actively tried to achieve it by a variety of methods. In concert with a caseworker and a youth worker she planned strategies to manage his behaviour; she explored options for his respite care; she organised a mentor for him who can coach his adoration of woodwork; she assured his continued consultations with a counsellor and psychiatrist;[52] she arranged his assessment “for aspergers” by a paediatrician;[53] she started his attendance at Scouts, where he formed a friendship with the Scout leader’s family;[54] and she purchased him a pet so he could learn to accept responsibility for another living creature.[55]

    [52] Family Report, para 49

    [53] Mother’s affidavit, para 54

    [54] Family Report, para 51

    [55] Family Report, para 70

25. The mother feels, reasonably it would seem, the child is making progress. She said his academic grades are better, he is better disposed to school activities like excursions, he acquired part-time work, and his relationship with his adult half-sister improved after his criminal prosecution was concluded in June 2014.

26. By comparison, the father’s response has been passive at best. He told the Family Consultant the information contained within the documents produced in response to subpoenas was “at odds with his understanding” of the child and “didn’t make sense” to him.[56] He told the Family Consultant he had “not had the opportunity” to discuss any of that information with the child’s treating psychiatrist or counsellor, but would “like to be able to do so”.[57]

    [56] Family Report, para 62

    [57] Family Report, para 62

27. It is difficult to accept the father has not had sufficient time to discuss the child’s mental health with the various psychiatrists, counsellors, and youth workers the child has consulted over more than the last two years. One might have thought the father would have attributed a higher priority to the task within that period of time. Most likely, while still interested in the child’s progress, he has not been sufficiently interested to inconveniently and temporarily displace his other work and family responsibilities.

28. The father complained of being powerless and marginalised by the mother in respect of the child’s treatment,[58] but he had little reason to feel that way. The orders made in 2003 invested him with “joint parental responsibility” for the child. He was every bit as entitled as the mother to participate in and enquire about the progress of the child’s therapy. None of the interim orders suspended his parental responsibility for the child.

    [58] Family Report, para 56

29. When the father had the opportunity to remedy the problem, as he perceived it, he spurned it. The mother volunteered to relinquish the child’s residence to the father in December 2013, but he baulked and declined.[59] When the father discussed with the Family Consultant the option of the child living with him, he considered he was “not in a very good position to give [the child] the kind of attention he appears to require, given his work commitments and his family commitments”.[60]

    [59] Family Report, para 33

    [60] Family Report, para 43

30. Lack of insight is not the sole preserve of the father, however. The mother is also prone to overlook the child’s emotional needs in some respects. For example, although the child reported to the Family Consultant not being close with any of his older half-siblings, he does feel close to his younger half-siblings from both paternal and maternal families.[61] Regrettably, despite knowing the child would like to see more of his paternal half-siblings,[62] the mother has made no arrangements at all to facilitate it.[63]

    [61] Family Report, paras 6, 73

    [62] Mother’s affidavit, paras 31, 37

    [63] Mother’s affidavit, para 47

31. It is a great shame for the child and his paternal half-siblings that the parties are unable to see beyond their own squabbles. The father even refused to countenance the prospect of the mother and Ms C arranging for the child to visit the paternal half-siblings in his absence. If he could not see the child, his view was that neither should his other children.

Conclusions and orders

1. There are reasonable grounds to believe the father perpetrated “family violence”, in the broadest sense of that concept, upon the mother in the past. Consequently, the presumption of equal shared parental responsibility does not apply (s 61DA(2)).

2. Even if it were otherwise and the presumption of equal shared parental responsibility did apply, the presumption is rebutted anyway by the evidence of parental conflict (s 61DA(4)). There is no basis upon which it could be fairly concluded the parties are capable of the rational and courteous communication required for decisions to be made about “major long-term issues” arising in the child’s life (s 65DAC).

3. The mother said in cross-examination that her relationship with the father was “very difficult”. It was her belief they had not communicated co-operatively at all since November 2012. She could not even bear to look at the father while he gave evidence a short distance away from where she was seated.

4. For the father’s part, his distrust of the mother is so firmly rooted he was not even prepared to divulge his residential address to her. Concerning the prospect of them communicating without rancour, the father flatly made statements like:

   I never want to speak to her again.

   We’re always only going to argue.

   I can’t talk to her.

5. It could not be said the parties have been short of serious issues concerning the child’s welfare to discuss over the past two years. He witnessed a friend’s death in a motorcycle collision, he attempted suicide on numerous occasions, he had several admissions to adolescent psychiatric facilities, and he is neither spending time nor communicating with the father despite interim orders that require it. If the parties could not confer over such serious problems as those, they probably never will.

6. Ms C, who was an impressive witness, said candidly in her affidavit:[64]

   At this stage there is no co-operation between [the father] and [the mother].

   [64] Ms C’s affidavit, para 14

7. It transpired from the father’s cross-examination that his proposal for the parties to have equal shared parental responsibility for the child emanated from a mistaken belief in his “right” as a parent to participate in significant decisions affecting the child. There is no such parental right. An order allocating parental responsibility for a child is just another species of “parenting order” (s 64B), the nature of which is influenced most profoundly by the child’s best interests (ss 60CA, 65AA).

8. To avoid further parental friction and, consequently, to promote the child’s best interests, it is inevitable that one party should have sole parental responsibility for the child. It is equally inevitable that the party with whom the child lives should exclusively exercise parental responsibility for him. That must be the mother. That outcome is consistent with the uncontested evidence of the Family Consultant.[65]

   [65] Family Report, para 80

9. The pivotal issue is the manner in which the child should spend time and communicate with the father. The answer to that question is governed, in no small measure, by the Family Consultant’s uncontroversial opinion that:[66]

   At the current time, priority needs to be given to stabilising [the child’s] emotional and psychological functioning.

   [66] Family Report, para 75

10. One thing the mother, father, and Ms C all agreed upon was that the child cannot be forced to do anything against his will. He is now old enough and strong enough to physically resist and rebel.

11. It would therefore be futile to make orders like those proposed by the father, compelling the mother to present the child to him at designated times on alternate weekends, during school holidays, and on other occasions.

12. It is well known the child presently refuses to see the father, regardless that the parties hold different views about why the child feels or acts that way. Even if it is because the child’s attitude towards the father is deliberately contaminated by the mother, as the father believes, that is unlikely to change while ever the child lives with the mother, as the father acknowledged must continue.

1. The interim orders made in June 2013, which continue to exist, require the child to spend time with the father every alternate Sunday, but the child has not visited the father since September 2013. Restoration of the orders made in 2003, as the father desired, or the imposition of any orders like them, would result in exactly the same failure as has been experienced under the interim orders made in June 2013.

2. The father’s proposal is therefore rejected.

3. The mother’s proposed solution was the imposition of an order requiring the parties to ensure the child spends time and communicates with the father in accordance with the child’s wishes. It was her expectation that, upon the child voluntarily expressing to her a wish to visit the father, she and the father would spring into action and make the necessary arrangements to ensure it happened.

4. There are pragmatic reasons why such an idea is untenable.

5. It is common ground, first, she would rather the child not visit the father because of her concern he is at risk of harm in the father’s care, secondly, the father desperately wants the child to visit him frequently and believes it is only thwarted by the mother’s mischief, and thirdly, the child is well aware of the potent conflict between his parents. The child must feel under intense pressure to satisfy the conflicting expectations of both parents. It was and is impossible to please them both. To date, the only way he has been able to relieve the pressure is to please one in preference to the other. Unsurprisingly, he chose to please the mother, with whom he lives, and abandon the father.

6. That does not mean he does not love the father. In all probability, as Ms C remarked in her affidavit, “deep down [the child] wants to see his dad”.[67] It is likely just a case of him temporarily abandoning the father to manage the stress exerted upon him.

   [67] Ms C’s affidavit, para 15

7. The prospect of the child voluntarily reversing that strategy and willingly placing himself back in the middle of the parental conflict is negligible. He tried it once and it failed. In December 2013 he sent a text message to the father in the middle of the night stating he intended to live with him. He packed his bag and travelled with the mother to Court the following day, expecting to be passed into the care of the father. He was not. He returned home to live with the mother, but not before locking himself in the boot of the mother’s car, cutting his arms with a blade, and then being re-admitted to B. All he probably learned from that experience was that his attempts to try and change the family dynamic are futile.

8. Both the father and Ms C have the insight to realise the parties cannot expect the child to accept responsibility to make such choices.

9. When asked in cross-examination about the child being pressed for a decision about when he should visit him, the father said:

   I don’t feel a child should be left with the decision about that.

10. Ms C deposed in her affidavit:[68]

    I think [the child] might be a bit hesitant about asking his mum to see his dad again.

    [68] Ms C’s affidavit, para 7

11. It was submitted by the mother that the orders she proposed would importantly signal to the child that his opinion counted and the parties would be obliged to act on his wishes. In theory that could be right; but not in practice.

12. The child’s psychological health is precarious enough without foisting upon him the pressure of again appeasing his parents’ conflicting expectations. Making orders of the sort proposed by the mother might really push him beyond his capacity to cope. Such orders could not possibly be in the child’s best interests.

13. The only realistic alternative is to make no orders at all regulating the child’s future interaction with the father. The orders should not prohibit it, nor should they require it. With no expectations exerted upon the child by either the Court orders or his parents, he is more likely to recover his emotional fortitude.

14. Of course, the absence of any orders prohibiting or requiring the child’s interaction with the father does not mean they cannot spend time or communicate with one another. In time, the mother may feel the child is capable of some form of interaction with the father. She will determine that as an incident of her sole parental responsibility for the child.

15. When the child attains his majority, if not before, he will make his own decisions about whether the mother exercised parental responsibility for him wisely and whether or not he felt pressured by her to reject the father. Soon enough the child will have sufficient maturity to decide for himself with whom he wants to associate. That may be the mother, the father, both of them, or neither of them.

16. No doubt the father will be displeased with such an outcome, but he must remember the Court is obliged by the Act to accord paramount importance to the child’s best interests, not vindicate his sense of entitlement as a parent.

17. The Family Consultant said, and I accept as correct:[69]

    The main goal should be to get [the child] through this difficult time. Relationships can be fixed and [the child] has a solid background of spending time with his father and the paternal family that will form the basis for future relationships once he is well again. The father knows in his heart that this is the case and he has already experienced it first hand with his older children. He knows [the child] loves him.

    [69] Family Report, para 77

18. Both the father and Ms C really know that to be true.

19. The father said in cross-examination:

    I will wait until [the child] rings me. I don’t want him to feel pressured by me…when he is ready to communicate he will.

20. While the father was there referring to telephone communication between him and the child, the same sentiment must logically apply to them spending time together.

21. Ms C said in cross-examination:

    We know [the child] didn’t want to come and live with us and we weren’t going to push him.

22. Similarly, while she was there referring to not pushing the child about a change of residence, the same logic must apply to them not pushing the child to visit them when he is resistant.

23. An injunction is imposed upon the father restraining his attendance at or near to the mother’s home or the child’s school, which will prevent any attempt to frustrate the mother’s exercise of parental responsibility about if, when, and under what circumstances the child spends time with the father. There was no suggestion the father would deliberately attempt to subvert the orders, but it is as well to take precautions.

24. Both parties are restrained from inflicting corporal punishment upon the child and from allowing him to be exposed to denigration of them. The orders bind the father as well, in case the child does begin to spend time with him.

25. Since the father will likely have little or no involvement in the child’s life over the next few years, the orders enable him to keep abreast of the child’s academic and medical progress by allowing him to obtain school reports and photographs and by requiring the mother to keep him informed of any unusual medical events in the child’s life. Such orders are in accordance with the Family Consultant’s recommendation.[70]

    [70] Family Report, para 79

26. The father knows the mother’s residential address, but the mother does not know the father’s. He refused to divulge it. There is no utility forcing the father to divulge it. He obviously has his reasons, though he did not deign to share them. Nevertheless, the parties still need a line of communication in case of emergency. The orders therefore require them to keep one another informed of their mobile telephone numbers.

27. There was only one other issue to resolve and that related to possession of the child’s passport. The father previously procured a passport for the child, which he retains and refuses to surrender to the mother, even though she wants it. The basis of the father’s objection is that he incurred the cost of its procurement and was not prepared to surrender it without re-imbursement of $200.

28. The dispute was arid and puerile because the father will not be able to use the passport unless, first, the child spends time with him, and secondly, the mother, in the exercise of her sole parental responsibility for the child, consents to the father taking him out of Australia on holidays. That is not likely to happen any time soon. An order is made requiring the father to deliver the passport up to the mother unconditionally without delay.

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 August 2014.

Associate:

Date:  18 August 2014