HAKEN & THERKELSEN

[2020] FamCA 870

FAMILY COURT OF AUSTRALIA

HAKEN & THERKELSEN [2020] FamCA 870

FAMILY LAW – CHILDREN – Parenting – child with complex physical and intellectual needs – where the applicant father seeks equal shared parental responsibility and parenting time including equal shared parenting time – where the respondent mother seeks sole parental responsibility and no orders for parenting time or communication with the father – high parental conflict – allegations of family violence and sexual abuse – adverse findings as to the father’s credibility – findings of family violence including coercive control – finding that the mother’s fears are genuinely held – order that the mother have sole parental responsibility – order for the child to live with the mother – no orders for child to spend time or communicate with the father.

Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CC(2), 60CC(3), 60CA, 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5)

APPLICANT: Mr Haken

RESPONDENT: Ms Therkelsen

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 3894 of 2016

DATE DELIVERED: 16 October 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 6, 7, 8, 21 February 2019 and 13, 14, 17 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade of Counsel

SOLICITOR FOR THE APPLICANT: Daniel John Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lewis of Counsel

SOLICITOR FOR THE RESPONDENT: The Family Law Project

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Childs of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That the mother have the sole parental responsibility for Z THERKELSEN born … 2013 (“Z”).

2. That Z live with the mother.

3. That Z spend no time with nor communicate with the father.

4. That the father not be permitted to obtain information from Z’s medical practitioners or allied health professionals or any education facility Z may attend from time to time.

5. That the order for the appointment of the Independent Children's Lawyer made herein be discharged as and from 16 November 2020.

6. That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3894 of 2016

Mr Haken

Applicant

And

Ms Therkelsen

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Haken (hereinafter referred to as “the father”) and Ms Therkelsen (hereinafter referred to as “the mother”) are the parents of Z Therkelsen born in 2013.

2. The parties met in 2009, and had an “on and off” relationship until July/August 2011 when the father moved into the mother’s home in Perth, Western Australia.

3. The mother was born in B Town in South Australia and moved to Western Australia in 1994.  She relocated to B Town with Z in early 2015.

4. The father moved out of the mother’s home at her request in September 2014.

5. On 1 December 2015 the father filed an Initiating Application in the Family Court of Western Australia wherein he sought that Z be returned to his Western Australian home immediately.

6. He otherwise sought, both on an interim and on a final basis, orders providing for Z to spend each alternate weekend in his care from 5.00 pm Friday to 5.00 pm Sunday (or Monday in the event of a long weekend), as well as for specific time on Z’s birthday, Christmas Day, Easter Sunday, Father’s Day and Wednesday afternoons.  He further sought that Z be able to attend special family occasions that occurred other than during court ordered time spending.

7. He sought specific issues orders providing for the method of communication between the parties, that the parties agree on the school to be attended by Z and for the mother to notify him of any significant issues regarding Z’s health or medical conditions.

8. An Independent Children's Lawyer was appointed for Z in the Western Australian proceedings.  On 14 January 2016 an order was made providing for the father to have a video call with Z each Saturday for approximately 10 minutes duration on certain conditions.  A further interim order was made by consent on that occasion restraining the father from travelling to B Town, attempting to have contact with the mother while she was legally represented and attempting to contact Z.

9. On 27 September 2016 a Judge of the Family Court of Western Australia made an order transferring the proceedings to the Adelaide Registry of the Federal Circuit Court of Australia, and extended the order for electronic communication such that it occurred on Wednesdays as well as on Saturdays.

10. The matter was first listed in the Federal Circuit Court in Adelaide on 27 March 2017.

11. On 30 March 2017 an Independent Children's Lawyer was ordered to represent the interests of Z, and on 9 June 2017 further orders were made including for the preparation of a family report.

12. On 26 October 2017 the Court ordered that during the period of the adjournment previous orders made providing for Z to communicate with the father be suspended.  That order was continued on 16 February 2018, again during the period of the adjournment, the father having filed a Notice of Appeal with respect to that order on 14 November 2017.

13. The appeal was dismissed by the Honourable Justice Strickland on 2 March 2018.

14. On 28 February 2018 orders were made including for Z to spend supervised time with the father at the C Town Contact Centre on two occasions, to occur on a Saturday and a Sunday of the same weekend.

15. On 31 May 2018 a further order was made providing for additional supervised time on each of Saturday and Sunday of three particular weekends during August and September 2018, as well as for a continuation of the order of 28 February 2018 providing for communication between Z and the father via the WhatsApp program.

16. On 15 October 2018 the matter was listed for trial, to commence on 5 February 2019.  On that occasion a further order provided for supervised time to occur between Z and his father at the C Town Contact Centre on three more weekends during each of November and December 2018 and January 2019, for three hours on each occasion.  Three days were allowed for the trial.

17. The trial eventually proceeded on each of 6, 7, 8 and 21 February 2019 and 13, 14 and 17 June 2019.

18. On 17 June 2019 judgment was reserved.  No orders were made providing for ongoing physical time spending or electronic communication as between Z and his father.

19. The father relied upon his Initiating Application filed in the Family Court of Western Australia on 1 December 2015.  The orders sought in that document were predicated upon the mother returning to reside in Western Australia with Z but that was not the position of the father at trial.

20. The orders sought by him at trial were set out in part E of the father’s outline of case tendered to the Court by his counsel Mr McQuade.  Those orders were:

    1.That the parties have equal shared parental responsibility for Z born on … 2013.

    2.In the event that the Father resides in Western Australia:

    2.1      Z live with the Mother.

    2.2That during each school term the father spend time with Z on one weekend a month in Adelaide from 9.00 am on the Saturday until 4.00 pm on Sunday with all handovers to take place at the McDonalds Restaurant D Street, Adelaide.

    2.3The Father spend time with Z in Perth for the first half of each short school holiday period.

    2.4That in the 2019/2020 summer school holidays the Father spend time with Z in Perth for the second half thereof with Z to be returned to the Mother not less than 2 days before the commencement of the 2020 school year and during the same times during each alternate summer school holiday period occurring thereafter.

    2.5That for the 2020/2021 summer school holidays and each alternate summer school holiday period occurring thereafter, the Father spend the first half of the summer school holidays with Z in Perth with such time to commence not less than 2 days following the end of Z’s school year.

    2.6That the Father accompany Z on all plane flights between Adelaide and Perth.

    2.7That the cost of Z’s interstate travel be shared equally between the parties.

    3.In the event that the Father relocates to within a 100 km distance of B Town, South Australia that Z live with each of the parties on a week-about basis.

    4.That handovers occur at Z’s school and handovers which are unable to occur at Z’s school occur at the B Town Police Station.

    5.That the Father communicate with Z by telephone each week in the absence of any interference or monitoring by the Mother or on her behalf.

    6.That Z’s name be changed to Z Haken.

    7.That the Mother engage in therapy focused upon her management of her own wellbeing and to assist her with coping with Z spending increased amounts of time in the Father’s care.

21. In summing up, Mr McQuade submitted that if the Court was convinced on the evidence that it was impossible for Z to have a relationship with his father unless he lived with his father, and in circumstances where the Court may be concerned that the relationship between Z and the father had not developed to the degree necessary to support such a change in care arrangements, then Z should spend time with his father at the C Town Contact Centre on a daytime basis to start with on five occasions and thereafter, the father’s time with Z be unsupervised initially on a daytime basis and then moving to overnight time.

22. He further submitted that the father sought orders that he be permitted to access information from Z’s health professionals and Z’s school, and that preferably orders should be made on a final basis to the extent that would be possible taking into account Z’s young age and his health issues.

23. In his submission there was some benefit to having interim orders, for say a 12 month period.  On the father’s case this would give the Court the capacity to address the issue of the mother’s state of mental health and her failure to put material regarding her mental health to the Court from Dr E.  He submitted that such a course was not common but that each case that comes before the Court needs to be addressed on its own issues.

24. At trial the mother maintained the same position that she had throughout the proceedings, as set out in her Response filed in the Family Court of Western Australia on 11 January 2016.  She sought orders providing for her to have sole parental responsibility for Z and for Z to live with her.

25. In closing submissions her counsel adopted the position of the Independent Children's Lawyer, namely that in addition to the orders sought by the mother there be an order specifying that there be no communication between or time spent between Z and his father, and that the father not be permitted to obtain medical or educational information with respect to Z.

Background

1. The parties met during 2009.  It was common ground that at least until July or August 2011 the relationship between them could best be described as “on and off” with the parties not commencing cohabitation until 2011.  At this time the father moved in to the mother’s home.

2. It was also common ground that the mother became pregnant in 2009 and underwent an abortion.  It was the mother’s position that the father forced her into that action which she found very traumatic, with the father’s evidence being that it was a mutually agreed decision.

3. The parties’ period of cohabitation commenced in approximately July or August 2011 and concluded in September 2014.

4. The father conceded in cross-examination that the mother had been requesting, on a weekly basis for several months prior to September 2014, that he leave the home.  He conceded that he refused to leave during that period of time and that he was determined that he was going to stay in the home regardless of the mother’s wishes.

5. He said that in September 2014, having heard the mother say for a long time that she thought he should move out, he decided to do so because he thought it may improve the situation.  It was his evidence that the separation was intended to be temporary.

6. The mother left Western Australia and travelled to B Town with Z on or about 2 January 2015.

7. It was the mother’s evidence that she had travelled to B Town because of her fear of the father, having experienced domestic violence from him over most of the period of the relationship.

8. It was the father’s case that the mother obtained his permission to take Z to B Town by telling him she was going for work for a period of approximately four weeks.

9. The mother conceded in cross-examination that such was the explanation she provided to the father to enable her to move safely, and that he agreed to her course of action.

10. It appeared to be common ground that between January and June 2015 the mother remained in B Town and by agreement communication occurred between Z and the father by way of video calls on Wednesdays and Saturdays.

11. In June 2015 the mother travelled back to Perth and informed the father that she was back.  During the weeks she remained in Perth she facilitated some limited supervised time between Z and his father in public places.  It was her evidence that she was very reluctant to facilitate the time but agreed in circumstances where it was insisted on by the father.

12. She said that she had sought legal advice both in South Australia and in Western Australia with respect to her concerns about issues of domestic violence and about Z being at risk of sexual abuse from the father, as well as advice from police in both South Australia and Western Australia and from family violence workers.

13. Save for the brief period of time spent by Z and the mother in Perth in June 2015 they have both resided at B Town at all times since 2 January 2015.

14. The father has at all times resided in Western Australia.

15. I have already referred to the orders made since the commencement of the proceedings with respect to time spending and communication between Z and his father.

16. The mother has been adamantly opposed to Z spending any time with or communicating with the father since the commencement of the proceedings.  She maintained that position at trial.

17. It was the mother’s position at trial that:

    ·both she and Z are at risk of family violence from the father to the extent that both their lives are potentially in danger;

    ·there is no meaningful relationship between Z and his father and that the father deliberately frightened and distressed Z during video communication;

    ·Z was conceived as a result of the father raping her;

    ·the father is a compulsive liar and unable to be trusted by her at any level;

    ·there is no benefit to be gained by Z in having any form of relationship with the father;

    ·the father lied to her about having a sexually transmitted infection;

    ·the father lied to her about working as a sex worker;

    ·the father lied to her regarding his mental health history;

    ·the father had an unhealthy sexual interest in Z’s genital area from the time of his birth;

    ·Z was genuinely at risk of sexual abuse by the father if time spending was ordered, particularly unsupervised time;

    ·her mental health was so comprised as a result of her experiences of being in a relationship with and living with the father that she was unable to contemplate any form of communication between or time spending between Z and his father, and

    ·if an order was made for same her parenting capacity would be significantly compromised.

18. It was the father’s case that notwithstanding the limited time that he and Z had spent together since his birth and the limited communication they had enjoyed, Z and he had developed a meaningful relationship that both he and Z enjoyed and it was in Z’s best interests to spend substantial and significant time with him either in Western Australia or in South Australia.

19. The father denied that he had raped the mother at the time of conception of Z.

20. He alleged that the mother had grossly exaggerated allegations against him with respect to domestic violence and the possibility of sexual abuse of Z, had exaggerated her level of anxiety and mental health difficulties, and was simply determined to do everything possible to prevent Z having a relationship with him.  He denied that he posed any danger to Z or the mother.

Credibility of the parties

1. The credibility of the parties assumed significant importance in this matter.  Both parties challenged the credibility of the other of them.  I find for the reasons to which I will now refer at some length the credibility of the father was of greater concern overall such that where the evidence of the mother and father conflicted as to factual matters I overwhelmingly preferred that of the mother.  In making this finding I have considered in particular evidence in relation to the issues referred to in paragraphs 47 to 184 following.

Evidence as to the issue of sexually transmitted infection

1. The mother alleged in paragraphs 13 and 14 of her Affidavit filed 25 January 2019 that in November 2009 the father had informed her that he was intimate with a number of people and that he refused to wear condoms despite her request for him to do so, particularly after he revealed to her in late 2009 that he had a sexually transmitted infection.

2. She further deposed in paragraph 16 that the father “picked up” a street worker when he stayed out all night by himself when they went to Asia for a holiday in October 2010.

3. The father was given liberty at the commencement of the hearing to adduce oral evidence in reply to the mother’s trial Affidavit.

4. He denied that he had refused to wear condoms or that he had a sexually transmitted infection.

5. He further denied that he had “picked up” a street worker in Asia during the holiday in 2010.

6. In cross-examination the father denied that he was diagnosed with a sexually transmitted infection in 2009.

7. He agreed that in paragraph 21 of the Affidavit he filed in the Family Court of Western Australia on 19 February 2016 the words “I have never been medically diagnosed with any STI” were written.  When asked if that evidence was true at the time he swore the Affidavit he said it was not and confirmed that it was a lie.  When asked why he had lied he said it was because he was embarrassed.  He agreed it was also so that the Court would not find that the mother was truthful in her allegations.

8. He agreed he knew how important the truth is but said at the time of swearing his Affidavit in 2016 he did not know how serious the issue was, that it was his first Affidavit and that he had never “done” an Affidavit before.  He said his misunderstanding about the concept of truth was the issue of telling “one hundred percent” truth, that is, down to the fine detail.

9. He agreed he had told Mr McQuade during his oral evidence-in-chief the previous day that the mother’s allegation regarding him having a sexually transmitted infection was not true.  When it was put to him that in the witness box he was clearly under the same impression, namely he was not telling the truth “one hundred percent” he said that he had understood the concept more clearly the previous day.

10. When asked why he didn’t clarify the position during his evidence-in-chief the previous day he said that he had answered Mr McQuade’s question briefly.  When it was put to him that the Court should therefore assume that unless “I” – being the mother’s counsel – caught him out he might be being untruthful about other things he replied “not completely”.

1. I find that the father lied to the mother regarding the matters to which I have referred as long ago as late 2009, which was early in their relationship.

2. I find that the denial in relation to suffering from a sexually transmitted infection referred to in paragraph 53 hereof was untrue, and was designed to deliberately mislead the Court as to that issue.

Evidence as to the issue of the father’s mental health

1. The father was also cross-examined about mental health issues, particularly in light of the concerns recorded by Ms F in paragraph 8 of the Family Assessment Report[1] where she reported “the mother claimed that the father had a history of mental health concerns including a period of hospitalisation…”

   [1] Family Assessment Report of Ms F dated 22 August 2017

2. When it was first put to the father in cross-examination that the mother had alleged he had serious mental health problems he said he did not remember that allegation. When asked if he had read the Notice of Risk filed by the mother,[2] and in particular “Part G” of that document referring to the father’s mental health issues, he conceded that he remembered reading that document. He further conceded that he knew the mother had the concerns about his mental health issues as raised in the Family Assessment Report to which I have referred.

   [2] Notice of Child Abuse or Family Violence (or Risk) filed by the mother in the Family Court of Western Australia on 16 February 2016

3. Counsel for the mother directed the father to paragraph 85 of his Affidavit filed 21 January 2019 wherein he deposed “I do not have any mental health issues.  I have never been the subject of a Mental Health Care Plan.” She asked if he meant that he never had any issues that would warrant such a plan he agreed that was the case.

4. When asked whether what had been reported by Family Consultant G on page 2 of the Family Court of Western Australia Conference Memorandum dated 23 March 2016 under the heading of “Mental Health” was correct he replied that he remembered saying to the family consultant that he had no mental health diagnosis and had, at one stage, had a short hospital stay.

5. He said he did not remember telling the family consultant that he had never had any mental health diagnosis and that he did not take any medication for mental health issues.  When asked if he thought what he had told the family consultant on that occasion was a “full” answer he replied that it was, and that it was still his position as at trial.

6. He was asked whether he was aware of medical records concerning him being prepared by a Dr H at the J Medical Centre.  He replied that he did not remember the doctor’s name but agreed the medical centre was near his sister’s home.  He also agreed that the mother’s counsel was referring to a Discharge Summary in those notes from the K Hospital, and confirmed he had attended at that hospital.  He denied he had attempted suicide by hanging or that the attendance was triggered by a relationship breakdown, and said he was unable to remember if he had gone back to hospital a few days later expressing suicidal ideation.

7. When it was put to him that the date of admission to hospital according to the notes was 1 September 2009, with a principal diagnosis on that occasion of suicidal ideation and attempted hanging, he said he was unable to remember that but agreed, upon looking at the document, that it related to him and that it reflected his attendance at the hospital for those reasons on 1 September 2009.  He agreed that the incident had occurred just after the breakup of a relationship.

8. When asked if he had forgotten that incident he said that he had, because he had wiped it from his mind when he spoke with the experts.

9. When asked if he took any issue with the accuracy of the notes he replied “a bit”, because when he approached the doctor he was distraught but not suicidal, and he didn’t remember mentioning suicide to the doctor as noted.

10. In answer to a question from the Court as to why he went to hospital on that occasion he replied that he was unable to deal with the breakup of a relationship, that he was heartbroken, extremely depressed and went to see the doctor and told him that he was extremely distressed.  He said he knew that he “ended up” in hospital but not how that occurred.

11. Under cross-examination by the mother’s counsel the father was able to remember seeking help from a medical practitioner and being admitted to hospital with respect to mental health issues, even if he purported to be unclear as to the exact details.

12. I find the father’s comments to the family consultant in Western Australia in March 2016 and the contents of paragraph 85 of his Affidavit filed 21 January 2019 to be further deliberate attempts by him to mislead the Court as to any mental health concerns suffered by him at any time.

13. I find that the father was untruthful in cross-examination as to the extent of his distress when he attended upon a doctor and was then admitted to hospital on or about 1 September 2009.  I further find that the hospital notes in respect of which he was cross-examined were an accurate reflection of his state of mind at the time, of which he continued to be aware as at the time of trial.

Evidence as to the mother’s allegation of father working as a sex worker

1. The mother alleged that the father was working as a sex worker around the time of the commencement of their relationship in 2009 and further, that he had “picked up” a sex worker in Asia in 2010 whilst she and the father were in Asia on holiday.

2. The father was cross-examined further as to notes of Dr H, the father’s general practitioner at the J Medical Centre, in relation to regular attendances in 2008 and 2009 upon Dr H for testing for sexually transmitted infections.  He agreed that he had done so because he had been diagnosed with herpes, that at various times he was experiencing lesions and that he had attended to obtain a prescription to treat the condition.

3. In the early months of their relationship in 2009 the mother alleged that the father had refused to wear condoms when asked to do so by her, telling her that sex without condoms was safe.

4. The father conceded that he had received advice about not having unprotected sex from Dr H on 23 May 2008 and that he had attended on the doctor on 7 July 2011 for “STD tests”.  Mr Haken agreed that the doctor’s records included him explaining to the father that he did not need to come in every three months for an STD test, but denied that the doctor’s notes were accurate when they recorded that his explanation to the doctor for attending so regularly was because he was a sex worker and thought that it was important.

5. The father agreed that at the time he attended on his doctor the doctor made contemporaneous notes on his computer.

6. When asked why he would have otherwise attended upon his general practitioner so regularly for sexually transmitted infection tests he replied that he was “paranoid” because he had to wait 12 weeks for an “honest result” in circumstances where he had open herpes lesions.  He denied that he did not take the medication that the doctor prescribed.

7. Upon further questioning, the father conceded that he had consulted his general practitioner Dr H on 8 October 2009 because of concerns about the lesions, that he requested medication to assist the condition and informed the doctor that he had failed to take previously prescribed medication for the last three months.

8. He further confirmed that on 5 July 2011, some three days prior to reconciling with the mother, he had attended upon his general practitioner requesting results from an STD test, which results confirmed that he was still suffering from herpes.  He denied that he was a sex worker at the time.

9. I am satisfied that the reason that the father attended regularly upon his general practitioner for tests with respect to sexually transmitted infections was because he was working as a sex worker.  I find that he told his general practitioner that was the case.

10. I find that he suffered from genital herpes prior to and after he commenced his relationship with the mother in 2009, that he was still suffering from that condition in 2011 and that he did not advise the mother that he was suffering from a sexually transmitted infection until at least November 2009.

11. I further find that he was aware that he had been advised against having unprotected sex and that he declined to wear condoms contrary to the mother’s requests that he do so.

12. I accept the evidence of the mother that during a holiday to Asia in 2010 the father stayed away from their accommodation overnight and on the balance of probabilities spent time with a sex worker in City L.

13. I find that the father’s response to the mother’s counsel in cross-examination, namely that the reason he had regular three monthly tests for sexually transmitted infections was because he was “paranoid” because he had to wait for 12 weeks for “honest results” was pure fabrication designed to conceal the real reason for such regular attendance, namely to enable him to continue his work as a sex worker.

Evidence as to the mother’s allegation that Z was conceived as a result of the father raping her

1. The mother alleged that Z was conceived as a result of the father raping her.

2. It was her evidence that she had made no complaint at the time nor had she deposed to such allegations until such time as the filing of her trial Affidavit.  It was her evidence in cross-examination that this was because of concerns that eventually the father would show Z any documents he could find where the mother alleged such a matter, and she did not want Z to ever find out that he was conceived during rape.

3. The mother’s evidence regarding Z’s conception was contained in paragraph 17 of her Affidavit filed 25 January 2019.  She deposed to the father coming home from a ‘fly in/fly out’ work shift, telling her he had taken a pill such as Viagra, undressing and “prancing around” with an erect penis and insisting on having sex.

4. She deposed to refusing his advances more than four times and to the father then forcing her to have sex with him, removing her underwear forcefully and without her consent, removing the sheet from on top of her and holding her arms down forcefully.

5. She deposed to wriggling and using her legs to try to stop the father and to sex taking place in a “missionary position” contrary to the usual position when she was on her knees and the father was behind her.  She said she then stopped struggling as she did not wish to be subject to any further physical violence and laid in the bed until the father had finished.

6. Exhibit “F1” were copies of the mother’s journal entries which she told the father’s counsel in cross-examination that she had commenced in 2012.  She agreed that there was no allegation contained within those notes that she had been raped by the father.

7. She also confirmed that she had not raised the issue of rape with the social worker at M Services when she and the father attended on 9 October 2014, nor with South Australia Police on 9 April 2015, nor with Western Australian Child Protection Service when she contacted them on 14 July 2015, nor N Services.  She further conceded she said nothing about it to workers at O Services on 6 January 2016 and that in fact she did not raise the issue with any of the various agencies for some six years.

8. She said she did not do so because she continued to be terrified of the father, that she had not had opportunities to raise the issue when she and the father attended at M Services in July 2014 as he was not out of the room for long enough, and that it was only after she had worked with a psychologist for a considerable period of time to try and understand why she was so fearful that she was able to say anything about the event.

9. In the father’s oral evidence at the commencement of the proceedings he denied raping the mother on 20 November 2012, the date on which the mother alleged Z was conceived, or at any other time.  The father said he did not know when Z was conceived.

10. The father conceded that he arrived home from ‘fly in/fly out’ work having taken a Viagra tablet.  He conceded he remembered that was in approximately November 2012.  It was his evidence that the mother was awake, that he told her that he had taken Viagra, that his penis was erect and that he was prancing around the room.  He denied that he insisted on having sex with the mother but agreed sex took place.

11. He denied that the mother said on more than four occasions that she did not want to have sex.  He said she did not say to him at any time on that occasion that she did not want to have sex with him.  He said it was his belief that the mother wanted to have sex on that occasion and that they were trying to conceive a child.  When asked what had led him to the view that the mother wanted to have sex with him he said it was her comment, namely “Ooh – hung”.

12. He agreed that sex had taken place in the “missionary position” but denied he had taken the mother’s underwear off forcefully or removed a sheet.  He denied that the mother was wriggling her legs and trying to stop him having sex with her and said that the mother took an active role in sexual intercourse.

13. The father agreed that when the mother told him in December 2012 that she was pregnant he had told her he could not remember the night that Z was conceived and that it was a complete surprise to him.  He agreed that the parties had not, as at that December 2012 date, had sex since 20 November 2012 but said they had sex after that date.  It was his evidence that the mother told him the news about the pregnancy by wrapping the positive test up as a Christmas present for him.  The mother conceded that point.

14. When asked whether he was aware that she had not told anyone she was pregnant until she was some six months into the pregnancy he said he was not aware of that and didn’t recall her telling her parents that she was pregnant in May 2013.

15. He agreed he proposed marriage to the mother in May 2013 but denied that he told her that she was to say “yes” but said rather she voluntarily accepted his proposal.

16. It was his evidence that the mother had at no time ever suggested to or raised with him the allegation that he had raped her on 20 November 2012.  He said that the first he had become aware of that allegation was when he read the mother’s Affidavit some two weeks prior to the commencement of trial.

17. He conceded in cross-examination that the mother had filed an Affidavit in these proceedings on 10 October 2018, and that annexure “R-3” to that document was a report from Ms P the mother’s psychologist dated 27 September 2018 which made reference to the allegation of rape.  The father said he could not remember reading that document but probably did.

18. He denied in cross-examination that he had ever tried to make the mother have sex.  He agreed he had given specific evidence in relation to taking a Viagra pill and having an erection on the day that the mother said that Z was conceived and said the reason he could remember that specific date was that it was his last day on the mines, that all the workers were flying out and that a young co-worker had handed out Viagra to all of the crew who were all laughing.  He said they had all been away for eight days and were looking forward to having sex with their partners.

19. This is not a criminal trial and it is not necessary in these proceedings for the Court to make a finding as to whether the father raped the mother at the time of Z’s conception.

20. I am satisfied however that even at that time the relationship between the parties was fragile and insecure.

21. I find at the very least that on that occasion the mother felt very overwhelmed by the father, as she had on occasion previously and would do so in the future.

22. The father’s description of the parties sexual interlude on the night of 20 November 2012 as being a mutually fun and enjoyable experience is hard to reconcile with the mother’s demeanour as consistently observed in the courtroom, or the mother’s evidence as to the nature of the relationship overall.

23. I accept her evidence that she told no-one about the pregnancy until May 2013 when she told her parents.  In the father’s oral evidence-in-chief he said he was not aware that the mother had not told anyone about her pregnancy and did not recall her telling her parents in May 2013 that she was pregnant.

24. The mother did not raise the allegation with police or any other agencies until some six years after the event.

25. In circumstances where it appears that the mother’s level of trauma has if anything increased since separation in 2014 rather than decreased, it would no doubt be difficult for the mother to have a clear recollection of the event such that it has not been influenced at some level by her feelings of trauma about the parties’ relationship generally.

26. Overall it is difficult to place reliance on the father’s version of events in any instances where the parties’ evidence differs.  I have already referred to his lack of truthfulness in numerous instances.

27. In circumstances where it was the father’s evidence that the parties were attempting to conceive a child at the time of intercourse in November 2012, it was surprising that he said he was not aware that the mother did not tell her parents of her pregnancy until approximately May 2013, when he had been aware of the pregnancy in December 2012.  That evidence is inconsistent with any mutual pleasurable anticipation about the pregnancy but is consistent with the mother’s evidence in paragraph 20 of her trial Affidavit that she was uncomfortable about the circumstances of what she believed was the conception event.

28. The mother agreed that her journal entries commenced in May 2012 with a reference to abusive behaviour towards her by the father in Country Q when he threw a thong at her when drunk which hit her directly in the face with force.  The notes indicated that she had locked herself in the bathroom for some hours.

29. She agreed that she had noted that in late April or May 2013 when she was some five months pregnant she had bad morning sickness and had asked the father to pick her up from the train station.  She agreed that she had noted that was when the father’s behaviour started to change and further, that the record of that incident appeared to have been written after the event.

30. She agreed that she made the comment in that entry that the incident referred to above occurred when she was about 22 weeks pregnant and could no longer make a decision about having a child.

31. When asked by the father’s counsel if she thought that she had been tricked by the father she replied that she thought she had been fed a lot of promises by him.  When asked if it was the position that she had never forgiven the father for that she replied that she felt very uncomfortable about it, that is, “the way it came about”.  In answer to a question from the Court she said she had difficulty in forgiving the father.

32. I find the contents of that note made by the mother far closer to the time of the event than at the time of trial indicated a level of concern about her pregnancy and its origins.

33. I find that the parties had sex in November 2012 when the father returned from his work.  I find that the mother was not the enthusiastic sexual partner described by the father.  I am unable to find on the evidence that the father raped the mother that night.

34. I find that the relationship was probably less than satisfying at that time for either party at any level but note that the mother conceded that it was good at times.

35. I find that the mother was initially pleased about the pregnancy but realised as time progressed that the parties had little in common and had concerns about their future.

36. The parties’ disparate personalities and their complete lack of emotional connection were illustrated by their conduct and presentation throughout the trial.

37. The mother’s concession that she found it difficult to “forgive” the father for what she described as “feeding” her a “lot of promises” and for “the way it came about” suggested a level of bitterness about the relationship and her and Z’s circumstances that I find must have had some influence on her feelings and beliefs since separation.

Evidence as to the father’s allegation that the mother fraudulently changed Z’s surname

1. It was the father’s evidence contained in paragraphs 30 to 33 of his Affidavit filed 21 January 2019 that the mother had fraudulently changed Z’s surname on his birth certificate without his knowledge or consent, one week after he moved out of the mother’s home.

2. He deposed to:

   ·the mother having forged his signature on an application form to change Z’s surname from Haken, which on his evidence was Z’s surname on his original birth certificate, to Therkelsen;

   ·to writing to the Registry of Births, Deaths and Marriages in Western Australia advising he had not consented to the change;

   ·an investigation being conducted by that office;

   ·filing a statutory declaration to the effect that he had not signed any relevant forms;

   ·the mother also filing a statutory declaration and falsely alleging that he had signed the application form and provided her with his identification documents for the purpose of the registration of the name change;

   ·the matter being referred to the Western Australian fraud squad;

   ·paying $825 to a forensic signature examiner to undertake an investigation to examine the suspected forged signature;

   ·providing about a dozen of his own specimen signatures from various documents;

   ·to the handwriting analysis being inconclusive;

   ·writing to the Registry seeking to have the change of Z’s name revoked;

   ·to that not happening because of a lack of evidence of unlawful action on the mother’s part;

   ·being advised that if he was dissatisfied with that decision he should apply to the State Administration Tribunal for a review;

   ·writing to the Tribunal;

   ·the matter being heard by the Tribunal;

   ·having an opportunity to apply to have the name change revoked;

   ·the mother’s solicitor advising the Tribunal that if he applied to have the name change revoked and was successful her client would apply to have the name changed back; and to

   ·being advised by his lawyer from the Office of Births, Deaths and Marriages and the State Administrative Tribunal staff that it was in his best interests to have the matter addressed in the Family Court.

3. He said in those circumstances he withdrew his application and the matter was closed.

4. The mother’s evidence regarding the matter was contained paragraphs 211 to 226 of her Affidavit filed 25 January 2019.

5. She deposed to:

   ·Z’s name being recorded as Therkelsen in the hospital records at his birth;

   ·always wanting Z’s surname to be Therkelsen;

   ·the father forcing her to sign birth registration forms with the surname Haken;

   ·the father saying that if she signed the forms as he wanted they would go on a holiday to Asia;

   ·the father agreeing to change Z’s surname just prior to separation to Therkelsen;

   ·the father signing the change of name document as well as a Centrelink child care rebate application with consent and capacity;

   ·that Z’s surname was subsequently changed to Therkelsen;

   ·the father being required to prove his identity for the purpose of the name change;

   ·to this being certified by the local Pharmacist and that to the best of her recollection the father had his passport, debit card and motor vehicle registrations certified;

   ·being with the father at the pharmacy;

   ·the father signing the documents on 18 September 2014;

   ·filing the application for name change together with the proof of identification as certified for the father by post on 19 September 2014;

   ·receiving the change of name certificate in the mail dated 26 September 2014 addressed to her at her address;

   ·the father having moved by that time to live at Suburb R;

   ·the father appealing the name change with Births, Deaths and Marriages;

   ·the matter being referred to Western Australian Police for consideration of any possible fraudulent action;

   ·providing a statutory declaration confirming that the documents were filed on 19 September 2014 and that the father had willingly signed the documents;

   ·denying that she made any false or misleading representations in the Births, Deaths and Marriages application;

   ·the Western Australian Police fraud squad deciding not to investigate the matter;

   ·no action being taken;

   ·correspondence marked “R-25” to her trial Affidavit being a copy of correspondence from Births, Deaths and Marriages dated 13 May 2016 confirming that no further action would be taken by Births, Deaths and Marriages with respect to Z’s surname, that the surname Therkelsen would remain in place and that if she wished to change Z’s surname back to Haken she should consider a joint application with Z’s father or seek an order from the Family Court of Western Australia;

   ·the process being extremely stressful for her;

   ·the father filing an application with the State Administrative Tribunal on 3 November 2017 seeking to review the decision of Births, Deaths and Marriages;

   ·not being served with a copy of that application nor having knowledge of same until advised by the State Administrative Tribunal by correspondence on 11 December 2017 making reference to the application and a copy of the order of 11 December 2017; and

   ·not having seen the statutory declaration which formed part of the father’s application to the State Administrative Tribunal or having any knowledge of the forensic investigation reports.

6. A copy of the father’s application to the State Administrative Tribunal comprised annexure “R-26” to the mother’s trial Affidavit.

7. In cross-examination the father agreed he had sought to have the mother prosecuted with respect to issues arising from the change to Z’s surname.  He agreed that it was his belief that Z having the surname Therkelsen occurred because of fraud perpetrated by the mother, and that he was very disappointed in what had happened.  He denied that he was angry but thought that she should not “get away with that”.

8. He agreed that he was so disappointed he took the matter to Births, Deaths and Marriages and wanted action.  He denied that he wanted the mother prosecuted for falsifying a document.

9. When asked why he then took the matter to the fraud department in Births, Deaths and Marriages he said that he did not cause that to happen but rather it was referred by the Births, Deaths and Marriages Registry.

10. He said his intent in taking the issue to the Births, Deaths and Marriages Registry was because he had nothing to do with the name change.  He agreed he could have sought that Z’s name be changed back to Haken in these proceedings.

11. It was put to him that annexure “A-15” to his trial Affidavit was a response to his solicitor who raised with him the issue of Z’s surname being Therkelsen, wherein he asked if the solicitor could investigate how the mother had been able to effect the change ending with “…I want to prove she is lying on her affidavit and have her prosecuted for this birth certificate.  Enough is enough.  Please let me know what we can do.”

12. He said he did not remember writing that correspondence and nor was he angry.  He agreed however that he was more than disappointed.

13. When it was put to him again that he wanted the mother prosecuted he agreed that having read the email he did want that at the time but denied that he wanted consequences to flow to the mother.

14. When asked what he thought would happen if he pursued the matter he said he wanted the name changed back, that there was an investigation into the matter by Births, Deaths and Marriages but he did not encourage that investigation.

15. He agreed that he had been advised by that office that the only way to prove the issue was by employing a handwriting expert.  He agreed they wouldn’t pay that expense and that it cost $850.  He agreed that the results came some six months or so later, disagreed with the suggestion that by then his disappointment would have subsided and confirmed that he was still disappointed at the date of trial.

16. He agreed he had a choice to stop the investigation in its early stages, that he did not take that step and that the exercise was quite expensive for him when he didn’t have much money.

17. He agreed with the proposition put to him by the mother’s counsel that when the handwriting expert said the results were inconclusive his disappointment remained, that he was unable to let the matter go and that he had then written to the State Administrative Tribunal and requested a hearing.  He agreed that he withdrew his application ultimately on advice and that he was disappointed when he withdrew his application.

18. When it was put to him that when he feels aggrieved he seeks to ensure that all steps are taken to remedy the circumstances he said that he did not understand the question.

19. I find that the father was not being truthful in that regard.

20. I find that was an example of the determined and controlling nature of the father alleged by the mother.

21. I am not satisfied on the evidence that the mother fraudulently applied to change Z’s surname on his birth certificate.

22. The mother’s evidence-in-chief as to the circumstances of the application being forwarded by her to Births, Deaths and Marriages with the father’s signed consent was detailed.  She was not shaken in cross-examination as to any aspects of the evidence and answered questions in a forthright manner.

23. During closing submissions the father’s counsel advised the Court that he had been instructed not to pursue the issue of a change of Z’s surname back to Haken.  In addition, there was no formal application before the Court from the father for such an order.

24. It was submitted by Mr McQuade however that the evidence was important with respect to findings of credit.  It was his submission that if the mother’s evidence was accepted it was at odds with the balance of the father’s behaviour in pursuing a relationship with Z in difficult and trying circumstances when the mother’s evidence was that the father agreed to the joint application to change Z’s surname.

25. He questioned whether the mother’s evidence was more plausible and submitted that from the father’s perspective it was difficult to accept anything that the mother said about any issue unless there was other evidence to support her position.

26. I have already found that I preferred the evidence of the mother over the father when it was in conflict including with respect to the birth certificate issue.  In addition, I found the father’s position to be another example of his determination to engage in behaviour that was controlling of the mother.

27. In addition to being cross-examined by the mother’s counsel regarding the issue of name change he was cross-examined by counsel for the Independent Children's Lawyer.

28. When asked if he sought to change Z’s surname he replied that he “strongly” did so and when Mr Childs put to him that he thought he had conceded that it was not in Z’s best interests to change his name at this time he said that was not the case.  He said that he did not consider a change of name for Z would have any impact on him whatsoever.  He agreed that people at school or otherwise may ask him why his name was now “Haken” but said in answer to a question from the Court that his response to that would depend on his age.

29. He said that if Z asked him why his name was now Haken he would tell Z that it was his birth name and that if he got to have that conversation when Z was older he may explain that the name had been changed illegally.  He thought that conversation may happen when Z was a man.

30. When asked why he would have that conversation he replied that Z has every right to know and that Z would be very happy when he knew the truth.

31. When Mr Childs asked the father why he would tell Z about the name change at any time if the name was changed by the Court the father replied that he is a man of principle, that the mother did something wrong and that is why he is doing something about it.

32. When asked what effect he thought his conduct would have on the mother he said he thought she would be very upset.  He agreed that it may impact on her parenting capacity and that that was not good for Z.

33. When it was put to him by counsel for the Independent Children's Lawyer that this was about “getting back” at the mother he denied that to be the case and said it was to right a wrong.

34. Z’s surname was changed in September 2014.

35. The father’s evidence was that he became aware of the name change in approximately February 2016.  The father immediately contacted Births, Deaths and Marriages regarding the issue, the mother provided a statutory declaration to the Births, Deaths and Marriages Registry in March 2016 and by May 2016 the Western Australian Police fraud squad had made a decision not to investigate the matter.  Births, Deaths and Marriages determined by correspondence dated 28 July 2017 not to make any further changes to Z’s surname.

36. In November 2017 the father filed his application with the State Administrative Tribunal.  The mother was advised of the application by the Tribunal.

37. Proceedings have been on foot firstly in the Family Court of Western Australia and then the Federal Circuit Court followed by the Family Court of Australia since December 2015.  At no time during the proceedings in any of the family courts has the father filed an application with respect to name change.

38. I find that the father’s attitude to Z’s surname is not informed by any genuine concern as to Z’s best interests but rather by his determination to “punish” the mother.  I find it to be another example of attempting to control the mother.

39. Whatever the father’s reasons were at the time shortly following upon the parties’ separation, I am satisfied that he consented to the change of name.

Evidence as to the father’s alleged threat to kill work colleagues and the mother’s ex-boyfriend

1. In paragraphs 68 and 69 of the mother’s trial Affidavit she deposed that on 24 November 2014 the father threatened to kill her ex-partner and dispose of him in a forest where nobody would find him, and to him repeating those comments whilst the parties were at dinner on 26 November 2014.

2. In the father’s oral evidence-in-chief in reply the father agreed that he had made that threat in circumstances where the mother was very distressed about her ex‑boyfriend stalking her, and as a comfort, he said to the mother that if he “came around I’d kill and bury him”.  He said the mother had complained of being fearful that her ex-boyfriend had been in her back garden, that she had seen cigarette butts there and was concerned she was being stalked.

3. In cross-examination he denied saying to the mother that he would kill her ex‑partner and bury him in a forest as a threat, but rather, he used the words as a “figure of speech”.

4. When it was put to him that in his oral evidence the previous day he had acknowledged that he had threatened to kill the mother’s ex-partner and bury him he replied that “threaten” was a strong word.  He said that he was “absolutely not serious” when he had made that comment to the mother.  When it was further put to him that he wanted to ensure that the mother thought he was serious he said he was never serious.

5. The mother had alleged in paragraph 68 that threats made to colleagues at his employment led to his dismissal from work at the end of 2013.  The mother said that the father made those comments on occasions when he had “violent outbursts”.

6. He agreed it was possible that the use of the phrase “going to kill” other people in 2013 in relation to people at his workplace may have led to the termination of his employment in 2013 although he had no recollection of that.

7. He did however recollect using that turn of phrase at around the time of the end of his employment and agreed that the use of the words may have had an effect on his employment at that time, although he said his employers never heard him say those words.

8. He said he had made the comments after he had been “let off” from his employment when he was upset.  He said that he had made the comments when he got home from his shift, that he did not use a serious tone and that it was a “figure of speech”.

9. When asked by the Court why he understood he had been “let off” from his employment he replied that his work had carried out a restructure, in the process of which it had been decided that maintenance contractors were no longer needed as such work was going to be done “in house” leading to casual workers being “let go”.

10. The father was also cross-examined in relation to the mother’s evidence concerning the same issue by Counsel for the Independent Children's Lawyer.  He agreed it was his evidence that he had made the comments to calm the mother, that Z had been with his parents at dinner on 26 November 2014 and that he had a vague recollection of the mother telling him she had had a strange call, perhaps to do with her ex-partner, but he didn’t know if it had been that night.

11. He agreed that he had made the comment twice in two days with respect to killing the mother’s ex-partner.  He further agreed that Z could have heard his comment.  He said that he now thought that it was “absolutely inappropriate”.  When asked why he had formed such a different view he said it was because he had been to courses and now understood that children understand lots of things.

12. He said that the mother had not reacted to his comment because she was too distraught, that she was sad and nervous before he made the comment, but showed no emotion when he did.  He said that she was motionless when he tried to calm her down with those comments.

13. He said that the comment he made regarding killing work colleagues was made to the mother when he got home from work and not directly to his colleagues.  He said he had said something like “I’ll go and kill those bastards”, denied that he had been angry when he made the comments to the mother but rather, he was disappointed.

14. He said that comments with respect to the mother’s ex-partner and his work colleagues were the only two instances where he had made joking threats.  When asked why he would make threats against his work colleagues to the mother in circumstances when it was unlikely that she was distressed because of his work colleagues, he said that she was distressed when he told her he had lost his job.  He said she was calm prior to him making the comment and gave no reaction when he did make the comment.

15. He denied making violent threats, for example towards other vehicle drivers on the road as alleged by the mother in paragraph 68 of her trial Affidavit, but agreed he got angry and frustrated and made comments and perhaps banged the steering wheel.

16. I find that the father expressed the threat to kill his work colleagues to the mother in circumstances where he was extremely angry that he had lost his employment.  I find that it is likely that his comments were heard by other work colleagues and contributed to his loss of employment.  I find that he repeated the comments to the mother upon his return from work with no thought for any fear that may engender in the mother.

17. In cross-examination the mother agreed that she had told the father both on 24 November 2014 and at dinner on 26 November 2014 of her concerns about her ex-partner.  She said the relationship had ended in 2005 and that when she initially talked about it with the father she told him that her ex-boyfriend had not been happy that the relationship had finished.  She said she had been in fear at the time and concerned that he might stalk her.

18. When asked if some six years later she told the father that she thought her ex‑boyfriend was still stalking her she said she told the father she had a concerning missed call and that she was worried about the call.

19. She denied telling the father on that night that she had seen her ex‑partner driving past but said she had told him at another time that after her relationship with her ex‑partner ended he had followed her.

1. I find that the mother’s visceral aversion to any level of contact whatsoever with the father arises from her genuine fear of the father being a risk to her and to Z, arising from the father’s emotional and physical conduct towards her and towards Z during the relationship and to a lesser extent subsequent to the relationship.

2. I consider that in the circumstances of this case it is in Z’s best interests for his mother to have sole parental responsibility.

Conclusion

1. This is a very difficult matter and I apologise to the parties for my delay in delivering judgment.

2. I am satisfied in the circumstances of this case that not only should the mother have sole parental responsibility for Z but that, for the reasons to which I have referred at length, there should be no orders providing for Z to spend time with or communicate with his father.

3. Z is a child with complex needs.  Those needs are being met by his mother and she will be required to maintain a very high level of care for Z for many years into the future if not for his lifetime.

4. For Z’s sake she must be able to do so in an environment where her difficult role is not complicated or compounded by the extraordinary levels of stress that I find she experiences when required to have any interaction whatsoever with Z’s father.  Such a situation cannot be in Z’s best interests.

5. Z’s relationship with his father is currently very limited in nature.  He has little if any understanding of or capacity to provide for Z’s day‑to‑day needs let alone his complex medical, including psychological, needs.

6. The mother does not trust him at all anywhere near Z.  That was reflected in her behaviour during the parties relationship where I find she constantly tried to place herself between Z and the father on occasions when she considered the father’s behaviour was unusual and concerning.  That behaviour to which I have referred at length made her feel uncomfortable, she clearly considered it to be inappropriate and on her own evidence only started thinking of it as possible sexual abuse subsequent to the cessation of the relationship and obtaining some counselling.

7. Her fears were set against a backdrop of knowing that the father had been untruthful to her about many aspects of his life and where she clearly had concerns about his sexual proclivities.

8. The preferred orders sought by the father involved him moving to South Australia to live proximate to the mother and, with a short introductory period, changing Z’s living arrangements from the sole care of his mother to living equally with both of his parents.

9. I find that it was not until cross-examination during the trial process that the father gave any serious thought to the actual parenting proposals he put before the Court and to the realistic possibility of their implementation or their impact on Z.

10. It was submitted by counsel for the father that counsel for each of the mother and the Independent Children's Lawyer were not only submitting to the Court that the father should be cut off for all time from Z but also for the father to have no access to Z’s medical records or carers – in short, cut off from any involvement with anyone who could detect changes in Z’s condition.

11. He submitted that in those circumstances Z would be left with a mother who, whatever her disorders, is a seriously damaged person, and that there was no evidence before the Court to say that Z’s life would be improved by “cutting off” his father from his life for all of his childhood.

12. I am satisfied that the evidence did support such a course of action being in Z’s best interests.

13. Z is entitled to the benefit of both of his parents having meaningful involvement in his life to the maximum extent consist with his best interests.[10]

    [10] ss.60B(1)(a) (supra)

14. Section 60CC(2)(a) of the Act requires the Court to consider the benefit to Z of having a meaningful relationship with both of his parents. I am unable to find on the evidence and for the reasons to which I have referred that Z will benefit from or that his best interests would be met by having his father having a meaningful involvement in his life.

15. Although there is no doubt that, as counsel for the father submitted, there were seven people who observed Z interacting happily with his father, I accept the evidence of the mother that he is overall a happy child who enjoys playing, loves toys and that those observations were all in circumstances where the atmosphere was relaxed and happy and where the father, in a supervised situation, interacted well and appropriately with Z.

16. I am not confident that there is any evidence before the Court that would support a finding that such a happy interaction would occur if Z were to spend longer periods of time in the care of his father, particularly in an unsupervised environment.

17. I find that if the mother was required to keep the father informed of Z’s medical and educational progress she would be unlikely to experience a significant reduction of her levels of stress and anxiety.  I consider that would not be in the best interests of Z.

18. For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding five hundred and twenty-eight (528) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 16 October 2020.

Associate:

Date: 16 October 2020