Halliday and Keese

[2014] FCCA 343

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALLIDAY & KEESE [2014] FCCA 343

Catchwords:
FAMILY LAW – Parenting – allegations that father threatening to kill the mother and child – allegations investigated by police and Department of Children and Families – allegations unsubstantiated – concerns the mother’s parenting capacity and mental health – change of living arrangements.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

Rules of Professional Conduct and Practice published by the Northern Territory Law Society,  r.17.06

Waterford & Waterford [2013] FamCA 33
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR & GR [2010] HCA 4
AMS & AIF (1999) 24 Fam LR 756
Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Applicant: MR HALLIDAY

Respondent: MS KEESE

File Number: DNC 544 of 2010

Judgment of: Judge Harland

Hearing dates: 12, 13, 18, 19 and 20 December 2013

Date of Last Submission: 20 December 2013

Delivered at: Darwin

Delivered on: 27 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Norrington

Solicitors for the Applicant: DS Family Law

Counsel for the Respondent: Ms McLaren

Solicitors for the Respondent: Asha McLaren

Counsel for the Independent Children's Lawyer: Ms Terrill

Solicitors for the Independent Children's Lawyer: Terrill & Associates

ORDERS

1. That all previous parenting orders be discharged.

2. That the father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975) (“the Act”)) in respect of the child, X born (omitted) 2005, save that the father shall, prior to making the sole ultimate decision about any such issues:

   (a)Advise the mother in writing of the decision intended to be made;

   (b)Seek the mother’s written response in relationship thereto;

   (c)Consider, by reference to the best interests of the child, any such response prior to making any such decision.

3. That the child live with the father.

4. That the child spend time with the mother each alternate weekend from after school Friday until before school Monday or otherwise agreed.

5. That time to be spent in accordance with paragraph 3 and 4 shall be suspended while each parent is spending the following periods of special significance with the child:

   (a)On the child’s birthday in each and every year with the parent who doesn’t otherwise have the child in their care, to have the child from 1.00 pm until 6.00 pm on non-school days and 3.00 pm till 6.00 pm on school days.

   (b)On the father’s birthday in each and every year with the father to spend time with child from 1.00 pm until 6.00 pm on non-school days and 3.00 pm till 6.00 pm on school days.

   (c)On the Mother’s birthday in each and every year with the mother to spend time with child from 1.00 pm until 6.00 pm on non-school days and 3.00 pm till 6.00 pm on school days.

   (d)On Christmas day as follows:

   (i)With the father from 6.00 pm on Christmas eve until 1.00 pm on Christmas day and each alternate year commencing 2013;

   (ii)With the mother from 1.00 pm on Christmas day until 6.00 pm on boxing day and each alternate year commencing 2013;

   (iii)With the mother from 6.00 pm Christmas eve till 1.00 pm on Christmas day and each alternate year commencing 2014; and

   (iv)With the father from 1.00 pm on Christmas day until 1.00 pm on boxing day and each alternate year commencing 2014.

   (e)That the child shall spend time with the mother on Mother’s day each and every year from 9.00 am till 6.00 pm on that day.

   (f)That the child shall spend time with the father on Father’s Day each and every year from 9.00 am till 6.00 pm on that day.

   (g)For the Easter long weekend as follows:

   (i)With the mother from 3.00 pm on the Thursday immediately prior to Good Friday until 6.00 pm on Easter Saturday and then with the father from 6.00 pm on Easter Saturday until 7:30 am on the Tuesday immediately following Easter Monday, commencing 2015 and each alternate year thereafter; and

   (ii)With the Father from 3.00 pm on the Thursday immediately prior to Good Friday until 6.00 pm on Easter Saturday and then with the Mother from 6.00 pm on Easter Saturday until 7:30 am on the Tuesday immediately following Easter Monday commencing 2014 and each alternate year thereafter.

6. That for the purposes of changeover of the child pursuant to paragraph 4, the mother shall collect the child from school at the commencement of time to be spent and deliver the child to the school at the conclusion of time to be spent on schools days and in the event that the changeover is to occur on non-school days, the changeover shall occur at CatholicCare NT (omitted) or another agreed location.

7. Each parent shall keep the other informed of their telephone numbers and any changes thereto forthwith.

8. That each parent shall keep the other parent notified of any medical emergencies involving the child while the child is in their care, including providing the other parent with the contact details of any treating medical practitioner.

9. That each parent is restrained and an injunction issue restraining them from denigrating the other parent or members of the other parent’s family to, or in the presence of, the child or allowing the child to remain in any place where such denigration is occurring.

10. That the mother attend all appointments with any medical practitioners and other professionals as required by Department of Children and Families (“DCF”) and shall keep attending as long as required and DCF is authorised to provide those medical practitioners with a copy of these reasons and the two family reports prepared by Ms M in these proceedings.

11. If the mother does not comply with order (10) the mother’s time with X will be at the father’s discretion.

12. Within 7 days of the date of these orders the Independent Children’s Lawyer shall provide copies of this judgment and orders to:

    (a)Department of Children and Families;

    (b)Northern Territory Police.

13. That within 7 days the Independent Children’s Lawyer shall provide a copy of the orders to X’s school.

14. That the mother be restrained from attending X’s school except to collect X at the beginning and end of the school day and to school events parents are invited to.

15. That the parents undertake and complete the Anglicare ‘For The Kids’ parenting program as follows: 

    (a)Each parent, within seven (7) days of the date of these Orders are to contact Anglicare NT on (omitted) and enrol in the Course;

    (b)The parents will attend all sessions of the course and comply with all reasonable directions of the course providers;

    (c)At the conclusion of the course each parent provide to the other parent a certified copy of the certificate of completion.

16. That the father take X to any appointments arranged by DCF.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 544 of 2010

MR HALLIDAY

Applicant

And

MS KEESE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders concerning X born (omitted) 2005, aged 8.

2. The father, Mr Halliday was born on (omitted) 1974 and is 39 years old.

3. The mother, Ms Keese was born on (omitted) 1979 and is 34 years old.

4. The parties started their relationship in July or August 2004. They separated in February 2008.

5. The father suffered a serious back injury in January 2008. On the father’s case this was a major stressor in the relationship as he needed a lot of assistance. He was fairly immobile and in a lot of pain. They had a toddler to care for.

6. After separation the father spent time with X sporadically. He was still in pain and was struggling with his injury. He had surgery on his back later in 2008.

7. The father says he struggled with his mental health in early 2009 because of pain, immobility, depression and being unable to work. He had a mental breakdown and spent some time in mental health wards. He says he tried to commit suicide “on at least one occasion”.

8. The father says the mother did not stop him from seeing X during this period.

9. The father says he started seeing a psychologist Dr I and he started feeling much better.

10. The parties agreed on a parenting plan after attending mediation with Relationships Australia in July 2009. That agreement provided for X to live in a week about arrangement with his parents.

11. The father says the week about arrangement was in place from 20 July 2009 to 25 October 2010, apart from the three month period in late 2009 when he was in hospital because of an allergic reaction to drugs causing him to have a pulmonary embolism. The mother says that she continued to primarily care for X and that they did not stick to the parenting plan because it was not working.

12. The father says that the mother informed him on 29 October 2010 that she was stopping X’s time with him.  The mother says she tried to go to mediation with the father but that eventually she was issued with a section 60I certificate as the father refused to participate. Significantly however she did not start proceedings, the father did. Annexure B to the father’s affidavits is an extract of X’s attendances at (omitted) Primary School noting that he did not attend the school after 29 October 2010. There is a handwritten note saying “mother has withdrawn from school pending an emergency court appeal 100% custody.”  In her affidavit the mother says she took X out of school for about two weeks until she could get a Domestic Violence Order (“DVO”) against the father.

13. The mother obtained an interim DVO against the father on 19 November 2010. X was included as a protected person. The DVO prevented the father from contacting the mother including by telephone or text.

14. The father entered into an undertaking on 10 December 2010 resolving the DVO proceedings.

History of proceedings

1. The father filed an initiating application on the 23 November 2010. This matter has a long and troubled history.

2. The first return date of the matter was on 18 January 2011. The mother had not filed any material by that date and the matter was listed for an interim hearing on 23 February 2011. In her response the mother sought that the father have supervised time with X at CatholicCare. The parties agreed to consent orders on 23 February 2011 which provided for the father to spend time with X from 10.00am to 4.00pm on alternate Saturdays and Sundays with that time to be extended to include Saturday overnights from 16 April 2011. Handovers took place at CatholicCare.

3. The father lists several occasions in his affidavit when the mother did not provide X to spend time with the father claiming X was ill in 2011 and 2012.

4. The father did not spend any time with X from 21 July 2013 until shortly before the hearing when he spent one hour supervised time with X on 7 December 2013.

5. The mother has made many varied allegations in this case. I do not specifically address all of them, particularly historical ones but I have taken all the evidence into account. I address the major allegations later in this judgment.

6. The findings I make are based on the civil standard of proof. Being the balance of probabilities.

7. X has made several allegations against the father. These include that the father threatened to kill himself if X did not lie about a previous disclosure and that he would kill X’s mother and the maternal grandparents.

The father’s case

1. The father relied on his affidavit filed 6 December 2013. The father seeks to have X live primarily with him. He says that the mother has not and will not facilitate his relationship with X.

2. His relationship with X has been significantly disrupted by the time he has spent apart from him. He denies making any threats to harm the mother, her family and X. He also denies the allegations of domestic violence.

3. He lives in a 29 foot long caravan on his brother’s rural property outside of Darwin. His brother lives in the main house and his father lives in a separate granny flat.

4. The father says the mother has used X’s health as an excuse not to send X on contact visits.

5. The father admits to calling the mother foul names. He denies speaking to her in that manner or at all when they attended court events at the Magistrates Court. He also denied calling her names in front of X.

6. The father made two notifications to Department of Children and Families (“DCF”) about the mother. Exhibit M2 is a notification made by the father on 13 October 2010 when he reported the child was being hit by the mother and locked up. Exhibit M3 is a further notification by the father on 1 October 2011 where he says he has heard from friends that the child is being exposed to domestic violence.

7. The father denies telling X to lie or he would kill himself. He also denies ever threatening to kill the mother, her parents and ‘nature’.

8. The father denies owning a crossbow or even knowing anyone who owns a crossbow, let alone threatening to kill the mother with one.

9. The father has said intemperate things. He has said intemperate things to Mr K. He says his comments about destroying the mother were taken out of context. He made these comments in the context of the court proceedings. Mr K confirmed when giving evidence that was the context as he understood it.

10. The father works five days a week. He can start work anytime from 4.30am to 7.00am and usually finishes by about 2.00pm. He says his father has agreed to help him

The mother’s case

1. The mother relied on her affidavit filed on 10 December 2013. The mother makes several allegations against the father in her affidavits including that he was emotionally and mentally abusive. Her affidavit is replete with conclusions, opinions and submissions which I can place no weight on. Examples found at paragraphs [42], [57], [61], [77] and [127]. There are many others. The father’s affidavit slips into this occasionally but not the same extent.

2. The mother’s case is that she has always been the primary carer of X. She raises concerns about the father’s parenting capacity and the genuineness of his in seeking orders to spend time with X. She says he wants revenge against her. I do not accept that this is the case.

3. The mother says she has always encouraged the relationship between X and father.  The mother ran the argument that the reason the father and X have a good relationship is because she encouraged and fostered the relationship ever since they separated in early 2008. I do not accept that argument.

4. The mother sought to criticise the father because in 2011 the father raised the issue of finding another doctor for X because he was not happy with Dr D.  He raised it in the communication book and offered to find another doctor and cover the costs. There was nothing wrong with the father raising this issue and having a different opinion to the mother. This is the type of issue which arises as an incident of parental responsibility.

5. When cross-examined the mother said that she stopped the week about arrangement that has been in place from 18 months because she was concerned about X’s safety. Initially she referred to the father’s suicide attempts but when the father’s counsel pointed out that that had taken place before the 18 months week about time she then referred to X’s health. The mother referred to X’s schooling and to the father’s refusal to attend mediation. This was in response to what safety concerns she had about X. The mother then said the health concerns were about X’s cough and his “doodle” and she agreed that that had caused her to take X out of school and to cease X spending time with his father.

6. The mother had said that she had taken X out of school for two weeks, in fact the school records show she took him out from 1 November to 3 December 2010. There is nothing in her evidence that justified such an extreme reaction and that would have been unsettling for X.

7. The mother also continued to refer to the father’s mental health as justification for her actions. She said Mr K’s report supported her position, but when pressed said she could not point to any other current evidence. She had not read Mr K’s report.

8. The mother claimed that their current medical records might have material that supports her claim that the father’s current mental health places X at risk. Again she was not able to point to any specific documents. She had access to the subpoenaed documents for months and she and her lawyers had photocopies of the documents several weeks prior to the hearing. The mother then retracted her earlier statement and conceded that Mr K’s report did not support her claim and said that it did.

9. The mother denies that the schoolteacher ever spoke to her about concerns about X’s diet and nutrition. She was then shown exhibit F5 which is DCF intake form data 27 April 2013 showing a notifier stated that the mother was not providing the child with adequate nutrition in school lunches. The notifier said she had spoken to the mother about this and the lunches had not been improved. The mother maintains the teacher had not spoken to her. I do not accept her evidence.

10. The mother did not include the father’s details in the parent guardian information section of the (omitted) Primary School’s enrolment form. She included her own mother as the other parent instead. She did not include the father’s details as emergency contact. The mother claims that she did not include the father because he was only seeing X on weekends. I think this is reflective of the mother’s attitude in wanting to exclude the father from anything to do with X.

11. The mother was an unreliable witness. The father’s counsel suggested to her when she was cross-examined about X’s school performance that she was trying to create a positive picture of his school performance which is not supported by his school report.  It is clear that X continues to have behavioural issues and is not performing particularly well at school. His 2013 school reports do not show any significant improvement over the course of the school year.

12. The mother claims she was attacked in the street by a stranger and suffered a broken eye socket. The father’s counsel suggested to the mother that it was her then partner, Mr C who broke her eye socket and that X witnessed it. X described the incident to Ms M. The mother denied this and said as she had no evidence she did not report the incident to police. This is despite her apparent concern the stranger may have intended to sexually assault her. The mother then said that she spoke to the police but just received advice from them. If this was true one would expect there to be reference to this in the police records which were subpoenaed. I do not accept the mother’s version of events. I find that X witnessed violence in the mother’s home when the mother was in a relationship with Mr C.

13. The mother has filed several domestic violence claims against the father. She mentioned for the first time during her cross-examination that X saw the father hit her during their relationship and “used to sit in the corner, rocking, singing to himself”. The mother admitted that she had not referred to that before. She claimed that this was because those applications were about her and not X even though she also had to concede that X had been named as a protected person. Her evidence is not credible.  There were numerous other examples which emerged during cross-examination of mother’s inconsistencies in her evidence. I will not recite them all.

14. The mother complained that the father often called her a “gutter slut”, stuck his middle finger up at her and spat at her outside the Local Court. The mother seeks to have this court believe that she did not complain to the police about those incidents, when she saw fit to complain to the police when the father said good morning to her outside the Magistrates Court in 2010. She said she did not want to waste police time. The mother made frequent complaints to police about various issues. I find that she did not make a complaint because the father never did those things.

1. The mother also had a DVO amended to remove the reference to CatholicCare. Shortly after she had that order amended the father asked one of the CatholicCare workers to inform the mother that X had a rash and needed cream put on it. The mother rang the police and complained about the note saying that it was a breach of the DVO. It was suggested to her that she did that because she wanted to breach him. Although she denied this I accept this as the most likely explanation.

2. In several of her affidavits the mother swore that on 26 June 2013 she was advised by the police and the media not to send X to his father because investigations were pending. Yet again an examination of subpoenaed documents shows this to be false. The first child forensic interview with X took place on 11 June 2013. The mother agreed that after that interview the police told her that X did not make any disclosures. Tag 19 of exhibit F9 is a police Promis note where the mother complained after being told that the child forensic interview did not establish any offences. This is very different to the police telling her that they could not confirm whether or not X was at risk. I do not accept her evidence that she formed the impression on what the police told her that she should not send X to see his father.

3. Tag 21 of exhibit F9 shows that DCF told the mother on 3 July 2013 that there was no evidence that the father was a risk to X and that X had been interviewed several times by the police and DCF and X had not disclosed that the father had threatened to harm him. The mother said that she would not force X to see his father if he did not want to. I accept that the DCF records were accurate. The mother confirmed that this was her attitude during cross-examination. She further confirmed that after the case is over if X says he does not want to see his father she will not force him. She says she will seek assistance such as going to mediation. This is concerning as this is a repeating pattern with the mother. The court cannot be confident that if X remains in the mother’s primary care or shared care arrangement that she will not take unilateral action again to prevent X from spending time with his father again, which would be detrimental to X’s welfare.

4. Later in her cross-examination the mother asserted that she still took X to CatholicCare on 17 August 2013 for a supervised handover even though she was afraid that the father might kill X and himself. She says she was complying with order. This is inconsistent with her evidence given just shortly before that she would not force X to see his father if he did not want to. It does not make sense that she would have that attitude yet send her child when she thinks he may be killed.  At that point I asked the mother what she would need to accept that the father is not a threat to X. She replied psychological assistance for all of them and an assessment of the father.

5. The mother insisted that she had told several police officers and Ms C that the father is going to kill X. That is not reflected in any of the subpoenaed material and her own affidavits. I formed the impression that the mother is willing to make things up and exaggerate when she is concerned that things are not going her way. I find that the father has not made any of the threats the mother alleges to her, her family or to X. The mother hoped that X would not want to see his father because that is what she has been trying to instil in him.

6. Tag 25 of exhibit F9 is an email from CatholicCare (omitted) to Ms C dated 8 July 2013. In that letter Ms K tells Ms C that the mother showed another CatholicCare worker a video of X where the mother was directing X to tell her about his father threatening to shoot his mother and himself. The mother claims that there was no video and that this incident is made up. CatholicCare workers are neutral in the dispute. The mother offers no reason as to why they would lie. I do not accept the mother’s evidence. I find the mother has been desperate to come up with whatever evidence she can to support her claims which have no basis in fact.

7. The mother claimed in her trial affidavit that the father was in arrears of child support. Again documents showed the mother to be wrong.

8. The mother made a complaint against Ms C because she told the mother that X should spend unsupervised time with his father. The mother also claims that Ms C physically pried X’s fingers from a door at school. The mother asserts that a teacher told her about this. Again the mother’s version cannot be supported. Mr B the assistant principal emailed DCF stating that Ms C never went into the class room where this incident was alleged to have occurred. I do not accept the mother’s version of events. I am satisfied that Ms C did not go to X’s classroom and never pried his fingers from a door. The professionals have no reason to lie. The mother does.

9. It is clear that she was told by DCF several occasions in July 2013 that they had no concerns about X seeing his father. The incident at CatholicCare on 20 July 2013 is even more significant when seen in this context. I find that the mother was unhappy with what she was being told and sought to influence X so X would not want to see his father and that she became distressed when this did not work. DCF made it clear that on several subsequent occasions that X was not at risk from his father and that she should recommence X’s time with the father. Constable (omitted) had told her the same thing after the second child forensic interview. The mother says that when she told her lawyer that the child forensic interview went well she meant that X did not react badly and did not play up at school. I do not accept that explanation. It is quite clear from the evidence that the mother reinterpret things to suit her own version of events. How much of this is unconscious is impossible to tell.

10. The mother maintained in her affidavits filed after these events that the DCF and police still held concerns. Either the mother was being deliberately misleading or this is evidence of the mother being unable to accept reality and having distorted thoughts.

11. The mother has told X that the father used to hit her during their relationship. She sought to justify that by saying that the father had told X about those incidents and that X probably remembers it. X was about two and a half years old when they separated. I do not believe that the father would have told X about those incidents, even if I accepted they occurred, which I do not. I think this is another example of the mother trying to negatively influence X against his father.

12. The mother also had to concede that Ms C from DCF has raised her concerns to her that X knows too much about adult issues and that the mother has told X inappropriate things. At tag 9 of exhibit F9 there is a transcript of an interview between Ms C and X on 15 June 2013. During the course of that interview X said “Mam [sic] told me that he hit her and I believe it”. He was referring to his father. When shown this document the mother said that X has asked her if his father hit her and she has told him that he has. She said “I’m not going to lie to him.” The mother said the same thing to Ms C. This is recorded at tag 10 of exhibit F9. It also records that X knew too much information about the past and present situation and that the mother “accepted that she may have discussed inappropriate things but stated that she will not be told that she has coached him.” This demonstrates very concerning lack of insight and the psychological harm she has inflicted on X by telling him things he should not know about.

13. Tag 11 of exhibit F9 contains another transcript of interview by Ms C with X on 7 August 2013 during which X said “mum tells me bad stuff dad did, Mum told me that dad hit her, nothing recent, dad been saying bad stuff about mum, swear words. Mum told me to tell the truth. Mum hasn’t said to say something. Mum hasn’t scared me. Mum reminds me what to say, my memory goes.”  This is another example of the mother’s negative influence on X. Whether the mother intended this consciously or not she has coached X.

The father’s health

1. One of the issues of great concern to the mother during the case is the father’s mental health. On 12 February 2009 the father overdosed on pills and was taken to hospital. He was in a coma for three days. He was in hospital again in March 2009 and absconded from hospital. On 13 April 2009 he attempted suicide.

2. On 9 September 2009 he was taken to hospital with a severe allergic reaction. He denies that that had anything to do with the self-harming or being suicidal.

3. The father has kidney disease. The father’s understanding that he is on a transplant list and may need a kidney transplant in five to eight years’ time.

4. The mother tendered exhibit M5 is a letter from the father’s treating psychologist to his insurer dated 30 December 2009. That letter confirms the fathers reported history and in particular confirms that in September 2009 he was hospitalised because of the severe negative reaction to medication and not because of any suicide attempt. Exhibit M6 is an NT WorkSafe provider management plan which notes that the father had suffered from injury related pain, elevated anxiety, depression and that he has been achieving sound progress. Exhibit M9 is a GP mental health plan and covering fax addressed to the father’s psychologist Dr I. The mental health plan noted that the father’s issues related to anxiety rather than depression and there were no issues of self-harm. The purpose of the referral was for the father to receiving psychological support, relaxation therapy and cognitive therapy. Exhibit M8 is a further mental health plan dated 17 April 2013 where again the father was referred for depression. Specific reference is made to court proceedings and the DVO. Given the history of the proceedings in this Court and the Local Court it is not surprising that the father needed assistance. 

5. The mother complains that the father has not been honest about his mental health which means he is still a risk to X. Again the evidence does not support her complaints.

6. There is nothing in the evidence to suggest that the father has not acted appropriately and proactively. He sought further assistance last year when he was feeling depressed because of the stress of these proceedings.

The father’s time with X

1. The father spent one hour of supervised time with X at CatholicCare on the Saturday before the hearing. He says X was excited to see him and that X was upset when it was time to leave.

Catholic Care

1. Ms T, a contact supervisor employed by CatholicCare, gave evidence for the Independent Children’s Lawyer. In her affidavit filed on 9 December 2013 she refers to two supervised handovers at CatholicCare and she annexes her notes of those sessions.

2. The first one took place on 20 July 2013. She recalls that when X arrived with his mother she asked X if he was ready to see his father and X smiled and said yes. After he walked forward a few steps his mother called out “wait, he doesn’t want to see his dad.” Ms T noted that X changed his mind and said that he did not want to see his father. She continued to record highly inappropriate comments the mother continued to make to X. Ms T was able to convince X to go and see his father and when she observed that X climbed into a father’s arms for a big hug. She sets out the conversation that she had with the mother after she returned to tell her the mother that X had gone with the father and the mother was hysterical.

3. The second handover incident took place on 17 August 2013. On this occasion X said that he did not want to see his father and the mother was video recording the worker. The mother said she was recording it because she felt no one believed X did not go with his father on that occasion.

4. Ms T was cross-examined about her notes. She confirmed that at first X wanted to go and see his father and only changed his mind after his mother’s comments. She gave evidence that X has never shown any fear of his father when he is with his father without the mother present.

5. Ms T was asked about another handover on 21 July 2013. Notes from that session are contained in exhibit F4. After X left with the mother the father told the worker that the mother had called the police to conduct a welfare check about 10 minutes after he had left with X and it was necessary for him to take X to a police station. This reflects poorly on the mother.

6. The mother relied on a 17 second video of an incident at CatholicCare. She alleges that this shows the father intimidating her. The father says it merely shows him stopping when he saw the mother in her car with X as he was surprised because they were leaving just as he was arriving for a supervised visit. He stops and waves for a couple of seconds and then drives away. I have watched the video. It supports the father’s version of events. It is concerning that the mother could interpret that so differently and report it to police.

Alleged threats

1. The mother says that in December 2012 X told her that the father had threatened to kill the mother, nan and pop and nature. She reported it to the police. She also sought an extension of the DVO she already had in place.

2. The mother also says that in May 2013 X said that “Dad said he will kill himself if he did not win court.” The father denies saying this to X. This threat was investigated and X participated in the first child forensic interview about this threat on 11 June 2013.

3. The mother reported the threats to the police and DCF.

4. The second threat was investigated by Constable (omitted) who attended the hearing and gave evidence. He is an experienced police officer. He participated in the second child forensic interview with X on 30 August 2013.

5. Constable (omitted) explained the Promis file system. It is an Australia-wide computer records system. Each investigation is given an individual Promis number. Any documents related to the investigation can be uploaded to the Promis file and notes can also be made.

6. Police officers have spoken to X several times. X has participated in two child forensic interviews. Constable (omitted) spoke to X on the day X’s school principal made the complaint. X disclosed to his teacher and then to the principal that his father had been threatening to harm his mother.

7. The first child forensic interview (“CFI”) was conducted by a different investigatory group. Constable (omitted) was present at the second CFI conducted on 30 August 2013 at X’s school. The transcript of that interview is Exhibit F1.

8. Constable (omitted) gave evidence that the mother made the same notifications to several different police officers and made several complaints about not having heard about the progress of the investigation despite the contacts Constable (omitted) made with her which he kept records of. He said most of the calls would be logged. There may have been a few early in the investigation which were not.

9. Constable (omitted) concluded during the course of his investigation that there were several instances where the mother had fabricated incidents.

10. Constable (omitted) spoke to the mother after the second CFI was completed on 30 August 2013 at the school. He told her that X did not make disclosures with respect to any of the threats.  He says by this stage he was concerned about the mother’s mental health as she appeared to be fixated on the father and he thought she was telling lies to such an extent that it indicated that she could be mentally unwell. Constable (omitted) says he expressed his concerns to the mother and suggested that she see her GP. She was advised about inconsistencies in her complaints and lack of credibility. There is a note of later that day the mother’s lawyer contacted him as her client had told her that the interview had gone well and that X had disclosed multiple incidence of threats. The mother had told the police that her legal aid had been cut and she had no representation in the family law proceedings. Her lawyer said this was untrue.

11. Constable (omitted) spoke to Ms C from DCF who said she shared the police concerns about the mother lying and misleading them.

12. Exhibit F2 is the Promis record (omitted). This consists of casenotes for the investigation. There is an email from Sgt (omitted) to Constable (omitted) dated 14 June 2013 where she refers to the mother being unhappy with the police investigations and observed that the mother had gone on to report another matter and that from her experience with the mother, she appeared to be focusing on having the father brought to court at any cost. She referred to X being caught in the middle.

13. When cross-examined by the mother’s counsel, Constable (omitted) said that one of the difficulties with the mother was that during the course of the investigation of the threats, the mother’s description of the threats. This worsened constantly. An example of this was a threat with the crossbow is that had not been disclosed to the first police officer the mother spoke to. Another example of is the allegation about the father conducting drive bys.

14. Constable (omitted) expressed concern that X had been coached. He also, very appropriately, forthrightly stated that he is not an expert in this area and he was basing this on his own experience.

15. He was asked if he had any grudges against the mother because of the complaints she made about him to his superiors and the ombudsman. He replied “no. It’s just part and parcel of policing…” He added that at that time he was concerned that she was unwell. I accept his evidence.

16. Constable (omitted) was an impressive witness. His evidence was of considerable assistance to the Court.

17. The mother says that X told her that he was forgetting what he had to tell the police and asked if she could remind him. She says she told him to pick three things he wanted her to remember and help him. It is significant that X was very anxious at the second interview to say three things. I find the mother influenced X’s evidence. This is consistent with the observations of the experts. I am satisfied that this is not an isolated incident. I also have no doubt that the mother has psychologically abused X by her behaviour and unless she is able to address her behaviour this is likely to continue.

18. Constable (omitted) was called as the ICL’s witness. She is assigned to the Child Abuse Task Force with the Northern Territory Police. She has training in conducting child forensic interviews. She also trains others to conduct these interviews.

19. The interview started with a 10 minute rapport session. She used an open narrative technique to encourage X to give elaborate responses. She says it did not work and she was concerned about the lack of depth to X’s answers.

20. Constable (omitted) said that it is unusual for an eight year old child to have a list of things to say. He was not able to give any depth to those three things. She was concerned that he had been prepared for the interview or coached. She acknowledged that it is difficult to establish time frames with eight year old children. Ms McLaren sought to challenge her interview technique. She was unsuccessful. I accept Constable (omitted)’s evidence and her assessment of X’s answers. Ms M also confirmed that the interview was conducted with proper child forensic interview techniques.

21. The three things X identified were:

    a)That if he told them what his father has been saying his father would hurt himself;

    b)That his father told him before seeing the lady in (omitted) (referring to Ms M) to lie or he would kill himself;

    c)His father said he would shoot his mother and showed him a crossbow.

DCF’s involvement

1. Ms C is the DCF caseworker. She gave evidence. She says DCF will put a case plan together based on the orders I make. If the parents do not abide by that plan DCF will intervene. In my view this is a positive thing and the mother in particular should heed this. She says DCF is concerned about emotional abuse and is concerned about long-term emotional abuse. That concern is justified. DCF will refer the parents and X for ongoing psychological appointments. In my view this should not involve Mr K. DCF is able to assist with changeovers provided they occur during working hours. DCF’s continued involvement with the family is a protective factor for X.

1. I accept Ms C’s evidence. She gave her evidence in a straight forward, professional manner.  I accept that she did not go to X’s classroom and was not physical with X. I am satisfied that her notes are accurate. I accept that there was no way that the mother could be under any reasonable apprehension that DCF had any concerns about the father being a risk to X after the contact visit at Mr K’s office. I prefer her evidence to the mother’s wherever they conflict.

2. Ms C confirmed that there was concern about both parents emotionally abusing X. With respect to the father it was because he calls the mother names but that the mother is causing the most harm. The father’s frustration has to be seen in the context of false allegations being made against him and his relationship with X being severely interrupted.

Evidence of Ms B and presentation of witnesses

1. Ms B is the mother’s mother. Her affidavit speaks about the mother in glowing terms. She gave oral evidence that it was “a mother’s perspective”. She said her daughter was a perfect parent.

2. She could not say one positive thing about the father. She stayed in court for Ms M’s evidence. I hope she took on board what Ms M has to say.

3. She was not a credible witness. It was clear that she wanted to say whatever she thought would support her daughter. I do not place any weight on her evidence.

4. The father gave evidence in a straightforward manner and made concessions where appropriate. The mother was an unreliable witness. Whenever her evidence conflicts with another witness I prefer the evidence of the other witness.

The mother’s parenting capacity

1. The mother admits that she told X when he was about five years old that his father tried to commit suicide. She says she did this because the father had demanded that she bring X to hospital to see him and that X remembered that and asked about that. People can be ill in hospital for many reasons. The father is adamant that he has never told X that he tried to commit suicide. I accept his evidence. It was completely inappropriate for the mother to tell X this and shows a lack of insight on the mother’s part. She could have told him he was ill. X was probably aware generally that his father had been unwell because of the father’s serious back injuries.  Due to his age X may not have understood what his mother told him. If he did it would have placed an adult burden on him that would have caused him worry and distress which could have been completely avoided.

2. The mother’s living and working arrangements have been unstable since the parties separated in 2008. She has changed jobs and moved seven or eight times. This alone would be unstable for X.

3. I am not satisfied that the mother has exercised equal shared parental responsibility with the father. She has changed X’s schools without consulting the father and has not included his details on a least one school enrolment form. I am not confident that she will consult with the father and that she will be able to communicate with him in a constructive way. Given the nature of the complaints and allegations the father has had to respond to, it is unrealistic to expect him to find it easy to communicate with the mother and any meaningful way.

Mr K

1. Mr K prepared assessment reports with respect to the parents and X at the request of DCF.

2. He is not a child psychologist. He expressed doubt as to whether such a speciality exists in Australia.

3. He conducted psychometric assessments on each of them. He found that the mother had severe anxiety and moderate depression. She also showed some elements of a paranoid personality. The mother confirmed to Mr K that he had helped X remember some of the content of the alleged threats as she thought it was important that X remain cognisant of them.

4. The father told Mr K that he had made two suicide attempts in 2009. This is consistent with the documents tendered in evidence. Mr K records that Mr Halliday told him that he would destroy the mother. Mr K understood that he said that in the context of these proceedings.

5. Mr K’s assessment of X was that X could be using wish fulfilment as a way of emotionally protecting himself but constructing a reality which is more comfortable than his perceived reality. The results suggested that X feels protective of both parents. The family situation is uncomfortable for him and he feels guilty about not being able to fix it.

6. He noted that during the observation of X and his father playing together that X did not display any fear of his father at any time.

7. Mr K was engaged by DCF to carry about the assessments. He did not have access to the two family reports prepared during the course of these proceedings. Mr K’s reports have limited value for the purposes of these proceedings.

8. The reports do not refer to the father having current mental health issues and being a risk to X. It is concerning that the mother maintained that they do.

9. Mr K’s recommendations that the contact be supervised initially are not justified. I note that Mr K did not have access to the CatholicCare notes and the family reports. I prefer Ms C’s evidence to Mr K’s with respect to the conversations they had.

Ms M

1. Ms M, an expert child psychologist prepared two family reports in this matter dated 29 May 2012 and 6 March 2013. Before being cross-examined she read the parties’ trial affidavits, the three reports prepared by Mr K and the child paediatric report. She also watched the video of the second CFI conducted on 30 August 2013.

2. During the first report interview, X revealed that he saw the mother’s then partner Mr C hit his mother in the eye. X appeared worried about this incident and his mother. X was adamant that his father never hit his mother. X was aware of the conflict between his parents. He said he loves them both and wants to spend time with them both. With some caveats she recommended an equal shared care arrangement.

3. At the second family report interviews the mother proposed that the father spend time with X on alternate weekends. She referred to the father’s anger and mental health issues. It should be noted that in the first family report Ms M commented that Dr I, the father’s psychologist is highly respected. She has no concerns about the father’s mental health.

4. The father sought an equal time arrangement.

5. She noted that little has changed between the reports. The parents remained hostile and inflexible. The risk of continuing litigation is high.

6. At paragraph [20] of her second report Ms M stated that the mother’s claims about the father having mental health issues, being obsessed by her, stalking her and making inappropriate comments to X cannot be substantiated.

7. The father continued to express concerns about the mother allegedly using drugs, which have also not been substantiated.

8. Ms M noticed a sharp change in X’s demeanour. At the second interview he was pre-occupied and anxious. He appeared to be under pressure. She observed X and his father at the father’s home. They were at ease with each other. X was able to talk about things he did with his mother and the father dealt with this appropriately.

9. X told Ms M that he lied when he told his mother that his father threatened to kill her and Nan and Pop. He could not explain why he did so but was worried that his mother would get angry with him. Unfortunately this is what happened when X told the mother this in Ms M’s presence. She records that X was shaken by his mother’s reaction. She also commented that the mother appeared to have limited insight and sensitivity regarding X’s needs and his divided loyalties. The mother made a further complaint to the police which resulted in the police attending the father’s home whilst X was there. A short time after X told his mother the allegations were not true.

10. At paragraph [56] Ms M said:

    “I found no evidence that would support the view that Mr Halliday or Ms Keese have intentionally or actively influenced X to report that each of them have made disparaging and threatening remarks about the other to him. Instead the high level of conflict that continues to characterise this matter is placing this child in an emotionally impossible situation wherein he is unable to have his own experiences of each parent acknowledged and validated. It is my assessment that Mr Halliday is the less critical of the two parents. X did speak openly about his experiences at his mother’s home whilst in Mr Halliday’s care and showed no reservation in doing this. Other than informing his mother he wanted to spend more time with his father X did not speak openly about his father to Ms Keese. X was also overly focussed and fearful of his mother’s reaction to being told that his father had not made the disparaging comments and threats against her. There was no evidence that he feared his father’s response or reactions during the assessment.”

11. Ms M also noted at paragraph [57] that the father’s frustrations about the mother’s unwillingness to foster the father’s relationship with X. There is foundation for his frustrations as indicated in the CentreCare notes. She comments that sometimes the father has reacted to this in a way that has created a poor impression but he has remained dedicated to pursuing a relationship with his son.

12. Ms M further noted at paragraph [62] that the mother has little insight into the effects of her behaviour on X. She recommended that the mother receive regular counselling to address her issues. She also recommended that the father receive counselling as to the effects of family conflict on X. X also needs counselling.

13. These paragraphs are significant. They encapsulate the important issues in this case well. 

14. Ms M confirmed the evidence of Constable (omitted) with respect to X’s presentation at the second child forensic interview. Children do not normally report in that way, saying that there are three things they have to say as if the child is afraid of forgetting it. Children aged eight often have trouble with concepts of time so his difficulties in that respect was not of concern.  The concern was the lack of depth to his disclosures and the change in his affect when talking about them.

15. Ms M would not go so far as to say there was coaching but there was a disenguinity in his affect and an inconsistency in his narrative.

16. Ms M said the court should treat the disclosures with caution for a number of reasons. Children who are exposed to high conflict like X has can construct information that is not factual because they are in a double bind and they do this as a way of appeasing a parent. They are not intentionally lying. It is a way for the child to relieve the psychological distress.

17. Ms M stated that X is in a position where he will doubt his objective reality because he experiences a loving relationship with his father yet his mother tells him terrible things about his father. This is made worse by periods where X has not seen his father.

18. X later told his mother that he lied to Ms M. Ms M said the affect was consistent with what he said to Ms M unlike his presentation during the child forensic interview.

19. Ms M commented on Mr K’s psychometric testing of the mother. Assuming that the assessments have been interpreted validly, Mr K failed to highlight the subscales where there is a clinical elevation of the paranoid personality types, that type of person is deeply suspicious and unwilling to take direction. Such a person is likely to continue to delude themselves with their belief system without there being any objective evidence. Ms M also referred to elevated schizophrenia subscale with a focus on social detachment. This type of person can lack empathy and have little interest in the emotions of others and little capacity for introspection.  Ms M’s concern is that the mother would have difficulty in engaging with and benefiting from therapy and X will continue to be exposed to the mother’s distorted thinking.

20. Ms M changed her recommendations from her written report and recommended that X live primarily with his father and spend limited or supervised time with his mother. She acknowledged that this would be distressing for X in the short term but there would be more psychological damage done to X in the long term if he remains in his mother’s care.

21. Ms M rejected the assertion that X could not have such a good relationship with the father five years post separation unless the mother encouraged and fostered that relationship. Ms M said that X has a good relationship with his father because of the authenticity of that relationship and that will strengthen by spending more time with his father. Compliance with consent orders does not mean that the mother encouraged the relationship between X and his father.

22. X needs to be relieved of the psychological pressure he has been under. The only way this can happen is for X to live primarily with his father.

23. Ms M’s view is that of the two parents the father is most likely to promote X’s relationship with the mother. I agree. It is significant that X is able to talk about his mother in his father’s presence.

24. Ms M opined that X’s psychological test scores shows that he is aligned with his mother. He did not make any critical comments about her which is unusual. The concern is that if the situation continues X might become alienated from his father.

Legal Principles

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions.

2. The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.

3. In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The concept meaningful relationship has been considered in  number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.

9. Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the child spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.

12. In MRR & GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:

    “Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

13. The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:

    “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

14. Whilst that is the paramount consideration it is not the only consideration.  In AMS & AIF (1999) 24 Fam LR 756 at [144] His Honour Justice Kirby said:

    “…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”[footnotes omitted]

1. The Full Court in Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.

Application of legal principles to the facts of this case

1. These proceedings commenced before the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) came into effect amending parts of the Family Law Act.

Primary considerations

1. X has a meaningful relationship with both his parents. This is in spite of the significant disruption to his relationship with his father. This says a lot about the nature of his relationship with his father. It is not something the mother can take credit for although she attempted to.

2. Section 60CC(2)(b) looms large in this case. I find that the mother has psychologically and emotionally abused X. This has been amply demonstrated in the evidence. I find that it is likely that this abuse will continue because of the mother’s lack of insight unless there are radical changes to the parenting arrangements.

3. I find that the father has not engaged in family violence.

4. The mother’s evidence is unsatisfactory.

5. X has been under such relentless emotional and psychological pressure that he told the mother what he thought she would want to hear being that the father threatened them. He was painfully aware of the mother’s negative feelings about the father. X has been put through multiple interviews. Despite all of the evidence the mother still thinks the threats are true. Her thoughts are distorted.  It is not certain to what extent therapy will be able to successfully address the mother’s issues.

Additional considerations

1. I consider the relevant primary considerations below.

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. X has repeatedly expressed a wish to spend equal time with each of his parents. At eight years old X is still a young child. There also other factors, particularly the mother’s psychological abuse of X which means X’s views do not factor in heavily to this decision.

The nature of the relationship of the child each of his parents and other persons

1. X enjoys a good relationship with his father despite only spending limited periods with him over the past couple of years. X loves both his parents and they both love him. The relationship X has with his mother is not healthy because of the mother’s inability to protect X from psychological harm.

The willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship between the child and the other parent

1. Despite the frustration the father has clearly felt, and at times expressed, I find that the father is willing and able to encourage and foster the mother’s relationship with X. I cannot say the same of the mother. Ms M commented, complying with court orders does not indicate a willingness or ability to foster a child’s relationship with the other parent. There is evidence in CatholicCare and DCF’s records which indicate that the mother has acted in a manner designed to discourage X maintaining a relationship with his father. I will not repeat the detail of those here.

2. X also has a close relationship with his maternal grandmother and his paternal grandfather and uncle. The maternal grandmother also showed a lack of insight. Her primary concern appeared to be to defend her daughter.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from his parents and significant others

1. The orders I make will involve a significant change for X. The interim orders made at the end of the hearing also represented a significant change for X, returning to a week about arrangement after a period of three years where X’s time with his father has been much more limited and where there have been periods of several months where X has not seen his father at all.

2. The final orders I am going to make will involve further adjustments for X. I am satisfied that the orders I am going to make are in X’s best interests.

3. The father has not made an urgent application to the court since I reserved my decision. This is a positive sign that at least the mother is complying with the orders. The other protective factor is the Department continuing to have involvement with the family.

The practical difficulty and expense of a child spending time

1. This factor is not relevant

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I have already addressed this issue above.

Any family violence orders

1. There have been several family violence orders made. All of them have been made on a without admissions basis.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. I have decided to make final rather than interim orders. These proceedings have been going for three years which is a significant period in X’s life. I am not satisfied that making interim orders would serve any useful purpose for X. For an equal shared parenting arrangement to work these parents would need to be able to communicate constructively.

Parental responsibility

1. I do not think it is X’s best interests for his parents to share equal parental responsibility. The conflict between the parents has been high. The mother failed to consult with the father about X’s school and failed to include the father’s details on at least one school enrolment form when the parties shared parental responsibility.

2. The mother annexed copied of extracts from the communication book the parties used in 2011. At the last entry she says she will not use the book any further because of the father’s abuse. There was nothing in the extracts that could be interpreted as abusive.

3. The mother lacks the capacity to be able to communicate constructively with the father. The father has good reasons to be concerned that is he talks to the mother she will make a complaint about him to police. Further complaints will only increase the conflict.

Ms McLaren

1. It is most unfortunate when a court feels it necessary to comment on a lawyer’s failure to meet the standards expected of an officer of the court.

2. At the commencement of the hearing Mr Norrington asked for first access to documents subpoenaed from his client’s psychologist. He had not been served with copies of three or four subpoenas Ms McLaren caused to be issued a week earlier, which is required by the Federal Circuit Court Rules.

3. Ms McLaren conceded that she had not served the subpoena. I stood the matter down to allow Mr Norrington to inspect the documents after asking him if he wanted first access to the psychologist’s records, which he did.

4. The discussion continued about other preliminary issues for several minutes. Ms McLaren had filed an affidavit which referred to an incident her client recorded on videos. Only the court copy included a copy of the videos on a USB stick. It is not effective service to serve affidavits missing the primary evidence sought to be admitted by that affidavits. As I had to explain at the time Mr Norrington was entitled to view that and obtains instructions from her client before his client was cross-examined. The ICL was also entitled to view. It is not procedurally fair to have it played in court with lawyers only seeing it then for the first time.

5. After dealing with preliminary issues from 10.01am to 10.26am I adjourned and resumed at 11.38am. When court resumed Mr Norrington advised that Ms McLaren had already inspected those documents. Ms McLaren mislead that court and her opponents but not immediately correcting Mr Norrington’s misapprehension when he first raised it over an hour before. Even then it fell to Mr Norrington to raise it. This is a clear breach of rule 17.6 of the Rules of Professional Conduct and Practice published by the Northern Territory Law Society.

6. Ms McLaren often misquoted the evidence when cross-examining witnesses, it was necessary to frequently intervene and correct her. Unfortunately Ms McLaren’s conduct in this respect was not limited to this case. This indicates that the conduct of concern is not isolated.

7. There are other issues which arose during the course of the hearing which I will not go into here.

8. I want to make clear that despite the problems with respect to Ms McLaren’s conduct during the proceedings this has not affected the outcome of these proceedings.

Conclusion

1. Ms Terrill adopted the recommendations Ms M made in her oral evidence. Ms Terrill also submitted against my making final orders because of the mother’s need to engage successfully in therapy.

2. Mr Norrington sought order for X to primarily live in the father’s care.

3. The submissions Ms McLaren sought to make were against the weight of the evidence.

4. The parties agreed on consent orders to be in place pending the delivery of this judgment. Those orders provided for X to live on a week about arrangement with his parents commencing with his father.

5. I have made an order restraining the mother from attending X’s school outside of collection and drop off times and events parents are invited to attend because of the subpoena material involving the school. It is clear that the mother often attended the school and caused problems. School needs to be a safe haven for X.

6. Neither party has found it necessary to relist the matter before me during the intervening period. Hopefully that is a positive sign.

7. The purpose of the counselling is so that the parties and X can deal with the emotional issues. I suspect that the mother will need intensive assistance to address her distorted thinking and to gain an understanding of the impact of her behaviour on X. Hopefully this will result in X and the mother enjoying a healthy relationship.

8. I do not see the purpose of therapy as a means of working towards returning to an equal time regime. X needs the stability of having a primary home with his father. He will still be able to enjoy time with his mother and maternal grandparents.

9. Although I accept the expertise of Ms M and her evidence I have decided not to order supervised time between X and the mother. I assume as there has been no contact with the court that the interim arrangements have worked satisfactorily. To switch to supervised time with his mother at CatholicCare is likely to be confusing and unsettling for X. He needs to have the time with his parents normalised.

10. DCF’s continued involvement with the family offers another protective factor which is not often present. If there are further problems with allegations being made and/or non-compliance with orders the father will need to bring an urgent application to the court and the orders will be revisited. Such an application should be listed before me if possible.

I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 27 February 2014