Harvie & Beale (No 4)
[2025] FedCFamC1F 14
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harvie & Beale (No 4) [2025] FedCFamC1F 14
File number: MLC 9904 of 2015 Judgment of: MCGUIRE J Date of judgment: 23 January 2025 Catchwords: FAMILY LAW – PARENTING – Where 10 year old child lives with the mother – No direct contact between the child and the father since December 2022 - Application by father that child live with him and that there be a moratorium of 12 weeks before the mother commences spending supervised time with the child graduating to unsupervised time – Application opposed by the mother who has been the primary care giver of the child since separation – Where mother did not participate in the trial or pre-trial process – Where the father applies for trial to proceed undefended – Order that trial proceed undefended - Allegations of Family Violence or propensity of the father to perpetrate Family Violence – Allegations that the mother imbues the child with her negative views of the father – Considerations of child’s best interests - Orders that father has sole parental responsibility in respect of long-term decision making for the child – Orders that child live with the father and that there be a moratorium of 12 weeks before the mother commences supervised time with the child graduating to unsupervised time Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 60CC(3), 60CG, 61B, 61D and 61DAA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Division: Division 1 First Instance Number of paragraphs: 145 Date of hearing: 8 January 2025 Place: Melbourne, delivered Hobart 23 January 2025 Counsel for the Applicant: Mr Higgins Solicitor for the Applicant: Higgins Legal Solicitor for the Respondent: Litigant in Person – no attendance Counsel for the Independent Children’s Lawyer: Mr Whitchurch Solicitor for the Independent Children’s Lawyer: Macgregor Barristers and Solicitors ORDERS
MLC 9904 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARVIE
Applicant
AND: MS BEALE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The matter proceed to trial on an undefended basis pursuant to Rules 10.26 and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3.Mr Harvie (“the father”) have sole parental responsibility for the long-term decision-making of the child, X, born in 2014 (“the child”) (“known as X”).
4.The child live with the father.
5.To facilitate Order 4 of these Orders:
(a)Ms Beale (“the mother”) will deliver the child to the Court Children’s Service, Level 5, 305 William Street, Melbourne at 3.00pm on this day being Thursday 23 January 2025;
(b)The mother will forthwith depart from Level 5, 305 William Street, Melbourne upon delivery of the child;
(c)The mother must remove the child’s Apple watch;
(d)At 3.00pm this day the Independent Children’s Lawyer will meet with the child at the Court Children’s Service and explain the effect of these Court Orders to the child;
(e)The child may be released from the Court Children’s Service only into the father’s care; and
(f)The mother will deliver the child’s clothing, books, toys and belongings to the child’s father by the father collecting same from the mother’s residence at 12 noon on Friday 24 January 2025.
Change of school
6.These Orders authorise the father, by reason of the order for sole parental responsibility, to enrol the child X at D School in Town E without the consent of the mother albeit that these Orders will also authorise the mother to be provided with all information by D School normally provided to parents and that following the expiration of the time‑with moratorium period provided in these Orders then the mother be permitted and enabled by these Orders to attended to any school events or extracurricular activity normally made available to parents by the school.
Contact Moratorium Period
7.For a period of 12 weeks (“Contact Moratorium Period”) from the date of these Orders, the mother, her servants and/or agents be and are hereby restrained from spending time with or communicating with the child by any means, including mail, telephone, email, text message or social media except with the express consent of the father.
8.During the Contact Moratorium Period:
(a)The father shall exercise sole parental responsibility for the child, and shall notify the mother of any decisions he has made with respect to the child’s long‑term care, welfare and development as soon as practicable after the decision has been made.
(b)In the event the child contacts or communicates with the mother, the mother shall not respond to such contact or communication and shall report such communications to the father via APPCLOSE and/or the Independent Children’s Lawyer.
(c)In the event the child attends upon the mother at her home or any other location save explicitly outlined in these Orders, the mother shall report same to the father and to the Independent Children’s Lawyer and shall do all things necessary to facilitate the child’s return to the father.
(d)The father shall provide a weekly written APPCLOSE report or update to the mother by 10.00pm each Thursday outlining any issues in how the child is managing the change to his residential arrangements and any other pertinent matters.
Supervised time with
9.Upon the expiration of the Contact Moratorium Period, Orders 7 and 8 herein be discharged and the child spend supervised time with the mother for a period of 12 visits (“Supervised Period”) as follows:
(a)with such time to be supervised by G Contact Service at the mother’s cost (save for the intake fees to be shared by the parties)
(b)for periods of supervised time for no less than 3 hours at a time and once a week, on dates and times as can be accommodated by the service; and
(c)the parties forthwith make application to the G Contact Service.
Spend time and communication with
10.Upon completion of the Supervised Period set out in Order 9 above, the child spend time and communicate with the mother as follows:
(a)From the completion of the Supervised Period for a period of three months:
(i)On each alternate weekend from 12.00 noon Saturday until 2.00pm Sunday; and
(ii)On each Sunday that the child is not spending time with the mother then via Facetime, Zoom, Skype or such other form of electronic communication from 5.00pm until 5.30pm.
(b)Thereafter, for a further period of three months:
(i)On each alternate weekend from 5.30pm Friday until 2.00pm Sunday; and
(ii)On each Wednesday and each Sunday that the child is not spending time with the mother then via Facetime, Zoom, Skype or such other form of electronic communication from 5.00pm until 5.30pm.
(c)Thereafter:
(i)On each alternate weekend from 5.30pm Friday until 2.00pm Sunday:
(ii)For half of each school term holiday period as agreed and failing agreement from 12.00 noon on the first Saturday of the holiday period until 2.00pm on the second Sunday of the holiday period; and
(iii)During long summer holiday period 2025/2026 (provided that the Contact Moratorium Period or Supervised Period does not fall within such holiday period) as agreed and failing agreement from 12.00 noon on the first Saturday of the holiday period until 2.00pm of the first Tuesday of the holiday period and thereafter on a week-about basis commencing 2.00pm on Sunday 25 December 2025;
(iv)During the long summer holiday period 2026/2027 and each alternate year thereafter as agreed and failing agreement from 12.00 noon on the first Saturday of the holiday period until 2.00pm Christmas Day, and from 12.00 noon on 2 January until 2.00pm on 16 January; and
(v)During the long summer holiday period 2027/2028 and each alternate year thereafter as agreed and failing agreement from 2.00pm on Christmas Day until 2.00pm on 8 January and from 12.00 noon on 18 January until 2.00pm on 25 January;
(vi)On the child’s birthday, if the child is not already spending time with the mother, as agreed and failing agreement as follows:
A.If a school day:
i)In Town E from the conclusion of school until 7.30pm; or
ii)Via Facetime, Zoom, Skype or such other form of electronic communication from 5.00pm until 6.00pm.
B.If a non-school day, from 12.00 noon until 5.00pm.
(vii)On the mother’s birthday, if the child is not already spending time with the mother, as agreed and failing agreement as follows:
A.If on a school day:
i)In Town E from the conclusion of school until 7.30pm; or
ii)Via Facetime, Zoom, Skype or such other form of electronic communication from 5.00pm until 6.00pm.
B.If a non-school day, from 12.00 noon until 5.00pm.
(viii)On the Mother’s Day weekend, if the child is not already spending time with the mother, from 5.30pm Friday until 2.00pm Sunday;
(ix)On each Wednesday and each Sunday that the child is not spending time with the mother then via Facetime, Zoom or such other form of electronic communication from 5.00pm until 5.30pm; and
(x)At such further and other times as agreed between the parents in writing.
11.In the event the child is spending time with the mother pursuant to Order 10 herein, such time be suspended from the conclusion of school Friday until the commencement of school Monday, on the Father’s Day weekend.
12.For the sake of clarification, the mother, her servants and/or agents be and are hereby restrained from spending time with or communicating or attempting to communicate with the child by any means, including but not limited to telephone, text message, email, via social media, via “applications”, online forums and the like, save as explicitly provided for in these Orders.
13.Weekend time for the child X with the mother pursuant to Orders 10(a), (b) and (ci) of these Orders be suspended during any periods of school holiday time-with provided by these Orders.
Changeovers
14.Changeover occur as agreed between the parents in writing.
Communications between the parents
15.All communications between the parents, their servants and agents in relation to parenting arrangements be via APPCLOSE, save in the event of an emergency relating to the child whereby they shall communicate via telephone and/or text message, and all communications shall be courteous and respectful.
Injunctions
16.The parents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the child and from permitting any other person to do so;
(b)Discussing these Orders and/or any aspect of these proceeding with the child or in his presence or within his hearing; and
(c)Showing the child any documents produced for the purposes of these proceedings, or leaving such documents in a place where the child might reasonably come into contact with them.
17.Each parent shall advise the other of any serious illness or injury suffered by the child as soon as practicable following the onset of illness or occurrence of injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
18.Each parent will keep the other informed at all times of their current residential address and contact telephone number.
19.Save as set out in Orders 7, 8 and 9 herein, both parents be permitted to attend all school events relating to the child normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
20.The appointment of the Independent Children’s Lawyer be discharged as from four (4) calendar months from the date of these Orders.
THE COURT NOTES THAT
A.The above Orders which provide for the child X to live with the father, is inconsistent with the Family Violence Final Intervention Order made in the Magistrates Court of Victoria in late 2023 which prohibits the father from communication or approaching or remaining within 5 meters of or going to or remaining within 200 metres of the mother and the child X or any place where the mother and child lives, works or attends school/childcare.
B.Pursuant to s 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency these Family Law Orders prevail.
C.The Court is satisfied the parenting orders are in the best interests of the child X given the child is to now live with the father and spend time with and communicate with the mother and the desirability of the parents communicating and effecting changeovers for the parenting of the child.
D.The Court is satisfied that the Orders do not subject the child X or any party to any unacceptable risk of harm.
21.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Harvie & Beale has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIREJ:
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child namely X born in 2014 (aged 10 years) (commonly known as “X”).
Mr Harvie (“the father”) is the applicant. Where Ms Beale (“the mother”) has habitually failed to appear in this Court at least for the past two or more years, and failed to appear on the trial listed for three days to commence 8 January 2025, the father asked for the matter proceed undefended. I acceded to that application.
Where pursuant to previous consent orders made 1 August 2016, X habitually lives with the mother, and where X has had no direct contact with the father since 25 December 2022, the father now seeks an order that X live with him and that there be a moratorium of 12 weeks on direct contact between X and the mother. Thereafter the father seeks a graduated return to X spending time with the mother. The father also seeks an order for sole parental responsibility for long-term decision-making in respect of X. To facilitate this arrangement the father asks for an order that permits him to change X’s school to one more proximate to the father’s residence.
The mother’s position now is more complex albeit it is transparently clear that her position does not advocate for any meaningful relationship between X and the father and despite the consent orders of 1 August 2016 allowing for time-with which might fit the definition of “substantial and significant time”.
The Court has had the benefit of an Independent Children’s Lawyer (“ICL”) who supports the orders sought by the father.
The mother has not filed a trial affidavit. She has habitually failed to appear at the interlocutory and procedural stage of these proceedings which were commenced on the father’s application filed 27 October 2021. For reasons best known to her, however, the mother has conducted these proceedings by way of frequent interlocutory application, appeal and special leave application but where such applications have been singularly unsuccessful and again where the mother has been notable in her non-appearance before these Courts. The mother’s conduct of the proceedings in this way is even more difficult in its understanding given that the mother has qualifications and experience as a professional and where her current partner is apparently also a professional.
The mother has been active in emails to these Chambers although she might, by reason of her training and experience, understand that it is not usual or proper for judges of these Courts to read correspondence from parties. She has filed applications for adjournments; for a declaration that the father be declared vexatious; for the father to be dealt with for contempt; for contraventions; for the discharge of the ICL; for the discharge of the Family Reporter; and (perhaps) for the recusal of the allocated judicial officer. Any affidavits filed in support of such applications commonly reference issues of family violence allegedly perpetrated by the father and with exposure of X to such violence. Nevertheless, and yet again, the mother has habitually failed to appear in courts to prosecute her applications preferring to rely on extensive written submissions but thereby not submitting herself for testing by cross-examination. This method of conduct of the proceedings by the mother has continued up to applications filed only days prior to the listed trial date including yet another application that the appointment of the ICL be discharged and accompanying applications for adjournments. Where trial dates have previously been adjourned because of the mother’s applications and pending appeals, it is open for the Court to conclude on the balance of probabilities that the mother’s conduct is grounded on her preference for adjournments and hence delay of the hearing of the father’s application. All this must be seen against a background where X has not had direct contact with the father since December 2022.
The material considered the by the Court includes a Short Form Family Report of 24 January 2022 prepared by Mr F. Significantly, whereas Mr F’s report prima facie questions the role of the mother’s partner, Mr H, in the cessation of X’s time with the father and the coincidence of that occurrence with the commencement of the relationship between the mother and Mr H, and where Mr H is a professional, no affidavit has been filed by Mr H.
Consistent with her conduct of the proceedings, the mother did not attend for interviews for a later ordered Court Expert Report intended to be authored by Ms J. The Court does, however, have the benefit of a Child Impact Report prepared by Family Consultant Ms K of November 2022.
Where the mother has previously been represented by solicitors, she has for the past years represented herself in these proceedings.
Although the mother did not attend court to prosecute her application, but where the mother has, as usual, provided lengthy written submissions (despite no order for submissions in this form), the Court heard and considered the mother’s application to discharge the ICL prior to the commencement of the trial on 8 January 2025. It is proper to observe that the mother’s submissions altruistically sought an adjournment of the trial so as to permit the legal representatives for the father and the ICL to prepare their responses to the mother’s application. Not surprisingly, neither counsel for the father nor the ICL thought it necessary to adjourn the trial but responded to the mother’s application by submissions from the bar table as would be the usual practice. The mother’s application to discharge the appointment of the ICL was dismissed and separate ex tempore Reasons were given on the day.
Further, the mother’s written submissions suggested an application that I recuse myself from hearing the trial of this matter. Neither of the legal representatives for the father nor the ICL had been served with any application seeking such orders. A viewing of the Court Portal disclosed no such application. Consequently, it was considered that no such application was alive and hence required no response from counsel for either of the father or the ICL or determination of the Court.
RELEVANT BACKGROUND
The father is 62 years old. He lives in the greater Town E area. He is a self-employed tradesperson. He is in a relationship of three years duration with Ms L who is 32 years of age. She is from Country M and with a pending Visa Application for permanent residency. Ms L has a son, N, aged 11 years. N remains in Country M and it is anticipated that he will come to Australia as early as April 2025 to live with the father and Ms L.
The mother is 47 years old. She lives in the greater Town E area. She is an educator. She has re-partnered with Mr H who is a Victorian professional specialising in finance.
The parties commenced cohabitation in 2012 and married in 2013.
The only child of the relationship is X who was born in 2014 and is aged 10 years.
The parties separated in September 2015.
On 1 August 2016 final parenting orders were made by consent in respect X providing inter alia for equal shared parental responsibility, for X to live with the mother, and for X to spend time with the father.
Between May 2019 and May 2021 X spent frequent time with the father albeit not necessarily in accordance with the consent orders. The father says that both the mother and X lived in the upstairs of the former matrimonial home, now the residence of the father, on each weekend. The father says that the mother habitually attended any time between X and the father.
In 2021 the mother commenced a relationship with Mr H.
The father says that the mother unilaterally stopped X’s time with him on occasions from about May 2021.
On 27 October 2021 the father commenced these proceedings by an Initiating Application.
The mother filed a Response on 24 November 2021.
Where X had started early childhood school at O School, the father says that the mother unilaterally changed X’s school to P School with such school being just over 25 km from the mother’s home and nearly 30 km from the father’s home.
On 3 August 2021 a s 60(I) Certificate was issued noting that the mother did not attend mediation with the Q Family Services.
In January 2022 a Short Form Family Report was prepared by Mr F, Family Consultant. It is clear that Mr F interviewed the mother, Mr H, the father, X, and made observations of X with the each of the parties.
The father says that on 25 August 2021 he engaged assistance from Victoria Police after Mr H stopped X leaving with the father and it followed that the father’s time with X was sporadic during September and October 2021 after overnight time had ceased in May 2021.
In late 2021 each of the parties made applications for Intervention Orders against the other such orders apparently been made without admission but resulting in the father no longer being able to attend X’s school.
The mother makes frequent complaint about the father’s alleged family violence and propensity for family violence.
From at least September 2022 X was refusing to attend time with the father. On 10 November 2022 a Child Impact Report was released such being authored by Family Consultant Ms K.
During 2023 the mother filed applications variously for the father to be declared a vexatious litigant; that he be dealt with for contempt; and that he be found to have contravened court orders.
On 22 June 2023 the matter was mentioned before Chief Justice Alstergren where trial directions were made for a hearing before Justice Wilson commencing 28 August 2023. All other hearing dates were vacated and the mother’s Appeal Application was stayed until further order. The mother did not comply with trial directions for the filing of affidavits. The mother filed various appeals subsequently dismissed but where by order of 16 October 2023 the trial date was vacated and the matter relisted for trial in January 2024. Where the father says that he did not want to expose X to the trauma of changeovers, it seems that he had not lately pursued his entitlements under the 2016 consent orders but where he says he had anticipated an earlier trial date.
On 30 October 2024 the mother’s extant five applications were listed before myself. The mother failed to appear. The applications were dismissed. The mother filed a Notice of Appeal. The Appeal was ultimately unsuccessful.
THE ISSUES
There is a primary issue as to whether X continues to live with the mother or moves to live with the father.
On my understanding of the mother’s case, there is an issue as to whether X spends time with the father should X remain living primarily with the mother. Conversely Should the Court Order X to live with the father then there is an issues as to how and when X spends time with the mother including the father’s proposal for an initial moratorium of time.
There are issues as to parental responsibility in respect of long-term decision-making for X where the parents have a non-communicative and mutually critical relationship.
There are issues of family violence raised by the mother against the father and which appear to ground the position taken by the mother.
There are issues as to X’s own views as to his living and parenting arrangements where he is now 10 years of age.
There are generally issues as to the capacity of each of the parents where X has never lived primarily in the sole care of the father and has had no direct contact with the father for more than two years. Similarly, there is an issue as to the capacity of the mother to understand the needs of children to have a relationship with each of their parents and where it is asserted that the mother has unduly influenced X’s viewpoints and perhaps with the support of her partner Mr H.
In the previous proceedings a Family/Expert Report was prepared by Dr R, psychologist. Dr R no longer prepares reports for this Court and there is evidence that her methodology has been discredited. The mother’s written submissions in support of her application to discharge the appointment of Mr F as Court Expert included a submission that Mr F was or could have been influenced by Dr R’s previous report. I determined that this was not a ground to discharge Mr F in that it was open for the mother to cross-examine Mr F as to this claim during the trial. Ultimately, or course, the mother chose not to participate in the trial and Mr F’s report was read into evidence without cross-examination. Importantly, however, this Court has not read the historical report of Dr R.
RELEVANT LAW
The Family Law Act 1975 (Cth) (“the Act”) deals with parenting issues for children with s 60CA providing that the Court must regard the best interests of the child as its paramount consideration in determining parenting orders.
A child’s best interests are determined by referencing the proposals of the each of the parties and the ICL to the relevant factors set out in s 60CC(2) of the Act which provides as follows:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CD provides that the Court is to consider any views expressed by a child in determining whether to make a particular parenting order in relation to the child.
Consistent with the objects of the Act being to attend to the safety of the child, s 60CG provides:
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 61B of the Act gives a definition of “parental responsibility” in relation to a child as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61DAA provides:
(1)If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 61D provides:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision‑making in relation to all or specified major long‑term issues.
Parental responsibility/long-term decision-making in practice refers to the important decisions made by parents in relation to the children often relating to matters of education, religion, medical procedure and the like as opposed to the more mundane day-to-day decisions habitually made by parents in respect of their children.
Where the consideration and determination of this Court is grounded on the fact-finding role of the Court, each party making an assertion of fact carries an onus to prove that fact on the balance of probabilities. There is no onus on the other party to prove a negative albeit that the Court’s fundamental position remains the best interests of the child.
The relevant standard of proof is one of on the balance of probabilities consistent with the well-known decision of the High Court in Briginshaw v Briginshaw[1] and now enshrined in the Evidence Act 1995 (Cth) at s 140 which provides:
SECTION 140
[1] (1938) 60 CLR 336; [1938] HCA 34.
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject - matter of the proceeding; and
(c) the gravity of the matters alleged.
In this matter there are significant issues of disputed fact and credit between the parties. As Dixon J noted in Briginshaw & Briginshaw (supra) at 361-362:
… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. …
… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
In the matter now before me each of the parties makes various assertions of fact and allegations against the other. Significantly, the mother makes serious allegations of family violence against the father. He substantially denies those allegations. The Court is usually assisted in making findings of fact and credit by having such assertions/allegations tested by cross‑examination. In this process the Court has the advantage of observing the responses and demeanour of a party or witness. The mother’s non-participation in the trial does not allow either her allegations against the father to be tested by cross-examination of her or indeed the mother herself or by her counsel to put such allegations to the father in his cross-examination. As such, it might be argued that the father’s general denials are not challenged but where he did make himself available for such challenge. This is a significant evidentiary consideration albeit not one so simple that the Court should necessarily accept the evidence of the father unchallenged as it is but where, yet again, the fundamental consideration for this Court in its determination remains the overall best interests of the child.
It remains, however, that the mother’s allegations of the father must be considered against the fact that she does not attend to prosecute her case or make herself available for cross-examination and challenge in respect of those allegations.
Where this matter proceeded undefended by the mother, the Court did, in any event, require the father to enter the witness box if only briefly and so as to give an update on his trial affidavit which was sworn as long ago as 29 June 2023. This allowed the opportunity for counsel for the ICL to challenge any evidence of the father but notably where the ICL generally supports the position of the father.
THE FATHER’S CASE
The father seeks an order for sole parental responsibility/decision-making in respect of X. He argues that the mother is noncommunicative and non-cooperative in respect of decision-making for X. He says that the mother has a history and propensity for unilateral decision making. He says that the mother has entered into a course of conduct to thwart his relationship with X. He says that the mother supports her position by making false allegations of family violence against him.
The father proposes a move for X from primarily living with the mother to living with the father. The father says that this is the only regime which will in reality allow X a relationship with each of his parents where the mother consistently denies X a relationship with the father.
The father says that the mother alienates him from X and has improperly imbued X with her negative views of the father and enmeshed the child with those negative views.
The father says that the mother’s behaviour constitutes psychological abuse of X.
The father says, that with some conditions, he will be able to foster, facilitate and encourage X’s relationship with the mother.
The father says that X’s own views should be afforded little or no weight by the Court where the child has been enmeshed in the mother’s negativity towards the father and her false allegations of family violence.
The father says that he and X had previously enjoyed a close, bonded, loving and successful relationship.
The father says that he can provide proper support and accommodation for X where the father continues to live in the former matrimonial home which is an environment familiar to X. The father is self-employed and has flexibility to allow care for X with extended family support being available.
THE MOTHER’S CASE
So far as the Court can decipher without a trial affidavit from the mother or her appearance at the Court, she alleges historical and a propensity for family violence in the father where X has been exposed to such violence.
There is some evidence to suggest that the mother also relies on X not wishing to pursue any relationship with the father.
THE ICL’S CASE
The ICL supports the position taken by the father including a change of residence for X to live with the father and the father having sole parental responsibility/decision-making for X. The submissions of counsel for the ICL suggested that the ICL’s position is based largely on X’s only opportunity for having a relationship with both of his parents is for X to live with the father.
It is inherent in the ICL’s position that the ICL does not consider the father to be an unacceptable risk to X by reason of any historical family violence or a propensity for family violence. In this sense, it is apparent that the ICL prefers the father’s position of substantial denial of the mother’s allegations of family violence.
The ICL says that X’s previous views have been positive in respect of a relationship with the father but where any reluctance or denial in the child is to be attributed to the mother’s imbuement of the child in her own negative views of the father.
THE EVIDENCE
MR F – FAMILY CONSULTANT – SHORT FORM FAMILY REPORT 24 JANUARY 2022
Mr F provided a Short Form Family Report dated 24 January 2022. He was not required for cross-examination. His report has the advantage of participation by both of the parents and also interviews with the child and the mother’s current partner, Mr H.
Where the Court notes the Report to be now aged by some three years, it is equally notable that the mother did not participate or engage in the process for an updated or more comprehensive report later ordered by a senior judicial registrar.
Mr F makes recommendations at [110] and following in his report inter alia as follows:
·the parents have equal shared parental responsibility for X;
·X remain living primarily with the mother but spend time and communicate with the father “graduating to significant and substantial time”;
·X should be recorded by his formal surname at all times (where there is suggestion on the evidence that X is now known only by the mother’s surname “Beale” rather than his given names on his birth certificate including “Harvie”); and
·the parents use Our Family Wizard for all communications.
Mr F noted at [39] that the father claims to have been subjected to emotional and financial abuse and been exposed to property damage and threatening comments. He further notes at [40] that the mother claims that father poses a risk to X and that she has informed various authorities of such risk and the behaviour constituting the risk dates back to 2013.
The mother is reported at [43] claiming that the father has a diagnosis of a medical condition and uses alcohol to medicate and manage his condition. The father is noted as disputing that allegation.
At [51] the father is reported as denying the myriad of claims of family violence made by the mother consistent with his case before this Court, he asserts that the mother is attempting to alienate him from X.
The mother’s interview disclosed her experiencing family violence from the father since 2013. Those claims included that the father had attempted to “take [X]”; had injured X’s shoulder; had injured X’s arm; had attended at X’s school demanding to take X; forced himself into her home and “raided her home”; rammed his vehicle in front of her vehicle; threatened her if she sought a Divorce ; destroyed X’s nursery prior to his birth; physically abused her whilst pregnant and chased her with a weapon. The mother also complained to Mr F that the father “has a long list of criminal convictions”.
Mr F interviewed Mr H. At [63]-[64] Mr F reports:
63.It appeared to the writer that the parents had eventually found their ‘own level’ in regard to arrangements for [X] which became disturbed by the introduction of [Mr H]who seemingly took umbrage at arrangements where [the father] was reported to freely enter [the mother’s] home. [Mr H] spoke with the writer about having entered a relationship with [the mother] and finding the arrangement they had for [X] to lack boundaries.
64.As the interview process unfolded it appeared that [the mother] was supported by [Mr H] in her stance and there was ‘a new line in the sand’ being drawn where the previous boundaries were no longer acceptable to her or [Mr H].
Further, at [69] Mr F reports:
[The mother] was seen together with [Mr H]. It quickly became evident that [Mr H] was keen to advocate for [the mother] and, at times, did so with some vigour. He was observed to suggest that [the father] was problematic. At times [the mother] was observed to acquiesce in the presence of [Mr H]. [Mr H] was quick to remind the writer that there were intervention Orders that prevented [X] being with [the father]. At one stage he attempted to call [the mother’s] lawyer and they may have spoken. [Mr H] was duly advised that the Order for the report required that the writer observe [X] with all so as to be able to report to the Court. This seemed to be unknown by him and possibly by [the mother].
The writer found Mr H to be a little more agitated and less child focused than the mother.
Mr F had the advantage of meeting and interviewing X. He reports X as speaking positively of his time at school. X understood his parents to “fight but not always, sometimes” and “mum does it to protect me if my Dad says something to me or threatens me. One time dad threatened to burn my favourite mug (ring?) if I didn’t give him the remote”.[2]
[2] At [72], page 13 of Mr O’Dwyer’s report.
At [78] Mr F reports:
He ([X]) was asked why he was not seeing his father. He looked confused and then added; ‘if he called me and wanted to go swimming with me, Mum and him I’d say yes. He just didn’t call me for a long time. I just don’t want to go to his place because I don’t want to stay for the night without Mum. I am happy to stay at dad’s for the day but not the night’. Asked for the reason that he did not want to stay the night he replied - ‘Because I want my Mum. We used to go every weekend but we don’t do it anymore.
X was observed with the father and Mr F reports at [80] that X was observed to “smile a lot and engaged in discussion and touch”. X and the father hugged and X was “familiar” in his father’s company. The father was observed to be tactile in his response and responded favourably to X.
X at times referred to his father as “Mr Harvie” and at other times as “Dad”.
X was also seen with the mother and Mr H. Mr F reports at [84]:
Overall, it was clear that his mother is his ‘solid base’ and he has a good relationship with [Mr H]. During his time with [the mother] and [Mr H], [X] was overheard asking his mother if his father could come and visit them and did not accept her careful avoidance of the question. On one of these occasions [Mr H] was heard to intervene, telling [X] that his father had an Intervention Order against him. Understandably, [X] did not understand and persisted with his request to have his father visit them or they visit his father. He asked if they could go swimming. [The mother] again avoided the request. [X] persevered. Again [Mr H] intervened stating that this could not happen at the moment. [X] persisted.
In his evaluation at [99] Mr F opines that “it appears that [the father] has, up until the introduction of [Mr H], relatively freely visited [the mother’s] home to see [X]”. Mr F suggests that Mr H took umbrage at the arrangement and has possibly instigated change to provide clearer boundaries but that he suspects the father does not like this “interference” and has been reactive. He continues to suggest that the mother has possibly been “caught in between two fighting males, as has [X]”.
At [102] Mr F opines that X gives the impression that he is simply confused and wants things back as they were. He says it was clear that X had a good relationship with both parents and simply wants them to stop fighting. Mr F suggests that X would manage spending daytime with the father immediately and that the adults prepare for X to spend overnight time with the father without the presence of the mother.
CHILD IMPACT REPORT – MS K
A Child Impact Report dated 3 November 2022 was authored by Family Consultant Ms K after interviews and observations made in October 2022 and hence post-dating Mr F’s report.
Ms K identifies a major issue of parenting arrangements for X and in particular his spending time with his father and whether this should be supervised. She reports the father alleging that the mother had been non-compliant with previous court orders and the mother asserting that X himself displays resistance and refusal behaviours linked with the father’s “alleged undesirable parenting behaviours”.
At [5] Ms K states:
It is curious that despite their lengthy impasse, acrimony, and orders not being followed, the parents advised that [X] started spending time with his father unexpectedly 3-4 weeks prior to the Child Impact Report interviews, after [X] called his father and requesting that he visit him. [The father] advised that he was taken aback by [the mother’s] alleged sudden support of spend time, and proposal for them to take a family holiday together to [Country S] and he raised concern about her insight into the impact of the past impasse on future co-parenting. Several spend time sessions have now taken place with [the mother] in substantial attendance. The parents provided disparate views of [X]’s experiences and as to the benefit of [the mother’s] attendance continuing.
At [6] Ms K reports the parents agreeing that X is strong minded, kind, and advanced in his learnings. Both parents reported X as being emotionally sensitive and reliant upon his mother for emotional support.
Ms K observed X to be comforted by his mother’s presence and she providing him with calm and reassuring responses. At [7] Ms K observes:
…Although [X] appeared on track developmentally with regard to his learning, [X] appeared overly reliant on his mother for emotional reassurance which would be expected for a much younger child.
At [8] Ms K notes X’s refusal to interact with his father but with the father responding in a calm and reassuring manner. Ms K reports of X:
…He referred repeatedly to his father “lashing out” and advised that he did not feel safe around him. [X] recalled being “pushed” on rocks by his father at the contact centre in the past and he advised that his father tied him up with a whip at recent spend time and his mother had to intervene. Despite agreeing that it was in the context of play, [the mother] also noted this as a concern. [X] described his father as “rough” and that he “hurts things”.
At [10] Ms K reports X as using words such as “conflict” and “resolve the issue”. Ms K reports X as referring to himself and the mother as a “pair”, and for example stating “we want to be safe”, “we need etc”. Ms K sees these as uncommon phrases and words for an eight year old and further that X’s narrative suggested that he had started spending time with his father in the hope that the “Court will stop” which Ms K opines is consistent with the father’s view that X has been involved by the mother in the dispute.
Ms K at [10] describes X’s presentation as “curious” where he was on the one hand a very serious and on the other highly emotional (child) placing much value on his mother’s location in the building and focused on the comfort she provides to him.
Ms K reconsidered the relevant family violence issues noting current family violence Intervention Orders between the parents and that the mother has historically alleged that she experienced family violence perpetrated by the father in mid-2015. Ms K considers the allegations to be “serious family violence inclusive of coercive controlling behaviours and stalking”. She notes the mother at the time being highly vulnerable due to her pregnancy and following X’s birth.
Relevantly, at [13] Ms K identifies some caution to be taken where she says:
This assessment has identified some red flags with regard to [the father’s] potential to display intimidating and controlling behaviours towards [the mother], [Mr H] and within parenting behaviours toward [X]. For example, if [the father] had used [X]’s pets safety, as leverage for spend time, as [X] and [the mother] allege, this is highly concerning behaviour. This can be a strategy used by perpetrators to control victims. [The father] has previously been charged with stalking and contravention of a Family Violence Intervention order towards [the mother] and her partner, [Mr H]. At interview, [the father] did not accept most of these charges, accept (sic) one with regard to when he was dressed up as Santa at Christmas 2021, which he justified was in the context of being prevented from having time with his son and [Mr H]’s involvement in the parent’s (sic) dispute.
And at [14] Ms K says:
Although his justification is perhaps suggestive of poor reflective functioning and judgement, there is no information to suggest a recent pattern of behaviours by [the father] to indicate current risk of serious family violence. However, there have likely been complex dynamics of power and control between the parents with [X] likely experiencing a volatile parenting dynamic since birth. [The mother’s] ongoing preference to spend time under her supervision could be considered as protective behaviours, however also may have had a controlling element, seeking to place limits on [X]’s parent child relationship with his father. [The father] overstepping boundaries within a co-parenting relationship previously entering her home freely, and being unhappy with her repartnering could also be indicative of previous assertions of control over [the mother].
At [17] Ms K states that X has experienced inconsistent spend time with his father and with his mother as primary carer where he appears to have developed an over reliance on his mother for emotional support, and seeks to please her, now seemingly rejecting his father.
Ms K comments on the father’s “rough play” as being perhaps common in a father-son relationship but such behaviour not always necessarily promoting X’s emotional well-being or physical safety.
At [24] Ms K opines that X’s resist and refuse behaviours are likely linked to the parent conflict and different parenting styles and for X not having had the opportunity to see his father positively in a trusted parenting role. She says that although X’s narrative is concerning, his views are likely exacerbated by his experience of a complex parenting dynamic and that “any risk at this time is likely outweighed by the long-term benefit of X having a meaningful relationship with his father”. She opines that there is insufficient information to suggest that [the father] poses an unacceptable risk for X.
At [26] Ms K opines that X would be likely to benefit most from his spend time with his father occurring without the mother being present via a progressively increasing arrangement.
OTHER REPORTS
Although ordered by a senior judicial registrar, a more comprehensive and later Family Report was not prepared due to the non-participation of the mother. The Court is therefore assisted only by the reports of Mr F and Ms K both of which are now of some age where X may have been just seven and eight years old at the time of the interviews and is now 10 years of age and not having had any direct contact with his father for more than two years.
The motive for the mother’s non-participation in the reporting process is problematic but unknown to this Court. It is, however, consistent with the mother’s lack of formal participation in the court process including failure to appear at the hearing of her own various applications. Whilst the overall best interests of the child remain the Court’s paramount consideration and where those best interests are commonly determined with the assistance of independent expert reports, the father should not be prejudiced in his case by the failure of the mother to participate
THE FATHER
The father’s substantive trial affidavit was prepared in anticipation of an earlier trial date and was sworn or affirmed on 29 June 2023. His evidence is supplemented by two short updating affidavits of 21 August 2023 and 11 September 2023.
Significantly, the father’s evidence remains unchallenged by the mother due to her own non‑participation at the trial. Where the Court keeps an open mind with a fundamental consideration of the child’s best interests, it does, however, note much of the father’s evidence to be unchallenged and must give it weight accordingly.
The father’s affidavits are comprehensive and detailed. They are responsive to many of the mother’s allegations of family violence and specifically question the veracity of the mother’s allegations. Notably, in one instance the father is alleged, on 10 June 2022, to have assaulted the mother by an incident of dangerous driving where he says, in fact, that he was at work sitting at his office desk at the time and confirmed by CCTV footage.
In summary, the father says that the mother makes false allegations against him or alternatively exaggerates incidents for her own ends. He denies a history of violence. He denies a comprehensive criminal history as alleged by the mother. He concedes at [237] some convictions in the Magistrates Court in 2022 which brought total fines of $1,900 in respect of breaches of the Intervention Orders but where he details the particulars at [236] as follows:
a.[In late] 2021 the charge alleges that at approximate 5.50 p.m. I attended [the mother’s] address and tooted my vehicle’s horn;
b.[In late] 2021 the charge alleges that I sent an email to the Principal of [X]’s school stating “but know this, [the mother] has played you too (sic) a tee and used school and systems too (sic) her advantage at this point”;
c.[In late] 2021 there were [several] charges and all related to allegations that I stalked [the mother] and [Mr H], attendance at [the mother’s] address and riding past […] and dressed in [a costume] and waving to them. Also, the charge alleged that I threw a package on [the mother’s] front lawn and that I attended a Christmas party and had a photo taken with the maternal grandmother and alleged that I left a letter.
The father’s affidavit details with high particularity the difficult and attempted transitions for X from the mother to the father often being unsuccessful and what the father says is the mother’s failure to encourage and facilitate those transitions.
At [274] the father summarises his case as follows:
My ongoing concerns were as follows:
a.I say, [the mother] continues to alienate the child from me and continues to prevent and frustrate the child having a meaningful relationship with me contrary to the Family Law Act.
b.[X] has participated in multiple reports without resolution.
c.I believe, [the mother] will not accept that I am not an unacceptable risk and should not have unsupervised time.
d.[The mother] videos me at changeover and yells out to bystanders while [X] is running around.
eI say [the mother] has derailed the final hearing. [The mother’s] lack of insight and the impact on [X] by her filing vexatious, inappropriate and irrelevant material just to delay the final hearing.
f.These proceedings need an Urgent Trial hearing date. A further delay will cause [X] to be alienated further from me.
g.The Compliance and Readiness hearing listed on 7 September 2023 is a further delay and needs to be listed earlier.
h.[The mother] failed to attend at the Court appointment family report consultant on 3 April 2023 and 14 June 2023.
i.I believe there is a potentially psychological and emotional risk to [X] while he is in [the mother’s] primary care.
j.Furthermore, my concerns that [the mother] fabricated an allegation against me [in mid] 2022 and this incident has impacted upon my relationship with [X]. I have provided to the court and the police CCTV footage which evidences that I was in his (sic) office at the time of the alleged incident [in mid] 2022. [The mother] states that [X] was present time of the alleged incident. I am concerned about the psychological and emotional impact on [X] arising from what [the mother] may have said the [X] as she was driving. …
The father’s affidavit addresses the mother’s various applications of he being in contempt of court; he being a vexatious litigant, and he contravening court orders.
THE MOTHER
The mother has not filed a trial affidavit. She has not attended at court to give evidence. She does not adduce evidence. She has not prosecuted her case. The best evidence available to the Court in respect the mother’s position comes from the now aged reports of Mr F and Ms K.
The mother has filed previous affidavits in respect of various applications brought to this Court and mostly unsuccessful. Where the mother does not attend at court, it is not proper that such affidavits be read into evidence as part of the mother’s case. She has not sought to rely on those affidavits or to have them read into evidence. She has not complied with orders for the filing of trial affidavits in compliance with the Rules of this Court.
FINDINGS
On the available evidence, I am able to find that X’s primary attachment and relationship is with his mother. He has primarily lived with his mother pursuant to orders from 2016. He has had no direct contact with his father for some considerable time. The evidence of the observations of both Mr F and Ms K confirm a primary attachment for X with the mother.
I find on the balance of probabilities that X’s attachment and relationship with his father is tenuous. I am able to find that there was a previous good and bonded relationship between X and the father. By reason of X’s age, however, where he is just now just 10 years old, and where there has been no contact for more than two years, it is reasonable to conclude that the previous good relationship has eroded to a degree.
The evidence as a whole including that of Mr F, Ms K, and the father’s unchallenged affidavit allows me to find on the balance of probabilities that the mother has not encouraged or facilitated X’s relationship with the father consistently since at least May 2021.
I find that the mother’s resistance to X having a relationship with the father coincides with the commencement of the relationship between the mother and Mr H. I accept on the balance of probabilities the observations and opinions of Mr F as to the negative influence of Mr H on the relationship between X and the father and the influence by Mr H on the mother in this respect where the mother had previously been accommodating of time between X and the father albeit not in accordance with the consent orders of 2016.
I accept the evidence of both Mr F and Ms K towards X being imbued with the mother’s (and Mr H’s) negative view of the father and contrary to them facilitating and encouraging a relationship for X with the father.
The failure of the mother and/or Mr H to provide affidavits in these proceedings confirms my view that neither are encouraging of X’s relationship with the father and particularly given the legal training and occupation of both the mother and Mr H where it would be expected that they might take the opportunity to respond to the opinions of the Court Expert and understand the ramifications for not doing so including the inferences available to the Court.
I conclude on the balance of probabilities that the mother and Mr H would not likely encourage or facilitate an ongoing relationship for X with the father.
Where X is reported, particularly in the later report of Ms K, to be resistant and refusing of a contact relationship with his father, I place minimal weight on his views given the his lack of contact with the father over a period of more than two years and the opinions of Mr F and Ms K as to the mother’s imbuement of X with her own negative views of the father.
I find that the mother’s current position is inconsistent with the position taken by her prior to May 2021 when she was relatively cooperative in facilitating time for X with the father albeit not necessarily in full accordance with the consent orders from August 2016.
I do not accept the generalised assertions or allegations made by the mother to Mr F and Ms K as to the father’s historical family violence or his propensity for family violence. I note both the father’s general denials but some admissions in his affidavit material and where the father made himself available for cross-examination on that material. I note also the mother’s failure to prosecute her case and particularly in respect of her general allegations of family violence. I note particulars of the father’s affidavit which specifically throw doubt on the veracity of the mother’s allegations of family violence and notably the allegation of mid-2022. I note the mother’s previous relative cooperative attitude towards a relationship between X and the father and despite what she now claims are historical instances of family violence.
I find that the mother has a capacity to care for the physical needs of X who by all accounts is succeeding academically and where she and Mr H provide proper and adequate facilities for the child and where the evidence suggests that X receives care, love and attention from the mother and Mr H.
I find, however, on the balance of probabilities that the mother does not have the capacity to provide properly for X’s emotional needs in entering into a course of conduct to deny X the benefit of a relationship with his father and I find this constitutes a form of emotional abuse on the child perpetrated by the mother and/or Mr H.
I find that the father has no recent experience of parenting X or any other child and that his capacity as to providing physically for the child remains unknown. I am not assisted in this respect by the failure of the father to provide an affidavit from his current partner or from any members of his extended family where the father says from the witness box that he would be assisted by his partner and extended family in his care of X. I am further concerned by the anticipated introduction into the father’s household of the 11 year old son of the father’s partner from Country M but where no relevant evidence is adduced as for example from that child’s mother.
I find that the father lives in stable accommodation and has had a three year relationship with his current partner. He continues to reside in the former matrimonial home which might remain a familiar environment to X.
I find on the balance of probabilities, and noting the orders he seeks, that the father would encourage and facilitate a relationship for X with the mother should orders be made for X to live with the father.
CONCLUSIONS
Although the ICL fully supports the father’s position, the Court is bound to consider all options for X’s living and parenting arrangements with the ultimate determination being as to which attends to his best interests. That is, the Court is not bound by simply choosing between positions put by parties or the ICL but must make orders which it considers attend best to the interests of the child and may formulate its own orders if necessary to achieve this result.
Where X has lived primarily with the mother and solely with the mother without contact with the father for the last two or more years, that status quo is an available option. There is weighty evidence as to the strong attachments for X to his mother, in particular but also to Mr H. It has the obvious benefit of leaving X settled in the care of the mother and Mr H without the potential for a repeat of conflict between the mother and the father and including conflict at changeovers. X would have the advantage of remaining at his stable school where the evidence suggests he is progressing well and would have established peer group relationships. Where the evidence of the Family Consultants suggest that X is sensitive and aware of the conflict between his parents then such an option offers an obvious advantage to X.
Nevertheless, the rationale of the Act provides prima facie that it be in the best interests of the child to have ongoing and meaningful relationships with each of his parents subject, of course, to the safety and ultimate best interests of the child. The mother’s apparent preferred position would not allow X a relationship with the father. Where my findings suggest a previous good relationship between X and the father and that the mother, supported by Mr H, has deliberately entered into a course of conduct to thwart that relationship, then this is a weighty consideration.
Again, the mother has chosen to conduct these proceedings without following the time-honoured course of litigation provided in the Rules of this Court. She makes allegations without attending at court to prosecute them or be subject to testing by cross-examination. In such circumstances the Court should be cautious in simply accepting assertions and allegations made by a party where the time honoured conduct of litigation is avoided by that party.
In circumstances where I cannot make findings in accordance with the mother’s assertions of family violence and hence risk to the child from the father and where there is evidence of a previous good relationship between the child and the father, I am not persuaded that the child’s best interests are served by the position taken by the mother.
Secondly, it is open for the Court to make orders which continue X living with the mother but spending time with the father including on a regime of substantial and significant time or even to an extent of equal time for X in the homes of each of his parents. This option is also problematic where the mother has consistently, at least since May 2021, taken a position of thwarting X’s time with the father. I am satisfied that she has not complied with previous court orders. I am satisfied that she has not encouraged and facilitated X’s time with the father. I am satisfied that she has imbued X with her negative views of the father. The mother’s non‑participation in the Court process does not give optimism of there being any change in the mother’s approach and that she would, in fact, comply with any orders for X to spend time with the father. Yet again I am influenced in this regard by the course taken by the mother in the conduct of the proceedings and her failure to attend at the Court or to prosecute her case. Such an option is highly likely to bring non-compliance by the mother and consequent contravention/enforcement proceedings. I am not therefore persuaded that this is an option in X’s best interests.
The position taken by the father and favoured by the ICL is also problematic. It would involve a change of home and school for X who would be removed from his long-standing primary carer and from Mr H who has been a constant in X’s home and life since 2021. The Court is not oblivious to statements made by X to the Family Consultant, Ms K, of him being resistant and denying of even contact with the father. The Court must consider, therefore, the likelihood of any resentment in X towards his father from any order made by this Court inconsistent with his wishes and preferences. Still further, the father’s proposal involves a moratorium of some three months for contact between X and the mother and the Court must consider the psychological and emotional impact on this 10 year old child of not only the transition but also the denial of contact with his previous primary carer.
The father’s capacity remains an unknown given his lack of experience as a primary carer of a young child. Yet again, the Court is not assisted by the lack of supportive affidavit material from persons the father holds out to be his support network.
Any determination of a child’s living and parenting arrangements based on the best interests of the child inevitably involves a weighing and balancing process for a court. There are always factors which weigh against the proposals of each of the competing parties and such is the case here where there are unusual aspects as to the conduct of the proceedings, particularly by the mother, and consequently the evidentiary process for the Court.
It is important to emphasise that it is the mother who has made a choice to conduct the proceedings in the way she has. She should not be, and is not, seen as “punished” for the choices she makes in respect of these proceedings. These are not punitive proceedings. I repeat they are proceedings focused solely on the best interests of the child. Neither should the child be in anyway “punished” for the choices made by the parents or either of them. Rather, the Court is charged with a holistic consideration of the child’s best interests but where such consideration must be evidence based and it is not for the Court to be either presumptive or speculative in its determinations.
Having taken the above approach and considered the evidence and the proposals of the parties referenced to the statutory considerations at Part VII of the Act, I am of the view that X’s best interests are served by moving to live primarily with his father. I am influenced in this decision in my finding that X living with his father realistically provides a greater likelihood for X to enjoy a relationship with each of his parents. With weight on the opinions of Mr F and Ms K, I do not find on the balance of probabilities that the father poses a risk to X by reason of the mother’s allegations of family violence. The weight of the evidence, such as it is given and adduced, supports orders in the terms sought by the father and the ICL. The reports of both Mr F and Ms K tend towards X’s best interest being served by him having an ongoing relationship with both of his parents. That will not likely occur if X remains living primarily with his mother.
I have considered the father’s evidence and have had the advantage of seeing and hearing him give some short evidence from the witness box. I have considered his interviews with Mr F and Ms K. Whilst the father’s recent parenting experiences may test his capacity to provide the day-to-day care for X, he is stable in his own home, employment and relationship. I did not detect any ulterior motive in the father’s case as for example to punish the mother. Rather, I saw an empathetic and child focused father best illustrated by his decision not to peruse enforcement or contravention of time-with orders in the interim until trial because of what he says he saw of the traumatic impact on X which I find, on the balance of probabilities, to have been manipulated by the mother. I have confidence that the father has the objective traits to prioritise X’s needs and to adequately parent him.
There will be an order that the X lives primarily with his father.
On the weight of the evidence, I accept the father’s position that X’s best interests are served by there being a moratorium on his spend time or communicating with the mother. I accept that this will present difficulties to X. I have found, however, that the mother has a history of and hence a propensity to imbue X with her negative opinions of the father and find that any continuation of such behaviour would be contrary to X’s best interests. Such a moratorium period will allow X to assimilate into the father’s care and home and permit that relationship to be restored without undue negative influence from the mother.
I generally accept the father’s proposal for a staged or graduated return of time for X with the mother commencing with supervised time. I believe that initial supervision is appropriate again because of my findings as to the mother’s propensity to imbue X with her negative views of the father. The father’s proposal is then sympathetic to a gradual return to X spending time with the mother whilst comfortably allowing him to establish himself in the father’s household.
Given the weight of the evidence, I am of the view that X’s best interests are served by the father having an order that he have sole parental responsibility for long-term decision-making in respect of X. It is clear that the parents have a conflictual, suspicious, non-communicative, and non-cooperative parenting relationship. The weight of the evidence satisfies me that the mother has been a primary contributor to this situation. It is clear from the Family Reports that X is aware of the historical conflict between his parents and an order for sole responsibility in the father would prevent his exposure to further such conflict.
Where the father proposes a change of school for X, I would see this as being an element of his sole parental responsibility. The father in evidence in court proposed X attending a state government primary school known as D School generally proximate to the father’s home.
The father’s evidence is suggestive of difficulties in the previous use of My Family Wizard in communications between the parties. The father proposes the use of a free app known as “APPCLOSE”. I will order that the parties utilise APPCLOSE for normal communications between them in respect of X.
The father proposes injunctive orders aimed at preventing X from being exposed to denigration by either parent of the other or from being further imbued in these court proceedings. Such orders are appropriate.
Finally, I must comment again on the position taken by the mother in this litigation. Whilst litigation in itself is frustrating and often destructive of relationships, it is a process long established. A person making an allegation or holding a disputed position is always entitled to take such position. They are not entitled in any common law system to do so without challenge and where such challenge is guided by long-standing principles and rules of evidence and under the scrutiny of judicial officers. This allows testing as to the veracity of assertions of fact. To allow determination in Courts without such testing and scrutiny gives anarchy. The mother here is legally trained as is her partner. For them to think that a long established litigation system can in some Machiavellian way be by-passed is to misunderstand the very fundamentals of Part VII of the Act being to conduct a fair and just investigation based on the paramountcy of a child’s best interests.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 23 January 2025
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