Henry and Donald and Ors

[2015] FamCA 277

FAMILY COURT OF AUSTRALIA

HENRY & DONALD & ORS [2015] FamCA 277

FAMILY LAW – CHILDREN – Best Interests – Where the child has a meaningful relationship with the mother – Where the child is completely estranged from the father – Where the mother’s anxiety has contaminated the child’s attitude, causing him to also be anxious about the father – Where the child is aware of the parental conflict and the only way to relieve the pressure is to side with one parent and reject the other – Where the parties lack insight into the effect of their behaviour on the child – Where both the father and paternal grandfather sought a change of residence for the child – Where the child would be seriously stressed if forced to move and live with either the father or paternal grandfather – Where it would not be reasonably practicable – Where the preponderance of evidence requires that the child remain living with the mother – Child to live with the mother – Whether the child spends any time with the father or paternal grandfather shall be determined by the mother as an incident of her sole parental responsibility for the child – Where the father and paternal grandfather are able to occasionally communicate in writing with the child – Where the father and paternal grandfather are otherwise restrained from approaching the mother’s residence and the child’s school

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where the parties are unwilling or unable to share parental responsibility for the child – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B

APPLICANT: Ms Henry

1st RESPONDENT: Mr Donald

2nd RESPONDENT: Mr A Donald

INDEPENDENT CHILDREN’S LAWYER: Ms Clark, Denise Clark Solicitor & Advocate

FILE NUMBER: NCC 620 of 2012

DATE DELIVERED: 20 April 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 23, 24, 25, & 26 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMahon

SOLICITOR FOR THE APPLICANT: Virginia Taylor Lawyer

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

Orders

1. All former orders relating to the child B, born … 2003, (“the child”) are discharged.

2. The parties are restrained from causing or permitting the child to be known by any surname other than “Donald-Henry”.

3. The mother shall have sole parental responsibility for all “major long-term issues” in relation to the child.

4. The child shall live with the mother.

5. Pursuant to s 68B of the Family Law Act, the father and paternal grandfather are restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by the child.

6. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father and paternal grandfather in the following manner:

   (a)By the father and paternal grandfather each being able to send letters, cards, and/or gifts to the child on no more than four occasions each calendar year, and

   (b)By the mother promptly sending to the father and paternal grandfather:

   (i)Written acknowledgement of receipt of their written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to them.

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

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

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

10. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

11. Leave is granted to the parties to furnish a sealed copy of these orders to the principal of any school attended by the child.

12. Within seven days hereof the mother shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to him the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

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

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

15. Costs are reserved for 28 days

16. Any and all other outstanding applications are dismissed.

Notation

(A)No orders are made prescribing or precluding the child’s interaction with the father or paternal grandfather. Whether the child spends time with either of them, and the circumstances under which he may do so, shall be determined by the mother as an incident of her sole parental responsibility for the child.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 620 of 2012

Ms Henry

Applicant

And

Mr Donald

First Respondent

And

Mr A Donald
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the care of a boy, now 12 years of age.

2. The mother and father have been engaged in litigation about him for most of his life. They are very embittered with one another and quite incapable of any detachment from their cynical views about the other. The paternal grandfather was joined to the litigation as the second respondent, but his involvement did not offer any clear solution. It only converted a bipartite dispute into a tripartite dispute.

3. Each of the three parties wants the child to live with him or her, each wants exclusive parental responsibility for the child, and each wants or expects the child’s interaction with the others to be either obliterated or closely confined on either a permanent or temporary basis.

4. The parties’ intransigence precluded any reasonable compromise. The orders now made by the Court represent the parenting regime that most satisfactorily reflects the child’s best interests rather than the parties’ self-centred interests.

History

1. The mother and father cohabited for three years between 2001 and 2004. The child was born during their cohabitation in 2003.[1]

   [1] First Family Report, paras 3-4

2. The first bout of litigation between the parties was commenced immediately following their separation in 2004. Final orders were made in August 2005 for the child to live with the mother and to spend substantial amounts of time in the father’s care, but the mother successfully appealed those orders. Interim orders providing for the child to spend less extensive amounts of time in the father’s care were then imposed until the second final hearing in August 2007.[2]

   [2] First Family Report, paras 6-7; Father’s aff, paras 7-9

3. At that hearing, the parties agreed the child should live with the mother and spend substantial and significant time with the father. Their contest only remained live in respect of several discrete issues. Relevantly, the Court ordered that the parties have equal shared parental responsibility for the child and that he be known by the surname “Donald-Henry”.[3]

   [3] First Family Report, paras 8-9; Mother’s aff, paras  8-10; Father’s aff, paras 10-11

4. The orders made in August 2007 were implemented until October 2011, when it is common ground the child ceased spending time with the father. The mother alleged the child’s expressed resistance to interaction with the father began shortly after the orders were made in August 2007,[4] but by October 2011 his resistance became an outright refusal.[5]

   [4] First Family Report, para 17; Mother’s aff, para 11

   [5] First Family Report, paras 19, 23, 26; Second Family Report, para 30

5. The current proceedings were commenced by the mother in the Federal Magistrates Court (as the Federal Circuit Court then was) in March 2012, as soon as she could secure a grant of legal aid.[6]

   [6] Mother’s affidavit, para 65

6. A large number of interim orders were made by the Federal Magistrates and Federal Circuit Courts in an apparent attempt to broker an agreement between the parents, but all attempts failed. All the while, the orders made in August 2007 continued in force but were ignored.

7. Ultimately, in December 2013, the court made interim consent orders which suspended the previous orders regulating the child’s expenditure of time with the father and instead imposed a regime of supervised interaction between them. The court additionally noted, but did not order, that the child would spend time independently with the paternal grandfather at the mother’s home. It is common ground those orders and notations were never successfully implemented.[7]

   [7] Second Family Report, paras 10-14; Father’s aff, para 49

8. In February 2014, the Federal Circuit Court set the matter down for final hearing before it in May 2014 but, for reasons which remain unexplained, on the first day of trial the proceedings were transferred to this Court. Orders were simultaneously made to suspend the prior orders for the child’s expenditure of time with the father, for the joinder of the paternal grandfather as a party, and for the child to spend time with him. The orders providing for the child to spend unsupervised time with the paternal grandfather have since been the subject of compliance.[8]

   [8] Second Family Report, para 21; Mother’s aff, para  95-97; Paternal grandfather’s aff, para 24

9. The transfer of the proceedings from the Federal Circuit Court was a great pity for the parties because, after two years of preceding litigation, it deprived them of the final hearing they attended court expecting. They have now had to wait nearly another year for that opportunity. Once the proceedings were before this Court, the first Family Report was stale and an update Family Report was needed. The matter was then fixed for hearing in March 2015.

Parties’ proposals

1. Following cross-examination of the Family Consultant, the mother abandoned her application for the orders set out in her Amended Application filed on

   
   

   6 November 2014. She maintained her proposal for her exercise of sole parental responsibility for the child and for the child to live with her, but she altered her position by proposing that no orders be made providing for the child to spend time with either the father or paternal grandfather. She did not propose an injunction precluding it, but instead proposed that such interaction be left entirely to her discretion.

2. The father pressed for the orders set out in his original Response filed on

   
   

   23 August 2012. He was permitted to file an Amended Response,[9] but he did not do so. He sought that the child live with him and spend time with the mother in the manner determined to be appropriate by the Court. He indicated during the trial that he wanted sole parental responsibility for the child, as that was not specified in his Response.

   [9] Order 4 made on 24 October 2014

3. The paternal grandfather pressed for the orders set out in his Amended Response filed on 20 November 2014. He sought sole parental responsibility for the child, for the child to live with him, and for the child to spend time with each of the parents, subject to an initial embargo period and fulfilment of a series of other conditions.

4. The parties’ respective final proposals were generally consistent with the proposals they outlined in their discussions with the Family Consultant.[10]

   [10] Second Family Report, paras 26-28

The evidence

1. The mother relied upon only her affidavit filed on 9 February 2015.

2. The father relied upon his affidavit and the affidavit of his wife, both of which were filed on 6 February 2015.

3. The paternal grandfather relied upon his affidavit and the affidavit of his wife, both of which were filed on 5 February 2015.

4. The parties and Independent Children’s Lawyer also relied upon the two Family Reports, dated 11 April 2013 and 14 October 2014, prepared by the Family Consultant.

Legal principles

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

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

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

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

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

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

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

Best interests of child – primary considerations

1. No party contended in these proceedings that there was any need to protect the child from any harm that might result from his subjection or exposure to abuse, neglect, or family violence, so s 60CC(2)(b) was not engaged.

2. The mother faintly implied the child may have been physically abused by the father on one occasion in October 2011,[11] but the evidence fell far short of proving such abuse and the mother made no submission about it.

   [11] Mother’s affidavit, paras 38-42; Exhibit F3

3. The father believed he needed to repel the mother’s imputations of his neglect of the child’s diet and exercise,[12] but the mother made no submission about it.

   [12] Father’s affidavit, para 61; Mother’s affidavit, para 24

4. As for family violence, the mother’s counsel frankly conceded in a written outline of submissions:

   This is not a case involving family violence…

5. Accordingly, the only primary consideration requiring contemplation in these proceedings was that prescribed by s 60CC(2)(a) – the benefit the child would derive from having a meaningful relationship with both of his parents.

6. In that regard, the ambit of the parties’ dispute was fairly narrow, though it was bitterly contested. The nature of the residual dispute is best exposed by identification of the issues over which there was no controversy.

7. First, the child has a meaningful relationship with the mother.

8. Secondly, the child undoubtedly derives benefit from his relationship with the mother, which benefit he should continue receiving, though the parties disagreed over how that outcome would be best achieved.

9. Thirdly, the child’s relationship with the father is currently fractured and is no longer meaningful to him, though the parties have quite different views about why that is so and whether any attempt should be made to restore their relationship. Ideally, the child would benefit from restoration of a meaningful relationship with the father, but the mother doubted it could be recovered.

10. The father and paternal grandfather both believe the destruction of the child’s relationship with the father was due to the mother’s alienation of the child from the father, but the mother maintained the child’s estrangement from the father was a realistic product of his experiences.[13]

    [13] First Family Report, para 14; Second Family Report, paras 30, 32

11. The father and paternal grandfather both maintained an effort should be made to restore the child’s relationship with the father, which objective could only be achieved by rupture of the child’s residence with the mother and for him to instead only spend time with her after a period of reprieve from the pressure she exerts upon him. However, the father and paternal grandfather disagreed over with which of them the child should live.

12. The mother inferentially saw no benefit to the child in any rejuvenation of his relationship with the father. She wanted to retain the child’s residence and to let the current circumstances prevail, which would see the child’s estrangement from the father persist. She resiled from her more recent proposal for continuation of some intermittent contact between the child and paternal grandfather.

13. The polarised views of the parties were a product of their impaired parenting capacities and distorted attitudes, more appropriately discussed within the rubric of the s 60CC(3) considerations.

Best interests of child – additional considerations

1. The child’s estrangement from the father is real, not feigned. He is aware of the conflict between his parents and expressed to the Family Consultant his “very strong view” that he did not want to spend any time with the father. He has endured their conflict for most of the last decade and, in the unchallenged opinion of the Family Consultant, he is “suffering considerably” and his “current psychological health is poor”.[14]

   [14] First Family Report, paras 55, 59; Second Family Report, para 39

2. The child has not spent any time with the father since October 2011 and their relationship has consequently now deteriorated to the point of complete estrangement,[15] which the Family Consultant witnessed during an observation session conducted in February 2013. The child coldly rebuffed any form of friendly interaction with the father.[16]

   [15] Second Family Report, paras 30, 32

   [16] First Family Report, paras 40-49

1. After parenting orders were last made in August 2007, the child became progressively more resistant to interaction with the father.[17] That is understandable, since the parents repetitively made the child’s exchange between them a stressful event. The father told the Family Consultant the mother consistently acted in a “hostile and inflammatory way” at exchanges, even those at public venues.[18] Although the mother may not accept responsibility for the conflict, she did not dispute its existence.

   [17] First Family Report, para 17; Mother’s aff, para 11

   [18] First Family Report, para 33

2. The mother has repeatedly expressed her fear of the child’s abduction by the father. The father detained the child shortly after the parents’ final separation in 2004, which the mother addressed by obtaining a recovery order. She has never forgotten it. Years later, in 2009, she felt the need to tell the child’s psychologist of the incident, describing it as an “abduction”. As the Family Consultant observed, such a description was “highly inaccurate and highly unhelpful” and possibly reflected the mother’s anxiety.[19] The child was less than two years of age when retained by the father in 2004 so he would have no independent recollection of the event. Nonetheless, even now after the elapse of a decade, he is pre-occupied by the prospect of his abduction. The mother reported he has nightmares about the father “snatching” him.[20]

   [19] First Family Report, para 60

   [20] First Family Report, para 56

3. The mother contended the reason for the child’s pre-occupation was that, as the child reported to her, the father had threatened to “take him” from school, but it is unlikely the father said any such thing, other than perhaps in the context of changeovers occurring at the child’s school. In any event, the father and paternal grandfather both conversely alleged the child revealed to them the mother inculcated that belief in him.[21] The child’s apprehension about his abduction by the father is much more feasibly the result of comments made to him or in his presence by the mother, because that is a prospect about which she remains genuinely worried. Indeed, the Family Consultant said in cross-examination it was “highly likely” the child’s fear of abduction by the father was based on information he received directly or indirectly from the mother.

   [21] First Family Report, para 34

4. The child’s stress escalated to the point of intolerance. The mother deposed he began returning from visits to the father in August 2011 with “distended stomach”, “pains in the stomach”, “intermittent vomits”, and would sometimes “refuse to eat”, for which the only apparent medical diagnosis was “anxiety”.[22] The mother admitted in cross-examination she was told the child’s physiological complaints may be linked to “psychological problems”.

   [22] Mother’s affidavit, paras 24-25, Annexure D

5. The problems culminated in a series of incidents at the child’s school in late 2011, which necessitated the involvement of police to quell the drama.[23] The father demanded compliance with the existing parenting orders, the mother demanded that the child’s wishes not to go with the father be respected, the school principal was appalled by the hostility, and the police tried to preserve the peace. Suffice to say, those incidents must have caused the child considerable embarrassment, humiliation, and distress. So much was evident from the notes of the school counsellor whom the child consulted.[24]

   [23] First Family Report, paras 20-26

   [24] Exhibit M4

6. The mother told the Family Consultant that the child “steadfastly refused to spend any time with [the] father” after the last of those school incidents.[25] It is hardly surprising the child would take a stance to reduce the chance of him again being exposed to such publicly visible parental conflict. The easiest and safest way for him to achieve that outcome would be to embrace his existing residence with the mother and reject the father, since he was no longer able to manage his parents’ conflicting demands for his loyalty.

   [25] First Family Report, para 26

7. Unfortunately, the family predicament only worsened. Within months, there was another confrontation in a public car park involving the child, the mother, and various members of the paternal family. After that, even the child’s telephone communication with the paternal grandfather ceased.[26]

   [26] First Family Report, para 27; Mother’s affidavit, para 73

8. Consequently, by March 2012 all forms of interaction between the child and the paternal family were severed.

9. By late 2013, despite not having interacted with the father for about two years, the child could not even cope receiving a telephone call from the father. When the father telephoned to speak with him in November 2013 the child became agitated, hit himself over the head with a wrench, and ran away.[27]

   [27] Mother’s affidavit, para 71

10. In December 2013, the parties consented to interim orders which provided for the child to spend only supervised time with the father. Despite numerous attempts over ensuing months, the child could not be cajoled to cooperate. At the prospect of such visits with the father, he cried, used profane language, hid under his bed, threw things around the house, tried to put pepper in his eyes, tried to crack himself on the head, tried to electrocute himself by inserting scissors into a power board, barricaded himself in a room, and had to be locked in the house to prevent his escape.[28] The orders could not be implemented.

    [28] Mother’s affidavit, paras 84-91; Exhibit F9

11. The child’s interaction with the paternal grandfather was later successfully restored by an interim order made in May 2014, providing for them to spend time together once per fortnight, but that has not solved the impasse between the child and the father. The father, paternal grandfather and those associated with them blame the mother for the impasse. Their collective antipathy towards the mother was palpable and unremitting.

12. The father said the mother was “solely to blame” for the child’s alienation from him. He admitted his views about the mother were “very fixed”. When directly asked, he could not find it within himself to say a single positive thing about the mother.

13. The father’s wife said she regarded the mother as being “wholly to blame” for the child’s predicament. She believed the mother had ruined the child’s relationships with the paternal family members and she admitted she did not think the mother was a “very nice person”.

14. The paternal grandfather said he thought the mother was dishonest and was teaching the child to be dishonest. He also said he thought the mother had actively worked against the child’s relationships with him and the father.

15. The paternal family members’ protestations that they would be able to speak positively of the mother to the child and support his relationship with her, despite their antipathy towards her, are difficult to accept as correct. While they may be well-intentioned, it is unlikely they could faithfully fulfil their sentiments because to do so would run counter to their intuition.

16. Although the mother did not speak so derisively of the father and paternal grandfather in cross-examination, the depth of her enmity towards them should not be doubted. As far back as 2008 she told staff of the NSW Department of Family and Community Services that the child hated the father and wished he never had a father.[29] In 2010 she informed staff at the child’s school that she wanted the child to have a male teacher so he could have a “positive role model”, as she obviously believed the father did not amount to one.[30] In February 2013 she told the Family Consultant she thought the child was “going really well” as a consequence of his cessation of all visits and communication with the father and paternal grandfather.[31] The mother obviously believes the child’s estrangement from the father is beneficial to him, which is reflective of her own dislike of him.

    [29] First Family Report, para 61

    [30] First Family Report, para 61

    [31] First Family Report, para 28

17. Curiously, the child’s estrangement from the father is not commensurate with either his or the mother’s experiences with the father. As the Family Consultant recorded:

    …despite several years of attending counsellors at school and in the community, [the child] does not appear to have ever articulated precisely what it is about his father or his father’s household that causes him concern…[32]

    Even if everything that [the child] has ever alleged to anyone about his father is accepted as being completely and totally accurate, the sum total of all of those alleged faults and failings of the father does not come close to explaining the strength of [the child’s] negative view of his father.[33]

    It is not uncommon for children to be disappointed in one or other parent from time to time. Learning to deal with such feelings is an important part of the maturation process. Unless the actions of a parent are extremely serious and subsequently pose an unacceptable risk to the child it is not a reason for a child to be estranged from that parent and to have no relationship with them.[34]

    [32] First Family Report, para 63

    [33] Second Family Report, para 33

    [34] Second Family Report, para 33

18. His opinion only corroborates a similar opinion formed independently by the child’s school counsellor, who noted that the child’s very strong anxiety was “well out of proportion as it had fed on itself so long”.[35]

    [35] First Family Report, para 56

19. The incongruence between the child’s high anxiety about the father and the apparent lack of objective reason for it is even obvious to the parties.

20. The father correctly observed:[36]

    There are no allegations about me concerning family violence, substance abuse, mental health difficulties or any other child welfare concern to my knowledge.

    [36] Father’s affidavit, para 57

21. The mother is also puzzled about the reason for the virulence of the child’s adverse attitude towards the father. She said in cross-examination words to the effect:

    I am still trying to find out the complication between [the child] and [the father] to explain such a strong reaction in [the child].

22. The most the child has ever been able to articulate about his aversion to the father is that the father locked him out of the house when he was five years of age and the mother told him the father was “mean”.[37] The Family Consultant said in cross-examination that a common feature of a child’s alienation by one parent against another was an inability of the child to explain the estrangement rationally, which observation seems apposite to the circumstances of this case.

    [37] Exhibit PGF2

23. The child would undoubtedly have been emotionally disturbed by his mother’s ill-health in late 2012 and the death of the maternal grandmother in early 2014,[38] but those events cannot account for the child’s burgeoning resistance to the father over preceding years, which culminated in the severance of their relationship in 2011.

    [38] Mother’s affidavit, para 117

24. Given that the past conduct of the father does not rationally explain the child’s estrangement from him, the explanation must be found elsewhere. The most likely explanation is the mother’s anxiety has contaminated the child’s attitude, causing him to also be anxious about the father. That is a conspicuous inference given, firstly, the evidence which suggests the mother uses the child to sooth her own anxiety, and secondly, the uncontradicted opinions of the child’s counsellors.

25. The child’s school counsellor noted in respect of the child:[39]

    …[the child’s] account of past events was often a ‘word for word repeat’ as if he has told the story so many times he is now providing ‘set responses’ to questions and that the mother’s anxieties ‘come out through [the child]’ and they ‘feed off each other’s anxiety’.

    [39] First Family Report, para 56; Exhibit F5

26. The private counsellor who most recently provided therapy to the child reached a similar conclusion. She noted that the child’s anxiety was “reinforced” by the mother’s anxiety.[40]

    [40] Exhibits PGF1, PGF3

27. The mother has submitted herself and the child to an extensive amount of counselling over many years, including that recommended by the Family Consultant[41] and that ordered by the Federal Circuit Court.[42] She tried to implement the strategies the counsellors recommended,[43] but not even that worked, most likely because she cannot genuinely commit to it.

    [41] First Family Report, para 66; Second Family Report, para 6

    [42] Orders made on 5 August 2013

    [43] Exhibit M5

28. As far back as 2010, the mother told one of the child’s counsellors she knew the child did not like spending time with the father and, when he did, she did not like being at home alone.[44] Such sentiments have caused a quite extraordinary level of mutual succour between the child and mother. The mother reported to the Family Consultant in 2013 that the child spent “virtually every night” in her bed.[45] In cross-examination, the mother said that practice only ceased about a year ago in early 2014 when the child was attaining

    
    

    11 years of age, which is indisputably an advanced age for a child to find it necessary to sleep so frequently with a parent. The mother admitted to school staff her realisation that such behaviour of the child was a sign of his increased anxiety and was not normal behaviour.[46]

    [44] First Family Report, para 60

    [45] First Family Report, paras 39, 54

    [46] First Family Report, para 54

29. The mother permitted the child to miss an excessive amount of school over the past few years.[47] Part of the explanation for the child’s high number of absences in 2011 is that the mother kept him home to avoid him being collected at school by the father. Unsurprisingly, the Family Consultant said in cross-examination the child would have been emotionally harmed by the knowledge the mother kept him from school for the express purpose of preventing his contact with the father. The mother said in cross-examination she did not believe the child had missed much school, but the evidence proved she was deluded. Even when the child did attend school, the mother was often there during the day. In cross-examination the mother admitted she attended the school every day in 2011 as a volunteer tutor in a mathematics program conducted by the school. The school staff, however, noted that the mother was in frequent communication with the school about developments in the lives of her and the child, which entailed the mother regaling the school with “excessive and unhelpful” information, much of which related to the father.[48]

    [47] First Family Report, paras 35, 52

    [48] First Family Report, paras 53, 54, 56

30. Against that background, the child could not help but be reactive to the mother’s verbal and non-verbal cues about avoidance of the father. The child has developed a siege mentality. He perceives an allegiance between himself and the mother against the paternal family. The mother admits the child speaks to her about how the paternal family lie “to [her] and to [him]”[49] and questions her about why she “stick[s] up for [the father]” when the father will “never do it for [her]”.[50] The child even went so far as to tell the mother he believed the paternal grandfather was “on [the father’s] side [in the conflict]”.[51] He clearly deems them to be jointly pitted against members of the paternal family.

    [49] Mother’s affidavit, para 99

    [50] Mother’s affidavit, para 115

    [51] Mother’s affidavit, para 100

31. The mother professed she had used her best efforts to ensure the child spent time with the father, as the orders in August 2007 and December 2013 provided, but conceded her best efforts failed.[52] Notwithstanding, she was able to successfully convince the child to spend time with the paternal grandfather after orders were consensually made to that effect in May 2014. She simply told him “the decision has been made, it’s your time with [the paternal grandfather], you’re going”.[53] The child submitted to such authority.

    [52] Mother’s affidavit, para 115; Second Family Report, para 34

    [53] Mother’s affidavit, para 95

32. The plain inference is that either the mother did not genuinely try her best to ensure the child visited the father, or alternatively, she was unable to muster the same enthusiasm to ensure the child visited the father.

33. The father believes the mother “wilfully tried to impede” his relationship with the child,[54] with which sentiment the paternal grandfather agreed. However, it is quite unnecessary to determine whether the child’s estrangement from the father resulted from the mother’s deliberate or inadvertent alignment of the child with her, because the consequence is the same. If the child remains resident with the mother, she will either maintain her intentional alignment of the child against the father or, if her conduct is unintentional, she will be unable to change her pattern of behaviour.

    [54] Father’s affidavit, para 58

34. Although unnecessary to reach any ultimate determination on the issue, the evidence is more consistent with the mother having unintentionally caused the child’s estrangement from the father. Her genuine anxiety about the father has, over a period of years, infected the child with similar anxiety about his relationship with the father. He is aware the conflict between the parents prevents him maintaining a loving relationship with both of them and the only way to relieve the pressure is to side with one and reject the other.

35. While the father’s frustration is understandable, his petulant response has only compounded the problem. When introduced to the child in February 2013 in the presence of the Family Consultant, unlike the gentle effusion demonstrated by the paternal grandfather, the father mostly remained silent,[55] as if sulking. When the father did inject himself into the conversation he asked confronting questions about when the child would begin spending time with the paternal family again.[56] Subtlety eluded the father at a critical time.

    [55] First Family Report, paras 42, 43

    [56] First Family Report, para 46

36. The father’s petulance also influences his behaviour towards the mother. He pays a paltry amount of child support to her, albeit in accordance with an assessment of the Child Support Registrar, but he formerly refused to pay an increased amount because he regarded it as a “ransom” for the mother’s compliance with existing orders.[57] In cross-examination the father also bluntly refused to sign any document that would facilitate the formal change of the child’s surname or the issue of a passport for the child, despite orders being made in August 2007 requiring it.[58] The father still belligerently persists in calling the child by a different surname from that ordered by this Court in August 2007. Furthermore, when the Family Consultant recommended family therapy in early 2013, the father inexplicably resisted participation.[59]

    [57] First Family Report, para 10

    [58] Orders 3, 4, 11 made on 24 August 2007

    [59] First Family Report, para 66; Second Family Report, para 6

37. In early 2012 staff at the child’s school notified the NSW Department of Family and Community Services of their concern about “both parents’ behaviour”, “both parents’ lack of insight”, and the “psychological abuse” the child was thereby suffering.[60] Nothing has changed. The mother has no insight into the effect of her behaviour upon the child and the father cannot appreciate the delicacy of the situation.

    [60] First Family Report, para 62

38. The child enjoys a positive relationship with the paternal grandfather. That was obvious to the Family Consultant in February 2013[61] and was conceded by the mother in cross-examination. Unfortunately, the paternal grandfather’s insight was really no better developed than the parties. Most of his cross-examination of the witnesses was directed to establishing fault on the part of the mother for the current imbroglio, rather than to what could be done to overcome it.

    [61] First Family Report, paras 41, 45, 47, 49

1. Unfortunately, neither the father, paternal grandfather, nor their respective partners appeared to apprehend the enormity of the upheaval a change in the child’s residence would entail, though the Family Consultant thought they had realistic expectations.[62] They all acknowledged it would be difficult and they would do their best, but their concessions did not betray comprehensive appreciation of the emotional fall-out. None of them had undertaken any preparation for the child’s proposed transition of residence to either the father or paternal grandfather. No inquiries were made with prospective new schools, no bedroom is set up for him, and no clothing has been purchased for him. The father even said he had devised no behavioural management strategies and he would just “take it as it comes” and just “deal with it”. He said he might have to “sort it out in professional counselling”. The paternal grandfather said “we all accept there will be a problem [caused by reversal of the child’s residence], we just don’t know how big a problem”.

   [62] Second Family Report, paras 37, 38

2. Their simplistic intention to confront the problem when it arises revealed their collective failure to appreciate the magnitude of the child’s probable volcanic response. The father merely said “something needs to change – this [the present situation] is ridiculous”. The paternal grandfather’s final submission was that the “mould” needed to be broken.

3. As the Family Consultant predicted:[63]

   If the Court finds that it is in [the child’s] best interests to leave his mother’s care, [the child] is likely to be extremely upset, unaccepting and outraged. [The child] is a strong minded boy who is used to getting his own way. He (totally inappropriately) believes that it is his ‘right’ to choose to refuse to have a relationship with his father. It will take a lot of effort and patience to support him through what might be many months and possibly longer, of active resistance and attempts at sabotage.

   [63] Second Family Report, para 42

4. The difficulty attending any reversal of the child’s residence would only be compounded by the paternal family’s intention to move the child to western Sydney to live. If the child was to live with the paternal grandfather, the child’s relocation would happen immediately, as that is the region in which he already lives. If the child was to live with the father, the move to that region would occur by the end of this year at the latest. The father deposed he had a plan in the longer term to move to western Sydney,[64] but the father’s wife revealed in cross-examination that their plan was to move quite soon after the completion of this litigation, though they would wait until the end of the current school year if orders were made for the child to live with the father.

   [64] Father’s affidavit, para 82

5. Neither the mother nor paternal grandfather is licensed to drive. The mother does not own a car and is reliant upon public transport. The journey between the mother’s home and the region of western Sydney where the paternal grandfather already lives, and where the father wishes to live, takes some 3-4 hours by public transport. The tyranny of distance would be a practical impediment to the child’s expenditure of time with the mother should he move to live with the father or paternal grandfather.

Conclusions and orders

1. The mother and paternal family are incapable of sharing parental responsibility for the child. The father said there was nothing more he could do to work collaboratively with the mother. The mother’s anxiety about the father precludes her capacity to consult and negotiate on an equal footing with him. The presumption of equal shared parental responsibility does not include the paternal grandfather anyway, so there is no justification for him having any parental responsibility for the child unless the child resides with him.

2. The presumption that the parents have equal shared parental responsibility for the child is rebutted (s 61DA(4)). They are unwilling or unable to genuinely try and resolve the contentious important issues that will arise in the child’s life, as the Act would require of them (s 65DAC).

3. Parental responsibility for any “major long-term issues” in relation to the child must be vested in only one party, which outcome obviates the need to consider the hierarchical residential alternatives stipulated by the Act (s 65DAA). Sensibly, the party with whom the child resides should be vested with exclusive parental responsibility for all “major long-term issues” in relation to the child.

4. The Family Consultant said in cross-examination, and I accept, that it was “extremely likely” the child would suffer “significant psychological harm” as a consequence of any change of residence from the mother. By the same token, the child would eventually suffer some undefined degree of psychological harm by reason of his denial of a loving relationship with the father, which will inevitably follow from retention of his residence with the mother. The Family Consultant’s oral evidence was consistent with the contents of his written report.[65]

   [65] Second Family Report, paras 37, 38, 41, 42

5. The child would be seriously stressed if forced to move and live with either the father or paternal grandfather. They accepted there was a real risk the child would run away from them. He could not be physically restrained more than momentarily if he tried to abscond. If he could be convinced to settle in their care then he may rekindle his valuable relationship with the father, as the paternal family hoped, but it is important to emphasise that outcome was really nothing more than a hope. It could not be fairly characterised as an expectation. The paternal grandfather at least admitted the decision to reverse the child’s residence could “back-fire”. It could make things worse instead of better. The evidence suggested such an adverse outcome was just as plausible as the happy ending for which the paternal family hoped, which was the child’s future enjoyment of healthy relationships with all members of his family. Unless the transition was a startling success, further litigation over the child, even if only to enforce the orders reversing residence, would seem probable.

6. There is another complication with the paternal family’s proposals. Their views of the mother are unconditionally negative. They already fear the child reacts to the mother’s negative views about them, so there is every reason to suspect the child would similarly react to their negative views of the mother if he lived with either the father or paternal grandfather. They would not need to openly disparage the mother to the child because he would intuitively sense their hostility. Consequently, there is a real chance his reversal of residence would achieve nothing. He already lives with one parent and has no relationship with the other. If he instead lived with the father or paternal grandfather, he may feel the same pressure to resist a loving relationship with the mother.

7. The retention of the child’s residence with the mother would certainly suit the child. He would be relieved of stress by knowing he will live permanently with the mother and the only disadvantage would be the continuing absence of the father, and probably also the paternal grandfather, as meaningful influences in his life. There would be much less chance of further litigation over the child.

8. The paternal grandfather’s proposal proved to be quite vague. His proposal about the method for gradually re-introducing the child to the parents once the child lived with him was impractical, but more importantly, the evidence tended to suggest he might really be conducting a rear-guard case for the father. The paternal grandfather deposed to his hope that the child would eventually live with the father,[66] even though that was not part of the elaborate proposal contained within his Response. Then, during cross-examination, he said the child could live with whichever parent the child wanted, following temporary residence with him and further counselling for a period of not less than six months. It was not fanciful for the mother to therefore fear that, following upon orders for the child to live with the paternal grandfather, he would soon allow the child to live with the father instead.

   [66] Paternal grandfather’s affidavit, para 4

9. Even if that were not so, the paternal grandfather’s proposal was unattractive. Although the child enjoys a good relationship with him, it is not a good enough relationship to support the child’s residence with him. He has repeatedly invited the child to stay with him for longer than one day each fortnight, but the child baulks at the prospect. The paternal grandfather thought that was an encouraging sign, because the child did not refuse, but more likely it is the child’s way of declining without the rudeness of a flat refusal.

10. Although the mother began the trial by proposing a continuation of the child’s periodic visits to the paternal grandfather,[67] and that was the Independent Children’s Lawyer’s final proposal,[68] the mother recanted from that idea. She did so in response to the Family Consultant’s evidence.

    [67] Amended Application filed 6/11/14, Order 4

    [68] Exhibit ICL1, Order 4

11. The Family Consultant said in cross-examination it would be “incredibly unrealistic” to expect the child to continue regular visits to the paternal grandfather, but be barred from any interaction with the father, particularly when the paternal grandfather thinks it would be beneficial for the child to restore his relationship with the father. The regime would disintegrate under the weight of the parties’ expectations. The mother would expect the paternal grandfather’s adherence to the injunction restraining the child’s interaction with the father. The paternal grandfather would expect the mother to relent and allow the child to spend more time with him, as has already been occurring, and perhaps relax the restriction on the father’s participation. The father would remain vexed by his exclusion. The child would remain the focal point of the parties’ antipathy.

12. If orders are made for the child to live with the mother and no orders are made prescribing the child’s expenditure of time with the paternal grandfather, the Family Consultant considered the mother would not sustain her adherence to any informal arrangement for the child to continue spending time with him because she knows he wants to re-introduce the child to the father and fears he will do so regardless of her contrary wish.

13. During final submissions, the paternal grandfather freely admitted his belief in the validity of the Family Consultant’s opinion. He agreed the child’s periodic interaction with him would grind to a halt, despite orders providing for it, if the restraint against interaction between the child and father remained in place. Accordingly, there is no utility in making orders providing for the child to spend time with the paternal grandfather if the child is to remain living with the mother.

14. The preponderance of evidence requires a determination that the child live with the mother and that she have sole parental responsibility for him. That entails disadvantage to the child, but not such great disadvantage as that which attends rupture of his current residence.

15. The father realises the child’s continued residence with the mother likely spells the end of his relationship with the child.[69] The child has not been able to enjoy visits with him since October 2011, despite the existence of orders made in August 2007 and December 2013 providing for it. The contravention of those orders did not cease until they were formally suspended in May 2014. The absence of fresh orders making provision for the child to spend time with the father will therefore make no difference to the circumstances that have prevailed for more than the last three years.

    [69] Father’s affidavit, para 78

16. The mother and Independent Children’s Lawyer were both content with an absence of orders making express provision for the manner in which the child should spend time with the father. Neither sought an injunction precluding it. Both were satisfied to leave to the mother to decide, as an incident of her sole parental responsibility for the child, whether and how he should spend time with the father. Logically, the same arrangement should include the paternal grandfather.

17. To prevent the chance of frustration of the mother’s decision, an injunction is imposed preventing the father and paternal grandfather from attending at or near to the mother’s home and the child’s school. The father is permitted by the orders to procure the child’s school reports and photographs if he wishes. The orders may be furnished to the child’s school principal so the school is aware of the parties’ rights, so hopefully the embarrassing confrontations that occurred at the child’s school in 2011 can be avoided.

18. The father has battled vainly in this litigation to restore his relationship with the child, but it would be advisable for him to take a longitudinal view of the problem. The orders made by the Court will only dictate parenting arrangements for the remainder of the child’s minority, which will last another six years. Thereafter, if not before, the child will be mature and independent enough to reflect upon his childhood and make his own decisions about the reasons why he was deprived of a valuable paternal relationship. If he feels he was unfairly pressured to abandon the relationship he will likely seek the father out to restore their connection. As an adult, free from parental influence, the child will pursue the relationships he truly desires.

19. With the long-term rejuvenation of the relationship between the child and father foreseeable, the task at hand is to enable their retention of a link that will make the restoration process easier. For that reason, the parties should be required to keep each other appraised of their contact details and provision should be made for the child and paternal family to communicate in writing intermittently. The Independent Children’s Lawyer wanted an order to that effect.[70] The orders are constructed in such a way that they require the mother’s written acknowledgement of receipt of correspondence from both the father and paternal grandfather, so they will be able to prove to the child their attempts to maintain contact with him if, for some reason, he does not receive their correspondence and eventually asks them why they abandoned him.

    [70] Exhibit ICL1, Orders 3, 6

20. Restoration of telephone communication between the child and father would be unhelpful. It was prohibited by the interim consent orders made in May 2014,[71] and for some time prior to that the father abstained from regular telephone communication. The mother felt the father was unreliable and abusive,[72] but the father considered the mother obstructive.[73]

    [71] Order 2 made on 6 May 2014

    [72] Mother’s affidavit, paras 68, 73

    [73] Father’s affidavit, para 46

21. The mother acknowledged her investiture with exclusive parental responsibility for the child meant she could now attend to amendment of the child’s birth certificate to record his name as ordered by this Court in August 2007 and the procurement of a passport for him. No further orders in that regard were therefore required.

22. The orders replicate the orders made in August 2007, which were never successfully implemented, requiring the child to be known by the surname “Donald-Henry”, for otherwise the mother could use her exclusive parental responsibility for the child to change his surname again.

23. The orders restrain the parties from allowing the child to be exposed to any denigration of them. That order could not be the subject of sensible objection.

24. The orders require the mother to inform the father of any significant injury or illness suffered by the child so the father may confer with treating doctors about his condition. Nor could that be sensibly opposed.

25. The orders make provision for the child to be presented promptly to the Independent Children’s Lawyer for an explanation of the orders, and if considered appropriate, the reasons for the orders. That will avoid any chance of the child being given a distorted explanation by the mother. If the Independent Children’s Lawyer would prefer the assistance of the Family Consultant to undertake that task she will need to make those arrangements herself.

1. With considerable regret, I conclude the orders set out at the commencement of these reasons serve the child’s best interests.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 April 2015.

Associate: 

Date:  20 April 2015