Herrera and Devoti - [2012] FMCAfam 416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HERRERA & DEVOTI

[2012] FMCAfam 416

FAMILY LAW – Child – parenting orders – effect of change.

Family Law Act 1975, ss.60B, 60CC, 61DA(4) and 65DAA

Applicant:

MR HERRERA

Respondent:

MS DEVOTI

File Number:

ADC 611 of 2007

Judgment of:

Cole FM

Hearing dates:

27, 28 and 29 February 2012

Date of Last Submission:

29 February 2012

Delivered at:

Adelaide

Delivered on:

11 May 2012

REPRESENTATION

The Applicant:

Self-represented

The Respondent:

Self-represented

Counsel for the Independent Children’s Lawyer:

Ms Hafey

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Parramatta Family Law

NOTING that the orders of this Court dated 13 August 2010 will remain in place, the following orders are made

ORDERS

By consent the mother be restrained and an injunction is hereby granted restraining her from facilitating any further sessions with
Ms W, Child Psychologist on or before 4 March 2012 (NOTING that the last session for the purposes of concluding the time with Ms W is Saturday 3 March 2012).
The Applications of the parties be dismissed
The parties attend upon a Family Advisor at a Family Relationship Centre or similar Agency for the purpose of assessment and referral to an appropriate agency in relation to an age appropriate parenting course.
The appointment of the Independent Children’s Lawyer be hereby discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 611 of 2007

MR HERRERA

Applicant

And

MS DEVOTI

Respondent

REASONS FOR JUDGMENT

These proceedings are about the parties’ competing applications for parenting orders for their son [X], born [in] 2001.
[X] will be aged 11 this year. The parties have in one form or another been engaged in litigation since [X] was approximately two.
In August 2010 final orders were made for [X] to live with his mother in [B] and spend time with his father in [M]. These proceedings arise out of events that occurred subsequent to that date.
Pursuant to the orders, [X] was to fly to [omitted] where he would be collected by his father to spend the school holidays with the paternal family in [M].
[X] did not get on the aeroplane and time did not proceed. A recovery order was issued by the Magistrates Court in [M]. Enforcement of the order was effected when Sergeant [omitted], a local police officer, carried [X], who was showing signs of distress, aboard the [omitted] aircraft. According to reports, [X] settled quickly and enjoyed his time in [M].
Unfortunately, when it came time for his return, the father elected to retain [X] in [M] and enrolled him in a private school. He remained there for one day before being subsequently enrolled in the local state school. He remained there for some three to four days before his mother without the father’s or the school’s knowledge, took [X] (who went willingly) as the students were entering the classroom and drove with him to [B]. He has remained residing with the mother at [B] since.
The mother now seeks orders that [X] live with her and see his father in accordance with his wishes. She says that [X] is a sensitive child (a term that she uses quite frequently when referring to [X]). Her evidence is that prior to spending time with his father, he exhibits signs of distress such as stomach pain and nausea. She has consulted the child's doctor, a paediatrician, and a psychologist. Her evidence at the hearing was that Ms W a child psychologist was currently visiting [X] in his home on weekends and conducting sessions with him and his mother jointly. I will refer further to this in the course of these reasons.
The father seeks orders that [X] reside with him in [M]. He acknowledges the reports that [X] shows signs of distress and ill-health whilst in [B]. He queries why [X] appears to be only unwell in [B]. His evidence is that [X] enjoys a normal healthy life when he is with the paternal family in [M]. His evidence and that of his witnesses is that [X] does not display any of these symptoms when with the paternal family. He queries the mother's care and submits that at the very least the mother's parenting skills are to blame and at the very worst, she is coaching the child or pressuring him in such a manner that he displays these symptoms.
The Independent Children's Lawyer submits that this is a case where there is a clash of parenting styles. The contrast between what the mother describes as her persuasive parenting and the more authoritarian, traditional approach of the father combined with the reaction of the child to that which has led the parties to become involved in litigation for the majority of this child’s life.
The submission carries some weight and I will expand upon that when considering the capacity of the parents to provide for the child's emotional and intellectual needs, amongst other things.
It is appropriate at this stage to note the background of these proceedings. The father sets out a schedule of events commencing in paragraph 6 of his affidavit. Referring to some of the relevant parts, I note his evidence that:
a)[In] 2001 [X] was born in Adelaide. The father was able to spend some time with [X] albeit with difficulty, on his evidence;
b)the father notes his first contact with the Family Law Courts on 31 July 2003;
c)the matter came before the Federal Magistrates Court in [B] on 10 August and 18 October 2004;
d)on 12 December 2004, a Family Report was published;
e)further Court hearings occurred in February and April 2005. A series of further hearings occurred in 2006;
f)the parties attended mediation with Mr G in [B] in 2007 on two occasions;
g)a further Court hearing occurred in December 2008;
h)mediation occurred in February 2009;
i)further appearances in court were made in February and May 2009;
j)mediation occurred in March 2010 with Mr G;
k)further proceedings occurred in the Federal Magistrates Court in [B], with a Family Report being published on 15 July 2010;
l)in August 2010, final orders were made;
m)on 23 September 2011, [X] failed to board the aircraft to spend time with his father;
n)on 26 September 2011, a Recovery Order was granted for 27 September;
o)on 27 September 2011 [X] failed to board the aircraft; and
p)on 28 September 2011, the Police put [X] on the plane. These proceedings follow those events which I set out in more detail below.
When the Recovery Order was issued, the father says he spoke with the [B] Police on 27 September 2011 and advised them that he would not like to see his son taken into custody as long as he was on the plane tomorrow. The police agreed to this and said they would pick him up and place him on the plane.
The evidence of the mother is that he was distressed and had to be picked up and carried on the plane and buckled into his seat.
The father does not dispute this, however he states that [X] settled quickly and enjoyed his holiday with the paternal family.
On 7 October 2011, the father visited the Court in Newcastle with a view to lodging an Application with supporting Affidavit giving evidence about his concerns over the mother's alleged mental and psychological abuse of his son.
On 10 October 2011, [X] attended [S] School for one day. The school then advised that he was unable to remain there without a Court order placing him in the care of the father.
On 12 October 2011, [X] was enrolled on a temporary basis at the [W] School. He was subsequently removed from there by the mother.
On 17 November 2011, Federal Magistrate Brown heard the parties’ applications and decided that the Court orders for [X] to spend time with his father remain in place pending the trial of this matter in February 2012. The father's time with [X] did not occur in January 2012.
The father lodged another Recovery Order Application with the Local Court at [M].
The matter was transferred to Federal Magistrate Brown.
The matter came before Federal Magistrate Brown on 29 January 2012 however, the Recovery Order was not pursued due to the proximity to [X] commencing school. The trial proceeded on 27 February 2012.

The evidence

The applicant father relies on:
a)his Initiating Application filed 6 October 2011;
b)his Trial Affidavit filed 20 February 2012;
c)the Affidavit of Ms S filed 31 January 2012;
d)the Affidavit Mr S filed 31 January 2012;
e)the Affidavit of Mr B filed 31 January 2012;
f)the Affidavit of Mrs D filed 31 January 2012;
g)the Affidavit of Mr H filed 31 January 2012;
h)the Affidavit of Ms H filed 31 January 2012;
i)the Affidavit of Ms A filed 31 January 2012; and
j)the Affidavit of Mrs L (the paternal grandmother) filed 31 October 2011).
The father, Ms A, and Mrs L, gave evidence and were cross-examined. The remainder of the father's witnesses gave evidence by telephone and were cross-examined.
The respondent mother relied on:
a)her Response at 14 February 2012;
b)her Trial Affidavit filed 14 February 2012;
c)the Affidavit of Mr D filed 14 February 2012; and
d)the Affidavit of Ms M filed 15 February 2012.
The mother, Mr D, and Ms M, gave evidence and were cross-examined.
The trial proceeded without the benefit of a Family Report. The parties agreed that a report had not been ordered in this instance as the Court had considered that the process of litigation had meant that [X] had already been subjected to a significant number of interviews and there was some concern as to whether or not another interview would assist. I will refer to this later in these reasons.

The father

The father is a self-employed [omitted] residing in [M]. His evidence is that he is able, with the flexibility in his working hours and the support of his family, to care for [X]. His evidence was not challenged in any significant way.
The father submits that any problems that occur with the child spending time with him arise from events that occur in [B]. When [X] is away from [B], the problems do not arise. He therefore submits that it is in the best interests of the child that he be removed from that environment and an order made that the child lives with him in [M]. He also seeks orders that the mother be banned from entering the township of [M] and any time she spends with [X] should be supervised.
He concedes that this may be difficult. He also concedes that in the event that he is unsuccessful, then he would give consideration to ceasing any further litigation, having through his efforts established a relationship with his son which may well pay dividends as the child grows older.
He acknowledged that his son had difficulties moving between his parents’ houses. Once he was with the paternal family however he settled well and became part of an extended family whose company he clearly enjoyed.
His evidence was supported by his extended family including his mother, Mrs L, his daughter Ms A, his son Mr H, his daughter-in-law, and close friends, whose affidavits are referred to above.
The evidence in respect of the time that [X] spent with his family in [M] was consistent and credible.

The mother

The mother currently works in [B]. She is able to tailor her work with her commitments to [X]. In addition, she has the support of her father.
The mother's position is that the child is sensitive and that the father is incapable of recognizing this. The child reacts to the father's authoritarian manner and as a consequence, exhibits signs of severe distress prior to spending time with the father and upon his return.
Her evidence is that [X] does not wish to go to spend time with his father and his family.
It is her position that a much slower pace should be taken in that time between the child and his father should be as agreed between the parties. When questioned as to what this meant, she responded that it should be in accordance with the child's wishes. Furthermore, her suggestion was that time should occur in [B].
She opposes any application that the child lives with the father.
Whilst the mother’s evidence of the distress shown by [X] may well be right, her understanding of how that came about and her position in dealing with that and responding to it was the subject of attention during the course of these proceedings.
There is no question that the mother has been the primary caregiver for [X]. There is no serious dispute that the mother has a close relationship with her son.
The question is, whether or not what the father submits is a continuous blocking of his relationship with [X], justifies the removal of [X] from [B] to reside with the paternal family.
There is no issue that such a move would have significant and distressing consequences for the mother, and the child.
The alternative is the risk that [X]'s relationship with his father and the paternal family would be lost.
Both options have grave consequences for [X]. The parties concede that the choice is between two options that have the risk of incurring significant damage and that the preferred option is the one that would cause the least damage to the child.

The law

The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)     the capacity of:
(i)     each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)    the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The father seeks equal shared parental responsibility for the child whilst the mother seeks sole parental responsibility. This will be discussed in due course.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances this child should spend “equal time” or “substantial and significant time” with each of his parents. These considerations include whether such an order would be:
a)in the best interests of the child; and
b)whether the child spending that time with each of his parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these reasons.

Section 60CC primary considerations

(2)(a) the benefit to the child having a meaningful relationship with both of the child’s parents

The parties acknowledge that there is a benefit to [X] in having a meaningful relationship with the other parent.
They cannot however agree on how that should be conducted. The mother proposes it be in accordance with [X]’s wishes. The father proposes it be on restrictive terms until certain criteria are met.
The commitment of the parents to ensure that [X] has a meaningful relationship is discussed later in these reasons.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The mother's case is that the child is of a sensitive nature. She submits that he is intimidated by his father. She says that care must be taken with him.
She raises what she says are examples where [X] is being subjected to or exposed to physical or psychological abuse. She includes amongst other things, [X] being thrown into a swimming pool; being allowed to drive a ute across a farm paddock; and being made to ride a bike.

The father in return raises his concerns about the mother's treatment of [X], including his continuing attendance upon medical practitioners, psychologists and counsellors whilst he is in [B].
His concern is such that he says that in the event of [X] coming to live with him, the mother's time with [X] should be supervised and the mother should be restricted from entering into the [M] town site.
I am not convinced these are issues that are appropriately dealt with under this heading. They are important issues however they are more appropriately dealt with elsewhere in these reasons when considering, amongst other things, the willingness of the parents to facilitate a relationship between the child and the other parent and the capacity of the parents to provide for the child’s needs.

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

[X] will turn 11 this year.
I do not have the benefit of a recent report, the last report having been conducted in 2010.
Each party presents a different version of [X]'s views.
The father however does not dispute that [X] loves his mother, is close to her, and any order removing him from their care would cause some significant distress.
At the same time, he gives evidence of a child who, while suffering some distress in the transition between his parents’ houses, settles quickly and clearly benefits from the time spent with the paternal family. This evidence was not seriously challenged.
The mother tells of a young boy who is fearful of his father. She repeatedly, through her evidence, spoke of him as being sensitive and spoke about her concerns that this was not recognized by the paternal family.
While I do not have the benefit of expert evidence, I consider there is sufficient evidence to raise strong concerns that the mother is projecting her views onto [X] in such a manner that the child is reacting to his audience and telling her what he thinks she wants to hear.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

There is no dispute that [X] has a close relationship with his mother. There are issues around how that relationship works and they will be addressed when considering the capacity of the parents to provide for the needs of the child.
It is important to note however the evidence of [X]'s maternal grandfather. In the world of this eleven year old boy where his parents have been in litigation since he was two, it would appear that this gentleman offers this young man some respite and some valued company.
Mr Herrera elected not to cross-examine Mr D, noting his importance to his son and his respect for Mr D.
Mr D senior presented as a doting grandfather who resides down the street from his daughter and grandson.
I use the word doting, as his evidence was that he accepts that what his grandson tells him is the truth and does not consider that this eleven year old boy may be capable of over-exaggeration or influenced by his mother’s behaviour.
Mr D and his grandson have got into the habit of sharing breakfast together. In other words, [X] gets up, prepares for school, leaves early and walks down the street to enjoy a cooked breakfast with his grandfather, before he proceeds on to school. This may not happen every morning but is a frequent event that occurs more than once a week and is usually initiated by [X].
When asked about [X] being late for school, Mr D was surprised that there was an issue. To his knowledge, [X] left his home on time to attend school. Following recent events where [X] was held in [M], [X] had asked his grandfather to take him to school, however he had told him he was old enough to walk on his own and that is what occurs.
On reflection he did say that his grandson had a friend who was prone to lingering. That friend has gone away this year and he did not expect that problem (now that he was aware of that) to continue.
It is clear and there is no submission to the contrary that Mr D senior plays a significant and important role in [X]’s life.
The mother says that the child has issues with his relationship with his father. Her submission is based on what the child says to her and his reactions before and after spending time with the father and his family.
She does not accept the reports of the father, his family, and his friends of their observations of [X] when he is sending time with the father.
She does not accept that [X] may, either consciously or subconsciously, be telling her what she wants to hear.
Her view of the information she receives is affected by the context of her view of the father as intimidating and controlling. This can and I suspect does lead to her interpretation of most events as being one that attributes to the father at best a lack of parenting skill and at worst bullying behaviour designed to intimidate and control her sensitive son.
For example if [X] reports:
a)that his father threw him in the deep end of the swimming pool there is no room in the mother’s context to regard this as horseplay between a father and his son; and
b)that his father transported him over a short distance on the back of a tractor, then the mother and the child attend upon a GP who then advises them both that she would be making a report regarding this dangerous behaviour as it was not safe practice. There is no enquiry made nor is there any thought that this may be an activity that is normal subject to appropriate safety measures in a farming community. The fact that the advice re safe practice and the report was conveyed to the mother and child together and not kept as an adult matter increases my concern.
The father presented a wide range of evidence to support his submission that he and his son enjoy a good relationship.
I accept the father’s evidence that once the transition has occurred, and he is settled, [X] is able to enjoy a close relationship with his father. How the transition is handled however is cause for comment elsewhere.

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

My concern that the mother appears to have difficulty interpreting the information relayed by [X] to her about his time with his father in a positive or even neutral sense leads me to be concerned about her willingness to facilitate that relationship between her son and his father.
She says she is willing to facilitate the relationship and to do that she has taken [X] to a variety of people for advice on what to do. This has included her GP, a paediatrician, and two child psychologists.
Her evidence is that anxiety and depression runs in her family. [X] is she considers, a sensitive child. She notes in support of this that [X] has displayed ongoing symptoms of anxiety and nausea. These symptoms increase in intensity as the time for [X] to go to his father’s approaches.
The mother enlists the assistance of the professionals to help her persuade [X] to go to his father’s. The problem then becomes [X]’s instead of the parents’ and the health of the child becomes the issue. In other words it is [X] who is the patient, not the adults whose relationship and inability to focus on the parenting of [X] led to this coming about.
Then there is the issue of the manner in which the consultation is conducted. I have already commented on the way in which the mother and child were advised that a report would be made about the child riding on the back of the tractor.
Following the return of the child to [B] the mother sought the assistance of a child psychologist.
There is no suggestion that she did this with the consent or knowledge of the father. The sessions were with Ms W .They were arranged such that they occurred at the mother’s home and the mother and child were undertaking sessions together. The involved amongst other things, the child learning to have his “protective shield” on before he went to [M].
The sessions included the child being given relaxation tapes and learning affirmative sayings which his mother would laminate and place on the mantle piece.
Ms W, the psychologist, was not called to give evidence. Without the benefit of her evidence, there was nothing of evidentiary value that assured me that these sessions were not disproportionately magnifying an issue that should be resolved by the parents. In other words, it accentuated the focus on the child being the problem, not the adults.
Furthermore the involvement of the mother in the process meant that the entire process was structured from her presentation of the issues and the child’s interaction with her (which did not exclude the possibility that the child was reacting to the audience) without input from the father and an examination of his perspective of the problems faced by [X].
The possibility that this process with Ms W was exacerbating the problem could not be excluded and it was with that in mind that consent was obtained from all parties at the conclusion of the trial for an injunction restraining the mother from having the child attend further sessions with Ms W save for one final session to explain that the sessions had concluded.
The mother says that she undertook these steps with the best interests of the child in mind. I am not convinced that after some eight years in the court system that she was unaware of the ramifications of her actions.
The mother cannot find anything positive to say about the father’s parenting. She appears unable to understand his approach to his parenting of his son. Her proposal that time with [X] should occur in accordance with his wishes in [B] would suggest she has shifted responsibility for maintaining the relationship to her son’s shoulders.
I consider there are serious issues about her willingness to encourage a relationship between [X] and his father.
The father presented as someone who feels as if he has been swimming against the tide in his efforts to spend time with his son.
He had reached the point where he considered his only option was to seek an order that [X] live with him.
His attitude, for completely different reasons, reflected that of the mother in that he had difficulty accepting that [X] should be encouraged to have a relationship with his mother when she was behaving in such a manner.
His proposals which severely restricted the mothers time with [X], included seeking an order that the mother be restrained from entering into the township of [M] for a period of time after [X] had moved there.
He also sought orders that the mother undergo counselling and that her time with [X] be supervised until she can prove to the court that she can have a relationship with her son that is based on a “healthy and constructive basis”.
The impression he gave throughout the course of the hearing was of a man who had struggled to find a way to spend time with his son. In the course of the proceedings he had come to the view that the only way forward was to cut the mother out of the picture until such time as she could satisfy the court that she should be spending time with her son. He had little to no faith in the mother and appeared unlikely to be capable of encouraging a relationship between her and his son in the near future.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living

This is the central issue. Whilst there may be grounds to consider an order that [X] live with his father, it is the effect of the change and how that is to be addressed that concerns me.
[X] has been in the care of his mother since birth.
Their relationship is not one that can be characterised in the traditional sense. The mother is not one who appears to have set boundaries or attempted in any of the usual ways to enforce those boundaries.
The line between what is or should be the responsibility of adults or parents and what should be left to children appears in the circumstances of this relationship to be very hazy. The mother’s evidence is that she will reason with this ten year old and when all else fails will resort to bribing him to undertake the tasks she wants carried out. For example, gives him $5 per week if his bag is packed, his homework completed and he gets to school “without any hassles”.
There is a strong impression from her evidence that the relationship is between two people on a more equal footing than one would expect when examining a parent child relationship.
This is reflected in the evidence that the mother and the son participate in the sessions with the psychologist together. It is also reflected in my concerns that the child has been present and involved in discussions with health professionals when the mother sought advice about his behaviour.
At the same time the father concedes that save for being able to acknowledge and support [X]’s relationship with his father the mother loves her son and works hard, in her own way, to look after him.
As a consequence of the matters referred to above amongst other things, it is clear and not in dispute that the child has a strong relationship with his mother and is well settled in the [B] community.
The father acknowledges that any order that [X] was to live with him would be very distressing to his son and the mother. He argues that it is [X]’s best interests however for a regime of “tough love” to break the current pattern and enable the relationship between him and his son to flourish. Whilst he acknowledges that this will be initially very difficult he argues that [X] will adjust and that the initial distress will be overcome by the long term gains.
He does not in his trial documents outline any concrete plan for the support of his son during this initial period.
He did in his evidence say that he would try and get his son to see a counsellor. He was unable to say who this would be and how it would occur.
His evidence on how his son would be supported through such a significant and distressing change was inadequate and gave the appearance of a plan that had not been thought all the way through.
I accept the evidence that [X] is settled in [B], any move to have him live elsewhere at this stage of his life may cause him significant distress, and that his mother would be severely affected by such a move.
There is no dispute that the parties and [X] would suffer distress and possibly damage following such a move.
There is no evidence that would help the court to gauge what damage, if any, would be affected by the forced removal of the child from a situation where he is “embedded” in [B] to a new town away from his obviously distressed mother. While I accept that he would be surrounded by the members of his paternal family I question if such a move were affected whether he would thank them for it.
While I can see in view of comments I have made in these reasons the benefits the father is attempting to achieve by the removal of the mother from his son’s life; I cannot see the benefit of the removal of the Mr D senior from [X]’s life.
As previously stated he is a positive influence in this young child’s life. He is to his credit acknowledged as a good grandfather by both parties. He presented as someone that [X] could look to for comfort and safety in view of the ongoing conflict between his parents.
The current practise of having breakfast with his grandfather, amongst other things, is not something that should be easily dismissed on behalf of [X].
I accept that the removal of Mr D from the daily routine of [X] would have a significant effect on him and give weight to concerns that such a step would not be in his best interests.
There is a significant risk that if [X] is left with his mother in [B], his relationship with his father and the paternal family will suffer.
I accept however, the father’s submission that his efforts over the years have enabled him to forge a relationship with his son. Whilst there is a risk that there may be some problems in the short term, he considers a sufficient foundation has been laid for a healthy relationship as [X] grows up and makes his own way in the world.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

This was not addressed in great detail by the parties. The issues confronting [X] when moving between [M] and [B] remain. Either way, the barrier of distance remains a significant factor.

(f) the capacity of:

each of the child’s parents; and

any other person (including any grandparent or other relative of the child),

to provide for the needs of the child including emotional and intellectual needs

I accept the submission of Counsel for the Independent Children’s lawyer that Mr D senior appears to provide one of the few retreats for [X] from the conflict. His role is important.
There are a number of concerns that are rightly raised by the father regarding the mother’s approach to the issues presented by [X]. They have been addressed elsewhere in these reasons.
The father’s proposal to remedy the obvious flaws in the approach of the mother however do not demonstrate a fully child focused approach. The impact of the proposed move is acknowledged but there is little evidence as to what steps would be taken to minimise the impact that such a significant step would have.
In addition I have a concern that the father’s evidence is that he could not exclude and in fact favoured the option of sending [X] to boarding school to undertake his high school education. The proposal that he is sent to live with his father and then some twelve to twenty-four months later be sent to boarding school is untenable.
While the mother is rightly criticised for her approach to enabling her son to have a relationship with his father, the father proposes a solution that could have dramatic consequences for this boy but fails to provide evidence as to how that will be addressed.
In the middle of this Mr D senior continues the practice of sharing a cooked breakfast with his grandson and supporting him by being there and available one block away from where [X] resides with his mother.
Save for the criticisms set out in these reasons, there is a lot to like in the way [X] is cared for by each parent. I accept that they love their son.
I accept they have different styles, the father believing a child develops with boundaries and routine whilst the mother does not set boundaries, adopting a persuasive approach, at times resorting to bribing.
When it comes to acknowledging and supporting this child’s relationship with the other parent, and respecting the role they each play in his life, however the child’s best interests are lost in the focus of the parents upon each other. This is illustrated in the mother’s case by her inability to acknowledge anything good about the parenting of the father.
The mother’s continued insistence that [X] is a sensitive child (unsupported by any corroborating evidence), which sets the background for her approach to [X]’s time with his father is a matter for concern. She appears to be overlaying her feelings onto her observations of her son’s behaviour. Her inability to give her son permission to enjoy his time with the father and his family is not child focussed and gave weight to the father’s application to have [X] live with him in [M].
Her failure to accept some responsibility for the problems encountered by her son and to lay the blame either on the sensitive nature of her son or on the behaviour of the father gave me cause to give serious consideration to the father’s claim.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

[X] will turn 11 this year.
While he will soon be a teenager, he has yet to complete primary school. In many respects due to the nature of his relationship with his mother and the length of time that he has been in [B], I am not confident that he would be ready or able to cope with the changes proposed at this stage of his life. Furthermore, I do not see anything in the evidence that would persuade me otherwise.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

This has been commented upon in the course of these reasons. [X] has two parents who love him but they don’t, it appears, love him enough to put aside their differences and allow him to enjoy the benefits of both of their houses without what I see as unnecessary trauma.
The father’s solution is a form of intervention that amounts to what I would call “tough love” which does not address the obvious needs of this child.
In addition, it would seem that the father has difficulty in seeing how his behaviour may be perceived by the mother. He is unable to put himself in her shoes and to ameliorate his actions to reduce the potential for conflict. He gets frustrated at the mother’s actions, he responds angrily and the mother, whose behaviour may well have been inappropriate, interprets his reaction as confirmation of her worst fears.
The mother’s failure to take responsibility for her attitude to the father and how she has allowed that to affect her son is cause for concern. As I have previously noted, her behaviour gave weight to the father’s submission that [X] should live with him.
She was unable to say good things about the father in contrast to the father’s ability to comment favourably about aspects of the mother’s parenting.
I have a real concern that she may have forgotten the best interest of her son and her obligation to conduct the business of parenting in a civil and appropriate manner.

j) any family violence involving the child or a member of the child’s family

The mother sought to argue that the father was authoritarian and was prepared to resort to physical discipline to enforce his authority. Whilst the father presents as a parent who sets boundaries and is prepared to stand by those boundaries, I do not accept his discipline is of such a nature as to warrant consideration under this heading. The evidence, to put it simply, does not support the mother’s position.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The removal of [X] from his mother without a formulated and clear support plan has serious potential for further litigation. There is no dispute that [X] has already willingly left his father in [M] to return to reside in [B].
I consider the order that would least likely lead to the institution of further proceedings is one that will leave [X] where he is with orders that set out for the parents the routine and pattern for the time that their child will spend in their respective households.
The current orders allow for [X] to live with his mother and spend regular time with his father. The orders are comprehensive and are designed to ensure that each party and [X] knows what should happen so there can be minimal confusion. On the evidence before me, I consider this to be an appropriate arrangement.
I therefore consider the current orders should stand.
Whilst this is far from a perfect solution, it is, I consider, better than no order or one that [X] spends time with his father in accordance with his wishes.
The father has indicated he would be unlikely to issue enforcement proceedings. He also says that he has, through persistence, managed to establish a good relationship with his son, such that if time with him were to stop now, then he is confident that his son, as he matured, would eventually seek him out.
At the same time, I do not consider it would be in [X]’s best interests for the current orders to be discharged. There are serious issues concerning the mother’s parenting and her willingness to give her son permission to enjoy his time with his father.
An order that [X] spend time with his father in accordance with his wishes would, on the evidence before me, be similar to no order.
Parties in conflict who cannot communicate need a set routine and pattern for the child’s transition between their homes, they need clear boundaries so that each know where they stand. The orders provide for this.
The orders place some onus on the mother to ensure the current orders are complied with. If, however, time does stop and [X] does later seek his father out, his father can point to the orders to say that he was there for his son, ready, willing and able to spend time with him.
The history of this matter would suggest that the parties have yet to learn to acknowledge the importance of the other to [X], their failure is evidenced by the continuous litigation. I therefore consider it appropriate that they be sent again to an age appropriate parenting course in the hope they will eventually get it right.
For the reasons set out above, I do not consider it appropriate to apply the presumption of equal shared parental responsibility. The history of the conflict over this child, amongst other things would speak against that option, it being inconsistent with the child’s best interests (s.61DA(4)).
At the same time for the reasons set out above, being my criticism of the mother’s parenting of [X] in respect of his interaction with his father and her support for, his relationship with his father I do not consider it would be in [X]’s best interests for her to have sole parental responsibility.
The orders will remain silent on this issue and each parent will retain parental responsibility pursuant to the provisions of the Act.
I therefore make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Cole FM

Date: 11 May 2012