Hogan and Thomas
[2012] FMCAfam 960
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOGAN & THOMAS | [2012] FMCAfam 960 |
| FAMILY LAW – Parenting – child aligning with one parent. |
| Family Law Act 1975, ss.60B, 60CA, 60CC |
| Applicant: | MR HOGAN |
| Respondent: | MS THOMAS |
| File Number: | CRC 250 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 10 July 2012 |
| Date of Last Submission: | 10 July 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Priestly |
| Solicitors for the Applicant: | MBT Lawyers |
| Solicitors for the first Respondent: | No Appearance |
| Counsel for the second Respondent: | Mr Balzamo |
| Solicitors for the second Respondent: | Burridge Harris & Flynn Solicitors |
ORDERS MADE ON 23 MAY 2012
Order 2 of the orders made 5 December, 2005 in relation to the child [X] born [in] 2002 be discharged.
The child [X] born [in] 2002 live with the father.
The father have sole parental responsibility for [X] and that he notify the mother in writing of any decisions he has made for [X] in respect of:
(a)Choice of schools;
(b)Significant health care treatment
within 7 days of the making of such a decision.
The respondent mother be restrained by injunction from entering, attending at, or attempting to enter the applicant father’s place of residence at [omitted] in the State of New South Wales, except with the father’s written consent.
The respondent mother be restrained by injunction from entering, attending at or attempting to enter the places of education of [X], except with the father’s written consent.
The respondent mother be restrained by injunction from communicating with [X] by any means with the exception of one twenty minute phone call once per week between 7.00pm and 7.30pm on Fridays. The father shall, for the period commencing upon the making of these orders and expiring at midnight on 28 December, 2012, be at liberty to supervise and monitor such telephone calls.
From 22 August, 2012 [X] shall spend supervised time with the mother at the [omitted] Interrelate Family Contact Centre for two hours each alternate weekend for a period of three months.
Both the father and mother to the best of their endeavours follow all advice of Interrelate Family Contact Centre [location omitted] including intake interviews, course and counselling requirements.
After the expiry by the effluxion of time of order 7 hereof, and provided the contact set out therein has happened, [X] shall thereafter spend time with his mother with such frequency and on such conditions as the parties may agree.
A Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover [X] and to deliver him to the father at [omitted] in the State of New South Wales, or such other place as the father and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that [X] may be found.
That no later than 4.00pm on Monday 28 May, 2012, the respondent cause [X]’s personal effects, includes all school supplies to be delivered to the office of the solicitor for the applicant.
Family Consultant Mr S and the Independent Child’s Lawyer if she considers it appropriate, meet with [X] on Thursday 31 May, 2012 at such time and place as maybe agreed with the applicant, for the purpose of explaining to [X] the effect of these orders and the reasons for which they have been made.
IT IS NOTED that publication of this judgment under the pseudonym Hogan & Thomas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
CRC 250 of 2010
| MR HOGAN |
Applicant
And
| MS THOMAS |
Respondent
REASONS FOR JUDGMENT
These reasons relate to orders made by me at the final hearing of
Mr Hogan’s application for parenting orders in respect of his son [X]. By directions made on 9 March, 2012 the application was listed for final hearing on 22 May, 2012. On that day Mr Hogan appeared by his legal representatives and [X] had the benefit of an Independent Children’s’ Lawyer. Ms Thomas did not appear or participate in the trial. I heard oral evidence from Mr Hogan and from a family consultant, Mr S.
At the conclusion of the evidence I heard submissions from Counsel for Mr Hogan and the Independent Children’s’ Lawyer. On the day following the conclusion of the trial I made the orders set out at the commencement of these reasons.
This application concerns the parenting arrangements for [X], born [in] 2002, a 10-year-old boy. His family constellation includes the applicant father, the respondent mother and four now-adult siblings.
The parents’ relationship began in the early 1980s. They were married in 1987 and separated around 2005. Final orders were made by consent in the Family Court on 12 May, 2005 and provided that the child, [X], was to live with Ms Thomas and have contact with Mr Hogan, as agreed between the parties.
The orders did not go well and Mr Hogan was moved to apply to the Court for different parenting orders in respect of [X]. During the course of these proceedings interim orders concerning the time [X] was to spend with his father were made on 8 March 2011, 15 April and 15 July of 2011. There was provision for unsupervised time between [X] and his father. Again, insofar as [X]’s time with his father is concerned, those orders have not progressed well.
In the present application Mr Hogan seeks orders that [X] lives with him and spends time, from time to time, with Ms Thomas. The orders he seeks are set out in his case outline document filed on 15 May 2012. He seeks an order that he have sole parental responsibility for [X] and that the time between [X] and his mother be limited to four times a year on a supervised basis. He also suggests weekly telephone contact.
The Independent Children’s Lawyer’s position is generally supportive of Mr Hogan. The Independent Children’s Lawyer’s position is that [X]’s best interests would be served by orders that sole parental responsibility be assigned to Mr Hogan, that [X] live with his father, and that there be no contact of any kind between the child and the mother for a period of three months. Thereafter time between [X] and his mother could resume.
In Ms Thomas’ response to Mr Hogan’s application she seeks orders for sole parental responsibility for [X], for him to live with her, and for supervised time between [X] and his father. She seeks that such time be regulated by the recommendations of an expert report.
There have been several independent experts involved in this matter: the family consultant, Mr S, who gave evidence for the purposes of an interim hearing following a child-inclusive conference on 8 March, 2011, and who also prepared a family report dated 26 July, 2011; family consultant Ms S, who prepared a memorandum to the Court dated 31 August, 2011 following an intervention on 10 August of that year; and from a psychiatrist, Dr M, who prepared a report dated 19 January, 2012.
Mr Hogan’s case is that unless the orders he seeks are made, [X] has no prospect of having a meaningful relationship with him. He suggests that Ms Thomas is implacably opposed to any form of relationship between [X] and him.
Ms Thomas’ case as revealed in her interactions with the experts set out above seems to be premised on an argument that [X] would be at some risk of harm in the care of Mr Hogan. The harm is identified as both emotional and physical harm arising directly from Mr Hogan’s behaviour towards both [X] and the parties’ other children. She may also be suggesting that an unacceptable risk of emotional or psychological harm exists because of what she perceives as [X]’s fear or anxiety related to spending time or living with Mr Hogan.
Counsel for Mr Hogan observed that the starting point for a consideration of the orders to make in this application is s.60B of the Act and the objects set out therein. He pointed to two of significance, namely: ensuring so far as possible that [X] has the benefit of both of his parents having a meaningful involvement in his life to the maximum extent consistent with his best interests and the second being the need to protect [X] from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. Those objectives are to be seen in the context of s.60CA which places [X]’s best interests as the paramount consideration.
None of the experts involved in this case have suggested that [X] will not derive a benefit from an ongoing meaningful relationship with either of his parents and in particular Mr Hogan. Indeed, even the orders sought by Ms Thomas in her response seem to carry with them the implication that some time between [X] and his father is appropriate.
Whether [X] would ever be permitted to enjoy those benefits from a relationship with his father, if he continued to live primarily in the care of Ms Thomas is another matter. The clear history in this matter demonstrates that Ms Thomas is not supportive of such a relationship. As Counsel for Mr Hogan put it in submissions, the benefits to [X] of Mr Hogan’s proposal is that it is probably the only way [X] might have a relationship with both parents.
There have been previous interim orders in these proceedings that have set out a graduated path of time between [X] and his father. I accept the submissions of each Counsel that those orders have not had any real effect in advancing [X]’s relationship with his father, or delivering to [X] the benefits of a meaningful relationship with him and that it would seem futile to attempt them again.
In my view, Mr Hogan’s proposal carries with it the distinct advantage that [X] will have the opportunity to derive the benefit from a meaningful relationship with his father. I am confident that if [X] lived primarily with Mr Hogan he would be permitted by his father to pursue a meaningful relationship with his mother. In my view, the converse is not true.
Ms Thomas’ position, as articulated in her statements recorded by the experts set out above, is that [X] is at an unacceptable risk of harm in his father’s unsupervised care. Counsel for Mr Hogan suggested that given that Ms Thomas had failed to appear, there was no evidential basis for the allegations made by her against Mr Hogan. Some details of those allegations can be found in what she reported to the family consultants who have been involved in this case and from the nature of the replies made by Mr Hogan in his written evidence.
The Independent Children’s Lawyer’s position is that there is insufficient evidence of any unacceptable risk of physical, emotional or psychological harm in Mr Hogan’s household.
I accept Mr Hogan’s evidence that from time to time there have been heated arguments between him and Ms Thomas. I am not satisfied, however, that there was anything beyond that.
Mr Hogan admits to two incidents which Counsel for the Independent Children’s Lawyer’s suggested may be fairly categorised as family violence. One involved Mr Hogan’s response to his daughter defiance of a direction he gave her to turn down the volume of some loud music she was playing. His response to her defiance was to take her CD player and throw it in a swimming pool. No doubt an overreaction on his part.
The second incident involved the parties’ son [Y]. The incident is described by Ms Thomas to Mr S and Dr M as the father grabbing [Y] “by the throat” during the course of an argument. Her description, she says to Mr S, came from [X]. In evidence before me Mr Hogan described the incident. He and [Y] indeed did argue about [Y]’s lack of desire to find and maintain employment. [Y] was living with Mr Hogan at the time and was being supported by him. Mr Hogan had assisted [Y] in finding employment which [Y] subsequently lost for bad behaviour. Mr Hogan arranged further employment for [Y] which he did not want to take up. The conclusion of the argument was Mr Hogan taking [Y] by the back of neck and “frog-marching” him out of the room they were in.
Counsel for the Independent Children’s Lawyer suggested that both of those incidents might be categorised as “tough love”. In his evidence before me, the father says that he regrets the incidents and would not repeat them. I accept his evidence in that regard.
Leaving aside any descriptor for the two incidents, they do show a measure of authority on the part of Mr Hogan which he might exercise in ways that, in a perfect world, leave a little to be desired but they do not, in my view, demonstrate that there is an unacceptable risk of physical harm to [X] in his father’s care. Indeed, there is no evidence that suggests that [X] has ever been physically harmed by Mr Hogan.
[X] has expressed views clearly and repeatedly to a range of people, independent experts and to those allied with the mother. Those views are that he simply wants to live with his mother and not to see his father at all.
However, in light of the evidence from Mr S and Dr M, in my view [X]’s views cannot be seen to be at all independent of external influence and particularly of influence of Ms Thomas.
Mr S said in the family report:
68. I would argue strongly that this is an extremely clear case of [X] aligning with his mother and then following this alliance to reject his father, rather than any genuine refusal based on his own experiences. I believe there is very little suggest that there is any genuine estrangement and in reality, [X] presented as one of the more aligned and alienated children I have met.
69. I had the very strong sense that most of [X]'s reasoning and responses were rote learned and heavily reliant upon a number of instances that had been extensively discussed with his mother. [X] could virtually recall no other instances where his father had been inappropriate with him other than his recent claim that he had been yelled at on a visit the contact centre, which I am quite confident following the conversations with both of them, occurred as a response to attempting to disciple [X] at the final failed visit. I would suggest that [X] has been hypersensitive and keen to establish grounds to reject his father and that this 'yelling' falls well within these bounds rather than a threatening act.
70. It seems extremely clear from the subpoenaed contact centre notes that there had been a great deal of warmth, affection and enjoyment in the visits prior to when the discussions with [X] took place about his father wanting him to leave his mother's home and live with him. The notes also indicate an ongoing pattern of Ms Thomas presenting with anxiety at the time of visits indicating to staff that [X] did not want to remain for the entire two hours only to have him forget what clearly seem to be coached time-limit and stay the full time. The notes even indicate a negative and questioning response from Ms Thomas towards [X] at the completion of successful visits.
71. I am very confident that it was these discussions about his father wanting him to live with him which have been the catalyst for [X]’s recent refusals and that they have almost certainly been sparked by the father's change in his application. There is nothing to suggest that it was Mr Hogan who was holding these conversations but rather it seems clear that the threat of this new application has amplified Ms Thomas actions to influence and alienate [X].
…
81. I would strongly argue that [X] presents as extremely immature in his thinking and that the Court can place no weighting upon his views to reject his father. The contact centre's note and my own observations between [X] his father suggest to me that there is in fact a warm and loving relationship that exists outside of the alienation. I would argue strongly that [X]'s refusal to see his father is not a genuine rejection whatsoever and is based upon alignment and influence. I believe Ms Thomas encouraging [X] to believe it is his choice whether he sees his father has only served her purpose and contributed to a distressing and confusing situation to [X]. I would argue strongly that the Court needs to weigh up other factors related to [X]'s best interests in this decision with minimal weighting on his own views.
Dr M recorded and then opined:
103. At interview he was a very pleasant, compliant, cooperative child. He had [physical description omitted]. He was breezy and conversational. I asked him to do a drawing of his family and he questioned this saying "Do you want just me and Mum and the dog and the cat". I told him to draw whatever he wanted and he did draw himself, Mum, the dog and the cat. He told me that he was worried that Dad would get angry and yell at him at the contact centre and the contact centre didn't supervise properly. They just read a newspaper. He said the Independent Children's Lawyer was hopeless and nobody listened to him. Mr S didn't listen to him.
104. He certainly gave the impression that he was echoing his mother's views and that he is in a very isolated situation taking on all the views of his mother.
OPINION
…
108. [X] presents with an idealised view of his mother. At this stage he is totally allied to her and his individuation in my view is being impaired by his view that he has to support his mother and cannot attend to his own developmental needs.
As urged by both Counsel for the Independent Children’s Lawyer and Mr Hogan I do not propose to give [X]’s views any significant weight.
Counsel for the Independent Children’s Lawyer identified that two of the major concerns in the proceedings were [X]’s complete lack of any sort of meaningful relationship with Mr Hogan, and his alignment with Ms Thomas.
Mr S’s report and his oral evidence reveals that [X]’s relationship with his father is not non-existent. It is severely compromised and challenged, but the observations of Mr S revealed that [X] retained some warmth of feeling for his father.
Counsel for Mr Hogan pointed to the notes kept by a local contact centre where [X] had been spending some time with his father. The submissions capture those notes well. Counsel submitted:
MR PRIESTLY: Your Honour, the dates that are relevant are 4 June 2011, 21 – sorry – 22 July 2011, 10 September 2011 and there’s one other note that I haven’t got a note of, your Honour. There’s four of them in total. And I will let your Honour read them but what they all demonstrate is either a good reception of the father by [X] at the beginning of the contact period or, if there is an initial period of difficulty, by the end of the period they are having a positive engagement and exchange between each other and the – it usually ends with a kiss and a cuddle and a warm “good bye” and “What we’ll do next week,” and it shows the father engaging in the most appropriate way as you could hope for.
He doesn’t – he doesn’t talk about the litigation or any of that sort of thing. He’s engaging with the child in various games. There’s reference to a Catapult game and other games. But more tellingly, your Honour, at the time when the child was very resistant having just been off – having just left his mother and chock full of devil talk about the father, he calmly talks to the child and simply talks to him in a nice measured way leading to the result of the child soon disengaging from the pattern that the mother had set him in. And that is precisely what Mr S has said at his report in paragraph 51. At paragraph 51 of Mr S’s report he is talking to [X] and he is – under the heading Observations:
When it was talked about that he would see his father that day [X] immediately said that he would not see [Y]. [X] said he also knew that [name omitted] was there because his counsellor had told him and said there was absolutely no way he wanted to see her. When asked if he was ready to see his father [X] said, “Do I have to? I don’t get out of the car here to see him anymore.” When [X] was given a simply answer “yes,” he had to see his father he easily accepted it.
The next paragraph I won’t read out, your Honour, in total but it includes the line:
[X] moved between slightly withdrawn from his father to becoming increasingly more comfortable, relaxed and engaged in the conversations. Before, regularly suddenly becoming directly challenging.
[X]’s relationship with his mother is, according to the evidence of Mr S and Dr M, unhealthy. Dr M said:
107. The mother as indicated has a very long history of dysthymia and exhibits behaviour which raises doubt about her mothering. In particular her removal of [X] for a prolonged period; her relinquishing of her children into the care of DOCS; her past addiction to prescribed medication raises concern about her future performance as a parent. Her observed behaviour in front of [X] indicates a lack of understanding of the importance of boundaries and it is my view that she unconsciously is using [X] as a bulwark against life's difficulties for herself.
Mr S opined:
80. I developed the deep concern that very likely Ms Thomas relationship with [X] was highly enmeshed and that she was acting defensively to protect herself from the perceived threat of losing [X] that she associates with him having a relationship with his father. I would suggest that given the history of the four older siblings eventually breaking their alliance with their mother to reconnect with their father, that this could be a terrifying prospect Ms Thomas and her final child.
Mr Hogan’s proposal would see [X] live with him. He expressed concern about that to Dr M. Acknowledging Mr Hogan’s concern,
Dr M went on to say:
110. If [X] were to live with the father it is my view that the likelihood is that he may exhibit some disturbed behaviour initially but that this would settle quite quickly so long as there was a moratorium around his contact with the mother, possibly of 2 or 3 months. However, this is with the proviso that there was no abusive behaviour within the father's household.
In oral evidence Mr S suggested that although there would be difficulties, the Court should give serious consideration to changing [X]’s living arrangements. In that way, he would have the benefit of a relationship with both of his parents, not simply one of them. [X] would also have the opportunity to pursue and develop his relationship with his siblings [Y] and [Z].
Counsel for the Independent Children’s Lawyer cautioned that I should be concerned about Mr Hogan’s ongoing and future commitment to [X], based upon his past work and home choices. The evidence reveals that Mr Hogan has in the past been absent from the family and his attitude toward parenting during that time was less than desirable. Counsel suggested that there was a need to observe that Mr Hogan’s ability to manage the transition that will be necessary for his proposal to be put in place might be found wanting.
Ms Thomas orders would see [X], I am confident, spending no time in his father’s company and that there would be no relationship between [X] and his father. It is likely that his relationship with [Y] and [Z] would be similarly compromised.
Moreover, Mr S suggested that a continuation of the present relationship between [X] and his mother was likely to have long term negative impacts upon him. Mr S said:
85. I would argue strongly that if the Court follows the mother's proposal of either allowing no contact or continuing supervised contact, that it is virtually inevitable given the strength of the alignment and enmeshment that [X] will move to a complete rejection of his father. Generally I would caution the court that in such a scenario it is also virtually inevitable that cracks will appear in such an alliance as the child reaches adolescence and begins to individuate and seek more independence and freedom. It is common in alienation scenario such as this for the children to rebel and come to reject the preferred parent during teenage years. I would suggest that the older siblings experience has left me extremely confident that this is also the fate that awaits [X].
86. Children who experience alignation experience extreme impacts upon their self-esteem, psychological development and emotional well-being. Not only does it damage their relationships with their parents but also their siblings and extended families. These experiences have the capacity to greatly damage their own ability for future healthy relationships and this is even often argued to extend into their own parenting with their own children. This experience can also leave the child extremely vulnerable to severe adolescent mental health issues. I am greatly concerned that if the Court does not counteract these behaviours that it will be [X] who pays the price for his mother's actions.
Ms Thomas shows no ability to foster and encourage an appropriate relationship between [X] and Mr Hogan. At paragraph 25 of the family report Mr S recorded Ms Thomas as saying that Mr Hogan would “inevitably attempt to brainwash [X] and turn him against her if he was allowed to spend any unsupervised time with him.”
Mr S gave some oral evidence earlier in the proceedings and (at line 26 at page 6 of the transcript), he forewarned of his concern that potentially a situation would develop where [X] would refuse to spend time with his father and Ms Thomas would report, “I can’t make him get into the car.” That is exactly what has gone on to happen. In the family report at paragraph 94, Mr S said:
94. I am also concerned that if this matter proceeds to trial, there is a strong possibility that Ms Thomas may intensify her actions and that the situation could reach a point where the Court is faced with the dilemma that the only way to ensure [X] has a relationship with both his parents is to have him live with his father.
I accept the submissions for Counsel for the Independent Children’s Lawyer that that scenario seems to have come to pass. Mr S repeated that view in oral evidence before me.
Much of [X]’s negative perceptions are based in matters told to him by Ms Thomas. Mr S gave some oral evidence earlier in these proceedings about that. The matters he was afraid about with his father simply were not things that he had experienced himself. There was not much that was based upon his own experiences. Mr S described how [X] said that he “heard it from mum,” in reference to many of his negative perceptions about the father. Mr S assessed that [X] had an overly idealistic image of Ms Thomas. Mr S concluded that the fear and trepidation about seeing his father was absent during the positive experience and interaction with the father.
Before this matter was listed for trial, and during the course of this application through the process towards trial, I ordered that [X] spend time with his father and that the changeover take place at the Court in the presence and supervised by a family consultant. The exercise was a disaster, largely because Ms Thomas refused to leave the building as she was ordered. Ms S, the family consultant who supervised the attempt authored a short memorandum to the Court, where her observations about Ms Thomas, her involvement and [X]’s reactions to her were entirely consistent with those of the family report-writer Ms S described [X]’s environment with his mother as “extremely toxic and psychologically harmful.”
Despite having an opportunity to do so Ms Thomas has refused to foster and encourage [X]’s relationship with his father on anything but a superficial basis. Her actions bespeak an inability to meet [X]’s emotional and intellectual needs and to properly discharge her responsibilities as one of [X]’s parents. Mr S recorded in his report:
73. Ms Thomas has also engaged heavily in "allowing" [X] to make the choice to see his father and continually informed him that it is his decision about contact, now and with the Court. I would argue strongly that with a nine year old aligned boy this brings a guaranteed outcome of a rejection and is often a fairly transparent attempt to give some false legitimacy to the alienation. When a child has a strong alliance with the parent, placing this burden of choice upon the shoulders is not only giving them decision-making beyond their maturity, but often serves only to simply reinforce the alignment as it is virtually impossible for the child to break the alliance and go against their preferred parent's wishes.
74. I would argue there are a number of factors which make [X] particularly susceptible as he appears to be quite emotionally dependent upon his mother, largely isolated from other members of his family and has had an extensive interruption to his relationship with his father meaning he has little in the way of his own genuine personal experiences to counter those negative perceptions being given to him. Alienation also rarely occurs in a void and generally it is necessary for there to be some behaviours on which to base the foundations for the rejection. Often this is the perception of the rejected parent as harsh or critical and I would suggest Mr Hogan's stern nature has enabled him to be a target.
Mr Hogan has not, in the past, discharged his responsibilities as a parent as one might have expected, but he is not an untested parent. He is criticised in Ms Thomas’ eyes for abandoning the family, but I accept his case that what he was doing was going to work in the [omitted] industry to make enough money to keep house and home together. He has gone to some lengths to provide for this family whilst they were an intact family. Further, I accept that at a time when Ms Thomas was suffering certain mental health issues which led to her excessive use of Serapax and her addiction to that drug before separation he supported her.
He has had the care of [Y] for sometime now. The comments made by [Z] and [Y] to Mr S about the differences between Ms Thomas’ parenting and Mr Hogan’s parenting and recorded in the family report are particularly telling.
Mr Hogan said in evidence before me that he hopes to one day be able to co-parent [X] effectively in the future with Ms Thomas. I accept his evidence that the reality is Ms Thomas ignores his efforts to communicate with her.
Counsel for the Independent Children’s Lawyer submitted that
Ms Thomas’ own statements indicated that any form of shared decision making was probably doomed to failure. He pointed out that the family report reveals that when the issue of [X]’s alignment with her was discussed Ms Thomas totally rejected the idea that [X] was aligned with her and said that she understood the concept. She was absolutely adamant that this is what had happened with the older children ([Y] and [Z]) who had aligned with their father against her. When it was suggested that [X]’s behaviour could be seen to reflect a very strong alignment with her, Ms Thomas indicated that she believed in reality that this should be the case and was only natural considering she had been the person who had raised him.
Ms Thomas seemed to suggest that it was a positive and a protective factor that [X] was aligned with her and felt the same way about Mr Hogan, and his partner Ms M, as she did. Counsel submitted that it was difficult to see how there are any prospects for the parents to effectively co-parent in the foreseeable future.
I agree. It is clear I think that there is no prospect for these parents, at least at the moment, to engage in the discharge of equal shared responsibility for [X]. It does not happen now and I have grave doubts that it would happen if [X] lived with his father. In my view parental responsibility for [X] should rest with the parent with whom he will ordinarily reside.
Counsel for the Independent Children’s Lawyer, and for Mr Hogan both submitted that it is abundantly clear from the evidence contained in the expert reports and that given orally that the only way [X] can have a relationship with Mr Hogan – any relationship at all that is worthwhile or meaningful with his father – is if [X] lives with him and ceases all contact with the mother for a period of time.
If he was to live with Mr Hogan on a full time basis, I am satisfied that Mr Hogan would permit and encourage [X] to have a relationship with Ms Thomas. I accept the submission that there is little evidence that would indicate that the father would be unwilling or unable to facilitate and encourage a proper relationship with Ms Thomas.
A change in [X]’s residential arrangements will represent a shock and change for him. There will be a period of upheaval in his life. He will willingly disobey and act out, however both experts clearly indicated that they would expect [X] to settle fairly readily into his father’s care. Both suggested that [X] have some time away from his mother until then – Dr M suggested that two to three months would be appropriate. Mr S supported that approach.
The Independent Children’s Lawyer submitted that a three month absence of contact between [X] and Ms Thomas would be appropriate in this case, three months rather than two to allow the best chance for [X] to properly settle with his father without the potentially unsettling effects from contact with his mother.
The Independent Children’s Lawyer submitted that the impact of the change can be lessened for [X] by maintaining some constants for him wherever appropriate, such as the school and by Mr Hogan being continuously available.
Earlier, I left for consideration the question of whether [X] was at an unacceptable risk of psychological or emotional harm by reason of being exposed to abuse neglect of family violence. The conclusion I have come to based upon the evidence I have referred to above is that [X] is at such risk in Ms Thomas’ care. The relationship that she has created between herself and [X] is, as described by the expert evidence referred to above, toxic and damaging to [X]. It carries with it the very real prospect of long term negative consequences for [X] as described by Mr S. I am not satisfied that similar risks, or any unacceptable risk of harm for [X] would exist if he was to live in his father’s household.
In my view, the proposals suggested by Mr Hogan, supported as they are by the Independent Children’s Lawyer are the proposals which best meet [X]’s best interests. [X] should live with his father and Mr Hogan should have sole parental responsibility for him.
Neither Mr Hogan nor the Independent Children’s Lawyer had any firm proposals for [X]’s time with his mother following the three month moratorium suggested by Dr M. In my view some supervised time would be appropriate so as to allow some monitoring of that time and thereafter, in the absence of any other proposal, the time should occur as agreed between the parties.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 7 September 2012
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