Howard and Birnie and Anor - [2010] FMCAfam 16

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOWARD & BIRNIE & ANOR

[2010] FMCAfam 16

FAMILY LAW – Parenting orders – both parents with significant issues – father unable to place child’s needs ahead of his own – father actively undermining child’s relationship with the mother – ordered child to live with the mother and spend limited time with the father until such time as the father undertakes intense anger management and drug and alcohol counselling.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

Applicant:

MS HOWARD

First Respondent:

MR BIRNIE

Intervenor:

MS MASSON

File Number:

MLC 5255 of 2009

Judgment of:

Bender FM

Hearing dates:

26 & 27 November 2009

Date of Last Submission:

27 November 2009

Delivered at:

Melbourne

Delivered on:

15 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Martin Irwin & Richards

Solicitors for the First Respondent:

Mr Vance – Legal Help Lawyers

Counsel for the Intervenor:

Ms McNamee

Solicitors for the Intervenor:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Hannan

Solicitors for the Independent Children’s Lawyer:

Hillier Quinn Law

ORDERS

The mother and father have equal shared parental responsibility for the child of the relationship [X] born [in] 2003 (“[X]”).
[X] live with the mother.
[X] spend time and communicate with the father as follows:
(a)until such time as the father complies with order 8 herein:
(i)each alternate weekend from after school Friday (or 3.30pm if not a school day) to before school Monday (or to 9.00am if not a school day) commencing 22 January 2010 and each alternate weekend thereafter; and
(ii)each Wednesday by telephone between 5.30pm and 6.00pm with the father to telephone [X];
(b)upon the father complying with order 8 herein, order 3(a) herein be discharged and thereafter [X] spend time and communicate with the father as follows:
(i)in each alternate week from after school Wednesday to before school Monday during school term;
(ii)for one week in each of the school term holidays, commencing at 9.00am on the second Saturday of the term holidays and concluding at 12.00 noon on the third Saturday of the term holidays;
(iii)in the long summer vacation each year, commencing at 12.00 noon on the second Saturday in January each year and concluding at 12.00 noon on the Saturday prior to [X] resuming school;
(iv)in the event Father’s Day falls on a weekend [X] is not with the father, from 9.00am to 5.00pm Father’s Day;
(v)in the event [X] is not with the father on his or the father’s birthday, for three hours on a school day from after school to 6.30pm and for five hours on a non-school day from 10.00am to 3.00pm;
(vi)from 3.30pm Christmas Day to 3.30pm Boxing Day 2010 and each alternate year thereafter;
(vii)from 3.30pm Christmas Eve to 3.30pm Christmas Day 2011 and each alternate year thereafter;
(viii)by telephone between 5.30pm and 6.00pm on any Tuesday and Thursday [X] is not otherwise with the father; and
(ix)as otherwise agreed between the parties.
The father’s time with [X] pursuant to order 3(b)(i) herein shall be suspended during the school term and long summer vacation and recommence the second Wednesday of each term.
The father’s time with [X] shall otherwise be suspended as follows:
(a)from 3.30pm Christmas Eve to 3.30pm Christmas Day 2010 and each alternate year thereafter;
(b)from 3.30pm Christmas Day to 3.30pm Boxing Day 2011 and each alternate year thereafter;
(c)from 9.00am to 5.00pm on Mother’s Day in the event Mother’s Day falls when [X] is not living with the mother; and
(d)if [X]’s or the mother’s birthdays fall when [X] is with the father, from after school to 6.00pm if on a school day and from 10.00am to 3.00pm if on a non-school day.
When [X] is spending time with the father pursuant to order 3(b)(i) herein, the mother shall be able to telephone him on Friday and Sunday between 5.30pm and 6.00pm.
When [X] is spending time with the father pursuant to order 3(b)(ii) and (iii) herein, the mother shall be able to telephone him Tuesday and Thursday between 5.30pm and 6.00pm.
The father forthwith do all things necessary to engage with Men and Family Relationships at Centa Care Bendigo situate at 65 Baxter Street, Bendigo (telephone number (03) 5438 1300) for intensive one on one counselling to address his issues in relation to anger management and his parenting of [X] and continue to attend such counselling as directed by his counsellor. Upon the father completing the counselling in accordance with the direction of his counsellor, the father is to provide the mother with written confirmation from the counselling service of his successful completion of the counselling.
To better facilitate the father’s counselling pursuant to order 8 herein, the court shall provide Centa Care with a copy of the Family Report of Dr Michelle Wauchope dated 5 November 2009, a copy of this judgment and a copy of these orders.
Changeover for the time [X] spends with his father, when not at [X]’s school, shall continue to take place at [F] Contact Centre (“[F]”), with both parties to do all things necessary to ensure such arrangements with [F] continue.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], and from permitting any other person to do so.
The father is restrained from attending [X]’s school when [X] is living with the mother, save and except the father shall be at liberty to attend the school for any parent-teacher interviews, speech nights, concerts and other events usually attended by parents and shall be entitled to receive, at his expense, copies of all school reports, school photograph order forms and newsletters.
Both parties are restrained from using illicit substances and/or alcohol to excess 12 hours prior to and during all times that [X] is in their respective care.
The parties shall advise the other of any medical or health emergency or accident involving [X] whilst in their care and shall provide them with the names and contact details of any treating medical and health professionals and authorise such professional to speak and consult with the other party.
The parties are to keep each other advised of their current residential addresses and current landline and mobile telephone numbers and are to advise each other in writing of any change of address or telephone number within seven days of any such change.
Fourteen days prior to either party taking [X] on holiday out of the State of Victoria, they shall provide to the other in writing details of the proposed holiday, including the destination and address of where [X] will be residing during such holiday.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Bender delivered this day will for all publication and reporting purposes be referred to as Howard & Birnie & Anor.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BENDIGO

MLC 5225 of 2009

MS HOWARD

Applicant

And

MR BIRNIE

First Respondent

And

MS MASSON

Intervenor

REASONS FOR JUDGMENT

Introduction

The mother is seeking orders that the parties’ son [X] born [in] 2003 (“[X]”) live with her and spend time with the father each alternate weekend with such time to increase to five nights a fortnight upon the father undertaking and completing comprehensive parenting and behavioural change courses.
The father is seeking orders that [X] live with each of his parents on a week about basis. The father is also seeking an order that he be permitted to take [X] to Queensland for all of the long summer vacation in 2009/2010.
The intervenor, Ms Masson who is the father’s former partner, initially sought orders that [X] spend significant time with her. However, at the commencement of the hearing of the matter, the court was advised that the parties had reached agreement in relation to [X] spending time with Ms Masson and final orders were made by consent which provide for [X] to spend a weekend each month with Ms Masson. Ms Masson was then excused from further participation in the proceedings.

Background

The mother was born [in] 1973 and is currently 36 years of age. She is engaged in home duties and is in receipt of a disability pension.
The father was born [in] 1967 and is currently 42 years of age. He is engaged in home duties and is otherwise unemployed.
The parties commenced their relationship in 1999. They travelled Australia before settling in Queensland where [X] was born.
The parties’ relationship was problematic with the mother reporting violence, anger problems and drug use by the father and the father reporting mental health issues in relation to the mother that included an anxiety disorder, panic attacks and agoraphobia.
The parties separated in April 2004 with [X] remaining with the mother. The mother returned to Victoria where she resided with Ms Masson. The father returned to Victoria and spent time with [X] each alternate weekend, building up to each weekend. Changeover always took place at the [F] Contact Centre.
There were lengthy proceedings in the Federal Magistrates Court in relation to the living arrangements for [X]. The mother reports that during this period there was continuous harassment from Ms Masson (the father’s then partner), the father’s mother and the father which included naked photographs of the mother being posted around Bendigo. The father denies any involvement with these activities, but conceded Ms Masson and his mother were involved. The father’s mother was charged by the police for this activity and the matter was dealt with by the State Courts during the running of these proceedings.
In late 2006, orders were made by consent between the parties that provided for a shared care arrangement whereby [X] lived half of each week with his parents. Changeover for that time took place at [F] Contact Centre.
In January 2007, the mother suffered a breakdown, she says arising from the constant harassment from the father, his family and associates, and she decided it would be in [X]’s best interests if he were to reside solely with his father. Accordingly, she took [X] to the contact centre, and left him there with instructions to the co-ordinator of the centre to advise the father that she was leaving [X] in his sole care.
From January 2007 until the commencement of the current proceedings, [X] was in his father’s sole care.
The mother’s evidence is she tried to arrange to see and speak with [X] from June 2007 onwards but the father would not allow this to happen.
In January 2009, the mother sought legal assistance to enable her to resume her relationship with [X].
The mother issued an application returnable in the State Courts and consent orders were made in the Mildura Magistrates Court on 10 June 2009 which provided for [X] to live with the father, for the mother to spend supervised time with [X] at [F] Contact Centre, and for the mother to be psychiatrically assessed. Otherwise the matter was transferred to the July 2009 sittings of the Federal Magistrates Court in Bendigo.
When the matter came before me on the first day of the July 2009 circuit, the father’s then legal representatives withdrew their representation of the father. The matter was adjourned to the Wednesday of that week to enable the father to obtain alternate representation.
When the matter returned to court on Wednesday, it became apparent the father had absconded to Queensland where he sought to reside with [X]. Orders were made that adjourned the matter to 29 July 2009 in Melbourne and required the father to bring [X] to the child minding facilities of the Federal Magistrates Court at Melbourne by 9.00 am on the adjourned date.
When the matter came back before the court on 29 July 2009, the father failed to appear or produce [X] to the child minding centre and a recovery order issued that provided for [X] to be recovered and delivered to either the mother or Ms Masson..
The recovery order was executed and [X] was placed in the mother’s care in Bendigo.
The matter then returned before me on 4 August 2009, whereby I made orders for [X] to live with the mother from after school Thursday to before school Monday each alternate week, half school holidays and otherwise [X] was to live with the father.

The mother’s evidence

It was the mother’s evidence that since the orders were made in August of this year, she and [X] have enjoyed their time together and that their relationship is a positive and loving one.
The mother indicated that in 2007 she had a complete breakdown and was of the opinion that she was not capable of properly looking after her son.
It was her evidence that her mental health has now greatly improved and that she had actively sought out appropriate supports, including involvement with the Bendigo Aboriginal Cooperative who was supporting both her and [X]. To that end it should be noted that the mother had a support worker with her for the entirety of the hearing of the matter.
It was the mother’s evidence that if the level of harassment that she suffered in 2006 was to recommence, she believed she would be much more able to manage, as she was stronger and because of the supports she had put in place.
When the matter came before the Magistrates Court in June 2009, an order was made for a psychiatric assessment of the mother. Dr E completed such assessment and in his report dated 8 July 2009, he diagnosed the mother as having a chronic Anxiety Disorder and an Attachment Disorder. Dr E was of the opinion that Ms Howard remains a vulnerable woman but he believed her capable of resuming contact with [X]. It is noted that neither party sought to cross-examine Dr E at the final hearing.
The mother gave evidence that she has three older children aged 20, 18 and 13 years. When cross-examined by the independent children’s lawyer, she conceded that none of these children had ever permanently resided with her. Her eldest son [Y] lives with his paternal grandfather in Canberra and has done so since he was two years of age. The mother indicated that she communicates regularly with [Y] and has had face to face contact with him, including him living with her for a period between the ages of 16 and 20.
Her son [Z] lives in Cranbourne with the maternal grandmother, and it was the mother’s evidence that she sees him regularly.
The mother’s daughter [D], who is 13 years of age, lives with her paternal grandmother and has done so since she was two years of age. It was her evidence that since then, she has only seen [D] briefly when she was nine years old but has spent no time with her since that time. The mother gave evidence that she and [D] had started to communicate electronically and were building up to some face to face time with each other.
The mother gave evidence that despite the current orders making provision for she and [X] to speak to each other on the telephone when he is with his father, such telephone communication has been extremely difficult as the father is not encouraging of same, and has actively interfered with it.
The mother gave evidence that at the end of third term, she attended at the school to collect [X] for the first week of the school holidays in accordance with the orders made by the court in August 2009. It was the mother’s evidence that the father was also at the school and that he refused to allow her to take [X] despite her offering to show him the orders which were quite clear in indicating that for the first week of the holidays [X] was to spend time with her. She chose not to make a scene in front of [X] and allowed the father to take [X] from school. It was her evidence that she then phoned the father to again ask him to return [X] to her in accordance with the orders and that he refused to do so and that any attempts by her to contact the father after that date were unanswered.
The mother also gave evidence that she and her support worker had made arrangements for [X] to have a medical appointment in the first week of the holidays whilst in her care. The father gave evidence that it was he who had made that appointment. At the request of the court, the independent children’s lawyer spoke to the Medical Centre. The independent children’s lawyer advised the court that the Medical Centre confirmed to him it was the mother who had made the appointment.
It was the mother’s evidence that [X] told her whilst he was last with her that his father was selling all of his belongings as the father intends to travel around Australia because [X] was going to come and live with her. It was her evidence that [X] was very distressed by this.
It was the mother’s evidence that she continues to have real concerns as to the father’s drug usage as well as his anger issues. She is also concerned that the father does not encourage [X]’s relationship with her and that he actively undermines her and the importance of her role in [X]’s life. The mother openly acknowledged that [X] loves his father and that that relationship is very important to [X]. It was her evidence that she only speaks positively of the father to [X] and always asks [X] what he has been doing when he has been with his father and responds positively when [X] tells him about motorbike riding and other activities that he loves doing with his father.
It was the mother’s evidence that if the father were able to address his anger issues, drug and alcohol issues and developed the necessary insight into the importance of [X] having a relationship with both his parents, then a shared care arrangement for [X] would be more than appropriate. It was her evidence however that until that took place, she believed it was in [X]’s best interests that he be in her primary care.

The father’s evidence

It is the father’s proposal that [X] live with each of his parents on a week about basis. When asked why he thought this arrangement is in [X]’s best interests the father indicated that it would ensure that if one or other of [X]’s parents failed, the other parent was there to ‘pick up the pieces’. It was also his evidence that such an arrangement would not give either parent ‘control’. The father conceded however that ideally he would prefer the current arrangements to stay in place.
The father denied that he ever denigrates the mother. It was the father’s evidence that he has been continuously harassed by ongoing visits from police and other welfare authorities in relation to [X]’s care, and that he believes that those attendances have been as a direct result of complaints made about him by the mother. The father conceded that when [X] asked him why the police and/or welfare authorities had called upon him, he had told [X] that their visit was because:
“Mum’s a liar and not nice.”
The father was really critical of what he saw to be the mother’s abandonment of [X] in 2007 and was clearly frustrated and challenged by her return to [X]’s life.
The father was cross-examined as to what, if any, positive things he thought the mother could bring to [X]’s life. It was his evidence that he really didn’t know, but imagined:
“love, security and those things you’re supposed to give.”
Other than being another parent, the father was unable to identify any benefit for [X] in having his mother involved in his life.
It was the father’s evidence that whilst he can be loud he did not believe that he had an anger issue, nor did he believe that [X] was scared of him.
The father was cross-examined at some length in relation to an incident that occurred in Queensland where strangers intervened when he was loudly chastising [X]. It was the father’s evidence that [X] had been disrespectful to a shopkeeper and that he was disciplining him for such behaviour. He conceded that he told this person to mind their own business in a very loud and forceful manner.

In relation to the school holiday ‘mix-up’, it was the father’s evidence that he had not read the fine print of the orders and that he was under the impression that he and the mother were to reach agreement as to who would have which week of the holidays and that he was going to:
“give the mother the second week”.
He could offer no explanation as to why he didn’t read the orders when the mother offered to show them to him and why he did not take any steps to confirm and then comply with the orders.
The father gave evidence that his mother and Ms Masson had taken [X] to a motel during this period. One conclusion that can be drawn from this behaviour is that the father knew the terms of the orders and was actively avoiding compliance with the orders in relation to holiday time.
The father gave evidence that he continues to be a habitual user of marijuana, consuming approximately seven grams each fortnight. He conceded that prior to the execution of the recovery order he did smoke marijuana in [X]’s presence and indicated that [X] had in fact thanked him for not smoking that ‘smelly stuff’ in his presence in recent times.
It was the father’s evidence that having read the family report, which raises serious concerns about the impact on [X] of the father’s negative attitude to the mother, he had realised the impact on [X] of that behaviour and was changing his behaviour accordingly. By way of example, the father indicated that when the police came around to visit him recently, he realised [X] was there and had his mother take [X] to have a shower so that [X] did not listen to the exchange between himself and the policeman.
Whilst this does show some insight from the father, the conclusion that can be drawn from this statement is that the father was still intending to denigrate the mother to the police.
In relation to the telephone calls between [X] and the mother, it was the father’s evidence that [X] did not want to take those calls and that he was not going to force him to do so. The father conceded that he had in fact taped three or four of the calls between [X] and his mother and had been able to do so by putting the call on loudspeaker. Somewhat disingenuously, when asked whether [X] knew the calls were being recorded he gave evidence that he did not believe that [X] would have known that. One can’t see how this could have occurred without [X]’s knowledge.
The father was questioned as to whether he had told [X] he was intending to travel around Australia if he was unsuccessful in his application before the court. It was his evidence that [X] understood that if the court decides he is to live with his mother, the father will be travelling and that he told [X] that after he had received and read the family report.
The father confirmed that in the event orders were made other than for a week about arrangement, then he would be travelling around Australia and would leave [X] in the sole care of the mother.
The father was asked as to what impact he thought that would have upon [X]. He conceded that [X] would be “a little bit shattered” but that would not alter his decision.

Dr Michelle Wauchope

Dr Michelle Wauchope, Regulation 7 Family Consultant, prepared a family report in this matter dated 5 November 2009. Dr Wauchope also gave viva voce evidence at the final hearing.
Dr Wauchope painted a picture of [X] which was most concerning. In paragraph 37 of her family report, Dr Wauchope describes [X] as follows:
“[X] presented as a very confused and mixed up little boy who was angry, aggressive, and inconsolable at the beginning of the day, refusing to be separated from his father, throwing tantrums when his father told him that he needed to wait in the waiting room so he could speak to the writer on his own, with his father being unable to manage this behaviour… His behaviour was so bad that he disrupted the whole building, as he was screaming, yelling, kicking walls, and kicking out at his mother and others, he kept screaming that he wanted his father, telling his mother that he hated her, and refusing to communicate with or engage with anyone, including his mother, refusing to go into the waiting area, instead running all over the place, and generally being angry and uncontained for over an hour… Once he eventually calmed down and seemed to accept that his father was not around, [X] then began interacting with his mother quite positively.”
It was Dr Wauchope’s evidence that the father was unable to contain [X]’s behaviour during the interview process and that it was only after she, Dr Wauchope, gave the mother strategies as to how to manage [X] that [X] calmed down, interacted positively and engaged with the report writing process.
Dr Wauchope noted [X] to be very much aligned with his father and that [X] told her that he loved his father more than his mother, that he acted like he disliked his mother whenever his father was around.

Dr Wauchope was of the view that [X] was very much aware of and sensitive to the father’s negative views of the mother and that [X] presented the same views in interview.
Dr Wauchope indicated that [X] told her he wanted to live with his father because his father loves him more and that he knows this because his father told him so. [X] also told Dr Wauchope that his father has told him that his mother is not nice, that his father calls his mother names and that he doesn’t like going to visit his mother because his father misses him.
[X] confirmed to Dr Wauchope that his father comes to school when he is not supposed to, and that when he does so his father says nasty things to his mother.
[X] told Dr Wauchope that he doesn’t like to speak to his mother over the telephone because his dad doesn’t like it.
Dr Wauchope asked [X] if he was allowed to love both his mum and his dad, and she quotes [X] in the following terms in paragraph 41 of her report:
“No… I just don’t want to… because my dad is much better than my mum… dad says mum is not nice… mummy is a liar too… because my dad told me… she lies to both of us… I think mum loves me but she is a liar… I know because dad told me… dad wants me to not like mum… it is okay for my dad to be nasty to my mum because I want him to be… because she is a liar.”
Dr Wauchope also reported that [X] was very cautious in the things that he would discuss with her, but in the end he revealed a great deal to her. When he did so, he asked Dr Wauchope not to tell anyone as he was scared his father would become angry with him. [X] told

Dr Wauchope about the father having marijuana in a glass pipe, but he was not allowed to tell anyone about that because his father told him not to. Dr Wauchope reports in paragraph 42 of her report that [X] was able to explain what the pipe looked like, what cannabis looked like and also told her that his father had guns.
Dr Wauchope indicated in paragraph 43 of her report that she explained to [X] that some adults have difficulties controlling their anger and that they sometimes needed help with this. She then asked [X] if he thought his father might need some help in relation to anger issues and [X] quickly responded in the affirmative.
In paragraph 44 of her report, Dr Wauchope makes the following observations:
“It is important that the court understands how conflicted [X] is, as based on his behaviour and the information he supplied during interview, he is very aware of his father’s thoughts, beliefs and attitudes regarding his mother, since he reports that his father regularly tells him inappropriate and negative things about his mother and denigrates her to and in front of him; and it seems that he feels he needs to align himself with his father, and behave negatively towards his mother as well, in a similar way as his father, in order to gain and/or maintain his father’s love, support, and acceptance. However, it is clear to the writer that [X] in fact loves and cares for his mother… but that he has to pretend to not like her when his father is around.”
When discussing the parties, Dr Wauchope made the following observations in relation to the mother in paragraph 24 of her report:
“Ms Howard appeared to be the only one that was able to continually focus things back on [X], by mostly bringing up issues that affected him, explaining in detail why and how, as opposed to just making allegations about the others, as they appear to have done about Ms Howard. Moreover, despite her many concerns about both Mr Birnie and Ms Masson, she still appeared to be supportive of [X]’s relationship with them, recognising that they were a significant part of his life, whilst neither Mr Birnie nor

Ms Masson appeared to be truly supportive of [X]’s relationship with Ms Howard in return.”
In paragraph 57 of her report, Dr Wauchope commented as follows:
“Whilst Ms Howard’s actions and behaviours have also contributed to [X]’s emotional distress, specifically her decision to in effect abandon [X] by leaving him with his father, thereby creating anxiety, distress and attachment and loss issues in [X], because she was unable to cope herself, despite her justifications for this; the reality is that she at least seems capable of understanding [X] in a psychological and emotional sense; and she appears capable of understanding and meeting his needs, and capable of supporting [X]’s relationship with both his father and Ms Masson.”
In relation to the father, Dr Wauchope had serious concerns in relation to his behaviour and the impact that that behaviour has on [X]. In paragraph 53 of her report, Dr Wauchope states the following:
“Mr Birnie’s behaviour is also significant in this case, as whilst all three parties appear to have acted in ways that have compromised [X]’s stability, and his emotional and developmental wellbeing, Mr Birnie’s actions and behaviours are particularly appalling, as he presents as being particularly dysfunctional and damaged. He showed no capacity to separate his own experiences and needs from those of [X]’s, no capacity to understand his son in a psychological sense, and no capacity to be able to reflect on [X]’s needs or support his relationship with his mother. Moreover, he presented as being antisocial, immature, reactive, and childlike, he lacks insight and understanding, he is impulsive, manipulative, and self serving, he seems unable or unwilling to recognise [X]’s true needs, he seems to function in a primitive way whereby he justifies his own actions on the basis of how he perceives others to have behaved, he selectively uses information for his own needs, he is unable to elevate [X]’s needs above his own, he has poor boundary definition, and he shows no capacity to understand how important it is for [X] to have a substantial relationship with his mother, regardless of what has happened in the past.”
When assessing the parties, their impact upon [X] and the best way forward for him, Dr Wauchope makes the following observations in paragraphs 60, 62, 63 and 65 of her report:
60.From a clinical perspective, what we have here are profoundly dysfunctional and personality disordered people regardless of the truth, the facts, or the allegations; and this is consistent with my observations during this assessment. In the face of such dysfunction and personality disorder, rather than it being a question of what is in [X]’s best interests; it is more a question of what is going to be the least bad option for him.
62.Whilst on the one hand Ms Howard has continuing mental health issues that appear to be managed at the moment, but certainly leave her vulnerable to them reoccurring in the future, and whilst she also effectively abandoned [X] in the past and since Mr Birnie has now become [X]’s primary care-giver he may become emotionally distressed if he is separated from his father; she still seems capable of understanding and recognising [X]’s needs in a psychological sense, and she seems capable of meeting his needs at the moment.
63.In contrast, and more importantly, Mr Birnie appears to be so profoundly dysfunctional and personality disordered, and so unwilling and/or unable to support [X]’s relationship with his mother that there appears to be very real protective concerns if [X] were to remain residing with him.
65.On balance, I think Mr Birnie’s behaviour is more damaging to [X] than the possibility of Ms Howard having another breakdown, and/or developing an alcohol problem. To this end I believe that [X] will be better off residing with his mother, despite the obvious emotional distress this will cause due to the separation from his primary carer, namely Mr Birnie. Based on what was seen of [X] with his mother I believe he enjoys her love, support, and attention, and thus I feel confident that he will adapt to a change in residence, especially if Mr Birnie is restrained from engaging in further denigration or undermining behaviour; and I certainly believe that the protective concerns far outweigh the potential emotional distress, especially when [X] is currently experiencing such extreme confusion, anxiety, and emotional distress now because of his father’s behaviour in any case.”
In her report, Dr Wauchope recommended that [X] reside with the mother and spend time with his father each alternate weekend from after school Friday until the start of school Monday with an appropriate supervisor, possibly a family member or friend, being in substantial attendance.
Dr Wauchope then recommended that if an appropriate supervisor could not be agreed upon between the parties, then [X]’s time with his father should be daytime only, at least for a couple of months, and again with a substantial supervisor in attendance. Dr Wauchope was strongly of the view that whilst it was important for [X] to maintain his relationship with his father, it was imperative that the transition to his mother’s home be totally supported and that his relationship with her not be undermined in the first instance.
It was Dr Wauchope’s further recommendation that the father be ordered to provide regular drug screens for six months, that he attend an anger management course, that he engage in regular counselling to address his particular parenting, substance abuse, and anger issues, and that his time with [X] only revert to being unsupervised when all those matters had been attended to. Dr Wauchope recommended that time be every second weekend from after school Thursday until the start of school Monday.
It was very apparent from the evidence that there were no supervisors within either the father’s, mother’s or the professional sphere who would be able to put in place the kind of supervision recommended by Dr Wauchope. When this reality was put to Dr Wauchope whilst she was giving viva voce evidence, she accepted that this was the reality and in those circumstances indicated that her recommendation would be for [X] to live with his mother and that, at least initially, he spend alternate weekends with his father from after school Friday to before school Monday and that there otherwise be no further extensive time between [X] and the father until such time as the father had properly undertaken intensive one on one counselling in relation to both his parenting and anger issues.
The independent children’s lawyer had formed the preliminary view that [X] should reside with his mother and spend five nights a fortnight with his father. This proposal was put to Dr Wauchope. She did not support this proposal and indicated, as set out in the previous paragraph of this judgment, that at least initially there should be no more than alternate weekend time between [X] and his father, and her view was that upon the completion of the courses, orders could then be made increasing time to alternate weekends from Thursday to Monday as well as some holiday time.
It was put to Dr Wauchope on behalf of the mother that perhaps to enable [X] to fully settle with his mother, there should be a period when [X] not spend any time with his father. Dr Wauchope was not supportive of this proposal as she was of the view that the relationship between [X] and his father was too strong for [X] to be able to cope with spending no time at all with his father.
Dr Wauchope was questioned in relation to the father’s proposal that there should be a shared care regime for [X]. Dr Wauchope was adamant that this would not be in [X]’s best interests. It was her evidence that at this time [X] needs a primary carer, and that primary carer should be his mother. It was Dr Wauchope’s evidence that whilst a shared care regime would be the ideal outcome in the long term for [X], because of the chaos that currently exists in his life and because of the lack of boundaries in his father’s parenting, he needed stability, one home, and that she was of the view that it was the mother who could best provide that.
Dr Wauchope was also questioned as to whether [X] would be assisted by some professional counselling at this time. It was her evidence that whilst he is only six years of age, the level of anger, distress and confusion that he is feeling, and in the circumstances where orders were made that changed primary residence from his father to his mother, that [X] would be assisted by such professional counselling, where he could use such techniques as play-therapy to enable him to express his anger and sort through his feelings.
Dr Wauchope was also questioned as to whether the mother would benefit from counselling. Again, it was Dr Wauchope’s evidence that whilst the focus had been primarily on assistance for the father, the mother was not without issues in relation to her parenting. She was of the view that the mother would be assisted with some professional help, particularly to deal with [X]’s probable distress in the event that he comes to live with her, and particularly in the event that the father does act on his threat to, for all extents and purposes, abandon [X] and travel around Australia if orders are made that don’t accord with his proposal.
The father’s decision to travel around Australia and leave [X] solely with the mother in the event orders were made that did not accord with the father’s proposal was put to Dr Wauchope and she confirmed that the impact of that on [X] would be damaging. She also noted it confirmed her observations in relation to the father being immature, reactive and not considering [X]’s best interests at all. Dr Wauchope made the observation that such behaviour would support the recommendations that she was making.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) relates to orders that the court are to make in relation to children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders, though I note that the mother has linked up with the Bendigo Aboriginal Cooperative to provide her with support services, but no evidence was led by any of the parties as to the basis upon which the mother was able to access that agency or that this was a factor relevant to the determination of the proceedings):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a 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)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 provides 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.
In this matter, the parties and the independent children’s lawyer are all proposing that the parents have equal shared parental responsibility for [X]. Whilst there is no doubt that there is a high level of dysfunctionality with these parents, that they cannot communicate and that there is an ever-present possibility of domestic violence, for [X] it will be important that both his parents continue to be involved in his life and that they both continue to contribute to the decisions that will need to be made in relation to him now and into the future. Accordingly, I have determined that it is in [X]’s best interests that an order be made for equal shared parental responsibility.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The father is seeking orders that [X] spend equal time with both his parents. The overwhelming evidence from the family report writer is that whilst this may well be the best long-term outcome for [X], at this time such an order would not be in his best interests. This is because [X] requires stability, a primary carer and because the parents are incapable of any kind of meaningful communication or cooperation in relation to [X] and his upbringing. Further, the father’s attitude to the mother is such that orders in these terms would effectively undermine any possibility at this time for [X] to have a meaningful relationship with his mother.
The mother’s proposal is that, once the father has undertaken the necessary therapeutic interventions in relation to his anger, parenting, and drug and substance abuse issues, that [X] spend significant and substantial time with the father. This is supported by the independent children’s lawyer, and to some extent by the family report writer.
When determining what arrangements should be put in place for a child, whether it be significant and substantial time or any other arrangement, the best interests of the child are paramount.
When determining what is in a child’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act. Each of the factors contained in the subsections, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision made as to which party’s proposal, or such other arrangement as the court may determine, is in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which the court must take into account when determining best interests. They are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Section 60cc 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

There is a real benefit for [X] in having a meaningful relationship with both his mother and his father. Dr Wauchope observed both parents to interact positively with [X], and for [X] to interact positively with them, albeit his interaction with his mother was only observed to be positive once the father had left the premises where the report writing process was taking place.
The reality is, that until such time as the father addresses his issues, and particularly develops some insight into the impact his attitudes to the mother have on [X], there is a real risk that if left in the father’s care, [X] will not be able to develop and continue a meaningful relationship with the mother.
Dr Wauchope identified [X] as being at serious risk of psychological harm if left in the primary care of the father. She observed [X] as:
“showing clear signs of anxiety and emotional distress, which seems to be manifested in behavioural problems.” (paragraph 52 of family report)
Earlier in this judgment, I set out the observations that Dr Wauchope made of Mr Birnie, his actions and his behaviours. Dr Wauchope uses the term ‘process of psychological infection’ which she sees the father actively creating around [X], which causes him confusion and distress, and makes [X] feel guilty about spending time with his mother, which in turn induces anxiety, anger and instability in [X].
Dr Wauchope gave evidence that if the level of antipathy and lack of insight that the father was showing in relation to how his intense negativity towards the mother was impacting on [X] and that if that continued, [X] would end up with serious long-term ongoing psychological harm. When asked to expand on what she meant by that, Dr Wauchope indicated [X] was already beginning to display some disturbing behaviours, such as the uncontrollable behaviour that he exhibited during the interview process. It was his evidence that in the long-term [X] could develop conduct disorders whereby he would have problems with attaching to other people, he would have relationship problems, possibly school and social problems and in the end these behavioural problems would affect him all his life, including affecting his work and his long-term relationships as he gets older. In addition, [X] would have serious issues in relation to self-esteem, which would make him vulnerable to self-abusive problems such as drugs and alcohol.
There also has to be some concerns as to whether [X] is at risk from further psychological and possible physical harm in the father’s care, arising from his parenting style, and in particular his anger issues. The father himself conceded that he does get angry with [X], that he has and does yell at him to the extent that perfect strangers have been moved to intervene on occasions when the father has been chastising [X].
There also has to be issues in relation to the father’s physical care of [X] as, by his own admission, he is a habitual marijuana user who, until very recently, was using marijuana in front of [X].
There is also a risk that in the event the mother’s mental health issues resurface, she will again ‘abandon’ [X]. It is noted however the mother now has in place appropriate supports.
Dr Wauchope was of the view that the emotional risk to [X] of remaining in his father’s care outweighed the risk of being with his mother and she having a breakdown.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account and I will look at each of those in turn where relevant.

Section 60cc 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] told Dr Wauchope that he wanted to live with his father and that he was reluctant to spend any time with his mother.
It was Dr Wauchope’s observation that [X] is so closely aligned with his father, and his father’s negative opinion of his mother, that these views are not an accurate reflection of [X]’s true feelings, but rather are a parroting of his father’s views. Dr Wauchope was also of the view that [X] was being self-protective in making the statement in order to preserve his relationship with his father.
[X]’s statements to Dr Wauchope about not wanting to be with his mother were not reflected in the observed interactions between [X] and his mother, particularly once his father had left and [X] was able to freely engage with his mother.
In these circumstances, the court does not accept that [X]’s comments to Dr Wauchope were a true reflection of his real views.
In addition, [X] is only just six years of age, and has neither the maturity or insight for such views to be given any significant weight.

Section 60cc 3(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)

I am satisfied that [X] loves both his mother and father.
These emotions for [X] are very complex in the circumstances of his relatively short life to date. He was only some three years of age when his mother effectively abandoned him for two years and that relationship is only now being redeveloped.
[X]’s father has been his primary carer for the last three years and [X] is very much aligned to and dependent upon him.
Unfortunately, the dysfunctionality of both of the parties is such that [X] is currently a very confused and angry little boy, who is already starting to exhibit behavioural difficulties because of the dysfunctionality of the relationships that have been in his life to date.
It is pretty apparent that whilst the mother has the insight to understand the importance to [X] of the relationship that he has with his father, the father does not have the same insight to appreciate the importance of [X] having a relationship with the mother. That has impacted upon [X]’s relationship with his mother at this time.

Section 60cc 3(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

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It was apparent from the mother’s evidence that whilst she has genuine concerns about the father’s parental capacity, she understands the importance of the father to [X], and positively supports [X] having a relationship with his father.
It was the mother’s evidence, which is accepted, that she does not speak negatively of the father in [X]’s presence, and engages in positive conversations with him about the times that [X] spends with his father.
By contrast, it is quite clear that the father does not support [X] having a relationship with his mother. He sees the mother as having abandoned [X], as being a liar and as someone who brings nothing positive to [X] or to [X]’s life.
The father, at this time at least, is unable to support [X] having a relationship with his mother and has openly and overtly denigrated the mother to [X] to the extent that [X] is fully cognisant of the fact that the father does not like his mother, that he does not want [X] to have a relationship with her and actively discourages [X] from engaging with the mother in any positive way.
It was the father’s evidence that, having received and read the report of Dr Wauchope, he has developed some insight into the negative impact his behaviours have on [X]. The reality is however, the father will require more than just the reading of a report to fully understand and develop the necessary insights to better manage these behaviours and to better parent his son.

Section 60cc 3(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

If orders are made that [X] immediately live in the primary care of his mother, this will be a substantial change in circumstances from his perspective. His father has been his primary carer for almost three years and whilst there has been a large level of criticism aimed at the father, it would appear that [X]’s day to day requirements have been met by the father during this period.
The father is no doubt currently [X]’s primary attachment and to be moved into the primary care of his mother is going to be an enormous adjustment for him. If the father follows through on his threat to travel Australia in the event orders are made that don’t accord with his wishes, the adjustment for [X] is going to be even more difficult.
There also has to be concerns as to the mother’s capacity to care for [X] on a full-time basis, especially in circumstances where she has not had the primary care of any of her children, and in the circumstances where she previously abandoned [X] because of her own mental health issues.
It will therefore be of vital importance in the event [X] does move into his mother’s primary care, that the necessary supports for both [X] and the mother are in place to ensure that they both get all the necessary assistance to enable [X] to make this transition as seamlessly and as painlessly as possible.
If the father is able to embrace the necessary interventions that have been identified for him, then the outcome for [X] can only be even more positive.

Section 60cc 3(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

At this time, both parties live in the Bendigo region and there are no practical difficulties in the context of [X] spending time with both his parents.
There is evidence however that changeovers for [X] are particularly traumatic, particularly where there is any interaction between both his parents. In those circumstances, it’s going to be very important that any orders that are made involve changeovers where the parents do not come in contact with each other, be that either through the school with very clear orders that the other parent is not to be in attendance or by using the facilities at the [F] Contact Centre.

Section 60cc 3(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

Both parents, it would appear, have some capacity to provide for [X]’s physical and intellectual needs. However, the issue in this case is the parties’ capacity to provide for [X]’s emotional and psychological needs.
It is quite apparent from the observations of Dr Wauchope, as set out earlier in this judgment, that she has serious reservations about the father’s capacity to provide for [X]’s emotional and psychological needs, and I would echo those concerns. It was of major concern to me when the father made it clear to the court that if he didn’t get what he wanted, then he was going to remove himself from [X]’s life. This showed absolutely no empathy or insight into his son’s needs and was a confirmation of his selfishness and inability to think of anyone other than himself.
The court also has to be concerned about the mother’s capacity to provide for [X]’s emotional needs, particularly when she is under her own emotional stress. Her decision to abandon [X] in early 2007 when [X] was only three years of age is most concerning as is the period of over two years it took her to take any positive steps to become

re-involved in [X]’s life. She has, it would appear at this time, addressed many of those issues and has in place appropriate support. However, there has to be concern as to the capacity of the mother to stick with [X] through the tough times as well as the good times.

Section 60cc 3(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

As set out earlier in this judgment, the father’s lifestyle would appear to be one that involves an ongoing history of police involvement, and he currently has outstanding firearm offences which are to be dealt with by the state courts.
The father, on his own evidence, is a habitual marijuana user who has done little to shield [X] from exposure to this lifestyle. Whilst he gave evidence that if he had to give up drugs in order to be able to retain the primary care of [X] he would do so, the court notes that he has not sought to do so to date.

Whilst there was some concerns raised in relation to the mother’s alcohol use, it was her evidence supported by Ms Masson and to some degree the father, that this is not a current problem. The father also conceded that the mother had never been a user of drugs at any consistent or significant level and that this was not a concern he had in relation to her care of [X].

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander 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;

Not relevant, save for the comments noted earlier in this judgment as to the mother linking to the Bendigo Aboriginal Cooperative.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

This judgment has explored at length the concerns that the court has in relation to both parents in their parenting of [X].
As Dr Wauchope eloquently put it in her report, both parents are profoundly dysfunctional and personality-disordered people and rather than it being a question of what is in [X]’s best interests, it is more a question of what is going to be the least bad option for him.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

There have been several family violence orders that the mother has taken out against the father in these proceedings, and there is a current live family violence order that continues through the State Court system at this time.
The father himself conceded in evidence that he has been following and continues to follow the mother and, of even more concern, seemed to feel justified in this behaviour. He showed absolutely no insight as to the impact that would have on the mother and in particular on [X], who was aware of his father’s behaviour.
Whilst the father tried to distance himself from the atrocious behaviour that led to the mother’s breakdown in 2007 by placing the blame for same on his mother and former partner, the court is satisfied that the father was fully cognisant of their behaviour and actions and that he, if not actively encouraging it, was in no way discouraging it from taking place.
The court is also satisfied that the father continues to be verbally abusive to the mother and to actively denigrate her in both her and [X]’s hearing.

Section 60cc 3(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

There is an interim family violence order in place. This matter is being further pursued before the State Courts, and of real concern is that the incident that precipitated these proceedings occurred during the period that these proceedings were live.
There has to be a serious concern that there is a risk of ongoing family violence perpetrated by the father against the mother into the future.

Section 60cc 3(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

Unfortunately, in [X]’s short six year life there has been multiple proceedings before this court in relation to his care.
The level of dysfunctionality of this family is such that, whatever orders are made by this court, it can have no confidence that they will finally determine the living arrangements for [X].

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

It was the proposal of the independent children’s lawyer that orders be made at this time for [X] to live with his mother and spend each alternate weekend from after school Friday to before school Wednesday with his father. However, after hearing Dr Wauchope’s evidence, the independent children’s lawyer was supportive of any orders the court might make that provided for a build-up of time between [X] and his father.
The independent children’s lawyer believed that [X] should spend week-about time with each of his parents during holidays and that there be provision for special occasions.
The independent children’s lawyer was of the view that the father should undergo appropriate anger management and drug and parenting interventions.
In relation to the father being able to take lengthy holidays in Queensland with [X], this was not supported by the independent children’s lawyer at this time because of the real risk that [X] would not be returned by the father, particularly in circumstances where orders were made that did not support the father’s preferred option for [X]’s living arrangements.

Conclusion

This is a very sad and disturbing matter. Both [X]’s parents have, at various times, let him down in his very short life to date. His mother abandoned him at the age of three and his father actively undermines [X] having an ongoing relationship with his mother.
The practical impact of this parenting on [X] is that he is already exhibiting quite serious behavioural problems and faces the real risk of developing long-term emotional difficulties that will impact on him and his relationships into adulthood unless both parents are able to place [X]’s needs ahead of their own.
Dr Wauchope raised very serious concerns in relation to the father, describing his actions and behaviours as appalling, and him presenting as particularly dysfunctional and damaged. She described him as being anti-social, immature, reactive and childlike, lacking insight and understanding, being impulsive, manipulative and self-serving and seemingly unwilling or unable to recognise [X]’s true needs.
Dr Wauchope spoke more positively of the mother, indicating that despite her abandonment of [X], she now seemed capable of understanding [X] in a psychological and emotional sense, and of appearing capable of understanding and meeting his needs, and capable of supporting [X]’s relationship with his father.
Dr Wauchope was of the opinion that the father’s behaviour is more damaging to [X] than the possibility of the mother having another breakdown, and therefore recommended that [X] would be better off residing with his mother, despite the obvious emotional distress that this would cause [X] having to move away from his current primary carer.
The father’s statement, not only to the court but to [X], that in the event orders were not made in the terms that he was seeking, he would leave [X] with his mother and travel around Australia, in many ways encapsulated the issues with the father’s parenting as identified by

Dr Wauchope. The father seems either incapable or unwilling to acknowledge that there are real issues with his behaviours and attitudes, and that he needs to take positive steps to be a better parent to his son.
Whilst there must have concerns about the mother’s initial abandonment of [X] and her possible ongoing mental fragility, I am satisfied that she has a much greater child focus than the father and has put in place the necessary supports to assist her to better parent her son at this time.
In these circumstances, the court is satisfied that it will be in [X]’s best interests for him to reside in the primary care of his mother and spend relatively limited time with his father, albeit on an ongoing and regular basis, until such time as the father ‘steps up to the plate’, addresses his issues and demonstrates to [X] that [X] is his primary concern and it is [X]’s interests that he puts first, by undergoing the necessary counselling and behavioural change courses that will be ordered by this court.
It can only be hoped that the father will not act on his threat to move out of [X]’s life, as to do so can only be damaging to [X].
The father was seeking orders that were to enable him to have [X] in Queensland for the whole of the 2009/2010 summer vacation. This judgment will not be delivered until halfway through those holidays, but even if it had been able to be delivered earlier, no such orders would have been made by the court at this time as they could not be seen to be in [X]’s best interests. Further, the father cannot be trusted to comply with the court’s orders and in particular [X]’s return to his mother. There will not be extended holiday time ordered between [X] and the father until such time as the father undertakes and completes the necessary courses that will be ordered by the court.

I certify that the preceding one-hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 15 January 2010