Johnson and Charles (No. 3)

FAMILY COURT OF AUSTRALIA

JOHNSON & CHARLES (NO. 3)

[2017] FamCA 1043

FAMILY LAW – CHILDREN – sole parental responsibility – undermining of parental relationship by another parent – benefits of meaningful relationships with both parents – moratorium on contact

Family Law Act 1975 (Cth) ss 60CC and 65DAC

APPLICANT:

Mr Johnson

RESPONDENT:

Ms Charles

INDEPENDENT CHILDREN’S LAWYER:

Ms M Clark

FILE NUMBER:

MLC

10228

2012

DATE DELIVERED:

19 December 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Melbourne

JUDGMENT OF:

Gill J

HEARING DATE:

27 November 2017- 1 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

SOLICITOR FOR THE RESPONDENT:

Self-representing

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:	Mr Thomas
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Clark Family Lawyers

Orders

All previous orders in relation to B (the child) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with her father as follows:
(a)From the commencement of term 1 of the 2018 school year, each Thursday afternoon from after school until 8pm for a period of four weeks with the father to collect the child from her school and return her to the mother’s home at the end of the time;
(b)Thereafter, from 12pm each Saturday until 12pm each Sunday for a period of four weeks with the mother to deliver the child to the home of the father and the father to return her to the mother’s home at the end of the time;
(c)Thereafter, during school term time each second weekend from after school on Friday until the commencement of school on Monday (or Tuesday if the Monday is a public holiday), commencing on the first weekend of each school term, with the father to collect and deliver the child to her school
The child is permitted to travel internationally.
The mother is permitted to apply for a passport for the child without requiring the consent of any other person.
The Registry Manager (Canberra) is to provide a copy of these orders to the Secretary of the Department of Foreign Affairs.
The father is prohibited from contacting the child at any time other than when the child is in his care pursuant to these orders unless he has previously secured written permission (which includes by means of SMS) from the mother to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Johnson & Charles (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 10228 of 2012

Mr Johnson

Applicant

And

Ms Charles

Respondent

REASONS FOR JUDGMENT

This matter concerns the living arrangements for the child B (born in 2006) the youngest child of the parties, particularly whether she will live primarily with her mother or her father. The key issues in this matter involve the nature of the relationship between the child and her mother and, to the extent that there are problems within that relationship, whether those problems are caused by the mother or by the father. That is, whether the mother has caused a breakdown of that relationship or whether the problems in the relationship are as a result of the father undermining that relationship.
The father also asserts that there is a risk to the child in spending time with her mother, being a risk that the child will run away as time with the mother will conflict with the child’s views. This, he says, has come about because of deficits in the mother’s past parenting that she has not addressed with the child, or her older sister, E (aged 17) and half-sister Ms F (now an adult). E, who lives with the father, and Ms F do not have anything to do with the mother at present. The father says that forcing the child to spend time with her mother will undermine the relationship between the mother and the child further. While he says the child’s view is that she should spend no time with her mother, the father’s view is that she should be spending some time with her mother to foster that relationship. He raises, as a matter necessary for consideration, the relationship between the child and her sisters E and Ms F and younger siblings from his subsequent relationship, H and J. He suggests that the child’s relationships with her extended family both paternal and maternal will be fostered by him but not by the mother.
The mother calls into question the views expressed by the child, particularly those expressed to the Family Consultant, that she wants to spend no time with the mother, hates her mother and would refuse all time with the mother as a result of the mother neither acknowledging nor apologising for past wrong doing. She says that what was expressed to the Family Consultant does not in truth reflect what the child thinks. She says that the child’s comments come as a result of influence from the father and, if such influence is to continue, her relationship with the child is in danger of going the same way as with her two older sisters. She asserts a history of contravention and undermining of the Court orders by the father, necessitating multiple applications for recovery orders. She raises the question of whether the father will comply with Court orders.
To the extent that there is any question as to the capacity of the parents to co-parent with each other, on any analysis of the case as presented by each of the parties there is no prospect of cooperation.

Orders sought

The parties, who were self-represented, sought the following orders:

Applicant father[1]:

[1] Father’s Case Outline 15 November 2017.

1.That the child [B] reside primarily with the father.
2.That the father be solely responsible for all long-term decisions regarding the child.
3.That the child spend time with the mother each alternate weekend from the end of school 3.30pm Friday until 9am Monday.
4.That the child feel free to contact the father or mother or any family member both on the maternal and paternal side as she wishes whilst in each party’s respective care.
5.That the father facilitate and maintain contact between the child and the maternal Grandmother as can be arranged between both parties, due to the maternal Grandmother residing in Tasmania, and according to the child’s wishes.
6.That the father encourage the older two siblings [Ms F] and [E] to reconnect with their mother.
7.That a Family Consultant of the court interview the child in six months from final orders to ascertain whether the orders should remain or be altered, and made final.
The cost of this report to be paid by the father. The meeting should be brief given the child will be 12 years old and in year 7, a brief letter sent out to the party’s saying either the orders remain, or the child has time with the Mother according to her wishes.
8.That the father be granted leave to obtain a passport for the child.
9.That time with the mother be extended during mid-semester breaks from Friday until the following Tuesday, be that the first or second week of the break depending on ongoing normal orders i.e. if due to be with me Friday the last day of term, time with the mother be extended from the second Friday of the two week break, and vice versa.
10.That the child spend Christmas Day from 3pm until Boxing Day 12pm with the Mother.
11.That the child spend additional time with the Mother during the summer school holidays from Friday 5 January 2018 until Monday 14 January 2018.
12.That the child’s time be suspended for each parent for Mother’s/Father’s Day if the child is in the ‘other’ parents care, say 10am-5pm.
13.That time for the child be granted for her siblings, Father, Mother, Ms G’s birthdays [Ms F] …, [E] …, [H] …, [J] …, Mother …, Father ...
14.That both Mother and Father refrain from belittling and degrading the other and ensure the same with the extended family members.

It may be observed that a number of these orders cannot be made, either on the basis that the proceedings do not involve Ms F and E, or that the maternal grandmother is not a party, or that a letter from a Family Consultant could not be used to displace operative Court orders.

Respondent mother[2]

[2] Response to Initiating Application filed 12 October 2017.

Although the mother sought different orders at the start of the case, by the end of the hearing she sought the following orders:
1.That [B] (the Child) reside with the Mother. That the mother be responsible for all long-term and short-term decisions for the child in the best interests of the child.
2.That the child have a sustained period with the mother after the conclusion of final hearing for a period of two months without contact with the father.
3.That thereafter the child spend four nights per fortnight with the father each second weekend.
4.That the father and the father’s family be restrained from contacting the child while the child is with the Mother.
5.That the Mother facilitate contact with [B] and her siblings by arrangement with the mother.
6.That the Court Officer sign a passport for the child.
7.That the file be marked as vexatious and the father be restrained from making further applications to the court without leave of the court for a period of six years.
8.For the child to attend a private school, [O School]. (This was first sought orally during the hearing. Despite the late notice the father indicated that he was not caught by surprise by the application).
Again, a number of the orders sought either cannot or at face value should not be made. At no stage was the question of whether the father should be declared vexatious argued. The father’s family are not parties such as to allow them to be the subject of an injunction.

The Independent Children’s Lawyer

The Independent Children’s Lawyer’s (ICL) position, by the end of the case, was that the child should live with the mother, that there should be a two month hiatus in her time with the father and thereafter, for two to four weeks, she should spend afternoon time with the father. After this she should have Saturday overnights with the father each second weekend, transitioning to a 10:4 split in favour of the mother.
Such a hiatus would, dependent upon delivery of judgment, span Christmas day. The ICL was uncertain as to whether the hiatus ought to be broken for Christmas day.
The ICL’s position was that an order for sole parental responsibility should be made for the party the child primarily lives with.

Events and matters raised by the parties

While the father’s case was that it has been the behaviour of the mother, and his and Ms F, E and the child’s shared experience of the mother, that has caused the rift between the mother and the three daughters, little evidence was led as to this behaviour. The father presented almost no evidence of the incidents that comprised these alleged shared experiences.
The father put to the mother that during the relationship the general proposition that she had hit, punched, spat and bitten him. He said that there were some 300 incidents of violence perpetrated by the mother against him, many witnessed by the children. He did not lead specific evidence of these incidents. The mother denied the allegation.
His case involved an assertion that the mother is mentally unwell, such that it impacts on her capacity to parent and maintain relationships with her daughters. The mother denies this to be the case, asserting that questions as to her mental health are caused by the father. Dealing with this conflict between the parties, psychiatric assessments of the parties were made by a single expert psychiatrist, Dr N. His evidence will be dealt with later but, in short, gave each party a clean bill of mental health. He was unchallenged as to his assessment of the parties.
In dealing with the question of whether the father was responsible for questions about the mother’s mental health, the mother was questioned by the father about any episodes occurring before she and the father entered into a relationship, whereby a mental health team was called to her residence. The mother initially denied that there had been such an occasion. However, on being shown records from 18 April 1999 the mother accepted that she could recall vaguely an occasion where the mental health team had attended to assess her. This had occurred within a couple of weeks of Ms F being born. There is reference to a suicide attempt although there is a comment that the pills taken were harmless. The mother was described as being aggressive to police and uncooperative with them, attempting to evict them from her home. She was taken by the police for a mental health assessment. The documents supporting this incident were at exhibit F16.
The mother said that the incident occurred shortly after Ms F’s birth. The mother had not slept for 13 days since Ms F’s birth by emergency caesarean. Ms F was not breastfeeding, was projectile vomiting, and was not sleeping for more than an hour. The mother says that she took a number of vitamin B6 tablets and was not coping. She said that she was in a bleak place at that point, feeling like a terrible mother with her first child. Her mother and grandmother shortly thereafter moved into the home with her and, she says, after six weeks she turned the corner. The notes indicate that there was no risk in respect of Ms F.
The mother’s initial denial of such an incident raises a question as to her reliability. It also means that the genesis of claims about the mother having mental health issues does not come from the father.
In aid of the father’s claim that the mother is mentally unstable, the father asserted at [25] and [26] of his affidavit of 13 November 2017 that the mother’s earlier multiple admissions to a hospital in 2000 and 2001 were without any physical foundation. In this affidavit the father asserted that the mother behaved in a mentally unstable manner during this admission. Neither party cross-examined the other about these matters and the father produced no material from the hospital to substantiate the claim. Rather, on examining medical records under cross-examination the father accepted that his assertion that there was nothing wrong with the mother to support the admission was wrong. He accepted that the mother was suffering from physical ailments at the time.
A further reference to mental instability on the part of the mother was raised by the father’s tender of exhibit F8, a police record from 22 November 2010, regarding an altercation between the mother and the father. It appears that the parties were, at this time, separated with the children living with the mother. The father claimed to the police that he had attended at the home and the mother had come out of the home naked and irrational, causing damage to his car, and seeking to stop the father from leaving. The father was recorded as saying that the behaviour was uncharacteristic of the mother. The police record an unnamed neighbour corroborating the account to the police. On speaking to the mother the police describe her as “detached and mentally unstable” and denying the behaviour had occurred. They formed the view that the mother was having a “psych episode”.
The mother described that she had been struck by the father’s car while wearing a robe. She said that she had become disrobed. Her involvement with the police occurred after she had returned to bed. The police entered her bedroom and switched on the light. They would not tell her what the father said that she had done. They asked to attend for a mental health review. She refused to attend for the mental health assessment and was taken, involuntarily. She said that she followed up the matter with her general practitioner who indicated to her that she was fine and simply required the right support. The father declined to press charges.
No explanation was given by the mother as to how the mother came to be struck by the car and disrobed, other than a description that it happened (Exhibit F15). It appears that there was some corroboration of the father’s account obtained by the police at the time, although this is of extremely limited value, absent identification of the witness and an outline of what the witness saw. It remains unclear whether this constituted a mental health episode on the part of the mother. There is no suggestion that, in consequence of being taken by the police for assessment, she was admitted. There is no suggestion of any repetition of the incident.
The parties separated in August 2012. While the father had asserted to Dr N that he had left the mother because of her behaviour, his previous affidavit evidence had reported the separation as being brought about by the mother kicking him out of the home, leaving his clothes and guitars outside. In September 2012 the father obtained an intervention order against the mother. The circumstances supporting this application are contested. The father says that the mother attended at his work and refused to leave, behaving in an aggressive fashion. The mother accepts that she attended at the father’s work, but says that she did so at his invitation. On her attendance there, the father removed her keys from her car and threw them down the drain and, she says, called the police.
In October 2012 the mother obtained an intervention order against the father, naming the three children on the order. The father subsequently filed in the Federal Circuit Court in November 2012 with the matter coming before Judge Riethmuller in December. At that stage orders were made for the children, E and the child (Ms F not at that stage being the subject of orders as her father was not involved in those proceedings) such that they would spend eight nights per fortnight with their mother and six with their father. A Family Report was prepared by Ms P in February 2013 and in March 2013 Judge Turner continued the six/eight arrangement.
These matters gained some significance in the current proceedings because Ms P’s report was prepared in the context of the litigation leading up to final consent orders being made in November 2013.
The circumstances of the preparation of the Ms P report (which did not enter into evidence in these proceedings) were the subject of some contest between the parties. The mother asserts that when she was dealing with Ms P, for the preparation of Ms P’s Family Report, the father told her, in the absence of Ms P, that he had made up sexual abuse allegations relating to Ms F and Ms F’s father. The mother alleged that he had said this in order to compromise her emotional state when she was being assessed by Ms P. The father denied that he made such a comment to the mother, and expressed his revulsion at such conduct.
Those allegations arose when Ms F was aged about 3 ½ years old (in approximately 2002). Allegations were made that her father (who is not the applicant) had sexually dealt with her.
The original allegation came about because Ms F had said a number of things to the mother that had raised the issue of whether or not Ms F had been interfered with. The mother raised these matters with the applicant father who subsequently reported that Ms F had said further things to him raising the question of whether she had been sexually interfered with. It appears that after the applicant father raised these matters with the mother a police investigation and Family Court proceedings followed. During the Family Court proceedings the mother relocated to the Q Region area in New South Wales with Ms F, apparently in hiding from Ms F’s father. Although recovery proceedings were issued and the applicant father was examined as part of these recovery proceedings, he did not disclose the whereabouts of the mother, despite them being known to him. He accepts that he perjured himself in those proceedings on the basis that he thought that it was necessary in order to protect Ms F.

The mother accepted that she was the first to raise the sexual abuse allegations. It was not the applicant father who instigated the sexual abuse allegations in respect of Ms F. At its height the mother accepted that the comments she alleged the father made could only relate to the father’s heightening of the sexual abuse allegations made by Ms F. The mother asserted that when the father told her that he had made it all up, that he done so for Ms F.
It may be seen that the evidence given by each of the parties in relation to this matter is diametrically opposed. Following the allegation made by the mother that the applicant father had said that he made it up, the father in his evidence asserted that he did not know whether it had been made up, or Ms F had been coached, but if that had occurred, then it was at the hands of the mother. In support of the idea that Ms F may have been coached, he pointed to police information to indicate that Ms F had been taken for multiple interviews and during those interviews Ms F used terms that she did not understand such as penis and vagina.
If the applicant father did make up the additional disclosures, and tell the mother this during the assessment process, not only would this have been manipulative of the earlier proceedings concerning Ms F, but would also constitute a calculated manipulation of the mother at the time of assessment by Ms P. If the mother invented the applicant father’s comments at the time of the assessment of Ms P, it constitutes a manipulation of the current proceedings on her part. I am, however, unable to resolve this conflict in the evidence.
The father pointed to exhibit F14, a record from an organisation called AA Service, who appeared to be assisting the parties with post separation strategies, to assert that the mother had, at some time between October 2012 and January 2013, accused him of being a risk of sexual abuse to the girls. The mother denied that she had ever made such a claim. The only evidence that such a claim may have been made is the entry appearing at exhibit F14. It is unclear who the source of information was to the author of that document, nor the content of the information. Absent any other reference to sexual abuse, in a context where the reference was primarily in relation to Ms F’s father, it may well be that this is a simple error contained in the document. In any event, I am unable to conclude that the mother has at any stage accused the father of being a sexual risk to the children. The document provides too fragile a basis to come to this conclusion.
In November 2013 the parties settled the proceedings on a final basis on a six/eight division of time in favour of the mother.
From June to August 2014 E is reported by the father as having run away from the mother’s home on a number of occasions. On the first two of those occasions she remained with the father for a week before being returned to the mother and on the third occasion she did not return to the mother at all. The mother records that at about this time, being June 2014, E and the child had spent time with the father and his family on holidays. E returned from those holidays with, the mother thought, a changed attitude towards the mother, reporting that the father’s family had spoken about the things the mother had done and that they hated her. The father, in his affidavit, records his response to this assertion by the mother as “no comment”.
The incident at which E changed from living with the mother to living with the father occurred in August 2014. The mother records that she asked E to clean her room. The police subsequently attended at the mother’s home. While the father accepts that there was an occasion on which he called the police, he says that it was not this occasion. He gives no explanation as to why it was necessary or appropriate for the police to be called. Whether or not it was on the occasion of the police attendance, E left the mother’s home and has not returned to live there since.
Between October 2014 and June 2015 the parties engaged in family therapy with Ms P. Annexure 1 to the father’s first affidavit shows the report prepared by Ms P which in general terms reports the mother as reluctant to engage and as being unsupportive in respect of obtaining counselling for the child through a mental health plan.
The father was critical of the mother’s lack of cooperation with Ms P. The mother was critical of this report, given that Ms P was not called to give evidence. While admissible, the hearsay nature of the report means that some caution ought to be taken before accepting it, particularly where it was the subject of dispute with the mother.
Despite this criticism, the mother accepted that there was a seven-month gap between her first engagement with Ms P and her first attendance on Ms P. The mother accepted that following the engagement of Ms P she formed a view that she was not the right person to deal with the particular issues faced by the family. The mother formed this view based on advice and research conducted by her, that the children were suffering from alienation. As a result of this research she formed the view that if counselling was to occur, that involved the children, and was conducted by a person who did not have the correct expertise, then if the children were being alienated from the mother the counselling may exacerbate rather than remedy issue.
This position was taken by the mother despite the fact that she accepted that the parties had agreed to dealing with Ms P in an attempt to ameliorate the difficulties that were taking place between her and the children. The mother also indicated that she did not wish to engage with Ms P because she believed that the father was using Ms P as “a means to an end” as it was agreed that the children would not be involved initially and yet the father immediately involved the children. She thought that he was influencing them to make disclosures against the mother.
The mother then made complaints against Ms P to a professional association on the basis that Ms P was being unethical. Her assessment that Ms P was unethical came from information that she had received after consulting with her psychologist, Dr M, who had in turn referred her to the ethics of social workers. One of the ethical underpinnings of social work, according to the mother, was that if an issue was too complex or such that the social worker was unable to assist, then the social worker has an obligation to refer the matter. The mother’s contention was that Ms P was unqualified to assist, yet continued to do so and hence behaved in an unethical manner.
Whether reliance is placed on the mother’s account, or Ms P’s report at annexure 1, the unavoidable conclusion is that the mother was obstructive to the process involving Ms P. That obstruction took place by failing to engage with Ms P and then subsequently making a complaint against Ms P. It may be noted that Ms P had engaged the services of a psychologist, Ms R (as set out in her report) to assist with dealing with the family. The mother asserted that she was not aware that Ms R was part of the family therapy.
Similarly the mother was criticised for declining to attend the family therapy with E. The mother asserted that there was no offer that she could engage in counselling directly with E. Rather, they would not be brought into contact with each other as part of that process. In any event, despite Ms P being engaged in August 2014, the mother did not attend upon her until February 2015.
It may be concluded that the mother was obstructive in relation to Ms P. Where her objection is based on a lack of expertise, it is difficult to understand how she was unaware of the engagement of Ms R, a psychologist, to assist with the process. Where the parties had agreed on the use if Ms P to assist them, and the mother asserts that she did not attend for good reason, the onus lies upon the mother to demonstrate the good reason. She has not done so. This raises some question as to her capacity to emotionally care for the child, at least in terms of engagement with professional assistance.
In August 2015 the father commenced proceedings again in the Federal Circuit Court of Australia. The matter came before Judge Riethmuller in October 2015 who then made orders for a seven/seven division of time for the child.
In February 2016 the father and his partner, Ms G, separated. At about that time Ms F moved into the father’s home. As at the time of the hearing the father is hopeful of recommencing the relationship with Ms G in 2018.
The parties arranged to engage in family therapy with Ms S in late 2016. Exhibit F13 shows that the father missed the appointment for the children at the start of October 2016. Ms S reinforced the need for the children to attend. The father then indicated that he would seek a mental health plan for the child, but that he needed the mother’s support to do so. In response, the mother asserted that orders made by Judge Stewart meant that the child (and E) were “not to be subject to further professional intervention” (subject to orders). The mother called into question the father’s description of why family therapy with Ms S was brought to an end in November 2016. The father said that it was at the instigation of Ms S, she having stated to him that there was no point attending any longer because of the “he said, she said” nature of interaction between the parties. The mother suggested that this did not have its genesis in Ms S, but rather in the father, by virtue of exhibit M1. The exhibit adds nothing to the resolution of this matter. It is equally consistent with Ms S having told the father that it was a question of “he said, she said” as with the father having introduced that idea to Ms S.
I am unable to find that either parent was deficient in interacting with Ms S, or that such demonstrates an inadequacy in their ability to emotionally care for the child.
Between about September and November 2016 the father visited the child at her school during the times that the child was under the care of the mother. The father’s response to this allegation, in his affidavit, was “comment reserved”. In his oral evidence the father conceded that each Thursday that the child was in the mother’s care he had visited the school with the child’s younger siblings. The Family Consultant thought that this behaviour was undermining of the relationship between the child and the mother, as it meant that the school was no longer a safe haven for the child, but became a place for the continuation of the dispute between the parents.
Subsequently, in November 2016 the child reported an incident occurring between the mother and her partner. The clearest explanation of this alleged incident is recorded in the Family Report at [4]. There it was said that the child had reported to her father that the mother had thrown a mobile phone at her partner, cut herself with a knife and ingested a number of tablets that meant that the child thought the mother was trying to kill herself. This resulted in her removal by the relevant department. Accordingly, the child was not spending time with her mother.
No other material was brought in support of these assertions, despite the fact that they were apparently immediately reported to the Department of Health and Human Services (DHHS). The mother denies that any of these occurred. In the absence of cogent evidence as to what the child said at the time, and to whom, and to material produced from the investigation, no finding should be made in the face of the mother’s denial that such behaviour was engaged in.
It is noteworthy that the father appeared to accept that Mr T, the mother’s partner, who was not called in these proceedings, who was supposedly the person subject of the assault by the mother, had denied the occurrence of the incident.
The father was questioned about the precursors to the making of this complaint. The mother suggested to the father that his evidence before the Children’s Court in relation to this disclosure incident was that the child had “called him out of the blue” regarding the incident. The father was unable to recall whether or not that was his evidence given in the Children’s Court. The mother tendered exhibit M4 which was a series of texts from the child to the father indicating how the father would need to be in contact with the child that evening. It was an occasion when the child was under the care of her mother but was staying with another friend, Ms U. The mother questioned the circumstances by which the father was in contact with the child that evening. The point, it appeared, of this questioning and evidence was to show that the father manipulated the child into making a complaint about the mother. No particular conclusion can be drawn from this evidence, particularly absent proof of inconsistency with testimony in the Children’s Court.
The father told the family report writer that he had suggested to the child that the police be called in relation to the disclosure. The child, he said, had implored him not to and he had then instructed her to tell her teacher, knowing that it would then be reported.
The father made a further complaint to DHHS on 27 November 2016 indicating that the child was at risk because the mother had caused the child to walk home to the mother’s house from school. Although in proceedings before the Children’s Court the father asserted that there was never an occasion when the child had walked home while in his care, texts were produced to the father that show on 22 and 23 November 2016 he texted the child telling her that on each of those days she could walk to his home. These incidents were a mere four and five days prior to his complaint to the Department that the mother was putting the child at risk by allowing her to walk home. When asked whether his evidence to the Children’s Court, denying that the child had ever walked home while in his care were a product of forgetfulness on his part or perjury he indicated that he did not know.
This evidence shows a manipulation of the child protection mechanisms by the father. His responses, indicating that he did not know whether he had perjured himself or was merely forgetful, mean that significant caution should be exercised in assessing his testimony in these proceedings.
Following the hearing of the proceedings in the Children’s Court on the 23^rd to the 25^th of February 2017, but prior to delivery of judgment, the Magistrate directed that the mother should have supervised visits with the child. The mother characterised these as being put in place to allow a reintroduction with the child. A number, although not all of the visits occurred. The mother says that during the visits the child asserted to her variously that the mother had only fed her bread and water, that on the mother offering the child water the child accused the mother of probably having poisoned the water. Given the concessions made by the father (referred to later) as to the mother’s capacity, as far as feeding the children and caring for them medically is concerned, these assertions by the child do not appear to have come from her experience of the mother. The child told the mother that she did not need her to be her mother as she had her aunt, Ms V who would be her mother from then on. She also asserted to the mother that her father’s whole family hated the mother.
In February 2017 judgment was delivered by the Children’s Court dismissing the department’s application for orders.
The effect of the dismissal of the Children’s Court proceedings was that the arrangements concerning the child should have reverted to the orders previously put in place by Judge Riethmuller, namely a division of the time on a 7/7 basis. This did not occur. The child was due to spend time with the mother on the week commencing 27 February 2017. She was withheld from school that week, spending the week at her aunt Ms V’s home. The mother filed an application for a recovery order which was heard by Senior Registrar Fitzgibbon on 9 March 2017. Senior Registrar Fitzgibbon confirmed the orders that were currently in place.
On 13 March 2017 the father delivered the child to the mother. The mother says that the child was behaving in a hostile manner. The father said, following arrival, that he had complied with his obligations (that is by presenting the child to the mother) and that he would be taking the child. The mother had her psychologist, Mr M, in attendance. He mediated an outcome whereby the child stayed.
During this period of time with the mother it became apparent that the child had a concealed second mobile phone provided by the father. He says that this was provided for protective purposes, although he does not describe what it was meant to be protective of. He sent a series of messages, outlined in the mother’s affidavit material, telling the child that he missed her, indicating the activities that they would be engaging in together and that the child was missing out on, that he could not collect her because he would get in trouble and that:
…I miss you too my beautiful sweet amazing little girl / always think about our lay downs on the couch and watching Tom and Jerry and swimming and all the things we have done together Don’t worry things will get better Get some sleep and dream about all the good things we are going to do in the future I’m gonna fix myself and everything else as well. Don’t worry /love you so much.
I’m here for you beautiful But I cant just come and get you cause I’ll get in trouble. My phone is next to me and if anything was to happen to you I would come straight away. Is your mum angry about something
One day I will be able to see you every day But for now we have to do the best we can with what we have If I don’t see you I’m thinking of you and sending my love.
These were significantly undermining of the time between the child and the mother.
The mother confiscated the phone. She says within 24 hours the child’s behaviour had normalised. The father’s response to this in his affidavit was “comments reserved”.
The next occasion that the mother was due to spend time with the child was 27 March 2017. On that day she was informed by the school principal that the father had telephoned to advise that the child would not be attending school. On 28 March 2017 the father informed the Independent Children’s Lawyer that he was withholding the child so that the mother could not spend time with the child.
On 27 March 2017 the father’s sister, Ms V, took Ms F and E to the Department to make a further complaint about the mother. The complaint related to matters said to have occurred during the relationship. The substance of the complaint was not disclosed.
On the same day that the Children’s Court dismissed the application the father called the maternal grandmother to seek to broker a mediated outcome for the arrangements for the child. He says at this time he was suggesting that there should be an 8/6 or 9/5 division of the time with the child, with the child primarily in his care. This position was expressed by the father despite him asserting at the hearing of this matter that there were problems with the mother that warranted him to withhold the child from school to prevent the mother spending time with the child as set out below. In the face of these proposals by the father, the withholding of the child was disingenuous.
The mother sought a further recovery order which came before Johns J. The orders of Johns J of 3 April 2017 put into place arrangements for the child to spend a period of three, uninterrupted, weeks with the mother, without contact with the father or his family. Immediately after the orders were made, the mother received a text from E, who barely communicates with the mother, saying “I don’t know how you do it but I have to give you credit” and, later that evening, the mother’s partner received a text from the father’s ex-partner, Ms G, saying:
I wasn’t going to interfere, but mate you need to be careful. She is taking you for a ride. She is full of shit. Get out while you can. She doesn’t have one nice bone in her body. And in the meanwhile don’t fuck with [the child]. Poor [the child] she is just like her dad and her sisters, she just want out. You don’t understand you haven’t seen the real [Ms Charles]… She used to beat up [Ms F] every day and physically and mentally abuse [Mr Johnson] every other day. I’m sure you are hearing a different side, I’m honest to God swear on my children’s lives telling the absolute truth… Be careful and good luck…

The father accepted that this was sent but excused it partially on the basis that it was in the context of the child being able to hear the mother and her partner having sex. It is difficult to reconcile how such a claim by the child, if made, was connected to the sending of the message. Under cross-examination, on becoming aware that the text was sent immediately after the Johns J orders, the father disputed the timing of the message. The timing was established, however, by exhibit M6. The timing of the messages gives them the appearance of being reactive to the Johns J orders by E and by Ms V.
These messages immediately followed orders that provided for the child to recommence time with the mother, and that provided for no contact between the child and the father and the father’s family. Although not definitive, the reactions demonstrate a strong risk that the father’s side of the family will not be supportive of the mother’s relationship with the child. Such a conclusion is further supported by the role the father’s sister, Ms V, took in withholding the child from the mother, and from the report by E and Ms F to the Department, made with the support of Ms V, shortly after the conclusion of the Children’s Court proceedings.
From that point on the arrangements reverted to week about. These arrangements have been in place for approximately seven months. The father says that there have been no instances of non-compliance with the Orders during this period.

Other issues raised

The mother attacked the father’s recitation of the amount of child support he is receiving from the mother. It was not entirely clear what the significance of this matter was, apart from the credibility of the father. He asserted in his affidavit material that he was receiving no more than $785 per month (unless there was a necessity to collect arrears from the mother). The mother tendered exhibit M2, which showed that in fact she was subject to an assessment of $853 per month, although M2 appeared to show a collection amount consistent with the father’s assertion. Further, she tended exhibit M3, being a child support account statement, which although it appeared to show a liability of $392 per fortnight, appeared to show a collection of $319 for fortnight, again consistent with the father’s assertion. These matters could not clearly be seen to conflict with the father’s assertion that he is in receipt of no more than $785 per month. To the extent that they may be capable of showing that he has a higher amount assessed against the mother, it is not possible to attribute the difference to being a conscious falsehood on his part.
The mother put to the father that since the commencement of proceedings his income had gradually decreased from $107,000 per year to an amount not more than the self-support amount for child support. He accepted that this was the case. He was asked how he was able to support himself on the taxable income that formed the basis for his child support assessment. In 2014/2015 his taxable income was $5,000 and in 2016/2017 it was $24,000. When asked, he disclosed that his rent is $1,955 per month. He then explained that until recently he had operated as a sole trader and so had run all expenses through his business, taking money out of the business to support himself. He subsequently sold this at a loss. This, again, appeared to be directed to the father’s credibility. It indicated deceptive conduct in relation to his true income, particularly as it bore upon his child support application.
Ms F, after ceasing to live with the mother, for a period of time lived with the father, before moving out to live with her father. The mother questioned the father about the circumstances in which Ms F was asked to move out of the father’s home. This was done by the father shortly before Ms F turned 18, a point at which he was no longer entitled to Family Tax Benefit in respect of Ms F. He explained that event had nothing to do with the request for Ms F to move out, but rather it had to do with the home being unable to adequately house Ms F as well as the rest of the children. He also cited difficulties that he was having with Ms F in terms of her contribution to the running of the house by for example cleaning up after herself. He said that under the circumstances he believed that it was in Ms F’s best interest for her to move into her biological father’s home, on the basis that she did not want to move in with her mother. No adverse inference should be drawn against the father regarding his asking Ms F to move out.
The mother raised the question of whether the father allowed E to engage in underage sex under his roof. The evidence did not allow this inference to be drawn. The father however accepted that he had not discussed E’s relationship status, nor her involvement with contraception with the mother. He said that this is a matter private to E and was a matter between E and the mother. The mother suggested to the father that he would not contact her if E was ill. She suggested that in fact she was being completely shut out by the father. He asserted he would not completely shut her out but would let her know if an illness was sufficiently severe to warrant informing her. He asserted there had been no occasion when the illness had been severe enough for him to communicate it to the mother. This further supports a conclusion that the parties cannot co-parent.
The mother, in the context of the father accepting that E had previously been accepted into a gifted program at school, suggested that she had received correspondence from the school indicating that E had missed 60 per cent of her classes (while in the care of the father). The father denied this was the case, accepting that E had missed some classes because of a trip to Country W. He also said that she missed some classes due to music classes that she attended on another campus. He said that while she was not performing as well at school as she could, she was still performing sufficiently well. This raises a question about the father’s capacity in ensuring schooling for E, and consequently, a question as to his capacity in this respect in relation to the child. However, the raising of this question does not materially impact on an assessment of his capacity, in the absence of a further testing of the reasons for the absences.
The mother cross-examined the father about his attitude to the child attending a single sex private school called O School. The father accepted that he did not want the child to attend that school but preferred for her to attend a good public secondary college. The mother challenged his view, establishing from him that he had accepted that both Ms F and E should attend O School. However, the father asserted that both Ms F and E had been removed from O School, without consultation with him, by the mother and placed into another secondary school. His view was that O School was not the correct school for the child and that a school that was closer was more acceptable.
I am not in a position to assess the relative merits of the schooling options each parent wants for the child. The school that she attends will fall to be determined by the allocation of parental responsibility.
While each of the parties now seeks that a passport be issued for the child, the mother has requested the father’s permission to obtain a passport on a number of occasions. He accepts that on three, four or five occasions he has refused her request for a passport. He identified his reasons for refusing the request in relation to two of the proposed destinations. The first was a request by the mother to take the child overseas. He said that he refused this request because there was no extradition treaty governing Country W and that his relationship with the mother was poor at the time of the request. He was asked whether he believed that the mother could be seen to be a flight risk. Although initially he said that this was a possibility, he accepted that she is in long-term stable employment, has no ties overseas, save a friend who lives in Country W and she has Australian citizenship. He conceded that his opposition on the basis of the mother being a flight risk in respect of Country W was irrational and unjustified.
He further opposed the mother’s request to take the child with her to Country X. He says that at the time Country X was subject to a travel warning, although the mother contests this, saying that the travel warning was lifted. He indicates that there was unrest in Country X and he was not comfortable with the child travelling there. In relation to her safety he was worried that the mother might leave the child with unknown people on the basis that he said at times over the years the mother had left the various children at home unsupervised when they were aged six, nine and 10. He thought that the child would not be cared for nor safe in Country X. Further he asserted that the child has expressed a fear of the mother.
It may be observed in relation to the father’s opposition to these aspects of travel for the child that the reasons for the opposition for the Country W travel were spurious and, in presenting reasons in respect of the travel to Country X, the justifications that related to the mother potentially leaving the child with unknown people and not caring for her also appeared to be without adequate justification. It may also be observed that, in relation to the travel to Country X, E showed YouTube clips of atrocities in Country X to the child, apparently to demonstrate the sort of place that the mother would be taking the child. The father says that he told E off for doing this and indicated that it was not of his doing. It is unclear what discussions were had to cause E to take this step. Even if the father had no involvement what so ever in the showing of the YouTube clips, the incident is demonstrative of a strong hostility towards the mother and an undermining of the mother in relation to the child within the father’s household.
The father’s opposition to the mother’s requests for travel, at least in relation to Country W, were unnecessarily obstructive and undermining further of the mother’s relationship with the child.

The child and the mother

The father says that the child has previously expressed fear in relation to the mother. The elements of that fear were that she would be told off by her mother, a fear that the mother may scream at her (in particular about the child’s apparent disclosures from November 2016) and a fear that the mother would hit her, although the child did not think the mother would hit her. A similar expression of fears was described by the family consultant from her interview with the child in April 2017.
The father attributed these fears to what he, Ms F, E and the child had seen of the mother. He says that the primary obstacle to the children moving forward in their relationships with their mother is that they have experienced historical events at the hands of the mother, which the mother has neither acknowledged, nor apologised for. This has meant that although he says that he has attempted to have E spend time with the mother since August 2014, he has been unsuccessful.
The father says that he and the children have a “shared paradigm” because of what they have lived together during the relationship with the mother. The children, he says, have shared the experiences that he has had with the mother and have come to the same conclusions about her. On this front, it is notable that the relationship between the father and the mother ended when the child was six years old. She is now eleven. If there were shared experiences, they are dated, and extremely dated, in the context of one so young. It is further notable that in a context where the father has relied heavily on misbehaviour on the part of the mother and upon a shared, apparently abusive, history of the mother interacting with himself and the children, he has identified no instance of such behaviour on the part of the mother that touched upon the three daughters. At most he has made generalised assertions as to poor behaviour.
Given the evidence as presented, there is no proper basis upon which it could be found that there is a “shared paradigm” of abuse at the hands of the mother to cause a rift in relationship between the mother and the child.
The father accepted that he may have subconsciously influenced the children against the mother. That is, he had not purposefully sought to cause the children not to see the mother, but understood that he may have contributed to such a position on their part.
The father says, however, that there appears to have been a change in the child’s demeanour in relation to the mother. That is, she does not appear to be as anxious, or as fearful. On his account there has been a settling of the child in relation to spending time with her mother. While she expresses, on leaving the father’s home to spend time with the mother, that she misses the father and her younger siblings she no longer, to his observation, appears to be fearful.
The father noted that the evidence from the mother is that when the child is currently spending time with her, in accordance with the 7/7 orders she is presenting as loving and settled in the mother’s care. In a context where he says he has been compliant with the orders that were made by Johns J, he says that this counters the idea that he is undermining the relationship between the child and the mother or is able to undermine the relationship between the child and the mother.
The mother was concerned that despite the compliance with the Johns J orders, that if the father did not obtain the orders he seeks his efforts in relation to the child would intensify. Relevant to this position is that in the father’s opening he commented that the child had not run away for five months. The child, he said, was waiting for the outcome of the Court proceedings and was fully appraised of what was going on.
The father said that he would breach the Court orders again if he had protective concerns that he thought were real and if such arose, would take the child to the police. In this context it may be noted that in this case there have been multiple occasions for the mother to obtain recovery orders to have the child returned to her. After the Children’s Court proceedings ended, with no orders made against the mother, meaning that the previous seven/seven arrangement put in place by Judge Riethmuller was operative, the father did not return the child to the mother. In order to prevent the mother having the child, he withheld the child from school, the child staying at that point with his sister. On multiple occasions since the ending of the Children’s Court proceedings the father has retained the child home from school in order to frustrate any attempt by the mother to collect her, in accordance with the Court orders, from school. As identified earlier, these withholdings were disingenuous.
As to his future conduct he says that if the child ran away from the mother again to his home he would not keep her as he would be required to comply with the Court orders. His previous conduct is not reflective of this position.
The father was asked whether he would portray a positive image of the mother to the children. He said that he did the best that he could. He said, however, that this was undermined by the continual fighting between himself and the mother. This explanation for why it was difficult to do so was undermined by the fact that he and the mother had barely had a conversation in two years. He then explained that fighting meant arguing in court and litigation. That is, his ability to portray a positive view of the mother to the children was reduced by the litigation.
Testing his capacity, he was asked what it was that he could say that was positive about the mother. He said that the child enjoys some things that she does with her mother, that previous difficulties with the mother in relation to the child did not happen as much, that the child enjoyed music with the mother and fun activities such as having her friend Ms U stay over. These responses were interlaced with discussion on the part of the father as to the difficulties that he says that the child has with the mother, and the instructions that he gives to the child to comply with the mother’s directions. That is, when asked about what he could say about the mother that was positive, he struggled to restrain himself from descending into criticism of the mother.
When further cross-examined by the Independent Children's Lawyer as to what could be said to be positive about the mother he said that at times, in the early days, the mother provided good practical care for the children. That is, she could provide for their nutrition and ensure that they were looked after when they were ill. From 2008 to 2013, what he described as the worst years, he said that she was not so great. He accepted that there were fun times and at her best she could write good poetry, was bubbly, charismatic, fun and had an insightful intellect. The father visibly struggled to make these comments about the mother, his responses being preceded by considerable pauses during which he appeared to be thinking about the answer. It may be observed that the answers gave very faint praise of the mother in her role as a mother. They gave the appearance that the father was barely able to acknowledge any positive aspects of her role as a mother.
He then asserted that the matters he identified to the Court were matters that he discussed with the children whenever conversations about the mother were brought up with the children. He said that this happened a lot. Given the apparent struggle the father endured in coming to these responses, his later response that these favourable characteristics were the subject of frequent conversation with the children was not credible.

Expert evidence

Expert evidence was given by two witnesses in relation to this hearing. The first is Dr N, psychiatrist, who undertook a psychiatric evaluation of each of the parties. The second is Ms Y, a Family Consultant with the Melbourne Registry, who prepared the family report.
Dr N provided reports in respect of both the father and the mother. He assessed the father as follows:
From a psychiatric perspective, I have to say I cannot see this man as having any psychiatric or psychological disturbance and I do not see him as having any personality disorder and I see him as an individual who generally functions very well indeed.
In relation to the mother he assessed that she:
does not give any evidence of a psychiatric disturbance, personality disorder or dysfunction.
In both reports, Dr N then departed from his allocated role as an expert, being to psychiatrically assess each of the parties. He gave general commentary as to his view, beyond that psychiatric assessment, in relation to other aspects of the family law dispute. He purported to give opinions that impacted upon persons who are not the subject of his assessment process. He purported to give opinions about the effects of any views held by the child, without having assessed her and without being asked to offer those views by the Court. He further gave comment upon the consequences attached to those views.
His opinions that go beyond his appointment as an expert are not matters that will receive any weight in these proceedings.
The circumstances of Ms Y’s assessment of the parties and the child were that the child had been, until immediately before the interview, at a school camp at Z Town. She was collected from Z Town by her father and brought to the interview. She was observed to be “tired and somewhat emotionally fragile upon our entering the children’s room”. The child was “teary and anxious upon arrival”. Ms Y identified that the fact that the child’s last attendance at the children’s room had been on her removal to have three uninterrupted weeks with her mother, her concern that that was about to happen again, and her tiredness from the school camp most likely contributed to her “heightened emotional state”.

Observations of the child and her father showed that they have a “very tactile and enthusiastic relationship”. There were repeated hugs from the child for the father, she remained physically close to him throughout the interview process, engaging in friendly banter and was clearly comfortable in his care.
In contrast, the observation with the mother “did not provide any meaningful insight into the interactions between the child and her mother”. The child made a wide detour around the mother on her arrival. During the assessment the child did not engage with her mother, despite her mother’s efforts at engagement. The mother’s efforts, which centred around questions about the school camp that the child had just been on, were indicative of the possibility that the child and the mother had previously engaged about this topic. The observation was terminated as “it was clear there would be no change in behaviour by the child”.
The child told Ms Y that she would get into “trouble” and that her mother would “yell at her” at the next visit because of her behaviour. She further thought that once the report was prepared that her mother would “scream” at her. The child told Ms Y that she hates her mother, that only wishes to spend time with her father, and “if I have to go I will kill myself or run away”. The Family Consultant asked the child further about this noting that there was no plan for either of those actions. The child told the Family Consultant that the account that she had given which had led to the Children’s Court application (in November 2016) was accurate. She alleged that the mother was trying to kill herself but that she had finally felt brave enough to report the incident to her father.
In speaking about her parents the child could only speak positively about her father and negatively about her mother. In relation to her mother she asserted that the mother had hit the father with a piece of wood when the child was five. She said that the mother never apologised or admitted previous wrongdoing (which echoed the father’s explanation for the breakdown in relationship between the mother and E). The child’s view was that she was being made to suffer by spending time with her mother.
It should be noted that the family report was prepared on 16 June 2017 with the interviews taking place on 24 May 2017. The threats made by the child at that time to the Family Consultant have not eventuated. No dire consequences seem to have flowed from the week about arrangement continuing since that time, causing the child to spend time with her mother.
A key part of Ms Y’s assessment was to examine the trajectory of the dispute and the trajectory of the relationships between each of the daughters and the mother. She indicated that it is likely that, in her father’s care, the child “will follow the lead of her sisters and have no relationship with the mother at all.”
Ms Y noted that where a child is realistically estranged from a parent because of adverse conduct by the parent, then typically the child will reject those behaviours engaged in by the parent rather than the whole person. In this particular instance the child was exhibiting a rejection of the whole person during the assessment process.
As to the impact on the relationship between the child and the father if the child was to live with the mother and spend limited time with the father, Ms Y was of the view that the relationship between the child and her father was strong. Although it would be impacted, it would be able to withstand the change. However under such circumstances the child would miss her paternal family, her siblings and the relationship that she has with her father who is a person who she can confide in. Their relationship is one of trust and it is close.
However, if the child was to lose the relationship with her mother there is a risk that she would lose that whole side of her family. She would suffer the loss of a mother who can give her care and support. She would grow up with a sense that her mother is a bad person who could not be trusted, which may be damaging to her later in life. The prognosis flowing from such a rejection of a parent is that she grows up with hatred, looks at relationships in a black and white fashion leading to social and emotional development involving the discarding of relationships. She loses a caregiver who has a lot to offer her, particularly as her primary female role model. There are also liable to be difficulties in raising her through adolescence.
Ms Y thought that if the black and white view of her parents adopted by the child was the consequence of the father’s influence of the child, it would not be possible for the child to maintain a relationship with her mother. To counter such a phenomenon a period of time of approximately two months without time with the father, spent solely in the care of the mother would be appropriate. At the expiration of that period a risk existed that even spending small periods of time with the father, if he were seeking to influence the child, could still influence the child. However, if the child was settling into the regime then it will be possible to build up her time with her father to four nights per fortnight. If she was not settling then the time with the father would necessarily be much more marginal.
On either scenario, being living with her father and losing relationship with her mother, or living with the mother and having limited relationship with the father, there will be loss to the child. It would be difficult for the child to be separated from her father and sisters and she faces difficult long-term consequences if she is to lose the relationship with her mother.

Discussion

The central contest in this matter revolves about the nature of the relationship between the child and the mother, and the reasons for that relationship. While they do not appear to be reflective of the relationship, given the compliance with the week about orders since they were expressed, the child has expressed extreme views about her mother and about having time with her mother. These views are based primarily upon alleged adverse behaviour on the part of the mother, and her failure to acknowledge and apologise for such.
Absent evidence that could establish that such behaviour actually occurred, it is difficult to escape the inference that an alternate reason for the child’s polarised expression is responsible, being an undermining of the relationship by the father. That inference is reinforced by actions consistent with the influencing of the child. The father has withheld the child in contravention of orders, has made a manipulative report to the welfare authorities about the mother allowing the child to walk home from school in November 2016, has taken steps potentially undermining of the mother’s relationship with the child, by concealing a mobile telephone for the child to take to the mother’s residence, by messaging her while in the mother’s care, and by visiting the child at school during the mother’s time.
The inference is supported by the child’s echoing of the concerns the father has expressed about the mother, in particular as to historical concerns of the mother engaging in behaviour and failing to apologise or acknowledge those behaviours. In the absence of having shown that those matters occurred the child’s reflection of the father’s views is suggestive of her being influenced by the father.
The inference is also reinforced by the nature of the child’s reaction to the mother in black and white terms, which is not characteristic of a child having problems with the behaviour of one of the parents.
The inference is again reinforced, in the absence of evidence capable of showing adverse behaviour on the part of the mother, by the trajectory of the decline of relationships between the mother and each of the three daughters. Since consent orders were entered into in November 2013 each of the three daughters has moved from living eight nights per fortnight with the mother and six nights per fortnight with the father to, in the case of Ms F and E, not spending any time whatsoever with the mother and, in the case of the child, transitioning to an equal time arrangement then to no time following the commencement of the proceedings in the Children’s Court. At present the child is in a week about arrangement with her mother, following multiple orders by this Court to deal with the father’s non-compliance.
The inference is sufficiently strong to permit a finding that the father is influencing the child against the mother. Even if that were not so, the collection of matters that support the inference supports a finding of significant risk of destruction of the mother’s relationship if the child continues under the influence of the father.
The father has apparently been compliant with orders since April 2017, allowing the matter to revert back to the week about arrangement. In the face of the final proceedings, the relationship between the child and the mother has, on either account, improved.
While it is possible to draw an inference from this that the father will now be supportive of the relationship between the mother and the child, that inference should not be drawn because of the father’s comments about the child awaiting the outcome of these proceedings and his concerns that she will run away from the mother. The father’s observation that the child is waiting for the outcome of the proceedings predicts ill for the future.
Further, his assertions as to the mother’s conduct, having not been made out, coupled with his caveat upon future compliance with orders, can lead to no confidence of either compliance with orders or support for the mother’s relationship being inferred from the past six months of compliance.
Rather, the past six months of compliance supports the notion that, despite the child’s expression to the family consultant, there is in place an underlying relationship with the mother that does not mean that the child will necessarily run away from her.
In summary it may be seen that there is a serious risk of the demise of the relationship between the child and her mother as a consequence of the father’s conduct. The father has a close relationship with the child, and a strong relationship that is likely to endure a reduction in the time that he spends with the child.
The child’s best interests are the paramount consideration in these proceedings. In determining what is in her best interests it is necessary to consider the matters set out at s 60CC of the Act.
As to the first of the primary considerations, there are benefits to the child in having a meaningful relationship with each of her parents. These were identified by the family consultant.
As identified above, the child has a trusting and close relationship with her father. Despite orders for equal time being in place since October 2015, she has in fact lived the majority of her time with her father, including for a period of time between November 2016 and April 2017 when, due to proceedings in the Children’s Court, and then the with-holding by the father after the end of the Children’s Court proceedings, she lived solely with her father and spent only a small amount of time with her mother.
The current relationship with the mother is not clear, given the assessment process with the Family Consultant. However, despite those expressions, the child has spent week about time with her mother since the making of the Johns J orders, contradicting the child’s view of the relationship as expressed to the Family Consultant. The consequences of loss of relationship with her mother and correspondingly the benefits of relationship with her mother have been set out above in the analysis of the Family Consultant’s evidence. They include loss of the primary female role model and significant consequences to her development and future relationships.
The choice in relation to meaningful relationships with each parent is stark. If the child lives with her father, there is a strong risk that she will have no relationship with her mother. If the child lives with her mother, to combat the risk that the father will undermine that relationship in any event it will be necessary to significantly limit his time with the child. However, their relationship is of a nature to endure this.
While the second primary consideration, of risk of harm through exposure to abuse, neglect or family violence was raised in the proceedings, the evidence did not support the assertions made by the father, in generalised terms, against the mother. The evidence did not rise to a standard whereby it could be said that the mother presents a risk of harm to the child.
The child, who is approaching twelve years old, has expressed strong views. She has said that she wants to spend no time with the mother. She has indicated that she will run away or kill herself if forced to be with the mother. Despite this expression of views, the father says that the child should spend some regular time with the mother. This indicates that the expressions should not be taken at face value. Further, despite these indications, none has eventuated in the last six months where the child has been living week about. The expressed underlying basis for these views, being the mother’s historical conduct has not been supported by evidence and for the reasons set out above it appears that the views should be sheeted home to the father. The weight given to them should be minimal, particularly as their end point would be the end of the relationship between the child and the mother.
The nature of the child’s relationships with each of her parents has been set out above. She also has close and important relationships with her siblings. Separation from the father will involve separation from those relationships as they take place in the context of being with the father.
Section 60CC(3)(c), (ca) and (h) do not appear to arise in these proceedings to any significant extent. Both parents have supported the child and attempted involvement in decision-making and communication with her.
The mother seeks a major change in the circumstances for the child such that there would be a significant period of time where she would have no contact with her father (and hence siblings) and thereafter would live primarily with the mother. It is likely that the child would find this difficult at least to start with and would miss her father and her siblings. She would undoubtedly experience a sense of loss. At the same time, she has, since the Johns J orders been spending week about time with the mother.
The practical difficulties with communicating with a parent do not emerge other than as a product of the relationship between the parents. If the child is to live with the father, communication with the mother will become impracticable by virtue of the undermining of the relationship. If she is to live with the mother, communication with the father will be difficult because of the risk of undermining, and hence the appropriateness of a moratorium upon her contact with her father.
In relation to the capacity of each the parents, given that the deficits in the mother alleged by the father have not been established, there is little to suggest an incapacity on her part. It is true that some deficit has been demonstrated in relation to her recourse to professional assistance in respect of the child in the past with Ms P. A more alarming and significant deficit is seen in the father’s parenting of the child. Under his parenting, the relationship with the mother is significantly undermined. This points to a serious incapacity on his part to provide emotionally for the child.
Personal characteristics of the child and the parents have not been identified save to the extent they have been dealt with under the other considerations.
In relation to the attitudes to the child and the responsibilities of parenthood, these matters have been sufficiently addressed in relation to the capacity of the parents.
In terms of family violence, the allegations against the mother have not been made out. While there have been intervention orders in the past, at present they have no significance to the proceedings.
It is difficult to predict what set of orders might lead to the institution of further proceedings and which may not. The parties have previously had the benefit of final orders that provided for the children to live with the mother and for the father to have substantial and significant time. The matter has been re-litigated since that time and, despite orders for equal shared time subsequent interlocutory litigation has been necessitated by virtue of the father’s non-compliance with those orders. A prediction cannot be made as to which course is more likely to bring further litigation.
In this case it is contrary to the child’s best interests that the parents have equal shared parental responsibility. Neither of them seeks that such an order should be made, each seeking as a prime position that they have sole parental responsibility. The vast gulf between them and their inability to communicate in respect of the child means that would be contrary to her interests to force them to cooperate about long-term decision-making for the child. They could not comply with the obligations of shared parental responsibility as set out by s 65DAC. Each seeks that the child live primarily with them. Shared care has been identified by the family consultant as contra indicated. The child will be required to live primarily with one of the parties and it is appropriate that party has the sole parental responsibility for the child.
The time that the child is to spend with each party thereby falls to be determined without reference to a particular pathway of reasoning, on a consideration of best interests in accordance with the matters set out in s 60CC.
While there are factors that point in either direction, determinative weight in this case should be placed upon the desirability of the child having a relationship with both of her parents. This can only be achieved by the child living with the mother and having limited time with the father, for the reasons identified above.
The recommendation of a moratorium on contact with the father for a period made by the family consultant is a sensible mechanism to reinforce the relationship between the mother and the child. Given that it cannot be predicted that the father will be supportive of the relationship at the end of this period, there will need to be a transition to substantial time with the father, for fear of an undermining of the relationship with the mother.
Further, the difficulties between the parents mean that it is not in the child’s best interests to make orders regarding special occasion time with each parent. The risk of undermining by the father means that it is not in the child’s best interests for there to be provision for longer blocks of time with the father, such as on school holidays.
However, despite there remaining a risk into the future, the benefit of relationship with the father, and with the siblings means that, after a significant time has passed to reinforce the relationship, there ought be a transition to a 4:10 arrangement. While, if the relationship is then undermined there is a strong risk of further litigation, this risk is worth taking to give the child the benefits of relationship with both parents.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 December 2017.

Associate:

Date: 19 December 2017

[2017] FamCA 1043

19 December 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies