Karl and Larsons - [2012] FMCAfam 27

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KARL & LARSONS

[2012] FMCAfam 27

FAMILY LAW – Parenting – with whom the child should live – serious allegations by each parent against the other – consideration of those matters arising pursuant to the provisions of sections 60B and 60CC(2) – balancing child’s right to a meaningful relationship with both parents and the need to ensure that the child is protected from physical or psychological harm – psychiatric evidence relating to the mother and her inability to foster a relationship with the father or to have any confidence in the father and his capacity to provide for the child – consideration of concerns with regard to alienation or manipulation of the child by the mother – consideration of rebuttal of the presumption of equal shared parental responsibility and of that being appropriate in all of the circumstances – the need to re-establish the relationship with the father without the possibility of interference thereto – orders with respect to a reversal of with whom the child is to live and a three month moratorium on time spent with the other parent.

Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, (2), (3), 3(m), 61B, 61C(2), 61D(1) and (2), 61DA(2), (4), 65DAC, 65DAE, (1), (2)

Lansa & Clovelly [2010] FAMCA of 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell v Chappell (2008) FLC 93-382

Applicant:

MS KARL

Respondent:

MR LARSONS

File Number:

WOC 583 of 2009

Judgment of:

Coker FM

Hearing dates:

14-16 November 2011

Date of Last Submission:

29 November 2011

Delivered at:

Sydney

Delivered on:

20 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Green

Solicitors for the Applicant:

PJ Carey Solicitors

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Robertsons Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Jackson

Independent Children’s Lawyer:

Legal Aid NSW Nowra

ORDERS

That the Father have sole parental responsibility for decisions relating to the long-term care, welfare and development of the child, [X] born [in] 2004, subject to the communication and notification of such decisions to the Mother.
That notwithstanding the provisions of order 1 herein:
(a)The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.
(b)The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.
(c)The Father have sole parental responsibility for the child including but not limited to the following matters:
(i)a child’s education (both current and future);
(ii)child’s religious and cultural upbringing;
(iii)a child’s health;
(iv)a child’s name;
(v)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
That the child, [X] born [in] 2004, live with the Father.
That the child have no contact with the Mother for three months from the date of these Orders.
That, for a period of two months following the operation of Order 4 herein, the child spend time with the Mother on a supervised basis, such supervision to take place at the [omitted] Children's Contact Service at Nowra each alternate Saturday for two hours, from 10am until noon or as may otherwise be able to be facilitated by the Contact Service.
That thereafter and until commencement of the school year in 2013, the child live with the Mother as follows:
(a)During school terms only, each alternate weekend from after school on Fridays to the following Monday morning before school, provided however that should the Father’s Day weekend in 2012 fall on a weekend which would normally be spent with the Mother pursuant to these Orders, then that weekend is to be forfeit and be spent with the Father.
(b)On Christmas Day, from 4.00pm Christmas Day until 4.00pm Boxing Day;
(c)On the child’s birthday if she is attending school that day, or not coinciding with a weekend referred to in paragraph 6(a) above, from 4.00pm to 6.00pm.
That from the commencement of school in 2013, the child live with the Mother as follows:
(a)During school terms only, each alternate weekend from after school on Fridays to the following Monday morning before school, and should the Mother’s Day weekend commencing in 2013 fall on a weekend which is not normally spent with the Mother pursuant to these Orders, then on that weekend, from after school on Friday to the following Monday morning before school, provided however that should the Father’s Day weekend commencing in 2013 fall on a weekend which is normally spent with the Mother, then that the Father’s Day weekend be forfeit;
(b)The first half of the shorter school holidays commencing in 2013, from after school on the last day of the prior school terms, (that is terms 1, 2 and 3); and concluding at 4.00pm on the second Saturday of such school holiday;
(c)During the Christmas school holidays commencing in 2013:
(i)for the first two weeks of January commencing at 9.00am on the first Saturday in January, and concluding at 9.00am on the third Saturday in January; and
(ii)thereafter, from the commencement of the Christmas school holidays in 2014, for the first three weeks of January commencing at 9.00am on the first Saturday in January, and concluding at 9.00am on the fourth Saturday in January.
In the event that the child’s school is not available for changeover due to the school being closed, or the child not attending school on that changeover occasion, then the place of changeover be the [omitted] Children's Contact Service located at Nowra in the state of New South Wales; and if that contact services place is not available, the alternative place of changeover shall be the home of the Father’s father, Mr R Larsons, located at [address omitted], Nowra in the state of New South Wales.
That each party be able to communicate with the child by telephone at all reasonable times whilst the child is in the other parent’s care subject to a delay of three months to accord with Order 4 herein.
That each party shall authorise all health and medical practitioners to provide all information as to the child’s health to the other party as that other party may require.
Each party shall authorise the school which the child attends to supply to the other copies of school reports and other important communications from the school in relation to the child and both parties may attend school functions and parent/teacher meetings.
That each party be restrained and an injunction issue restraining them from making critical or derogatory remarks about the other or members of their family within the presence or within the hearing of the child, and that each parent will do all such things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of their family in the presence of or within hearing of the child.
That the Independent Children's Lawyer is to explain, face to face to the child, the nature of the Final Orders on the day such Orders are made by the Court.
That at the conclusion of any appeal period, the Independent Children’s Lawyer then be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 583 of 2009

MS KARL

Applicant

And

MR LARSONS

Respondent

REASONS FOR JUDGMENT

These proceedings relate to the parenting of the child [X]. [X] was born [in] 2004 and is therefore a little over seven years of age. She is the child of the relationship between Ms Karl, whom I shall refer to as the mother, and Mr Larsons, whom I shall refer to as the father.
The case is tragic. The parties were in a relationship which was unpleasant for all. The relationship was one that according to the mother existed for a little under six years from November 2002 until August 2008. The father’s position, however, is to say that the relationship was longer than that, ending finally in February 2009. No matter what might be the case in relation to the matter it is one which obviously had led to the most dreadful hurt, both to the parties, but far more significantly and far more tragically to the child, the subject of the proceedings.
The parties have been engaged in bitter litigation for nearly three years. The mother filed the initiating application in these proceedings on 25 March 2009 in the Local Court at Nowra. In that application she sought orders on both an interim and final basis in relation to the parenting of the child which were to the following effect:
1. That the child [X] born [in] 2004 live with the mother;
2. That the Mother and Father have shared parental responsibility for the long term care, welfare and development of the child;
3. That each party be solely responsible for issues concerning the day to day care, welfare and development of the child whilst she is in his or her care;
4. That the child spend time with the father:
(a)each alternate weekend from 6.00pm Friday to 4.00pm Sunday;
(b)On Christmas Day in the even numbered years from 4.00pm Christmas Day until 4.00pm Boxing Day;
(c)On Christmas Day in the odd numbered years from 4.00pm Christmas Eve until 4.00pm Christmas Day;
(d)On Father’s Day for four (4) hours as arranged between the parties;
(e)On the child’s birthday if she is attending school from 4.00pm to 6.00pm and on days when she is not at school for four (4) hours as arranged between the parties;
(f)at such times mutually agreed upon by both parties;
5. That each party be able to communicate with the child by telephone at all reasonable times whilst the child is in the other parent’s care;
6. That each party shall authorise all health and medical practitioners to provide all information as to the child’s health as the other party may require;
7. Each party shall authorise the school which the child attends to supply to the other copies of school reports and other important communications from the school in relation to the child and both parties may attend school functions and parent/teacher meetings.
The father responded to that application on 28 April 2009. In his response he sought orders which were not that different from those contained within the mother’s application. The orders were perhaps a little more detailed, but the final orders proposed that there should be equal shared parental responsibility, that each parent should have sole responsibility for day-to-day decisions to be made in relation to the children’s lives, that the parties be entitled to attend all events involving the child including sporting fixtures, extra-curricular activities and school functions and proposed that the child should live with the mother, but otherwise spend time with him.
His proposals for time were as follows:
a) From 9.00 am Sunday to 4.00 pm Wednesday each week (week 1);
b) From 9.00 am to 6.00 pm each alternate Saturday (week 2);
c) For the first half of each school holiday period or as otherwise agreed between the parties.
The father’s proposals then went on to detail arrangements in respect of special days including Father’s Day, Christmas Day, Good Friday, Easter Saturday through until Easter Sunday, as well as for the child’s birthday, the father’s birthday, New Year’s Day and for other times as might be agreed between the parties.
The father then proposed a number of additional orders including orders in relation to the child not being removed from the state of New South Wales for a holiday without the consent of the other party provided in writing, that there should not be a relocation from the [omitted] area, and when circumstances arise, such that the parent who has the child in their care is not able to supervise the child, then that a first option be given to the other parent to be responsible for the care during such a period of time.
Additionally, orders were sought under the headings:
·Orders for communication.
·Orders for transportation.
·Orders for derogatory remarks.
·Orders for parental communication.
·Orders for dispute resolution
It is noted of course that the father’s proposal is that [X] should be in his care for three days or three nights each fortnight and for the additional opportunity for time on each alternate Saturday from 9.00 am until 6.00 pm. That is, as I have indicated, not radically different from the mother’s proposal of two nights each alternate weekend.
The parties were in fact able to reach a basic agreement in respect of what was to occur in relation to time to be spent by the father with the child though it would seem clear that there was almost immediately a breakdown in such arrangements and the father’s time with the child has thereafter been enormously limited. There appears to be some confusion as to exactly when the father’s last opportunity to spend time with [X] occurred other than the brief interlude at the time of interview with Dr S, but it is clear that a period in excess of two years, and perhaps even in excess of 2.5 years has elapsed since any real opportunity has arisen in relation to time being spent by the father with the child.
This includes difficulties that arose with regard to further orders that were made. As I indicated, for example, orders were made with regard to the father spending time with the child in 2009, but very quickly those arrangements broke down and a significant period, perhaps again in excess of 1.5 years, passed until further orders were made by consent on 22 November 2010 for what is commonly referred to as supervised time spent by the father with the child. Order 3 of those consent orders of 22 November 2010 is in these terms.
3.     That the father spend time with [X] under supervision at the    Children’s Contact Service (Nowra) for one hour each fortnight and to facilitate such time:
(i)     Each party must:
(1) Contact the Children’s Contact Service within seven days to arrange an appointment for assessment for suitability;
(2)     Attend the assessment;
(3)Comply with any appointment made by the Children’s Contact Service;
(4)Comply with all reasonable rules of the Children’s Contact Service;
(5)Comply with all reasonable requests or directions of the staff of the Children’s Contact Service;
(6)If the Children’s Contact Service following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven days written notice to the other party and to the Court.
(ii)If the parties are accepted by the Children’s Contact Service following intake procedure then the father is to spend time with [X] each alternate Sunday at a time nominated by the Children’s Contact Centre and such time is to be implemented by the mother delivering [X] to the Children’s Contact Service (Nowra) at the start of the father’s time with [X] and collecting [X] from the same place at the end of the father’s time.
(iii)In the event that the Children’s Contact Service is only able to/prepared to offer supervised time at times that differ from the Sunday proposed above, then the time under supervision shall occur at the times which can be provided by the Children’s Contact Service.
(iv)The parties shall each pay the fees nominated by the Children’s Contact Service for the provision of its service.
Unfortunately the arrangements there, which appear to have been quite comprehensively considered and entered into by agreement between the parties, never occurred, and a matter of only some six weeks or so later, after the intake procedures were done, notification was provided by the Contact Service that there was not a facility available for the purposes of the father spending supervised time with the child. It appears clear, that the correspondence which was forwarded by the Children’s Contact Services also indicated that the reason that there was not a facility available in that regard, was a refusal on the part of the mother to make the child available in terms of any arrangements with regard to the father spending time with the child.
Apparently that arose, the mother says, from a concern she had that the express intent of the Contact Service was to seek eventually to re-establish a relationship of a beneficial and meaningful nature between the father and the child.
The mother’s refusal to participate on such a basis unfortunately appears to be a recurring theme throughout the tragic two and a half years that have followed the institution of proceedings involving these parties and this child.
The final position in relation to orders sought by each of the parties was detailed in material filed by them for the hearing. The mother, however, filed no material after an affidavit sworn by her in November 2010. Why that might have been is unknown though one could speculate as to a number of reasons including a real reluctance on the part of the mother to fully involve herself in the proceedings, notwithstanding that it was her who filed the initiating application.
The last indication of the mother’s proposals in relation to this matter are contained within the amended initiating application filed 13 October 2010. The orders sought by the mother there are as follows:
1. That the child [X] reside with the mother
2. That the child spend time with the father once per month for two hours under the supervision of Centrecare or some other supervisory agency at Nowra for three months of the date of these orders;
3. Thereafter, provided that the time spent with the father has proved satisfactory to the supervisory agency that the time spent with the father be increased to two hour per fortnight provided that the supervisory agency can provide supervision;
4. That prior to the first contact the father provide an up to date urinalysis certificate showing that he has no illicit substances in his system to the supervisory agency. In the event of the father failing to provide the clear certificate he shall not be permitted to spend time with [X].
5. That during such periods of contact the father provide monthly certificates of unrinalysis (sic) showing no illicit substances in his system and in the event of the father failing to provide a clear certificate he shall not be permitted to spend time with [X].
6. That the father shall not drink alcohol, not take illicit drugs during anytime [X] is spending time with him.
It is clear that what the mother proposes is time by the father with the child of the most limited and restricted nature. The proposal is two hours per month under supervision for three months and thereafter to two hours per fortnight, but still of a supervised nature, and only upon the basis that the, “supervisory agency”, is satisfied that the first three months of two hours per month has progressed satisfactorily. How that was to be assessed, and whether the mother would accept any recommendation or suggestion by the supervisory agency, is unclear, and perhaps that again is an indicator or a pointer to the very real difficulties that arise in relation to this matter.
In any event the final position taken by the mother, and of course it was only elaborated in cross-examination some 13 months after the amended initiating application was filed, is that she really sought for there to be no time whatsoever spent by the father with the child.
The father filed an amended response to the initiating application on 25 February 2011 and detailed there what orders he specifically sought in relation to the parenting of the child. It was, in fact, a significantly changed document from that which was detailed in the response filed in the Local Court at Nowra. The father’s proposals now were to the effect that he should have sole parental responsibility for [X], that the child should live with him, and that the mother should spend time with the child from 5.00 pm Friday to 5.00 Sunday, as well as for one-half of the school holiday periods, on special days and the like. If anything, it was a reversal of the mother’s original proposals in relation to time being spent by him as contained within her original application.

The father’s amended response did then go on to propose arrangements in relation to additional orders including orders for communication, orders for transportation, orders Re derogatory remarks, orders for parental communication, and orders for dispute resolution as were detailed in the original response.
The father’s legal representatives filed in accordance with directions a case outline on behalf of the mother a few days prior to the commencement of the hearing on 14 November 2011. There was no change in what the father proposed in relation to the parenting of the child from what was outlined in the amended response of 25 February 2011.
The independent children’s lawyer provided a case summary document prior to the commencement of trial. It did not contain information as to what orders might be recommended by the independent children’s lawyer. Rather, at the commencement of trial, counsel for the independent children’s lawyer indicated that the independent children’s lawyer had not yet formed a final view and would understandably, consider the evidence as it fell before making any recommendations. Submissions were made two weeks after the trial began and at that time provided a draft of the final orders sought. They were as follows:
1. That on the condition that the Mother is given notice of the Court making Final Orders, she is ordered to ensure that on the day such Final Orders are made by the Court, she shall ensure that the child [X], born [in] 2004 is delivered to the child care centre of the Sydney Registry of the Family Law Courts Building, no later than 10.00am that day.
2. That the Independent Children's Lawyer is to explain, face to face to the child, the nature of the Final Orders on the day such Orders are made by the Court.
3. That the Father have sole parental responsibility for the child, [X], born [in] 2004.
4. That child have no contact with the Mother for the three months from the date of these Final Orders.
5. That, for a period from three months until five months from the date of these Orders, the child spends time with the Mother on a supervised basis, such supervision to take place at the [omitted] Children's Contact Service at Nowra each alternate Saturday for two hours, from 10am until noon.
6. That from five months from the date of these Orders, the child live with the Mother as follows:
(a)during school terms only, each alternate weekend from after school on Fridays to the following Monday morning before school;
(i) Inclusive of these weekends, shall be the Mother’s Day weekend, from after school on Fridays to the following Monday morning before school. Such a weekend is deemed to be inclusive, not in addition to, the weekends referred to above in paragraph 4(a).
(b)On Christmas Day in even numbered years from 4.00pm Christmas Day until 4.00pm Boxing Day;
(c)On Christmas Day in odd numbered years from 4.00pm Christmas Eve until 4.00pm Christmas Day;
(d)On the child’s birthday if she is attending school that day, or not coinciding with the weekend referred to paragraph 4(a) above, from 4.00pm to 6.00pm.
7. That from twelve months from the date of these Orders, the child live with the Mother as follows:
(a)The first half of the shorter school holidays, commencing after school on the last day of the prior school terms, (that is terms 1, 2 and 3); and concluding at 4pm on the second Saturday of such school holiday.
(b)In relation to the summer/longer school holidays,
(i)     for the first applicable summer/longer school holidays, (being the first such summer/longer school holidays from twelve months from the date of these Orders);
(1)for the first two weeks of January commencing at 9.00am on the first Saturday in January, and concluding at 9.00am on the third Saturday in January.
(ii)thereafter, (that is, from the second applicable summer/longer school holidays, (being the second such summer/longer school holidays from twelve months from the date of these Orders, and thereafter):
(1)for the first three weeks of January commencing at 9.00am on the first Saturday in January, and concluding at 9.00am on the fourth Saturday in January.
8. That the child live with the Father for all other times.
9. In the event that the child’s school is not available for changeover due to her school being closed, or the child not attending school on that changeover occasion:
9.1The place of changeover be the [omitted] Children's Contact Service located at Nowra in the state of New South Wales; and if that contact services place is not available, the alternative place of changeover shall be the home of the Father’s father, Mr R Larsons located at [address omitted], in the state of New South Wales.
10.    That each party be able to communicate with the child by telephone at all reasonable times whilst the child is in the other parent’s care subject to a delay of three months to accord with Order 4 herein.
11.    That each party shall authorise all health and medical practitioners to provide all information as to the child’s health to the other party or that other party may require.
12.    Each party shall authorise the school which the child attends to supply to the other copies of school reports and other important communications from the school in relation to the child and both parties may attend school functions and parent/teacher meetings.
13.    That each party shall refrain from making critical or derogatory remarks about the other or members of their family within the presence or within the hearing of the child and that each parent will do all such things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of their family in the presence of or within hearing of the child.
Before turning to the evidence in relation to this matter, a couple of comments are however appropriate in relation to the proceedings.
Firstly, it is troubling that there should have been an order made in November of 2010 which provided specifically for the father’s opportunity to spend time with the child, even upon the limited supervised basis that was set out in that order, but that did not occur. However, what is far more troubling is that order 3i(6) specifically provided for liberty to restore the matter to the list, upon the giving of seven days notice, in the event of the contact service being unable or unwilling to provide supervisor.
That did not occur and as a result of that particular circumstance arising, a year passed from when the order was made to when the matter proceeded to hearing, with the father spending virtually no time whatsoever with the child, other than for a period of an hour or two in May of 2011 when the child was brought into contact with the father for the purposes of the preparation of the family report which was commissioned by the independent children’s lawyer. It is unclear why no step was taken in that regard, though it’s noteworthy that in cross-examination, the father was asked by counsel for the independent children’s lawyer why nothing more had been done and he indicated generally that he was unaware that that could or should have occurred.
I am not in a position nor is it appropriate for me to lay blame in relation to this matter at the feet of the legal representatives whomever they may be, and for whomever they may act, but what is clear here is that these parties had little experience in relation to the conduct of proceedings within the Court, and it does seem that there has been a lack of diligence on the part of the legal representatives to ensure that their obligations, as officers of the Court had been met, in ensuring that steps are taken so as to have orders properly made which reflect circumstances in respect of proceedings.
It is almost beyond comprehension that when the father was not able to have an opportunity to spend time with the child, pursuant to the orders of 22 November 2010, that it did not occur to the legal representatives to seek to have the matter brought back on, as that was clearly envisaged in the consent orders that were made at that time.
It is also, I should note, interesting that at that time, the child was the subject of independent representation and again unfortunately there appears to have been no step taken by the independent children’s lawyer to ensure that the child’s right to a meaningful relationship, however that may have been able to be facilitated, was not fostered as a result of some form of compliance with the orders.
I make those comments not to specifically set out to criticise the legal representation in relation to this matter, but to emphasise the importance of diligence and professional behaviour on the part of each and every legal representative who takes on the incredibly important role of a representative for parties to proceedings before any court exercising jurisdiction in relation to matters associated with family law, and perhaps more specifically, the very significant and important role that is taken on by an independent children’s lawyer as a representative of children who are of course generally unable to perhaps express their own needs, thoughts and wishes in a clear and appropriate manner.
I had the opportunity of hearing a number of days of evidence in relation to this matter. Each of the parties gave evidence and were cross-examined at length in respect of their position in relation to this matter. I also had the opportunity of reading a comprehensive family report prepared by Dr S, an experienced child and family psychiatrist. Also providing some evidence in relation to the matter was the present husband of the mother, Mr T, and also evidence from the father’s sister Ms W and his partner Ms L.
I will comment upon the evidence of each of those parties, including the mother and father in due course, but I think it is important to note here as is perhaps almost always the case, that the evidence of the two principal players are central to the determination of this matter, and it is important, that whilst consideration be given to those supporters who provided evidence in relation to the proceedings, there needs to be a clear recognition of the very great significance that flows from the evidence of the parties themselves.
Additionally, in this matter however there was the evidence of Dr S which was of enormous assistance in assessing many of the issues that came before the Court in what could only be described as a complex and difficult case.
I turn firstly then to the evidence of Mr T. The mother and Mr T married in August of 2011. They had however, been in a relationship for a period of about two years or so prior to that, and Mr T has taken on a very significant role in relation to providing love, support and nurture for the mother. One could not be critical of that in any way, but I was troubled by a number of matters that arose as a result of the evidence by Mr T, contained both within his affidavit which was filed on 14 November 2011, and also which arose as a result of his oral evidence given before the Court.
Mr T had nothing positive to say in relation to the father. His views in relation to the father appear very much to have been established as a result of his support for his wife, the mother, in these proceedings. He commented upon the scar that was on the father’s arm as a result of what was referred to during the proceedings as:
The incident that occurred at the paternal grandfathers 50^th birthday function in August of 2007.
Mr T’s comments in relation to that was that he noticed a scar on the father’s arm which was quite visible.
In passing I should note that when evidence was taken from the father he was asked to show his right arm to the Court, and that occurred. His right arm is heavily tattooed and at least I must say from my own perspective, when he displayed his heavily tattooed arm I was unable at all to see any scarring on the arm. I accept of course, that Mr T’s evidence was that he had seen the injury to the father’s arm some three years or so ago, and that there may have been very significant changes in relation to the obvious nature of the scarring to the father’s arm, as well as to whether additional tattooing may have been done.
What is more significant, however, in relation to the matter, is that Mr T indicated that the story told to him by the father, as to how the injury had occurred was entirely different to the real facts and it gave rise to the assessment by Mr T that as the father was untruthful, in that particular aspect of his life, and no doubt, it was then a reflection of all of the behaviours that would arise, in relation to the father.
Quite simply, Mr T had nothing positive to say in respect of the father. He was very much of the view that the father was a drinker and a drug user, and had not in any way changed his ways from those which were apparent when he was a much younger man, or even a teenager, and that in the few conversations that he had had with him, when first having met the father, he had formed his own views in relation to the father.
Mr T spoke of an occasion where he had delivered, although I assume more accurately had served the father with documentation, in relation to the proceedings brought by the mother. His version of events can be summarised as a suggestion that the father had been accompanied by two other men at the time that service was effected, and that these persons along with the father, sought to intimidate Mr T. The father’s version of events, as became clear from the line of cross-examination, that was directed to Mr T was that the father had been accompanied by two other gentlemen as a result of the intimidating behaviour of Mr T directed toward him, when some demands were being made for payment of moneys owing in relation to work performed by Mr T upon the mother’s residence.
Not much turns upon that particular issue, other than to say that there is clearly a lack of any respect or perhaps even civility exchanged between Mr T and the father and, whilst it is a difficult determination in relation to these proceedings, in light of so much other evidence that has fallen in relation to the matter and, in particular, in light of the very clear support and affiliation provided by Mr T for the mother and the very troubling nature of almost the entirety of the evidence of the mother, I am more inclined to accept, that if it were necessary to make a decision as to the circumstances of the exchange between the father and Mr T at the time of handing over certain documents from the mother’s lawyers, that it was more a case of the father seeking to have persons with him so as to ensure that nothing escalated over and above intimidating behaviours on the part of Mr T.
I am comforted in that particular view in relation to this matter in that I gained the distinct impression that the stance taken by Mr T was one of his being, in every respect, a more superior and appropriate person, both as a father and as a human being than was the case of the father. Mr T indicated that he did not drink and that he did not approve of drinking. He made it abundantly clear that the stories, and they are nothing more than stories, catalogued by the mother in relation to the father’s alcohol and drug use were gospel truth and that that, if nothing else, was an indication of the father’s lack of quality as a human being or as a parent for [X].
I gained the distinct impression, that whilst he denied that he was setting out to take on a role as the appropriate father figure for the child, [X], that that was exactly what he and the mother’s intent was in relation to the father and that his role in relation to the matter was one of appropriately replacing a poor role model, with a positive role model.
I was troubled in that regard and I raised it in a question that I directed to Mr T in relation to this matter, because Mr T, in interviews apparently with Dr S, and he acknowledged that it was the case, noted that the father, “doesn’t give a rat’s” about the kid. “He is not much of a human being.” He said a father would do anything for a daughter. “I would move heaven and earth to see my daughter.”
When evidence became more apparent in relation to the matter, however, it was clear that whilst Mr T suggested he was, it would seem, in every way the perfect example of what a father should be, he had not seen his own daughter for a period approaching five years. He explained that in terms of the difficulties that he might have in seeing the child and the costs of litigation and yet the disparity in the circumstances of he and the father was obvious.
The father was before the Court at that very moment seeking the opportunity for a relationship with his child and Mr T had not taken any steps in that regard but he then had the temerity and was so hypocritical as to criticise the father’s position, in relation to the matter.
I was not overly impressed with Mr T in relation to these proceedings. Whilst I had no doubt as to his quality as a human being, I gained unfortunately the distinct impression that he was so enmeshed in the mother’s position in relation to this matter and had so fully and entirely accepted her version of events in relation to the proceedings that he could not be anything other than biased in his view of what might be the qualities of the father and the benefits to the child of the father having a relationship with her.
I also had the opportunity of hearing evidence from the father’s sister, Ms W, and from his partner, Ms L. Ms W’s evidence in relation to this matter was contained within her affidavit filed 6 September 2011. It is a short affidavit and details comments generally in relation to her observations of the father’s interaction with [X], up until early in 2009 when separation occurred and comments particularly with regard to the August 2007 incident which occurred at her father’s 50^th birthday party.
It is noteworthy that in paragraph 5 of her affidavit she says the following:
In August 2007 we had a party at [Suburb omitted] to celebrate my father’s 50^th birthday. Ms Karl, Mr Larsons and [X] attended the party along with around twenty family and friends. During the party I observed Ms Karl drinking what I believed to be rum and coke. Ms Karl appeared intoxicated and speech was slurred, she was loud and unsteady on her feet. Ms Karl left the party with [X] and drove away. As she drove away the car did a burnout.
Counsel for the mother cross-examined Ms W in relation to a number of issues with regard to her observations of the father and her knowledge of the father’s aggressive behaviours and also knowledge of the father’s alcohol consumption. She was also questioned about her comments in relation to her daughter, [Y]’s relationship with the father and her apparent confidence in the father’s capacity to act as an appropriate role model and parental figure in relation to the child.
At no time, however, was she asked any questions in relation to her direct evidence in respect of the circumstances, at least which were seen by her, at the 50^th birthday party. She was not challenged in relation to the fact that the mother was drinking, notwithstanding the fact that the mother’s evidence given in relation to this matter, was that she was the designated driver and had not been drinking on that occasion, as she was to drive the father home.
She was also not challenged in relation to her observations which she said related to the mother being intoxicated, indicated by slurred speech and being loud and unsteady on her feet. She was also not challenged in relation to the fact that the mother removed herself and the child [X] from the residence, whilst Ms W noted that she was intoxicated and in a manner which was dangerous, in that she drove from the residence in a motor vehicle which did a “burnout” as she left the residence.

I thought Ms W was a most impressive witness. She gave considered answers to the questions that were directed to her, particularly with regard to, for example, issues in relation to alcohol use or abuse by the father and issues of domestic violence, though there does appear to have been some confusion as her examples of having observed the father being violent related to what more likely would be described as sibling aggression, when they were much younger.
She reflected upon an exchange of punches between she and her brother when they were around 10 or 11 years of age and of course that is a very different thing to the adult issues of domestic violence and intimidating behaviours, which constitute domestic violence. In that regard, she was most adamant that she had not witnessed the father, as an adult, behave in such a manner.
She was also, I thought, appropriately considering of the mother’s position in relation to these proceedings, in that when challenged as to her observation that the mother had been “rather short with [X] and seemed to rush many things”, acknowledged that that could simply be a difference in parenting style and is not something that she has observed, because of the breakdown in the relationship for some two and a half years or more.
Generally, I thought that Ms W was a most impressive witness. She made appropriate concessions in relation to what was contained within her affidavit or otherwise when challenged in relation to such matters, and one can only assume that not being challenged in relation to that seminal issue with regard to behaviours on the evening of the paternal grandfather’s 50^th birthday party, it can only be accepted that her evidence there was acknowledged by the mother as an accurate reflection of what had occurred, on that particular evening. I was assisted by the considered nature of the evidence of Ms W given both in her affidavit and orally.
I also had the opportunity of considering the affidavit of Ms L as well as seeing Ms L in the witness box. Additionally, I note that Ms L was interviewed by Dr S at the time of the preparation of her report in relation to this matter, and Dr S made a number of comments in relation to Ms L during her oral examination.
In relation to the evidence of Ms L directly however, I must say that again I was most impressed with her evidence in relation to this matter. She is a young woman, only 24 years of age and clearly was a little uncomfortable in appearing in Court and giving evidence in relation to the matter. However, I thought generally that her evidence was of a most appropriate and considered nature and in that regard I note that in respect of many of the questions that were directed to her, particularly in cross-examination by counsel for the mother, that she took a moment to consider the question before giving her answers.
Those delays, however, were not in any way an attempt to, “think up and appropriate answer,” but rather were a definite attempt on her part to compose her thoughts and to be able to then accurately and properly answer any question that was directed to her. She was also ready to make appropriate concessions in relation to issues that arose from her affidavit. For example, in relation to her statement contained within paragraph 8 of her affidavit that it was, “---rare for Mr Larsons to drink alcohol to excess, and I have not seen him drink more than the occasional drink for quite some time.” She acknowledged that she had seen him, on occasions, as she noted, “Drink alcohol to excess,” and noted that it was perhaps one or two occasions each year.
She was adamant, however, and I accept, that he was not violent when drinking to excess, and she described him both in her affidavit and to Dr S as well as acknowledging it in oral evidence as it being a situation where he was a gentle person. She acknowledged that the father had lost his temper, though again explained that as not being in “a violent way”, and she quite properly and quite honestly acknowledge that it was more often the case, if not entirely the case, that if the father were to lose his temper, it would be associated with his consumption of alcohol.
Ms L was an impressive young woman. She was shortly after the three days of the hearing to complete her qualifications in education and would be hoping in some way to join the workforce within a week or so. It was clear, however, that she intended to be there and to be supportive of the father and of his position in relation to seeking, if not entirely responsibility in relation to the care and supervision of [X], then to be there in every respect to assist in whatever time and to whatever degree the relationship was able to be fostered between father and child.
Dr S commented upon the maturity and importance of the relationship to the father arising from his relationship with Ms L. I gained the distinct impression that she was both a calming and positive influence on the father and that she would be nothing other than an appropriately supportive and caring person in [X]’s life.
I should also comment that I gained the distinct impression, both from the material filed and the considered nature of the answers that were given by Ms L to the questions directed to her in relation to this matter, that she was a demure woman and one who would never have entered into an intimate situation with the father, which might possibly have been observed by the child. I would specifically find that the suggestion by the mother about the child experiencing or observing the father and Ms L involved in intercourse during Ms L’s menstrual period is untrue.
It is a fabrication and it is a despicable denigration of Ms L. I accept categorically the evidence of the father which again was not challenged in relation to this matter, that he and Ms L had made a determination on the one or perhaps two occasions, though it does appear only to have been one from the evidence that is available, not to involve themselves in any intimate exchange, when the child was in their care.
The allegation is one which I do not accept would have come from the child and could only have arisen as a result of a direct construction or fabrication by the mother. It was despicable. I was assisted by the evidence of Ms L in relation to this matter.
I intend now to turn to the evidence of both the mother and the father in relation to these proceedings. It would normally be my practise to comment upon the evidence of the report writer in relation to the matter before turning to the evidence of the parties. However, in light of the very significant and substantial nature of the evidence that was given by Dr S in relation to this matter, I am of the view that it is appropriate that my observations and findings in relation to the evidence of each of the parents be set out, before turning specifically to the evidence of Dr S.
I turn then to the evidence of the mother. Unfortunately, I have rarely been as troubled or disturbed by the entirety of the evidence that has been given by a witness as I was by the end of the mother in these proceedings.
Dr S, far more professionally and eloquently than I, described the behaviours of the mother and what motivates her in relation to the proceedings before the Court. I was troubled by the fact that Dr S was of the view that the mother was not fantasising, in relation to many of the statements that she made. Counsel for the independent children’s lawyer asked Dr S whether the mother would have difficulty defining a difference between fact and fiction. Dr S assessed that the mother knew exactly what was true and what was nor true.
More particularly, Dr S went on to emphasise that the mother will say what suits her and it is not therefore a situation where the mother thinks something may have happened and then it becomes her reality, but rather the mother is able to distinguish between fact and fiction and yet makes statements designed specifically to achieve her own goals or to seek to manipulate a party or parties, as and when it suits her purpose.
I noted that at the very commencement of the evidence, in relation to these proceedings. In evidence-in-chief that was allowed in relation to this matter, the mother indicated that she did not think she should be before the Court. She thought that it was just too soon, referring, I assume, to the fact that the child was too young to be the subject of these proceedings or certainly too young to be required to have a relationship with the father.
That of course flies in the face of the obvious fact that it was the mother who instituted the proceedings in relation to this matter. I gain the distinct impression that she brought the proceedings seeking to achieve what she wanted in relation to the matter and as it has progressed and as she has not been able to achieve exactly what she sought, she then hoped that it would all, “go away”.
It was one of the multitude of statements made by the mother during her evidence, in relation to this matter, which gave rise to enormous concerns held by me in relation to this little girl and to her right to any positive relationship whatsoever with her father.
The mother has not filed any trial material in relation to these proceedings. If anything, that might be seen first and foremost as an attempt by her to manipulate the circumstances in relation to the matter. The mother was not present at the Court at the time that proceedings were to start, and an indication was given that she had gone to the Court in Wollongong rather than to this Court. No explanation was given as to how such a situation arose and I do not consider that it would be unreasonable for me to infer that in light of no apparent explanation being given as to how that could occur, it can only be seen that it was a situation where the mother knew where she was to be and for reasons known only to herself, determined that she would seek to control the situation from the very beginning by not being at court at the designated time and ready to proceed. It was simply one of the many indicators of the concerns that arise in relation to this matter.
The mother would concede nothing positive in relation to the father and had her own agenda to push, in respect of almost every question that was delivered in relation to this matter. The mother conceded nothing positive in relation to the father and I found her evidence of enormous assistance in my final determination of these proceedings, but at the same time found her evidence to be of the most disturbing nature I have experienced.
The mother was asked by her counsel whether she had read the family report and whether she was surprised at the warmth of [X]’s approach to the father, at the time that they met in Dr S’s rooms. There was nothing positive that could be said. Her immediate answer was that the child was frightened of the father’s anger, but that she was an amicable child and that she was doing whatever was necessary to ensure that her father was not angered.
The mother emphasised repeatedly that the child’s comfortable exchanges with the father were not what they appeared to be, but rather that they were attempts by the child to please the report-writer, Dr S. The mother emphasised that immediately after they had left Dr S’s rooms the child had said to her that she was frightened of getting the father angry and that she, [X], wanted, “Mr Larsons to be happy” and didn’t want to upset him. She could not concede, and it was perhaps obvious from her demeanour in relation to these proceedings, that she would not concede, that there was anything positive in the exchanges between [X] and the father, other than that it reflected her own desire to diminish the nature of the father’s relationship with the child, albeit one that has been strangled by her over two and half years or more.
The mother insisted that the child said what she had to say, and in one respect I perhaps agree that that may have been the case. The child said to the mother what the mother wanted to hear, and it was a repeated theme.
The mother was manipulative in the extreme. At one stage, when asked about the exchange between the father and [X] at the rooms of Dr S, she was asked whether she accepted that there might be some genuineness or truth in the statement by [X] that she would like to see her father again. And at that stage, the mother became what I would consider somewhat histrionic. Her voice was raised and she said words to the effect:
I love my daughter. I don’t want to be here, but I’m happy to be here for her. She is under a huge threat.
There was no need for such histrionics, and yet, repeatedly, and in fact during cross-examination on a number of occasions, she was asked to desist from such behaviours and just listen to the questions and answer the questions.
Again, I think, seeking to achieve her own aims and determined stance in relation to this matter, she would not listen to what was said.
The mother had read the family report prepared by Dr S. She did not like the contents of that report or the findings that had been made by Dr S. In commenting in relation to that, the mother insisted that [X], in behaving in the manner that she did with the father and making the comments to Dr S that she did, was acting in a manner which was to provide to Dr S, as an adult, what Dr S wanted to hear. The mother then went on to allege that Dr S had a preconceived idea of what was to be achieved in relation to this matter.
There was no basis upon which that could be suggested other than the mother’s determined attempt to detract from the quality and assistance of the report prepared by Dr S. I was troubled by that evidence, as I was by much of the evidence that was given by the mother.
The mother was determined to paint herself as a victim. She has had, no doubt, a life that at least in part has contained many traumas and many hurts. Her evidence relates to the death of a twin and the grief that she feels, and perhaps the emotional responsibility she feels, for that death. The truth of exactly how her twin died and when her twin died is unclear and perhaps only the production of the twin’s birth and death certificate will finally satisfy clearly what might have been the case in relation to that child’s death.
Thereafter, the mother details a litany of horror in relation to her life. She detailed having been repeatedly raped by an older brother for a period of six years, between 10 and 16 years of age. She indicated that she had fallen pregnant to her brother, and had been required to terminate that pregnancy. The mother details repeated instances of sexual abuse, suggesting that she had been gang raped, that she had been raped in a shopping centre car park, that she had been raped or sexually assaulted by an employer. She alleges physical degradation at the hand of her first husband or partner, Mr C. She alleges sexual abuse, including being drugged and unable to protect herself from her second partner and from the father in these proceedings.
The truth of many of those issues is unclear, but Dr S accepts, and I accept her expert opinion, that the mother has been seriously traumatised in the past, though it is unclear where fact and fiction might begin and end. Clearly, the mother separated from Mr C in the early 1990s, leaving her four children of her relationship with Mr C in his care, as well as leaving in his care, her child of an earlier relationship.
The mother ran from what she said was an abusive relationship and one which the police in Tasmania suggested would only lead to her death. Such behaviour is not unexpected, and is tragic in itself. But thereafter, the failure by the mother to seek out her children is surprising and troubling, and was commented upon by Dr S in her evidence in relation to this matter.
More troubling, however, is the fact that the mother uses the father’s rather tentative approach to one of the four children as an excuse to say that any possibility or chance of the mother having a relationship with the children in Tasmania, and they are all adults now, is gone and passed. The mother simply seeks to use the father’s approach to one of adult children in Tasmania as an excuse to remove any need for her to seek out or to re-establish relationships with the children that were left behind.
The mother may, at least in her own mind, have left for the most positive and noble of reasons in the early 1990s. But one struggles in the extreme, to imagine that she still justifies her actions nearly 20 years later as being child-focused and appropriate, and when some approach was made by the father to one of the children to see what re-establishment of a relationship could occur, that that, in fact, was suggested by the mother to be the final straw which breaks down the relationship.
The mother, again, seeks to paint herself as the victim of the actions of anyone else and to suggest that her actions are without fault, when of course, none are without fault, and in this particular matter, the mother has much that should be the subject of very serious inquiry and concern.
There is no evidence of alcohol abuse by the father for many years. The father appears to have acknowledged that for the last eight or 10 years he has been an occasional social drinker, with, as appears to be the evidence, one or two occasions each year where he has drunk more than what might be called a social consumption. The mother’s position, however, is without evidence, and there is certainly no interaction between them for the last two and a half years, to suggest that town gossip can be relied upon to suggest that the father continues, she says, to act in a manner that he did when he was a man in his late teens and early 20s.
He is now nearly 30 years of age. He is not the boy that he was then, but the mother has not moved on at all in relation to such proceedings. She says that she needs to be convinced, or to have proven to her that the father is able to deal with anger, that he is not abusing alcohol or using illicit substances. But the fact is that the mother has had a huge amount of evidence put before her now from various sources to show that the father is not the man that he might have been some 10 years or so ago, but the mother has not moved on.
The mother’s determination is to maintain her own world view in this matter, and particularly to, again, rely on what she says are the events of the past. There is little though, that can be relied upon as to those being factual recounts of the events of the past, as a basis for saying that there should be no relationship between the father and the child.
The mother’s suggestion that the father should not drink at all is troubling also in light of the fact that Mr T’s own evidence was to the effect that the mother had an occasional scotch if they were out for a meal. There is nothing at all that could be criticised in that particular aspect of the matter, but it is interesting that the mother’s own evidence was to the effect that she does not drink at all and that appears to justify the suggestion that the father, in consuming any alcohol, is acting inappropriately. The evidence, of course, is that she was heavily intoxicated at the paternal grandfather’s 50^th birthday party, and that she still continues, on occasion, to consume liquor. Her denials are simply, again, an indicator of the concerns that must arise in relation to this matter with regard to fabrications or lies, designed to achieve her own ends in relation to the proceedings.
The mother apparently alleged to Dr S that the father was a, “methyl amphetamine cook”. She suggests that that was done in conjunction with a cousin, but of course the father made a number of admissions to use of both LSD and amphetamines, more commonly known as Speed, but denied the allegations otherwise. I am inclined, as is perhaps obvious from much that has been said and much more that will be said in relation to these reasons, to accept the father’s evidence in that regard.

I am, unfortunately, very much of the view that unless there is evidence of a directly corroborative nature in respect of much of what the mother says, that it cannot be relied upon in any way, shape or form.
The mother was quick to lay the blame for any of the ills in her life at the feet of anyone else. That became very obvious when she was asked about inconsistencies in her own affidavit material. The mother swore those affidavits, but when asked about comments in relation to her having a diagnosis as being bipolar or having only made one suicide attempt, she repeated that she had not said that or that it was incorrect. When asked if she could explain why it was sworn by her, she incredibly indicated that it was because her first solicitor was, “too old”, and didn’t change the documents when she directed him to do so.
It flies in the face, of course, of the very obvious fact that it was the mother who signed the document which contained the false statements. And whilst there may have been some difficulties between the mother and her first lawyer, the mother again seemed totally oblivious to the fact that she might have had some responsibility in relation to inconsistencies.
She was also adamant that where she didn’t like some of the contents of the report prepared by Dr S, that it was information that Dr S had obtained elsewhere, or even more incredibly, may have been made up or fabricated by Dr S. For example, in that regard she specifically denied that she had told Dr S that her twin had, “jumped from a bridge”, and had not resurfaced. She said that she had told this to others and that Dr S may have received the information from Ms J Larsons, the paternal grandmother.
She was adamant that she had not told Dr S about that incident in that detail, though, of course, Dr S’s own evidence when checking her notes was to specifically set out what she says was recounted by the mother in discussions about the death of her twin. It was simply one more of the multitude of examples of the lack of any reliability on the statements that could be made by the mother.
The mother repeatedly indicated suicidal actions or behaviours. When questioned about many of those instances, however, she used what might unfortunately be called, a stock-standard phrase that arose in relation to these proceedings, of suggesting that she couldn’t recall them completely, because she had had, “hypnosis” and that she was unable to recall many instances. She was able, however, very quickly to indicate that actions by her were often not the result of any mental health issues, but rather a reflection of the circumstances she lived in.
In other words, it was yet again a situation of the mother laying the blame for her difficulties at the feet of others and in particular at the feet of the father. That was obvious when, in cross-examination by counsel for the father, the mother was asked whether any of the difficulties in her life were her fault or whether, more specifically, the concerns that arose out of these proceedings were in any way, attributable to her. She responded with words to the effect:
It’s not my fault, I didn’t ask for domestic violence, I didn’t ask for rape, I didn’t ask for pregnancy,.. and the proceedings are now focused by both the Court and Dr S on negatives.
She then went on to say,
I’m not that person any more. I have a happy life and a well-adjusted child.
The great tragedy, of course, in relation to that suggestion is that there is no certainly whatsoever that the mother has a happy life or that she is not the troubled soul that she has been for many years, as a result of the traumatic incidents, whatever they might accurately be seen as, from the past. More particularly, the suggestion that she has a well-adjusted child is so contrary to the evidence in relation to this matter, that it gives rise again to real concerns as to the mother’s full grasp and appreciation of the very real hurt that has been experienced by this child, as a result of these proceedings.
The mother was determined to get her own way. The mother was determined to achieve her own goals in relation to this matter, and was determined to say whatever was necessary in relation to the proceedings. She was not a shrinking violet. She was not intimidated by the proceedings and she was not intimidated by the father.
She tried to paint such a picture in relation to this matter, repeatedly indicating her fears in being in the presence of the father. But that of course flew directly in the face of the clear evidence of Dr S as to her behaviours when it became clear that what she thought might be the case, and there was no evidence whatsoever of what she might or might not have been told, certainly by Dr S or the Independent Children’s Lawyer about the circumstances of interview, she attempted to standover Dr S, to intimidate or bully her, in relation to whether the child was to see the father or to interact with the father.
The mother was determined to achieve her own way in relation to this matter. And not being satisfied with the conduct of the interviews and preparation of the report or the actual report itself, and in particular the recommendations, set out to disparage Dr S and the Independent Children’s Lawyer.
In that regard I have not read, but it has been brought to my attention, that the mother, on 7 November 2011, wrote to Walker FM, thinking that it would be she who would be conducting the trial, complaining about the professionalism of both the report writer and the independent children’s lawyer. It’s noteworthy, of course, that that matter was not raised in the proceedings at any time, and again can only be interpreted therefore as a further attempt to influence and manipulate the circumstances, in relation to these proceedings.
The mother wants no relationship with the father at all. That was borne out by the fact that when finally asked about the orders that she sought, two hours per month supervised for the first three months and then two hours per fortnight if the supervisor was satisfied with the progress after three months, she indicated that, “I don’t want Mr Larsons to see [X] at all.”
She has no intention or in fact, unfortunately, capacity to change. The mother is determined to achieve what she wants, and of course what arises from that is a very real concern that if, as Dr S suggests, when [X] gets a little older and becomes less compliant and perhaps more rebellious, as is common in teenagers, she may be rejected. And without a relationship with her father, of any real or substantive nature, may find herself a child without attachments at all.
It is a tragedy brought about entirely as a result of the mother’s actions in relation to these proceedings, and it is a tragedy which is entirely as a result of the mother’s determination to achieve her own goals and to set her own agenda, in relation to the parenting of this child.
The mother is not an unintelligent woman. She was able to answer many of the questions that were directed to her in relation to these proceedings, both in cross-examination by counsel for the father and cross-examination by counsel for the independent children’s lawyer, in a manner which clearly indicated that she was able to discern between the right answer and the wrong answer.
For example, when asked about it being in [X]’s best interest to have a relationship with the grandmother, she immediately responded that it was in the child’s best interest for that to occur, “if safe.” She could not define what “safe” might be or what the problems might be in a relationship with the paternal grandmother, other than to suggest that she had thought about it, by requiring that there be some opportunity for safe interaction with the grandmother.
It was, if you like, the “safe” answer to give in relation to this matter. She simply did not suggest that there should be no relationship with the grandmother, because that would have been the “wrong” answer. But she gave the answer that indicated that she was willing for that to occur, but only upon the terms and conditions that she thought would be appropriate without defining what they might be. It was a clever answer but it was also, I thought, informative.
Similarly, the mother’s response to questions by counsel for the independent children’s lawyer about a father figure for the child, if the father was not to be part of her life, were telling. She was asked who would be the father figure, and she responded, “Mr T is a role model.” When asked again, then, who would be the father figure she said:
Mr T is not her daddy, but because of the drinking and other excesses, she has seen too much. It’s a trust issue.
The mother could not say that the father would be replaced by her husband, Mr T, but that was exactly what was intended. Again it was the clever or safe answer, because to say that the father wasn’t a necessary element in the child’s life was the wrong answer, or at least what she perceived to be the wrong answer, because it would be an indicator of her intent and wish, in relation to this matter.
The mother did, however, slip up on occasion. For example, the fact is that both the initiating application and amending initiating application were filed, in which there was at least some suggestion of there being a relationship between the father and the child, albeit in the amended initiated application, of the most limited and restrictive of nature. However, she was asked by counsel for the independent children’s lawyer, when she had formed the view that there should be no contact whatsoever between the father and the child and she answered:
I guess I always thought that.
It was contrary to her own evidence given before and was contrary to every step that had been taken in relation to the proceedings, but it was indicative of the fact that the mother was willing to take any stance in relation to the matter to achieve what she wished to achieve. That is obvious if you like from the fact that orders have previously been made, both by consent and otherwise, in relation to the father’s time to be spent with the child and to all intents and purposes, it has never occurred.
The mother’s real intent was to exclude the father and whilst she may have indicated in the material that she had a wish for there to be a relationship, the real indicators are the facts, and the truth in relation to the matter was the fact that there was no relationship ever coming, whilst the mother had some control over the circumstances.
Interestingly, the mother acknowledged that she had a photo of the father in the house. The photo apparently was a photo when [X] was a baby and was in the arms of the father, so that one would assume that he was only some 22 or 23 years of age. The mother added, however, when commenting that there was a photo of the father in the house, that the child is “frightened of it”.
When asked why it was there, she indicated that it was prior to the incidents that had occurred, referring obviously to circumstances of domestic violence but it was a contradictory statement because it appears to have been used by the mother as a means of reinforcing to the child that the father is not an appropriate or proper person in her life. It was troubling evidence in the extreme.
A very great concern to me, in relation to this matter, was the mother’s and Mr T’s evidence, which was corroborative of the mother, in relation to Father’s Day 2009.
The mother says that the father reacted inappropriately to a Father’s Day card being sent to him, by the child. It turns out, in truth, that there were, at best, two Father’s Day cards, although I am more inclined to accept the father’s evidence that there was no handwritten card or kindergarten prepared card from [X], but only the card from the mother, which was sent to him. That card incredibly, had been signed by the child [X], the mother says, because they were signing other cards on that day, but one wonders how many Father’s Day cards were actually being sent or whether it was specifically designed, just to attack the father.
The father’s evidence, and attached to his affidavit of 9 June 2010, was the card, was that it was of a disparaging and critical nature. The card has, on the front, a warm sentiment. It is as follows, “With love on Father’s Day.” Down a line, “What is a dad?”. Down a line,
A Dad does so much –
working hard,
helping out,
taking care
of his family...
Inside the card are two further quotes as follows:
A dad gives so much –
his time and energy,
his smiles and hugs,
his words of wisdom...
A dad loves so much-
and the warmth
and caring he shares
are a very special part
of his family’s happiness.
Happy Father’s Day Dad
And thanks for everything.
The words, “and thanks for everything”, are double underlined, it would appear, by the mother, but all over the card, apart from in the hand of a young child the word “[X]” is the following:
Maybe read the card. It’s what a proper dad is all about! I hope one day you do get it and turn into a good person! For your own sake
I would like you to see [X] and I hope that one day you will when you get your shit together. Stop drinkin!! I will never be friends with you at all after your nastiness with you and your mother. I am better than you both a beautiful mother! so lucky.
And there is a smiley face beside the word “mother”. Then a further statement follows:
Heard about the incident. [location omitted] Tavern. Maybe time to stop drinking. We look forward to you becoming a “good” dad in the future and you growing up !! finally.
Additionally, on the card is:
You shouldn’t hit Mr M. Not nice.
And, in a square box in the middle of the card:
[X] still waits for her present every day
The mother sent that card to humiliate and denigrate the father. She then expresses some incredulity that the father may have sent a response to her which was less than positive.
Mr T, in paragraph 19 of his affidavit says:
I received a text message from him and in that message he said to me “… tell that fucking thing not to send anything to me again.” I was of the belief that he was talking about the card but referring to Ms Karl.
Of course, if Mr T is to be believed, he did not know of the other card that was sent by the mother and which contains the statements to which I have just referred.
The father acknowledged that he probably did send a disparaging and rude text in reply but was unable to exactly recall what might have been the content of it.
The tragedy here is that the mother initiated this exchange with the father and then expresses some amazement that he should be angered by what was said and suggests that it was an inappropriate behaviour on his part.
The mother again seeks to manipulate the situation. She is clearly found out in this case, because the father has retained the card and it is apparent that the mother set out specifically to illicit a response and to then use Mr T as a means of corroborating that it was sent by there being a response sent to him.
The mother’s behaviour was appalling. It was designed to humiliate, intimidate and harass the father and illicit the type of response that was forthcoming. It was troubling again that that should have been the case.
The mother denied that she had made any statements as reported by the paternal grandmother to Ms S on the day of the interview. The paternal grandmother is reported as telling Dr S that the mother called her, “a fat slut”, on the morning of the assessment and accused the paternal grandmother of being an alcoholic and a drug addict.
The mother says that that was not the case but acknowledged that she, “might have”, made a comment to Mr T at the time of entering into Dr S’s rooms about an overweight woman passing by and referring to her as fat. I do not believe the mother. It is again just one of the many, many examples of the mother saying and doing whatever she can to achieve the response and the outcome that she wishes.
The mother’s real view of the father and his family came out when questioned about the Larsons family, by counsel for the father. She said that she did not suffer from, “Larsons syndrome”. When asked what that was, she explained that it was a family trait in the Larsons where they laughed about any of the difficulties in their life and then went on to talk about members of the family who were bi-sexual, suffering from a tumour or considered that it was appropriate to hit people.
After this litany of abuse of the family and of their behaviours or actions she was asked whether it was accurate to suggest that she had, “a whole lot of problems with the family” and she responded, that she did.
Interestingly and perhaps it slipped under the mother’s guard again, she was then asked why she would, as a caring mother, with the best interests of the child at heart, want to promote a relationship with the Larsons family and she immediately responded that she would not.
It was an island of truth from the mother in an ocean of untruth. I gained the distinct impression, as is obvious, that the mother would fabricate or lie in any way shape or form to achieve what she wanted. She had done so from the very beginning, in suggesting that the father could have time with the child, but not really believing that that was in the best interests of the child and acting out upon that belief, by not facilitating any opportunity for the father to spend time with the child.
The mother was evasive. She did not wish the father to have a relationship with the child. She saw no quality at all in the father and would not, despite the most clear evidence of changes or improvements in the father, accept that there were benefits in a relationship with the father.
The mother, I thought, in much of the evidence that was given in relation to this matter, was making up the story on the run. The allegations of [X] witnessing the father and Ms L engaged in sexual relations whilst Ms L was menstruating were horrendous. It was more horrendous, when challenged in relation to it, that a tale followed where the mother said that [X] had come back from time with the father distraught, that she believed the father had hurt Ms L. The father was on top of her. That Ms L was covered in blood and that daddy had an erection.
She said that that had occurred in 2007 but quickly corrected it to 2009 but either way this little child was no more than four and a half years of age, at the time. I do not, as I have already indicated, accept, at all, that such an event even occurred but the mother then went on to suggest that she had reported it to the Department of Community Services but they did nothing. That she had reported it to her solicitor to be put in original affidavits, but they had missed it out, again because he was too old. She suggested that the Department of Community Services had interviewed [X], but because it was “a family thing” they went no further.
And then, to explain why she may not have included it or why it may never have been referred to before, went on to indicate that at that time she was on, “a lot of medications and was under serious stress”.
When asked whether she was just changing the story or making it up on the run, which I believe is the case, she indicated the Court proceedings were stressful for her and then returned to a recurring, but untruthful theme of, “Mr Larsons is here, I am fearful and intimidated just by him being in the room”.
Of course, the evidence of Dr S, which I accept categorically, is that the mother was not fearful of anyone. If anything, she was angry and confrontational with the father and the story of being fearful of the father was exactly that, a story again to be utilised by her to manipulate the situation.
As I said previously, the mother is, I think, an intelligent woman but flawed. She is determined to achieve what she wishes in relation to these proceedings. She was asked about many of the comments contained within Dr S’s report and she was generally dismissive of all of the comments critical of her, but quick to adopt anything that she thought might be a positive.

She was asked whether there was significance in the fact that the mother had not abandoned the child in the first seven years of her life, and Dr S acknowledged that there was some significance there, but then went on to note that [X] was, as she put it, “easy now”, and that if she remained a good girl then the mother would be happy and stable, but as the child grew and approached adolescence, there were obviously circumstances where there would be conflict with the mother, and Dr S went on to say that her professional assessment would be that the mother would try to override the views of the child, and insist that the child internalise what her wishes might be, such that there were two real possibilities.
Either that the child would become a “wimpy girl”, in other words, someone who could be overridden or overborne at any time, and that would have serious consequences for future relationships and the types of relationships that the child might develop in adulthood, or alternatively, that she could become more assertive and that the mother would be unable to deal with it, such that the mother would, as Dr S noted, “throw her out”. Either way, Dr S said that she had grave concerns for the future of this child.
Dr S was challenged by counsel for the mother about her assessment of the child being warm and affectionate to the father. Dr S acknowledged that there was obvious affection between [X] and the father, and acknowledged also that [X] was obviously trying to please all of the adult persons in her life. Dr S, however, went on, very significantly and determinately to stress that there was a difference between trying to please a parent, and being warm and affectionate.
The child, Dr S said, was doing more than just being good. There was genuine affection there, and it was something that needed to be encouraged and fostered immediately, or there could be serious consequences and ramifications for the child.
The fact is, that no matter how Dr S was challenged in relation to this matter, there was a continuing and overriding theme in both her report and her oral evidence, which was to the effect that there was little comfort that could be taken from assurances by the mother that she would foster and develop a relationship with the father, and more particularly, and certainly of much greater concern, was the very real issue of the future psychological harm that will be perpetrated upon this child, in the event of there not being a genuine and proper arrangement put in place to facilitate the child’s relationship with the father.
Dr S re-emphasised towards the end of her evidence, that there were concerns, that the mother had acted in a manner which was not simply a reflection of misguided or fantastic beliefs, but were actually the actions of an extremely manipulative and controlling person. Dr S confirmed for counsel for the father, for example, that if the mother had said things had occurred, that hadn’t really occurred, it was a situation of her knowing that that was the case and that she had made them up. Dr S acknowledged that that was her assessment in relation to this matter.
More particularly, toward the end of that cross-examination, Dr S noted, when it was put to her that when one considered the inconsistencies in the mother’s evidence, as opposed to the documentation that was called in relation to the matter, that the mother was making it up as she went along, Dr S said that that was her assessment in relation to the matter, and acknowledged that it was also her assessment, that the mother would say and do anything to get what she wanted, in relation to this matter.
Dr S’s evidence was telling on many levels. It addressed issues in relation to the mental health of both of the parties. It addressed particularly the wishes of the child, [X], and most significantly, the warm and affectionate interaction between the child and the father, not-withstanding the behaviours of the mother in every respect.
As Dr S said at page 17 of her report, under the heading Observations of the Father and [X]:
As mentioned, the mother was livid when she walked into the waiting room after morning tea. She told me: “We’ve had a confrontation already out the front”. I understood that she and [X] walked passed the father, paternal grandmother, paternal aunt, Ms W, and Ms L on the street and that some words were exchanged. The mother went on to say: “You didn’t ask her, Ms S. [X] said you didn’t ask her if she wants to see her father”.
I got the impression that the mother was trying to obstruct the child having contact with the father. In order to facilitate the assessment going ahead, I observed [X] and Mr T in my office briefly, then ushered Mr T out asking him to take the mother outside, and then was able to bring the father into the assessment room.
[X] was already sitting in my office and she immediately looked up when her father walked in, made eye contact, smiled warmly, and said, “Hello Daddy”. He went up to her and asked her for a hug. Without hesitation, she went into his hug and gave him a kiss.
Dr S then goes on through two pages or more to comment upon the warm, affectionate and meaningful exchange between [X] and the father whilst they talked. They did activities together, building Lego, throwing a ball, painting, and speaking about toys and activities from the past. At page 20, at the conclusion of her report, Dr S comments upon her conclusion of the time spent with the father, and says:
When the hour was up, [X] and the father embraced and kissed each other. I asked the father to step outside and asked [X]; “What was that like?” “Good,” she answered, smiling. “Was it how you expected?” “Yes, I expected it to be good.” “Would you like to see Dad more?” I asked her. “Sometimes,” she said. “Would you like to live with Dad?” She said, “No.” “Would you like to spend a weekend with him?” “No.” “Would you like to sleep overnight with him?” “No.”
It was interesting, of course, that the mother said that that was not at all what had occurred in relation to the matter, and that the child had run from the room, without any such exchange. I do not accept that that was the case, and again, see it as one more attempt on the part of the mother to manipulate the circumstances and the situation that existed.
Dr S was also far too experienced for that, and her evidence in relation to the matter was clearly that of a most experience psychiatrist, having taken notes and assessed all of the parties, in relation to the proceedings. If anything, the denials and accusations by the mother did nothing more than the reinforce the very real concerns that exist in relation to the mother and her relationship with this child, and more particularly, her capacity to in any way foster the relationship with the father.
I was enormously assisted by Dr S’s evidence in relation to this matter, and to her recommendations given, both within the report, and more particularly, following further information being provided to her in oral evidence.
I turn now to the law. I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FAMCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]    The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]    Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]    But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]    The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]    No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]    The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so.   However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]    Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]    “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)    the child’s education (both current and future);
(b)    the child’s religious and cultural upbringing; and
(c)     the child’s health
(d)    the child’s name;
(e)     changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]    Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]    Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]    Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]    A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]    The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]    If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]    The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]    An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]    Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.    In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.    We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.

Here, each parent proposes that they should have sole parental responsibility. It is supported also by the Independent Children’s Lawyer in that the proposed final orders suggest that sole parental responsibility for the child should vest in the father. The fact that that is an agreed course, though the mother proposes that the power vest in her rather than the father, is not however the final determinant. The court must be satisfied that there are appropriate grounds to rebut the presumption of equal shared parental responsibility.
As noted in Chappell & Chappell (supra), the Full Court commented that the court must make a finding that it would not be in the best interests of the child for the presumption to be applied and that for such a determination to be made, the court must take into account the matters detailed in section 60CC(2) and (3). Accordingly, it is necessary to address those issues that are relevant and which arise within the considerations set out in section 60CC.
The primary considerations set out in section 60CC(2) are obviously a reflection of the objects set out in section 60B(1) but they are also counter-balances one to the other. In that respect, it is clear for example that in a situation where there is not a risk of harm, physical or psychological to a child, then one would be hard pressed to assume that there would not be some benefits to the child in having a meaningful relationship with both parents.
However, unfortunately, there is not always a perfect world or even a world where there is limited risk of harm. Such a situation arises in this case and, as I have detailed previously in these reasons, there are very real concerns specifically relating to the mother’s relationship with the child and the risk of significant psychological harm. Dr S’s evidence, written and oral, is redolent with such concerns and there are clear indicators of the long-term hurt which she anticipates, should the mother maintain her current relationship with the child.
The balance that must be looked at, therefore, between the benefits to the child of a relationship with both parents, but particularly with the mother, and the protection of the child is a significant factor arising in this matter. Such a determination is relevant in relation to the determination of whether the presumption of equal shared parental responsibility is rebutted. Section 61DA(2) specifically notes that as a factor to be considered in determining whether the presumption does not apply. In this instance, the evidence is overwhelming to the effect that the mother has caused harm to the child and that her manner of parenting, including particularly the exclusion of the father and the refusal to comply with orders of the court, means that such harm will continue, and in all likelihood, increase.
Whilst that factor of itself would be sufficient in this case to rebut the presumption of equal shared parental responsibility, there is also the consideration which arises pursuant to the provisions of section 61DA(4). Here there has been no communication of any real quality between the mother and the father for years. The mother, in fact, in evidence indicated that her real wish was for there to be no relationship and, of course flowing from that, no communication occurring between she and the father and, more particularly, between [X] and the father. I have no confidence, whatsoever, that such a situation could change and whilst there may have been, in the few weeks since the conclusion of the trial, some cooperation, it is more a reflection, as Dr S quite properly noted, of the overview of the Family Law Courts and it is likely to cease once the decision in this matter is made.
The commentary contained within these reasons addresses many of the other issues that arise in the Additional Considerations set out in section 60CC(3). I do not intend to repeat the comments that I have made previously in these reasons, but would note specifically that in relation to section 60CC(3)(a), the spoken views of the child, that her time with the father be only limited and not overnight, are not a reflection of the expert observations of Dr S and of the real affection and attachment between the father and the child. Accordingly, I do not place great weight on the spoken wishes of the child, but must say that I place considerable weight on the obvious affection and attachment, notwithstanding the mother’s actions in seeking to preclude any relationship.
In relation to section 60CC(3)(b), I would again simply note that the child’s relationship and attachment to the father, notwithstanding the limited interaction between father and daughter for a significant period of time, is an indication of a positive relationship now and into the future, whilst the mother’s behaviours at the present and the concerns noted by Dr S into the future, do not augur well for that relationship or for the young woman that [X] will grow into.
Of great significance obviously are the provisions of section 60CC(3)(c) and the overriding concerns as to the mother’s lack of real intent or even ability to foster, facilitate and encourage a close relationship between the child and the father. Every indicator, including of course and specifically the expert evidence, is that the mother cannot, and unfortunately, will not facilitate such a relationship. Importantly, however, I have far greater confidence in the father’s abilities in this regard and his real wish to normalise, as soon as possible, the relationship between [X] and her mother. The father’s real concern about the effect on the mother and the child of a three-month moratorium on time to be spent by the child with the mother, could not be a clearer indicator of that intention to encourage and foster a positive relationship with the mother.
Also significant in relation to this matter are the considerations arising pursuant to the provisions of section 60CC(3)(d). No doubt, [X] will be affected by changes, as suggested by the father and supported by the Independent Children’s Lawyer. By the same token, the re-establishment of the operation of time being spent by [X] with her father pursuant to earlier orders, since the reserving of the judgment, have enabled some of those possible consequences of a radical change in circumstances to be alleviated, and in any event, I could not imagine a clearer case of there being a need to deal with this, short-term upheaval in order to bring about long-term benefit.
Also relevant and commented upon in these reasons are the matters that arise pursuant to the provisions of section 60CC(3)(f) and (i). Both parents have the capacity to meet the child’s intellectual needs and to ensure that those basics, such as readiness for school and attendance at school are met. However, there is an enormous gulf between the father’s capacity to meet the child’s emotional needs and to meet the responsibilities of parenthood, as opposed to the mother’s lack of such capacity or appropriate attitude. The overwhelming indications in this matter are that the mother, most likely unknowingly, causes the child enormous emotional harm, and that the mother has no appreciation whatsoever of the responsibilities that need to be shown in relation to the parenting of this child.
As Dr S noted on a number of occasions, the past behaviours of the mother, leaving her four older children in Tasmania and making no contact for nearly 20 years, is a serious indicator of concerns for the future and many of the mother’s other behaviours, as noted in these reasons, give rise to real concerns as to the mother’s attitude to this child as well as to her other children. The differences between the capacity of each parent to meet these responsibilities and obligations is an enormous factor in the determination of these proceedings.
Issues relating to difficulties and expense of the child spending time with and communicating with the other parent are not of real significance in relation to this matter, nor are such considerations as arise pursuant to the provisions of section 60CC(3)(h) relating to aboriginal and Torres Strait Islander cultural matters.
Domestic violence, as alluded to in sections 60CC(3)(j) and (k) have also been commented upon by me in relation to this matter, but I must say that, whilst domestic violence has arisen as a factor in relation to this matter, it is of far less significance in relation to determining the best interests of [X] than many of those other factors to which I have already referred.
There are no certainties in relation to litigation and no one can be sure which orders may be least likely to lead to the institution of further proceedings, but if the past is an indicator of the future, then orders relating to the child living with the mother and spending time with the father are not likely to work or to be complied with by the mother in any way, shape or form. Orders which provide for the child to live with the father and which have serious consequences for the mother, should the child not be returned to the father following time spent by her with the child, are more likely to be complied with and to therefore not lead to further litigation.
As is hopefully clear from the reasons given herein, I intend to make orders which in my assessment are child-focused and lead to arrangements which will provide for [X]’s best interests, both physical and emotional, now and into the future. Those orders are, generally, a reflection of the orders sought by the father and recommended by the Independent Children’s Lawyer. The orders of the court will be as detailed at the beginning of these reasons.

I certify that the preceding two hundred and eighty-four (284) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 20 January 2012