Keane and Mussen - [2009] FMCAfam 269

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEANE & MUSSEN

[2009] FMCAfam 269

FAMILY LAW – Child aged 4 – arrangements for child to spend time with father – parties separated prior to child’s birth – mother and child live in Adelaide – father lives in Melbourne – poor relationship between parties – father alleges mother is unwilling to support any form of relationship between him and child – mother asserts child traumatised by exposure to father’s abusive and domineering attitude towards her – child apparently declined to see father in supervised setting at children’s contact centre – father alleges mother has either coached or influenced child – weight to be given to family assessment at interim stage – best interests of child – balancing benefit of child having meaningful relationship with both parents – need to protect child from harm.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D

Bright & Bright (1995) FLC 92-570

Applicant:

MR KEANE

Respondent:

MS MUSSEN

File number:

ADC 2569 of 2008

Judgment of:

Brown FM

Hearing date:

11 March 2009

Date of last submission:

11 March 2009

Delivered at:

Adelaide

Delivered on:

11 March 2009

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

R.J. Cole

Counsel for the Independent Children’s Lawyer:

Mr Winter

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of South Australia

ORDERS

This matter be listed for final hearing before Federal Magistrate Brown on 3 and 4 September 2009 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 6 August 2009.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 20 August 2009.
The applicant pay the hearing fee or file a remission certificate in respect thereof on or before 31 July 2009.

UNTIL FURTHER ORDER OR OTHER ORDER THE COURT ORDERS THAT:

The child of the relationship [X] born in 2005 live with the mother.
The child spend time with the father between the hours of 12.00 midday until 4.00 pm on the 28 March 2009, 4 April 2009, 18 April 2009, 2 May 2009, 9 May 2009, 16 May 2009, 30 May 2009, 13 June 2009, 27 June 2009, 11 July 2009, 25 July 2009, 8 August 2009, 22 August 2009 and one further time as agreed between the parties subject to the following conditions:
(a)the periods take place in Adelaide and not be subject to any supervision;
(b)the child is to be exchanged between the parties at the [N] Children's Contact Centre subject to the availability of the centre;
(c)The father is to advise the mother in writing in the event that he is not able to come to Adelaide in the periods specified in these orders seven (7) days in advance;
(d)The parties are directed to take all necessary steps to enrol with the [N] Children's Contact Centre for the purpose of the process of exchanging the child between them only but not for any form of supervision.
Neither party denigrate the other in the presence or hearing of the child or permit any other person to denigrate the other party in the presence or hearing of the child or discussing any proceedings between the parties in the presence or hearing of the child or permitting any other person to do so.
The mother be restrained and an injunction is hereby granted restraining her from referring to the father in any other terms other than “dad” or “father” to the child.
The parties are directed to comply with all necessary directions which may be made to them by the Independent Children’s Lawyer in respect of updating the family assessment report prepared by Ms Lohyn.
The order for telephone communication between the father and the child made on 28 January 2009 will continue until further order.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2569 of 2008

MR KEANE

Applicant

And

MS MUSSEN

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings are concerned with interim or provisional arrangements for a four year old child to spend time with his father so that a satisfactory relationship may possibly be developed between the two.
The child concerned is [X], born in 2005. His father is Mr Keane who lives in [P], a suburb of Melbourne.
[X] lives with his mother Ms Mussen in [H] in suburban Adelaide, and has done so for all of his life to date. The logistical considerations in this case alone make it a difficult matter.
Neither party is well off financially. It is expensive to travel between Adelaide and Melbourne. [X] is of tender years and cannot travel alone. But superimposed on these practical difficulties are more intractable problems.
[X]’s parents share a mutual mistrust and dislike of one another which makes it practically impossible for them to communicate effectively with one another, or focus on some mutually agreed outcome which will serve [X]’s best interests, both now and into the future.
Because of the level of difficulty in this case it has been ordered that [X] be represented independently of his parents. His representative is Mr Winter, an experienced family lawyer, particularly in the area of the representation of children.
Mr Winter has a number of roles and duties in these proceedings, one of which is to form an independent view based on all the evidence available to him as to what is likely to be in the best interests of the child whom he is representing. He is then required to advocate this outcome to the court [Family Law Act s.68LA][1]. As such Mr Winter is just as much a party to these proceedings as are [X]’s parents.
[1] Hereinafer all references in [ ] are to the Family Law Act 1975
In pursuing his role on behalf of [X], Mr Winter has gathered evidence independently of Mr Keane and Ms Mussen. The most important aspect of this evidence is in the form of a family assessment prepared by an expert child psychologist, Ms Lohyn.
Ms Lohyn interviewed each of the parties. She did not observe [X] with his father because [X] refused to interact with him and Ms Lohyn was not willing to force [X] to do something against his wishes which might make him uncomfortable. However, Ms Lohyn did consider that, in the longer term, [X] was likely to derive some benefits from having some form of relationship with his father and steps needed to be taken by the court to begin the inauguration of such a relationship.
A significant factor in forming Ms Lohyn’s opinion was her view that the mother was influencing [X] to have a negative view of his father. At worst she thought Ms Mussen may have “coached” [X] to have a poor view of his father. At best Ms Lohyn considered that the mother may have unwittingly allowed [X] to be influenced by her and her own negative attitude towards Mr Keane.
The mother’s position is that the father is a violent and emotionally abusive person who continues to behave poorly towards her. As such it is the mother’s view that [X] had formed his own impression of his father based on his own direct experience of him.
The father’s position is that this is patent nonsense, as he and Ms Mussen separated prior to [X]’s birth and have rarely come into contact in the period since. In such circumstances, he argues, Ms Mussen is intent on alienating [X] from him to satisfy some ulterior motives of her own.
Ms Lohyn recommends as follows in her report:
“That [X] continues to live with his mother.
That he sees his father for three hours in weeks one and two out of a three-week cycle with someone present if practicable; handovers to occur at the Children’s Contact Centre. This is to occur for six months with a review to follow if thought necessary
Ms Mussen begins to refer to Mr Keane as "dad" and that she ensures her attitude to [X] seeing him is positive and affirming. That she attends counselling if she thinks this will assist her to shift her approach.”
The father is a [occupation omitted]. He earns around $50,000 per annum. He and his current partner have a newborn baby to support. It is his case that the regime recommended by Ms Lohyn is financially out of his reach. He simply cannot afford to come to Adelaide so often.
As such he advocates a regime whereby [X] should be totally immersed in his care for a holiday period of between two and three weeks during which time he would spend daylight hours with his father.
The mother’s position is also that Ms Lohyn’s proposal is unworkable because it would place both [X] and her under a level of psychological stress which cannot be justified. She categorises [X] as an emotionally vulnerable child who has reacted adversely to his parents’ poor relationship with one another, without any undue or improper influence from her.
In those circumstances she proposes that for the foreseeable future [X]’s interactions with his father should be confined to telephone calls, letters and the like. When pushed, she would consider some form of rigorously and professionally supervised time occurring between [X] and his father under the aegis of a contact centre.
This latter option has been tried by the court before. It did not work. After one more or less successful visit on 15 November 2008, at the [N] Children's Contact Centre, [X] refused to see his father on

29 November 2008
, 13 December 2008 and 10 January 2009.
In line with the policy of the centre concerned, the workers who were directed to supervise time between [X] and his father would not compel [X] to take part in the process in the face of [X]’s refusal to do so.
So far as the first and successful visit was concerned, it was described as follows by the person supervising at the Children’s Contact Centre:
“Observations by the worker concerned describe the visit as happy, relaxed and only difficult when [X] expressed he did not want to go through at first. The pattern of conversation centres on play activities, at times stilted and awkward, but free‑flowing and spontaneous and of equal initiation. Ms Mussen and [X] greeted each other with a verbal hello and a smile.”
In these circumstances it is the father’s position that it is imperative that the court moves on expeditiously so far as re-engaging him in [X]’s life, and it is his position that, given the failure of the supervised contact process, something more ambitious needs to be undertaken by the court now.
Ms Lohyn, prior to the completion of her report, was informed of the background, particularly the involvement of the Children’s Contact Centre, and she was also informed of some negative comments [X] had apparently made about his father. These factors, to a large degree, confirm Ms Mussen’s view that Ms Mussen is influencing [X] and is incapable of supporting him having a proper and normal relationship with his father.
Mr Winter supports Ms Lohyn’s recommendations at this stage. He would want the matter fixed for final hearing, and in the meantime [X] to spend regular periods of brief time with his father over the next six months or so before Ms Lohyn revisits the family to see what progress has been made.
In these circumstances, given that Mr Keane has in the past committed to come to Adelaide to see [X], he believes that it would be reasonable for Mr Keane to outlay the expense involved in such a process.
Mr Winter does not support Mr Keane’s proposal to break the deadlock. He is also, I think, somewhat suspicious of Ms Mussen’s behaviour and approach to the issues in this case.
Clearly it is not a case which provides any easy or obvious solution. I must endeavour to focus on the outcome which will serve [X]’s best interests, both in the short term and the longer term, as he grows towards maturity.
One central aspect of his best interest is [X]’s entitlement to know and be cared for by both his parents [s.60B(2)(a)]. The years of early childhood are central to the development of personal identity, one aspect of which is to know and interact with one’s parents regardless of the marital or personal circumstances of those parents.

Background

Mr Keane is 41. He commenced these proceedings on 30 June 2008. He has acted on his own behalf in them. His position can be summarised as follows: he wishes to be as fully involved in [X]’s life as possible.
Ideally he would like to see [X] for a block of time including overnight time every four weeks or so, alternating between Melbourne and Adelaide. He would want members of his family to come to know and be involved in [X]’s life.
Ms Mussen is 33. She responded to the father’s application on 21 October 2008. She has no long-term proposals as to how [X] should spend time with his father. She wishes the father to attend an anger management course.
Initially she proposed supervised time, with a report to be compiled to inform the court about the process of such supervision. As I say, orders to this effect were made on 28 August 2008 but without any great success.
The parties had a brief relationship in Melbourne between early and mid-2004. In July 2004 the father drove the mother back to Adelaide where her family live. [X] was born in Adelaide. The father has been assessed to pay child support for [X] and has paid the sum assessed, which is around $500 per month.
The father’s case is that he has attempted to come to Adelaide every six weeks or so, to see [X]. The mother acknowledges that he has visited Adelaide, but the periods of time which he has spent with [X], between one and one and a half hours, have always taken place in her presence and subject to her supervision.
The father categorises this arrangement as grossly inadequate to ensure [X] has a proper relationship with his father. In addition he points to the fact that [X] has many members of his wider paternal family who are deeply interested in [X]’s welfare and who want to know him better. Chief amongst these are [X]’s paternal grandparents.
The mother categorises the father’s attitude towards her, both during the parties’ relationship and afterwards, as being domineering and abusive towards her, conduct which she says has occurred in [X]’s presence and to which he has become increasingly sensitised.
It is her position that the father has no insight into the needs of a child of [X]’s age and development, and she is frightened and intimidated by the father’s behaviour towards her, particularly his demands to spend time with [X].
The father’s position is that he has attempted to negotiate more time with [X] amicably with Ms Mussen, but she has been unwilling to engage with him. He does not criticise Ms Mussen’s parenting of [X] other than she is unwilling to include him in it at all. He believes he has behaved reasonably up to this stage and had no real option other than to commence these proceedings.
He says as follows in his affidavit:
“It’s been very difficult to see [X] due to the lack of communication and restraints put in place by Ms Mussen. If I wanted to see [X] I had to give Ms Mussen one month’s notice, write by mail to request a visit and wait for her reply.
I’ve always been disappointed and concerned in Ms Mussen’s ways of communication. If I talk with Ms Mussen in regards to a change or more contact with [X] the tension is so intense it’s like standing on eggshells. I’ve had to put up with Ms Mussen’s assertions and manifestation of her controlling behaviour for three and a half years now.
Most visits in Adelaide were at Ms Mussen’s mother’s place. I didn’t want to see [X] brought to a child centre. I wanted Ms Mussen and [X] to feel safe in their own environment. This has not given me much opportunity to teach, train, listen and even learn from my son. Ms Mussen is always controlling and interfering. I’ve tried to make [X] happy by being playful, and talk to him at his level. I ask him lots of questions and he shows me how things work. This helps with building his self-esteem and self‑confidence.
With [X] in my care we’d be given an opportunity to wonder about things, experiment, make mistakes and laugh about these experiences. This will teach [X] to be resilient and a good survivor.”
The mother asserts that the father complains about child support and constantly hectors her to spend more time with [X]. She gives an example in her affidavit. She deposes as follows:
“On 21 November 2007 the father travelled to Adelaide to spend time with [X]. He became extremely abusive towards me, verbally attacking me, which caused me to become very distressed. Unfortunately, [X] was present when the father continued to yell at me that I would either agree to his demands regarding time he spends with [X] or that he would take me to court and take [X] away from me. As a result of that incident [X] began showing shows of extreme distress, including wetting himself, which he had not done for over 12 months, refusing to sleep in his own bed and experiencing nightmares.
He would constantly say to me words to the effect, "Mr Keane makes mummy sad. Mr Keane is going to take me away.

Mr Keane scares me and I don’t like Mr Keane." He further developed a nervous twitch for which I sought medical treatment.”
Much written correspondence has passed between the parties in which each asserts the other as being unreasonable. Clearly the relationship between the parties went from bad to worse, to non-existent. The father regards the mother as controlling and hyper protective of [X]. The mother regards the father as unduly demanding and insensitive. The immediate issue has been in respect of supervision.
In March of 2008 Ms Mussen wrote proposing that Mr Keane relinquish all contact with [X] until he was at least 10 years of age, in exchange for the forfeiture of any claim from her for child support. In Ms Mussen’s view this arrangement would ensure [X] had a safe and secure parenting environment in which she had sole parental responsibility for him.
Mr Keane was affronted at the proposal and believes it is indicative of the mother’s real agenda, which is to exclude him from [X]’s life permanently. As such he believes it is imperative that the court acts expeditiously to safeguard [X]’s paternal relationship.
The father’s application, which he commenced on 30 June 2008, was made returnable on 6 August 2008. It was served on the mother on 24 July 2008. Notwithstanding orders directing her to expedite her response the mother did not formally respond until 21 October 2008.
The independent children’s lawyer was appointed on 26 August 2008, which was also the date on which orders were made requiring the parties to enrol at the supervised contact program at [N]. It took almost three months for this process to be put into train, sadly without any great success from the father’s perspective. Accordingly I can understand his frustration with the process.
On 30 October 2008 the family assessment process was ordered. Ms Lohyn saw the parties and [X] on 3 December 2008. Ms Mussen told Ms Lohyn that Mr Keane had seen [X] 14 times for a couple of hours at each time. She also informed Ms Lohyn that [X] was seeing a psychologist.
I have not been provided any evidence about the nature of this intervention. However, it seems to be the mother’s case that this has been arranged to deal with [X]’s distress whenever his father’s name is mentioned. This distress allegedly includes bed-wetting, tantrums and nightmares.
In interview with [X] he apparently disclosed to Ms Lohyn that

Mr Keane was not his dad and wanted to take him, [X], away from his mother. Ms Lohyn was also concerned at Ms Mussen’s unwillingness to help [X] to transition into his father’s company for the purpose of some observed interaction of the two by Ms Lohyn. Mr Keane denied to Ms Lohyn he was an aggressive person. He complained that

Ms Mussen encouraged [X] to refer to him as "[first name omitted]" rather than as "dad". He remains adamant that the mother was psychologically abusing [X] by causing him to be frightened about his father for no proper reason.

Ms Lohyn provided the following assessment:
“From a psychological point of view one very important issue is the extent to which [X]’s refusal to engage with Mr Keane, both in this assessment and at the later sessions at the Children’s Contact Centre, might be due to distress about Mr Keane himself as a result of his aggressive behaviour as reported by Ms Mussen. My concern with this claim is that [X]’s response at the first play session at the contact centre is completely inconsistent with the view that [X] has been, in some serious way, stressed by Mr Keane’s previous behaviour. On the contrary the report of this session indicates that apart from initially being cautious about going through to Mr Keane, [X] had a happy play and seemed reasonably comfortable throughout. Mr Keane is also observed to have responded appropriately at all times. I am very concerned that at the second visit [X] spontaneously offered that Mr Keane might hit his mother.
[X]’s reasonable first play, his comment about his mum being hit by Mr Keane, together with his subsequent refusal to engage with Mr Keane, unfortunately raises the concern that Ms Mussen has perhaps coached [X].
A more benign interpretation would be that she has not properly protected him from her own views and feelings about Mr Keane. I can see no other explanation which makes sense of the contrast between [X]’s behaviour during the first play and the following times. Irrespective of whether Ms Mussen has directly coached or been very negligent in protecting [X] from her feelings about his father, this information from the contact centre undermines confidence about her capacity and/or willingness to appropriately support [X]’s relationship with his father. I am thus inclined to think that [X]’s refusal to engage with Mr Keane is related more to him being influenced by his mother’s view of his father than by Mr Keane’s alleged aggressive behaviour.
…
In any event, it is my view that [X] will manage times with his father appropriately if he is encouraged to do so by Ms Mussen. It is not clear to me how confident the court can be that

Ms Mussen will properly and positively prepare [X] for times with his father. My suggestion is that she simply reassures [X] that he will have fun with his father and that she acts as if seeing

Mr Keane is normal.
I think it is also important that Ms Mussen begins to refer to

Mr Keane as "dad", contrary to comments in her documents. Children of this age often refer to both parents and step‑parents as "daddy" and attach the adult’s first name. [X] referring to Mr Keane as "daddy [first name omitted]" is a reasonable way for him to deal with having two male parental figures in his life.”
Ms Lohyn goes on to propose as follows:
“I am, in principle, proposing that [X] begins to have regular times with his father in order to become comfortable with him and that Ms Mussen needs to do everything necessary to ensure that [X] is properly prepared and has a positive attitude to seeing his father. The matter could then be reviewed if thought necessary.”
This assessment, as I say, led Ms Lohyn to recommend that the father spend about two or three hours with [X] on a basis which was not professionally supervised on two occasions during a three or four-week cycle, depending on logistical concerns. Ms Lohyn thought it would be a good thing if there could be some person there to act as a lay supervisor.
Ms Lohyn was well aware of the practical difficulties prevailing in this case. If Mr Keane lived in Adelaide, she would have recommended more frequent periods of time, albeit of a fairly short duration. However, given [X]’s level of discomfort, Ms Lohyn did not advocate any longer periods at this stage.
She also thought that it was appropriate that [X] be exchanged between the parties at a contact centre or, as I say, some honest broker acceptable to both parties fulfil this role and help [X] settle in. At this juncture neither of the parties can suggest any such honest broker.
I appreciate Ms Lohyn’s opinion and methodology have not been subjected to any rigorous scrutiny or testing. However, neither party can point to any obvious flaw in her reasoning other than that the mother argues that Ms Lohyn has jumped to a conclusion about the reason for [X]’s distress.
In such circumstances, Ms Mussen urges the court to be cautious about implementing Ms Lohyn’s recommendations, particularly because, although the reasons for [X]’s distress may be controversial, his distress is no less real to him for that.

The legal principles applicable

I now turn to the legal principles which I have to apply in this matter. The service of [X]’s best interest is the most important consideration in this case [s.60CA]. The same principles apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of extreme difficulty in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [s.60B] which deals with children emphasise the desirability of a child’s parents being as closely involved as possibly in their child’s life both in terms of the exercise of parental responsibility and the time they each spend with the child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, particularly grandparents [s.60B(2) (b)].
Given the importance the legislation gives to both of the child’s parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [s.61DA].
However, the presumption of equal shared parental responsibility is rebutted if it is found on reasonable grounds that one of the child’s parents has abused the child concerned or exposed him or her or a member of his or her family to family violence.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s best interest for his or her parents to have equal shared parental responsibility.
In addition, the court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [s.61DA(3)].
The family law legislation emphasises the importance of parents being involved in their child’s life, and the child’s schooling, sporting activities and recreation, and particularly germane in this case, their daily routine, as well as special occasions, so long as this involvement is commensurate with protecting the child concerned from harm.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, and if this is considered to be neither in the child’s best interests nor reasonably practicable, the court is then required to consider the child living with each of his parents for substantial and significant periods of time.
In considering [X]’s best interests I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider, primary considerations and additional considerations.
There are two primary considerations: firstly, the need to ensure that the child concerned has a meaningful relationship with both his or her parents; secondly, the need to ensure that any child is protected from harm, both physical and psychological harm, which may arise if the child is exposed to any kind of abuse, neglect or family violence.
The additional considerations are more numerous. Again their application must depend on the particular circumstance of the case concerned, although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. In determining the outcome of a particular case one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under ss.60CC(2) and (3), the court is required to assess the degree of participation of the parents concerned in the lives of their child or children, both before and after separation. This assessment includes how much time and communication each parent has had with the child concerned, the degree of their involvement in long-term decision-making and the fulfilment of financial obligations towards the child concerned.
In addition the court is also required to consider how the parents have each facilitated the involvement in the other, in these aspects of their child’s life. These considerations emphasise the benefits for children of effective co-parenting and the obligations on a parent to facilitate it.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply, and so there is no need for the court to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper.

Conclusions

I turn now to the interrelation of those principles to the factual situation in this case and my conclusions.
At this stage, given the limited time [X] has spent with his father, the poor and mistrustful relationship which exists between his parents and the obvious logistical issues which arise, I do not think it would be in [X]’s best interest for the presumption of equal shared parental responsibility to be applied.
To my mind, given the polarised circumstances which prevail, it would be premature for this presumption to apply and would be more likely to be a prelude to more, rather than less, conflict between the parties. It is impossible to see how the parties could exercise joint responsibility for [X] at this juncture.
However, I am still required to consider the applicable section 60CC factors within the legislative matrix as provided by Part VII of the Family Law Act, which is intended to encourage the involvement of both the child’s parents in that child’s life commensurate with the need to protect the child concerned from harm. A balance must be struck between the two primary considerations.
The mother’s case is that [X] has been subjected to at least some level of psychological harm as a result of the father’s abusive attitude towards her and the family violence to which he has subjected her. Her complaints about the father are that he has been verbally aggressive towards her.
At this point it is difficult to ascertain whether these complaints objectively amount to family violence [section 4]. It not being beyond the bounds of possibility that the father has expressed some level of impatience or frustration with the mother on the rate of his progress in developing a relationship with [X], which is not objectively conduct which cause a person to be fearful or apprehensive. The father strikes me as having something of a determined personality. These proceedings are not designed, at this point, to resolve this evidentiary dispute between the parties.
On the other hand, at this stage the father places greater emphasis on the benefits [X] is likely to derive from having a meaningful relationship with him, both in the short term and the longer term.

Mr Keane is particularly fearful that if decisive action is not taken now, [X]’s relationship with him will lose its potential for immediacy and intimacy and so will inevitably be leeched of meaning.
Apart from the mother’s assertion that [X] has been psychologically stressed by exposure to his father’s abusive behaviour, there is no evidence to support her position. It is also telling that the first supervised visit between [X] and his father, at [N], went without any apparent incident or trauma to [X]. Ms Lohyn believes that [X] would be able to sustain visiting with his father provided his mother is supportive of the process and he is properly prepared for the visits.
It also seems to be the position that [X] has had limited exposure to his father in the first years of his life. In such circumstances it is difficult to see how it can be the case that [X] has been exposed to any protracted incidence of such violence. In any event, the father disputes that he has been emotionally violent as the mother contends.
Although I am not in a position to determine one way or the other whether [X] has been directly influenced by his mother, it is of concern that the child has said that he fears being taken away from his mother by his father.
The father has no such application. He has said, in his various affidavits that he considers that the mother is a good parent. In all the circumstances of this case, at this point, it is highly unlikely that the father will take any active steps to remove [X] from his mother’s care or that any court would give credence to such an application.
In those circumstances I am concerned that the mother, at worst, has been directly seeding such an idea in [X]’s mind or, at best, has been aiding and abetting that idea to come to the forefront of [X]’s mind. Her animosity for the father is high and it seems likely that she has an impaired capacity to support [X] in achieving an appropriate level of relationship with his father [s.60CC(4)]
In all these circumstances, at this stage I think more emphasis needs to be given to the likely benefits of [X] having a meaningful relationship with his father. For obvious reasons I am concerned that, given the difficult logistic circumstances which prevail, if some attention is not given to the level of [X]’s paternal relationship, he may lose the potential to have a close relationship with his father, which may have developmental implications for him as [X] grows towards maturity.
[X] only has one father. Section 60B underlines the importance of such biological connections to a child. In my view the emphasis derives from the sense of identity a child will gain if he or she knows both of his or her progenitors. [X] has only seen his father on a few occasions for limited periods of time. He does not know his wider paternal family at all. Children are likely to do better if they know where they fit in [s.60CC(3) (b) and Bright & Bright (1995) FLC 92-570].
Given the tenor of Ms Lohyn’s report, and the mother’s actions to date, there exist real question marks about Ms Mussen’s willingness and ability to encourage any sort of relationship between [X] and his father. She refused to engage and encourage [X] in the family assessment process with Ms Lohyn. At best it seems difficult to escape the inference that her poor attitude towards Mr Keane is acting as a powerful influence in shaping [X]’s attitude towards his father.
In her letter of March of last year, Ms Mussen indicated a preference that Mr Keane should abrogate all responsibility for [X] to her and she, in effect, should have the imprimatur to remove him as an influence in [X]’s life. This is not good parenting within the structure of the Family Law Act.
Ms Mussen has responsibilities to encourage and support a relationship between [X] and his father. I am hopeful that, having expressed the legislative requirements that apply to Ms Mussen, she will do as Ms Lohyn suggests and will begin supporting [X] spending some time with his father.
To my mind, if Ms Mussen does provide this support it will be the most foolproof means of ensuring that [X] is not unduly stressed by any future interactions with his father. At this point I have no reason to think anything other than that Mr Keane aspires to exercise parental responsibility for [X] and play a part in making major decisions about [X]’s development.
In all the circumstances, the mother’s response to the difficult situation which currently prevails does not seem to me to be one which is commensurate with the level of threat she alleges Mr Keane proposes to [X]. I am concerned that the mother’s attitude towards the father is more of an ongoing threat to [X]’s wellbeing.
There are no obvious solutions to the logistical problems posed by this case. It is a long way from Melbourne to Adelaide. Ms Mussen is not inclined to put herself out in respect of finding solutions to these practical problems. However, in my view the court would be derelict in its responsibilities towards [X] if it, in effect, capitulated to these difficulties. On the other hand, the solution postulated by the father is too radical and out of step with [X]’s current level of development. It is also something which the mother would find, I suspect, practically impossible to tolerate emotionally.
Notwithstanding the father’s frustration and impatience, the process of creating a relationship between him and [X] must proceed at a cautious pace. Necessarily, if the process is to be successful, it must involve a considerable level of financial sacrifice and commitment on

Mr Keane’s part.
The parties’ poor and mistrustful relationship with one another causes great difficulties for [X]. I must not lose sight of the fact that [X] himself did not create this difficult situation. He is likely to be distressed because of the situation which has come about, and I have to recognise the reality of that distress, no matter what my views are as to how it has come about in the first place.
Although I am critical of Ms Mussen to some degree, Mr Keane himself must also bear some responsibility for what has occurred. As I say, I suspect he is something of a forceful personality and no doubt he has been prone to exhibit his frustration in the past.
Although the Family Law Act has as its ideal both a child’s parents being equally involved in their child’s life, one size or approach does not fit every family. [X]’s family is an unusual and fractured one. It does, however, include Mr Keane.
In all these circumstances, the option proposed by Ms Lohyn and supported by Mr Winter, difficult as it is, seems to me to provide the best means of ensuring [X]’s best interests are served at this juncture.
After I had indicated to the parties that I proposed fixing the parties’ competing applications for final hearing in September of 2009 and in the intervening period making orders that would enable Mr Keane and [X] to spend time with each other for a period of around four hours on the first and second weekend of each month, to their credit and with the assistance of Mr Winter, they were able to agree on specific dates, which fitted with Mr Keane’s work schedule.
I also indicated that all handovers should take place at the

[N] Children's Contact Centre. Needless to say, all periods are to take place in Adelaide. An order was also made in line with Ms Lohyn’s recommendation regarding how Ms Mussen was to refer to Mr Keane to [X].
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Williams

Date: 11 March 2009