Kempsey and Wilson

FAMILY COURT OF AUSTRALIA

KEMPSEY & WILSON

[2012] FamCA 362

FAMILY LAW - CHILDREN - With whom a child spends time - Where the parties agree that the child should live with the Mother - Where the Mother opposes the child having any contact with the Father or the paternal family - Where there are allegations by the Father of alienation by the Mother - Where there is no evidence that the Father poses any risk to the child

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
MRR v GR (2010) 240 CLR 461
U v U (2002) 211 CLR 238

APPLICANT:

Mr S Kempsey

RESPONDENT:

Ms Wilson

INDEPENDENT CHILDREN’S LAWYER:

Mr G Couper

FILE NUMBER:

BRC

7680

2009

DATE DELIVERED:

22 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

29 February 2012

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

Orders

The child, T Wilson (“the child”), reside with the Mother.
The Mother shall have sole parental responsibility in respect of decisions concerning the child’s long-term care, welfare and development save that:
(a) Should the Mother wish to relocate the child more than 100 kilometres from his present residence, the Mother must first obtain the written consent of the Father to do so or a further Order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth);
(b)The Mother shall give the Father written notice in advance of any decision to be made with respect to any long term issue relating to the child’s care, welfare and development and the Mother shall take into account any views expressed by the Father in determining such issue;
(c)Each party respectively shall have sole parental responsibility for the child’s day to day care, welfare and development when the child is in that party’s care.
the child spend time with the Father as follows:
(a)       For each of four consecutive Sundays commencing Sunday 27 May            2012, for two hours from 10.00 am until midday;
(b)       For the next four consecutive Sundays commencing Sunday 24 June           2012, for five hours from 10.00 am until 3.00 pm;
(c)       For the next two consecutive Sundays commencing Sunday 22 July            2012, from 9.00 am until 5.00 pm;
(d)       Commencing Saturday 4 August 2012 and each alternate weekend    thereafter for four (4) such weekends, from 10.00am on Saturday until          3.00 pm on Sunday;
(e)       Commencing Friday 28 September 2012 and each alternate weekend          thereafter, from the conclusion of school on Friday until the      commencement of school on Monday, or if the Monday of any such           weekend is a holiday or a pupil free day, then until the commencement            of school on Tuesday.
With respect to the child’s time as provided for in Order 3:
(a)       For the purposes of Orders 3(a) – (d), the paternal grandfather, Mr T   Kempsey, shall at all times collect and drop off the child from and to the          Mother’s residence;
(b)       For the purposes of Orders 3(a) – (d), the child shall be primarily located   at the paternal grandfather’s residence;
(c)       For the purposes of Order 3(e), the child may spend time with the Father     at the Father’s residence or at the location he elects;
(d)       For the purposes of Order 3(e), any of the paternal grandfather, the Father or Ms C may collect and drop off the child from and to school,        and, for the avoidance of doubt, neither the Mother nor Mr D are          permitted to attend the school at those times unless requested by the  Father, Ms C or the paternal grandfather.
Commencing with the school holiday period in December 2012/January 2013, the child shall spend school holiday time with the Father as follows:
(a) For half of each of the school holiday periods, and for that purpose:
(i)Commencing with the school holiday period in December 2012, the child shall spend the first half of each school holiday period in 2012 with the Father, and each alternate year thereafter;
(ii)Commencing with the Easter holiday period in 2013, the child shall spend the second half of each school holiday period in 2013 and each alternate year thereafter with the Father;
(iii)Where the Father’s time occurs in the first half of a holiday period, any of the Father, the paternal grandfather or Ms C shall collect the child from school at the conclusion of the last day of the school term and the paternal grandfather only shall return the child to the Mother’s residence at the conclusion of the period;
(iv)Where the Father’s time occurs in the second half of a holiday period, the paternal grandfather alone shall collect the child at 10.00 am at the commencement of the period from the Mother’s residence and the child shall be returned to his school by any of the Father, the paternal grandfather or Ms C at the commencement of school on the first day of the following term;
(v)For the avoidance of doubt, the time the child is to spend with the Father in Order 3 is suspended from the first day of each holiday period referred to in this Order 5 (commencing with the December 2012/January 2013 holiday period) and recommences on the first weekend following the recommencement of the school term;
(b) On the Father’s birthday and Father’s Day as follows:
(i)If the Father’s birthday or Father’s Day falls on a school day, from 4.00 pm until 7:30 pm on that day, with the paternal grandfather to collect and drop off the child from and to the Mother’s residence unless the child is already spending time with the Father pursuant to other Orders;
(ii)If the Father’s birthday or Father’s Day falls on a weekend, from midday until 7.00 pm on that day, with the paternal grandfather to collect and drop off the child from and to the Mother’s residence unless the child is already spending time with the Father on this day pursuant to other Orders.
If the child is not otherwise in the Mother’s care, the child shall spend time with the Mother on the Mother’s birthday and Mother’s Day:
(a) If the Mother’s birthday or Mother’s Day falls on a school day, from 4.00 pm until 7:30 pm on that day, with the paternal grandfather to drop off and collect the child to and from the Mother’s residence;
(b) If the Mother’s birthday or Mother’s Day falls on a weekend, from midday until 7.00 pm on that day, with the paternal grandfather to drop off and collect the child to and from the Mother’s residence.
the child shall spend Christmas Day with the parties as follows:
(a) If the child is at that time spending time with the Father, the child shall spend from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day with the Mother, with the paternal grandfather to drop off and collect the child from the Mother’s residence;
(b) If the child is at that time spending time with the Mother, the child shall spend from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day with the Father, with the paternal grandfather to drop off and collect the child from the Mother’s residence.
the child shall be permitted by the Mother to have telephone contact with the Father at all such reasonable times as the child requests and, specifically, the Mother is to facilitate the child having such communication each Wednesday evening (commencing Wednesday 30 May 2012) between 7.00 pm and 7.30 pm, such Wednesday telephone calls to be initiated by the Father, and the Mother is to keep the Father informed of a landline telephone number for the child for the purpose of such calls.
The Mother shall keep the Father informed of all details pertaining to the child’s doctors and health practitioners and must notify the Father forthwith of any medical emergency affecting the child.
This Order shall serve as authority to the child’s doctors and health practitioners to release to the Father information concerning the child as may be requested by the Father from time to time.
This Order shall serve as authority to the child’s school and extra-curricular activity providers to provide the Father with school reports and such other information as the Father may reasonably request.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kempsey & Wilson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7680 of 2009

Mr S Kempsey

Applicant

And

Ms Wilson

Respondent

REASONS FOR JUDGMENT

Introduction

By Initiating Application filed in the Federal Magistrates Court on 31 August 2009, Mr S Kempsey (“the Father”), born in 1979, applied for Orders that he be able to spend time and communicate with his child, the child T Wilson (“the child”), born in July 2002, who resided, and continues to reside, with his mother, Ms Wilson (“the Mother”), born in 1978. The Father amended the detail, but not the thrust, of the Orders sought in his Amended Initiating Application filed on 31 January 2011, after the proceedings had been transferred in 2010 from the Federal Magistrates Court.
The Father seeks that the child remain living with the Mother but that he slowly progress from daytime contact on alternate weekends to overnight contact on an alternate weekend basis over a three month period. The Father also seeks Orders that he be able to telephone the child each Wednesday, as well as Orders that the child spend half of each holiday period and some time on special occasions with the Father, with all changeovers, where possible, to occur by the Father picking up and dropping the child off at school. The Father also seeks that the parties have equal shared parental responsibility for making major long-term decisions about the child.
By her Amended Response to Initiating Application filed on 9 February 2011, the Mother seeks Orders that the child continue to reside with her, that she have sole parental responsibility and that the child have no contact, either direct or indirect, with the Father, and that neither the Father nor any member of his family have any contact with the Mother or any member of her family.
That brief explanation of the parties’ positions makes clear the central issue of this case; namely, that the Mother adamantly refuses to consider that there might be any benefit whatsoever in the child having contact with his biological father or paternal family.

Brief History

The parties commenced their relationship in either 1999 or 2000 (the parties contest the exact date), when the Father was 20 years of age and the Mother 21. What followed was a brief and tempestuous relationship, involving a short period of cohabitation and culminating in the end of the relationship at some point in early 2001. The parties agree that the child was conceived following the formal end of the relationship, during a casual encounter in late 2001.
The Father concedes that when he was first informed by the Mother that she was pregnant, he did not believe her as he was convinced it was, “…her last effort to get me back.”[1] However, he acknowledged at some point during the Mother’s pregnancy or in the months following the child’s birth (when, on the evidence, is unclear) that the child was his. The paternal grandfather gave evidence that the Father was, “…confused…” for the first six or seven months or year of the child’s life and that the Father, “…didn’t really accept the fact that the child was his son…” during that period, but that the Father and the child, “…got on really well…” once the Father had accepted that the child was in fact his son.
[1] See affidavit of the Father filed 28 February 2012.
Both parties repartnered following the end of their relationship. The Mother repartnered with Mr D in 2003 and, despite a six month break in their relationship in 2007, is now in what she deposes to be a stable relationship with Mr D. The Mother and the child now live with Mr D. It is accepted by both parties that the child refers to Mr D as “Dad”.
The Father repartnered with Ms C following the end of the parties’ relationship, when Ms C was 15 and the Father was 22. Despite what the Father informed the Family Consultant, Mr P, to be an, “…amicable…” split in late 2009, the parties are now in a stable relationship. The Father and Ms C had a child, R, in April 2004 and all three continue to reside together as a family unit.
It is accepted by both parties that the paternal grandfather, Mr T Kempsey, played a significant role in the first five years of the child’s life. The Mother accepts that the child spent significant time with the paternal grandfather from his birth in 2002 until the Mother cut off all contact between the child and his paternal family in October 2007. The Father’s side of the family expressed confusion as to why the Mother acted to completely cut off the paternal family from the child at this time, while the Mother deposes that it was because the Father’s new partner, Ms C, contacted a woman named “B” with whom the Mother’s partner at that time, Mr D, had had an affair during the Mother’s relationship with him. The Mother deposes that she saw this as a betrayal of trust and therefore cut off all contact between the child and his paternal family.
The Father has not spent any time with the child since the Mother cut off contact in October 2007.

Statutory Framework

Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
Upon a review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case:
(i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)).
(iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i. Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii. Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (2010) 240 CLR 461 s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

Application of the Statutory Framework

Section 60CC Considerations

An important consideration in this case is the views expressed by the child and the weight that should be placed upon those views (s 60CC(3)(a)). In the first Family Report of Mr P, dated 19 March 2010 (when the child was seven years of age), the child makes some concerning comments regarding his desire to spend time with or communicate with the Father. These comments appear to indicate that the child is ‘parrotting’ the views of his mother rather than putting forward views based on his actual experiences with the Father.
For example, the child spontaneously made comments to Mr P to the effect of, “…he [the Father] doesn’t really play with me a lot sometimes, I wish he’d just leave me alone all the time and my family, and I wish he would never met you [Mr P] before.” However, when asked about who the Father was, the child variously replied, “I’m not sure,”, “…he’s a man,” and, “…not sure, I forgot.” I find that this reflects a confusion in the child’s understanding, at that time, of who the Father was and indicates that the child was unlikely to have had any clear recollection of time spent with the Father, particularly in circumstances where the child had not spent time with the Father, at that point in time, for over two years. Nonetheless, when pressed as to whether the Father could be his real father, the child replied, “I think so and then they broke up and I just love my new dad [Mr D] and I don’t want to see him [the Father] any more, the other one.” Mr P notes that this sentence was made without any sign of distress; something which I find unusual had this sentence been a reflection of the child’s true experiences of the Father.
I find that these statements more probably reflect a child who is trying to avoid conflict in his family unit by aligning with his primary carer, the Mother. The only justifications the child appears to be able to give for his stated desire not to spend time with the Father is that, “…he doesn’t really play with me a lot sometimes…” and the similar, “He never hardly played with me, in the mornings he goes [participating in a sport].” This would hardly seem to justify the child’s apparently strongly expressed desire not to see his father again. Instead, his views appear to have been significantly influenced by the Mother, either intentionally or unintentionally. For example, the child clearly stated to Mr P that his mother did not like the Father, “…because he was like being mean to my mum when I was three or two or four,” something he could hardly remember himself. The child further clearly stated that he knew his mother did not want him to see the Father. Tellingly, during the interview, when the child was making negative comments about R, his half-brother, he commented to Mr P, “I can’t believe I’m saying this to you, my mum will be so proud, she’ll buy me a cupcake.” I find that the child’s negative expressions concerning the Father were more likely than not the product of the child’s desire to mirror views he knew to be held by the Mother, rather than the child’s independently formed view.
In the second family report by Ms J, filed 6 April 2011, the child made similarly concerning comments. For example, when asked by Ms J to say hello to the paternal grandfather and the Father, the child replied:
Mummy would be very sad if I said hello to [the father]… and it would be heart breaking for Dad (reference to [Mr D]), he has done everything for me. He works hard every day, he gets home around three, I hug him and we play games together.
It was awful last time. I did say ‘hello’ to [the father] and it broke Mum’s heart but it is really how I feel, I don’t want to see him. This is not because I don’t want to hurt Mum, I just want to be with my family happily ever after. I want to live my life without [the father]. I have a family and a Mum and a Dad.
Such comments, I find most probably indicate that the child, being well aware of the Mother’s stance, was saying what he could to align himself to two of the people to whom he is closest, namely his mother and Mr D, in making the negative comments about the Father recorded in both this and Mr P’s earlier report.
This is further reinforced by comments made by the child in relation to how he would feel if a Court ordered that he spend time with the Father:
…unhappy because my Mum would also feel unhappy with me and she might not want to talk with me for a week or so. If the Court told me to do it I’d have to do it but I would jump out of the window and leave.
I note in particular paragraph 82 of Ms J’s report:
It is my impression that the ongoing conflict between the two households and indeed between the individual members therein, has influenced [the child’s] thoughts about contact with his father. [The child’s] interpretations of the ‘situation’ appear to be well ‘adjusted’ for a child of his age; I have a great life with Mum and Dad, they love me and are always there for me. They don’t like my father and his family; I am loyal to them. These ‘thoughts’ would enforce [the child’s] experience of apprehension and mistrust towards his father. To further illustrate this, I believe that [the child] essentially shares his mother’s various experiences of antagonism and distrust of his father owing to their interactions and his father’s ‘absence’ rather than through the interactions [the child] has had with his father.
I accept that opinion. In those circumstances, I find that I cannot place significant weight upon the child’s expressed views as they clearly reflect the attempts of a child to reduce the conflict in his familial unit and to please his mother rather than being opinions based upon his own independent views or personal experiences of the Father.
I note at this point that the Mother obtained a report from psychologist, Mr F, who expressed the view that the child’s expressed wish not to spend time with the Father was not influenced by the Mother’s own views and reflected the child’s own experiences. However, when cross-examined by the Independent Children’s Lawyer, Mr F revealed that his opinion was based solely upon the Mother’s reporting of facts and the referral by the child’s general practitioner which listed symptoms of anxiety. Mr F further revealed under cross-examination that not only had he never interviewed the Father in preparing his report (he indicated that the Father had not requested to be involved despite his offering to see the Father at his normal hourly rate), but that Mr F had also never requested information from independent sources such as the child’s school. Mr F also revealed that the Mother had been present in the room during all of his sessions with the child and that Mr F had never tested whether the child’s responses remained the same when the Mother was not present. In those circumstances, I accept the submissions of the Independent Children’s Lawyer that Mr F’s evidence should be disregarded in its entirety for lack of balance and lack of any probative value, other than reinforcing the conclusion that the child articulates the views held by his mother.
In terms of the child’s relationship with each of his parents and other important persons in his life (s 60CC(3)(b)), it is clear on the evidence of all parties that the child has a close relationship with both his mother and Mr D. As noted in Mr P’s report, the Father accepts that the child calls Mr D “Dad” and that the child has a close relationship with Mr D.
The child’s relationship with the Father must be seen in the context that the child has not spent time with the Father since the Mother cut off contact with the paternal family in September 2007, save for the two Family Report interviews conducted in 2010 and 2011 respectively. During the 2010 interview, Mr P noted that, “There are some signs of inhibition, but he showed absolutely no distress at any stage during his joint interview with the father.” Mr P further noted in his report that, far from being distressed during the interview, the child often initiated conversation between himself and the Father. Importantly, when the Father expressed during the interview that he loved the child and missed him, the child stated that he believed the Father was telling the truth. Mr P concluded, “At no stage was there any sign that he was disaffected from the father.”
Mr P further concluded:
This is a matter where it seems to me that there is an element of parent (sic) alienation taking place. Nevertheless, I do not conclude from my interviews and observations that [the child’s] relationship with the father has been so compromised that an attempt cannot be made to resume a contact relationship with the father.
I accept that conclusion.
I note that Ms J was unable to assess the child’s relationship with the Father as the child expressed a view that he did not want to spend time with the Father.
In those circumstances, I find that the child has some, albeit nothing approaching a close, relationship with the Father and not one which could be presently described as meaningful.
It does not appear to be disputed by any party that the child historically had a close relationship with his paternal grandfather, Mr T Kempsey. The child repeatedly expressed to the family report writers that he missed spending time with the paternal grandfather, and the Mother acknowledged that the child had expressed similar sentiments to her. The strength of this relationship is highlighted by the fact that the child continued to express this affection for the paternal grandfather even during the 2011 Family Report by Ms J.
I also find that the child has a relationship with his half-brother, R. In her affidavit material, the Mother expresses a view that the child does not like R and that his previous presence at the child’s school deeply upset the child, causing him to sleepwalk and display other symptoms of anxiety, including school avoidance and a drop in school performance. On the other hand, the Father deposes that the child and R have a positive relationship and that the child’s desire not to spend time with or play with R stems solely from the Mother’s influence. Given the interactions between the child and R during the Family Report interviews, I find that, again, any expression of dislike by the child as regards R more likely stems from his reflecting the Mother’s own anxiety and distress about the child spending time with R than from his own feelings or experiences.
In particular, I note the following observations by Mr P in his 2010 Family Report:
95. I reminded [the child] that [R] used to “go to your school, did you play with each other”. [The child] answered that as [R] was in a different year, he did not often play and that “I said leave me alone, I don’t want to see you”.
96. I have my doubts about whether this could be true. When [the child] and [R] were interacting with each other for the purposes of this report, it seemed very clear that they were fond of each other and were interested in each other.
…
126. [R] was rather more enthusiastic, I thought, than [the child], but nevertheless [the child] engaged with him in a friendly way. The paternal grandfather reminded [the child] that [the child] was in the habit of calling [R] “buddy”. [The child] smilingly agreed that this was so.
127. …I asked, “what’s it like seeing [R] today, is that good or bad?”, and his answer was “not sure”.
128. [R] asked [the child] directly, “will you come over to Poppy’s home for sleepovers?”. [The child’s] very enlightening answer was “if my mum says; she won’t let me sometimes”.
(emphasis in original)
Mr P’s observations reflect that the child does have or seeks to have a relationship with R, albeit one which is not presently as close as some sibling relationships given the Mother’s expressed concern about the two boys spending time together and the fact that the boys have not seen each other with great frequency since 2007. I find that any symptoms of anxiety displayed by the child when R was attending his school were more probably than not a reflection of the Mother’s own anxieties during that period rather than any particular conflict between the two boys themselves.
One of the most prominent features in this case is the willingness and ability of each of the Mother and the Father to facilitate and encourage a close and continuing relationship between the child and the other parent (s 60CC(3)(c)).
The Mother, for her part, has shown a total unwillingness to encourage any sort of relationship between the child and his father since 2007. The Mother’s position, in summary, is that the Father “had his chance” when the child was younger, that the Father did not sufficiently take up that chance and that therefore he should never be allowed to have any contact with the child. This is evident in her affidavit material. At paragraph 20 of her affidavit filed 18 November 2011, the Mother states that she believes that the Father has, “…missed his chance…” and that she doesn’t, “…believe that my son [the child] will benefit form having these emotions [regarding the Father] back in his life at this stage.” In her oral evidence before me, the Mother also gave evidence that she thought it was in the child’s best interests to be cut off from R, the Father and the paternal grandfather, even though she didn’t doubt that the Father loved the child. The Mother gave further evidence that there was nothing the Father could do to redeem himself in her eyes. The Mother summarised her evidence by concluding under cross-examination that the Father had had his chance and, “…blew it.”
One of the most concerning manifestations of the Mother’s attitudes towards the Father is her apparent willingness to return presents given by the Father to the child even after the child had received the present and begun to play with the present. For example, I note that Mr P records in his report that the Father brought a rugby ball to the 2010 family report interviews to give to the child. Upon receipt of the ball, Mr P records comments by the child such as, “…this is going to be awesome,” and “I play goalie, I can’t wait to use this ball,” clearly indicating the child’s excitement regarding the ball. However, the Mother, upon collecting the child and while the paternal family were still involved in interviews with Mr P, apparently took the ball from the child and left it by the door of the interview room for the paternal family to find. When questioned about this during cross-examination, the Mother said that she returned the ball because she did not agree with, “…buying affection,” and commented that the child did not seem distressed at all at giving up the ball when asked to do so. Given the child’s earlier comments to the Father, I find that highly unlikely, and instead, find that this incident simply demonstrates a total inability on the Mother’s part to support any connection between the child and the Father and the Mother’s fundamental lack of insight into the need to place the child’s interests ahead of her own, as she perceives them.
The Father also informed Mr P during the interview process that the Mother had previously returned presents he had sent to the child. During oral evidence, the Mother stated that she had never returned any other gifts the Father had sent to the child but that she had simply asked the paternal grandfather to ask the Father to refrain from giving presents to the child because the Mother’s home did not have sufficient storage space to house the gifts. I find this highly unlikely in light of the Mother’s behaviour during the 2010 interviews, and in this instance I prefer the Father’s version that, since 2007, the Mother has returned gifts the Father has sent to the child.
Another concerning aspect of the Mother’s attitude towards the Father is that she appears unable and/or unwilling to conceal this negative attitude from the child. I note that Mr P records in his report the following:
112. When I went to the ground floor reception area of […] to collect the child to take him to the joint interview with the father and the paternal grandfather, it was immediately obvious that the mother looked very glum.
113. I said to [the child] “right, I’m ready, off we go”. He approached me with some nervousness, I thought, and said “can my mum come, too?”. I said that the mother would not be coming, but “remember I’ll look after you, so off we go”. The mother continued to look glum but raised no objection.
…
137. When I took [the child] back to the mother and [Mr D], the mother’s facial expression still seemed very glum to me. …
(emphasis added)
Children of the child’s age and level of development are adept at picking up the non-verbal cues of their primary carers, and it certainly does not aid in the promotion of a meaningful relationship between the child and the Father that the Mother cannot even attempt to project at least neutrality at the prospect of the child spending time with the Father, even in the presence of an expert engaged to prepare a report.
The Mother also manifested her dislike for the Father to the child in refusing to allow the child and his half-brother, R, to attend the same school. The Mother deposed in her affidavit that when she discovered that Ms C and the Father intended to send R to the child’s primary school

…I quickly changed the child’s schools, now with regret, but I didn’t want there to be any conflict between us all to eventuate at the school which given our history, I knew would happen.
Although this is framed as a concern about potential conflict between the Mother and either the Father or between the Mother and Ms C, I find that a more enlightening version is contained in the Mother’s affidavit filed 9 February 2011:
Clicking on to the fact that they obviously planned to send their child to the same school as [the child] for prep, I quickly changed [the child’s] schools (sic), with regret. I didn’t want the child or myself to be uncomfortable at the school & (sic) I was worried about potential conflict.
(emphasis added)
The Mother appears, again, to be projecting her feelings about the Father and the Father’s immediate family onto the child. To my mind, there is no reason why the child and R could not attend the same school. If the Mother was truly concerned about conflict between herself and the Father, the simple solution would have been to pick the child up at a different part of the school or to simply avoid contact with the Father, rather than to change the child’s school altogether given the consequences or potential consequences of such a change for the child. The Mother’s tendency to project her own concerns onto the child is reflected in her reporting that the child did not like R and was deeply upset by R trying to play with him. This does not reflect Mr P’s observations, recorded above, of the actual relationship between the child and R. I reject the Mother’s evidence in this respect as unreliable.
After this initial removal, R was removed from the school as well, after which the child returned to the school, following which R returned to that school as well. Both boys therefore attended the same school from Easter 2010 to the end of that year. The Mother gave both oral and affidavit evidence that the consequence of R then attending the same school as the child was that the child became very upset and began to exhibit symptoms of stress such as sleepwalking and school avoidance (i.e. by telling the Mother he felt ill and then later revealing that that was not true). Interestingly, when asked as to why the child might be so upset at R attending his school, the Mother gave oral evidence that one reason was that R would tell the child’s friends that the two boys were brothers. In light of the evidence above that the child does not even appear to know that the Father is his actual father, it is unsurprising, if no less tragic, that the child would be confused as to R’s filial relationship with him.

The Mother’s inability to countenance contact between the child and the paternal family evidently contributed to her response to this issue in advising the child that he should have no contact with R (the Mother gave oral evidence to the effect that she advised the child that if R told the child’s friends that R and the child were brothers, the child should take his friends and play in a different area). The Mother, in her oral evidence, stated that she believed that the child felt “invaded” by R declaring that the boys were siblings. The fact that the Mother thinks that the mere existence of a relationship between the child and R could in any way be an “invasion” of the child’s life speaks volumes about the Mother’s desire to completely cut off the Father and the entire paternal family irrespective of the child’s best interests. The Mother’s further suggestion during her oral evidence that she had told the child he was welcome to play with R if that made the child happy rings hollow in that context.
Of most concern was the Mother’s oral evidence that there was no specific reason why she completely cut off the child’s contact with his paternal family in 2007 – it appears that she simply decided that, as she put it, “I got sick of trying.”
Of specific concern was the fact that this decision to cut off the paternal family also resulted in the removal of the paternal grandfather from the child’s life, a person whom the Mother acknowledged had cared for the child for significant periods during his childhood and had had a close relationship with the child up until that point. The Mother’s justifications as expressed in evidence for cutting off the paternal grandfather were, to say the least, bordering on the ridiculous. They included the Mother seeing a comment on the paternal grandfather’s Facebook page by a teenage girl asking to watch movies with the paternal grandfather and the paternal grandfather’s brother (which the Mother did not put to the paternal grandfather during cross-examination); Ms C having an “inappropriate” conversation with the grandfather in front of the child (which the Mother also failed to put to the paternal grandfather); and the paternal grandfather making unspecific comments about the Mother’s body when the child was close by.
The Mother’s greatest grievance with the paternal grandfather appeared to be that he did not share her outrage in 2007 when the Mother called him to complain that Ms C had contacted “B”, the woman with whom Mr D had had an affair just prior to the Mother and Mr D’s relationship breaking down, and that the paternal grandfather refused to interfere in the Mother’s conflict with Ms C.
The Mother gave oral evidence that, at the time, she did not consider that it might have upset the child not to see his paternal grandfather ever again, but concluded that there was no benefit in the child having a relationship with the paternal grandfather, despite earlier giving evidence that she did not think that the paternal grandfather had nothing to offer the child. I find that, especially given the child’s ongoing desire to see the paternal grandfather and his clear affection for the paternal grandfather, the Mother acted selfishly and entirely in her own interests, as she perceived them, in cutting the child off from the paternal grandfather, at considerable harm to the child’s best interests.
Given that the Father has spent so little time with the child, it is difficult to assess his capacity to promote an ongoing relationship between the child and the Mother. However, the fact that the Father acknowledged, in both the Orders he sought (which do not seek to change the child’s primary residence with the Mother) and during the Family Report interview with Mr P, the importance of the relationship between the child and the Mother and Mr D; it is clear that the Father is not opposed to the child having and continuing to have a meaningful relationship with his mother. For example, Mr P commented, at paragraph 30 of his report:
When I pointed out to the natural father during interview (sic) that there was an almost father/son relationship between [Mr D] and [the child], the father said that he understood how this had developed, and I consider that he was remarkably tolerant and generous in accepting this state of affairs.
Mr P further commented at paragraph 70 of his report:
So far as the father is concerned, he and the paternal grandfather struck me as focused and quite generously disposed towards the mother, and prepared to proceed in a cautious, measured and phased manner so far as a resumption of contact is concerned.
I therefore find that the Father is capable of promoting, and will likely promote, a meaningful relationship between the child and the Mother.
However, at this stage, it is also important to consider the impact of the Father’s new partner, Ms C. Both parties agree that Ms C has, at times, inflamed the tensions between the Mother and the Father. Nonetheless, I note that the Mother did not put any of her multiple allegations against Ms C, including allegations of physical violence towards the child, stalking over the internet and interference with the Mother’s relationship with Mr D, to Ms C during cross-examination. I further find that despite what may have happened in the past (and it must be understood that Ms C was only 15 years of age when she first partnered with the Father in 2002 and thus may not have had the maturity at that point that she now possesses), Ms C presented as a calm and measured witness. I find her to be a witness upon whose evidence this Court should rely. I find that the Mother has demonstrated an inability to promote a relationship between the child and Ms C, but I further find that any such tension can be largely alleviated by minimising contact, where possible, between the two women. I further find that it is important that the child have a positive relationship with Ms C as the mother of his half-brother, R.
In considering the relevance of the likely effect of any changes in the child’s circumstances (s 60CC(3)(d)), it is important to note that despite the Independent Children Lawyer’s suggestion at the conclusion of the trial that a change in residence, “…loomed large…”, the Father does not seek that the child live with him; rather, the Father seeks that he spend time with the child, graduating from a few hours a week to alternate weekends over a period of several months. I find that the Independent Children’s Lawyer’s final proposal would, given that it is not the position adopted by the Father, not be a practical proposal or one that would be in the child’s best interests given that his mother has been his primary carer for his entire life and that he has now not spent any meaningful time with the Father for five years. I find that the Father’s proposal would only be a positive change in the child’s life by bringing the child back into contact with both the paternal grandfather, the Father and R as well as, potentially, the child’s extended paternal family, whilst also ensuring he retains his primary attachments to his Mother and Mr D, who are clearly very important figures in the child’s life.
As regards the practical difficulty and expense of the child spending time with and communicating with the Father (s 60CC(3)(e)), I note that the parties, at the time of the trial, lived in relatively close proximity to each other. There would be very little difficulty in the child having contact with the Father, particularly in circumstances where the paternal grandfather, at paragraph 12 of his affidavit filed 23 February 2011, deposed that he would be happy to pick up and drop off the child where required to facilitate the child’s contact with himself and/or the Father.
The Father does not raise any question about the Mother’s ability to provide for the child’s physical, emotional or intellectual needs (s 60CC(3)(f)), save for the very significant issue of the Mother’s alienation of the child from the Father and the paternal family. The Mother, by contrast, made a submission to this Court that the Father was, “100% unfit as a parent.” I find that there is no actual evidence to support this. The Mother deposed in her affidavit material concerns about one or two instances of the child taking an inappropriate lunch to school (namely unhealthy food) as well as historical concerns about the Father’s use of alcohol and drugs, but there is no evidence to substantiate any of the Mother’s claims, which are entirely refuted by the Father. In any event, the majority of the Mother’s allegations against the Father are historical in the sense that the Mother has had almost no contact with the Father since late 2007.
Given that R, on Mr P’s evidence, appears to be a well-adjusted and cared for child, I find that the Father is capable of likewise providing for the child’s needs. It is also important to consider that it is in the child’s best interests to have a meaningful relationship with his half-brother, R, which can only occur by the child spending time in the Father’s household, given that the Mother expresses such a dislike for the paternal family, and, as found above, in particular, R’s presence in the child’s life.
The question of the child’s parents’ attitudes towards the child and the responsibilities of parenthood (ss 60CC(3)(i), (4) and (4A)) is perhaps one of the main issues, at least as regards the Mother, in this matter. The Mother deposed to several matters evidencing what she deposed to be the Father’s lack of interest in the child, including statements by the paternal grandfather (which the paternal grandfather agreed he may have made) that when the child was with the paternal grandfather, the Father would just spend five minutes with the child before continuing with his life. The Father conceded, in his oral evidence, that he did not originally believe that the child was his child and that therefore he was reluctant to engage with the child in the initial stages of the child’s life. The Father also conceded that he did not pay child support to the Mother voluntarily, and that he did not attend the child’s first birthday party because he knew the Mother would be present. There is, therefore, evidence that, at least initially, the Father had a very poor attitude towards the child and the Father’s responsibility as a parent.
However, I find that the Father appears to have changed his attitude since. That is primarily evidenced in his pursuing of these proceedings despite his lack of funds (the Father was self-represented in these proceedings), and other factors, including his oral evidence that he had applied to a contact centre for a place to commence on 16 April 2012 to ensure that there was a way for the child and he to resume contact in a gradual manner. It is apparent that the Father, as with all parents, is not perfect. He was not as involved as he could or should have been in the child’s early life.
There is no question that the Mother loves the child and has always been a very involved and caring parent. The only real concern raised by the Father about her attitudes to parenthood were, as discussed above, her attitudes to the child having a meaningful relationship with his biological father, and given the findings already made, that concern was well-founded.
As to the question of family violence, the Mother alleged, and the Father refuted, that the Father had taken out a Domestic Violence Order against the Mother. No evidence was provided by the Mother in this regard, and I can make no definite finding of fact in this regard. However, there was agreement between the parties that there had been violence between them. The Father gave evidence, for example, that the Mother, “…attacked…” him when he visited the child in hospital either at the time of the child’s birth or when the child had whooping cough as a baby. The Mother contested this, deposing that she merely, “…shoved…” the Father out the door when he visited the child because she felt the Father was not taking the child’s whooping cough seriously enough.
The Father also agreed that there was an incident between the parties, as deposed to by the Mother, where the Father threw a shoe towards the Mother’s apartment from the outside and broke her bathroom window. However, the Father gave oral evidence that this throw was in response to the Mother first throwing the shoe at him. The Mother agreed that she had thrown the shoe out of her window, but asserted that it was simply out of her apartment and not at the Father. At any rate, this seems to be an incident where both parties were contributors.
The Mother also deposed in both her affidavit and oral evidence to an incident where the Father slipped into her bed when she was pregnant and then kicked her in the back so hard that she fell out of the bed. The Father refuted this, saying that the Mother had invited him into her bedroom and that she had fallen out of the bed because she was on the edge of the bed. Given the lack of any significant domestic violence history between the parties, I prefer the Father’s version of events in this instance that the Mother falling out of bed was not because of an intentional act by the Father. This does not mean that I find the Mother to have been untruthful in her version, but rather that there may have been two vastly different interpretations of the Father coming into contact with the Mother in her bed that night which have been coloured by emotion but which may, in each party’s eyes, be equally truthful.
I further note that the Father admitted to having been aggressive on one occasion towards the Mother’s vehicle as she left a party of a mutual friend in that vehicle.
Finally on this topic, I refer to the event deposed to by the Mother where she noticed a scratch on the child’s face following a visit by the child with the Father, which she deposes that the child told her was caused by Ms C, “…smacka (sic)…” his face. The Mother deposes that she became very angry and went to Ms C’s home to confront her and was arrested by the police, although not charged when she was brought before a Magistrate the next day. Ms C explains in her affidavit material that this scratch was the result of her fingernail accidentally scratching the child’s face while they were shopping for his kindergarten lunch. I accept Ms C’s evidence, particularly in the situation where this incident was not put to Ms C by the Mother during cross-examination. The Mother’s reaction in this situation, without taking the more reasonable course of seeking an explanation from Ms C or the Father demonstrates her inability to act in a balanced way in relation to the paternal family.
I do, however, accept that Ms C’s stepfather threatened the Mother in a telephone conversation as alleged by the Mother. Ms C admits as much in her affidavit evidence. However, on the evidence before me, there has been no repeat of this threat, nor does Ms C’s stepfather appear to be a significant figure in the Father’s family unit.
I find that there has been family violence between the parties and that both the Mother and the Father have instigated it on different occasions. However, I find that as long as the Mother and the Father can be kept separate as much as possible, this should not impact upon the child’s ability to have time and communication with the Father.
I further find that Orders which reduce the likelihood of further proceedings are in the best interests of the child, despite the submission by the Independent Children’s Lawyer that interim Orders should be made, with further Orders to be made after six months of attempting to reintroduce the Father into the child’s life and a report by a psychologist. The child has been unable to see his Father for the past five years, and further proceedings will only further delay and complicate matters for the child.
Of course, if the Mother fails to ensure that the time and communication now ordered does not occur or is limited or sabotaged, further proceedings including the prospect of orders for the child to live with the Father may be unavoidable if that is seen as the only means by which the child will be permitted to maintain a meaningful relationship with both of his parents.
The above discussion sheds light on the primary considerations. In terms of s 60CC(2)(a), I find that there is a benefit to the child in having a meaningful relationship with the Father, particularly in circumstances where the Father’s household also includes the child’s half-brother, R. On the other hand, s 60CC(2)(b) raises the issue of the need to protect the child from exposure to abuse or family violence which, unfortunately, appear to have characterised the communications between the Mother and the Father. However, the circuit-breaker in the parties’ relationship appears to be the paternal grandfather. He has always been a positive influence in the child’s life and a voice of reason in the parties’ relationship. The Mother admits in her affidavit material that the paternal grandfather always interacted positively with her and supported her when she needed it. The Father deposes to also having a very positive relationship with the paternal grandfather. Therefore, I find that if the Mother interacts with the paternal grandfather, rather than the Father directly, in dealing with the child’s contact with the paternal family, the likelihood of the child’s exposure to family violence or abuse between the parties is significantly decreased, and I propose to so order.

Parental Responsibility and Presumption

I find that, given my conclusions as to the existence of family violence between the Mother and the Father, I should not apply the presumption that the parties should have equal shared parental responsibility. I find that this will be more likely to cause tension and conflict than to encourage successful co-parenting, and that ordering that the parties have equal shared parental responsibility for long-term issues would not be in the child’s best interests.
In any event, these parents were together only briefly and there is no realistic prospect, based on their history, that they will be able to co-operatively negotiate or even communicate in the child’s best interests. Thus the Mother as primary carer should have the capacity to exercise parental responsibility but she ought be obliged to take account of the Father’s views on any issue concerning the child’s long-term care, welfare and development.
I find that the Mother, as the parent with whom the child will primarily live, should retain sole parental responsibility, with the exception of the right to decide where the child should live and subject to the obligation to receive and consider the views of the Father. Should the Mother wish to relocate the child more than 100km from her present residence, she must first obtain the written consent of the Father. I find that this is in the child’s best interests as it helps to ensure that the child can practically spend time with the Father as ordered.
In those circumstances, having regard to the findings I have made I find that the presumptions in s 65DAA of the Act ought not apply in this case.
There ought be the opportunity and facility for telephone communication between the child and the Father and that will be provided for in the Orders.
I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 May 2012.

Associate:

Date: 22 May 2012

[2012] FamCA 362

22 May 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction