King and King

FEDERAL CIRCUIT COURT OF AUSTRALIA

KING & KING

[2016] FCCA 827

Catchwords:
FAMILY LAW – Parenting – living arrangements for the parties’ three children – two youngest children live with the Mother and spend alternate weekends with the Father – oldest child lives with the Father – allegations the Father is alienating children from the Mother – the oldest child refuses to spend time with the Mother – evidence that absent immediate intervention the oldest child will not have a relationship with the Mother – where the Father demonstrates no insight into how his behaviours are impacting the children.
Held – matter adjourned for six months – interim orders made for all three children to live with the Mother and spend no time with the Father for six months – the Father ordered to attend behavioural change and like courses and provide proof of their completion on the adjourned date on which date the resumption of time with the Father is to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60C(2), 60C(3), 60DA, 65DAA

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) Fam LR 483

Applicant:

MS KING

Respondent:

MR KING

File Number:

MLC 3047 of 2015

Judgment of:

Judge Bender

Hearing date:

2 March 2016

Date of Last Submission:

3 March 2016

Delivered at:

Bendigo

Delivered on:

19 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Mansfield

Solicitors for the Applicant:

Stuthridge Legal

Counsel for the Respondent:

Mr Strong

Solicitors for the Respondent:

Loddon Campaspe Community Legal Centre

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Joliman Lawyers

ORDERS

The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Bendigo on 28 November 2016 at 10:00am in the duty list.
On or before 7 November 2016 the Father file and serve any affidavits he seeks to rely upon in relation to the living arrangements for X born (omitted) 2003 (“X”), Y born (omitted) 2007 (“Y”) and Z born (omitted) 2008 (“Z”), such affidavits to confirm his compliance with Orders 16, 17 and 18 herein together with proof of same.
On or before 21 November 2016 the Mother file and serve any affidavits she seeks to rely upon in relation to the living arrangements for X, Y and Z.
All previous parenting orders be discharged.

AND THE COURT ORDERS UNTIL FURTHER ORDER:

The Mother have sole parental responsibility for X, Y and Z.
X, Y and Z live with the Mother.
The Father shall spend no face to face time with X, Y and Z but shall communicate with them via telephone each alternate week between 4.30pm and 5.00pm on Thursday with the telephone to be placed on loud speaker.
When speaking to X, Y and Z pursuant to Order 7 herein, the Father is restrained from:
(a)denigrating or belittling the Mother to X, Y or Z or encouraging them to misbehave or disobey the Mother;
(b)discussing with X, Y or Z these proceedings, the orders made and parenting issues; and/or
(c)encouraging X, Y and Z to disobey the orders of this Court.
In the event the Father fails to comply with Order 8 herein, the Mother is at liberty to immediately terminate the telephone call.
Should X run away from the Mother’s residence or abscond from school and attend at the Father’s home or the Paternal Grandmother’s home, the Father shall forthwith notify the Mother by text message and immediately return X to the Mother’s home.
The Mother shall ensure that X continues to attend counselling with Mr D at Headspace (omitted) and family therapy with Ms D or such other recommended service or therapist until such time as it is recommended by that service or therapist that counselling is no longer required.
The Mother forthwith enrol X into the Child and Adolescent Mental Health Service for assessment and treatment and follow all recommendations made by that service with the appropriate timing of that enrolment to be discussed with Ms D and the Mental Health Service.
The Mother shall continue to engage with her personal counsellor Ms M and attend upon Ms D as directed by such counsellors.
The Mother shall ensure Y and Z attend upon Ms D as directed by Ms D.
The Mother be at liberty to take X, Y and Z to (country omitted) each alternate year for a maximum period of three weeks on condition that:
(a)the Mother provide the Father with at least four weeks written notice; and
(b)the Mother provide the Father with an itinerary and contact details for X, Y and Z during the period in which they are overseas at least two weeks in advance of the departure date.
The Father shall forthwith enrol in and complete:
(a)a Men’s Behavioural Change Program at the Centre for Non-Violence in (omitted); and
(b)a Keeping Kids in Mind parenting program through CatholicCare, (omitted).
The Father shall forthwith engage with the Department of Health and Human Services and follow any recommendations and engage with all programs recommended by that service.
The Father shall continue to attend upon his counsellor Dr J as directed by her.
The Father shall be entitled to receive school reports, school photograph order forms and newsletters from X, Y and Z’s schools, but is otherwise restrained from attending at their schools.
The Mother shall immediately notify the Father in writing by email or text message in the event X, Y and Z or any of them suffer any serious illness or injury.
The parties forthwith do all things necessary to enrol at (omitted) Supervised Contact Centre at (omitted).
The Independent Children’s Lawyer shall provide a copy of the judgment delivered in this matter and a copy of these orders to:
(a)Headspace;
(b)Ms D;
(c)the Department of Health and Human Services;
(d)the Manager of the Men’s Behavioural Change Course at the Centre for Non-Violence in (omitted);
(e)Ms M; and
(f)Dr J.
The Independent Children’s Lawyer shall provide a copy of these orders to the principal of X, Y and Z’s school/s.
The Independent Children’s Lawyer and, if possible Ms D forthwith meet with X, Y and Z to discuss and explain these orders to them.
Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:
(a)harassing or assaulting the other party;
(b)denigrating, rebuking or belittling the other party to or in the presence or the hearing of X, Y and Z, and from allowing X, Y and Z to remain in the presence of any other party who may be doing so;
(c)discussing these proceedings and/or parenting issues, to, with or in the presence or hearing of X, Y and Z and from permitting any other person to do so;
(d)exposing X, Y and Z to conflict or disagreements between the Mother or between any other person in the household; and
(e)telephoning the other parent save for a medical emergency concerning X, Y or Z.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BENDIGO

MLC 3047 of 2015

MS KING

Applicant

And

MR KING

Respondent

REASONS FOR JUDGMENT

Introduction

This matter relates to the living arrangements for the parties’ three sons X born (omitted) 2003 (“X”), Y born (omitted) 2007 (“Y”) and Z born (omitted) 2008 (“Z”).
X has spent very limited time with the Mother since an incident at his school in December 2014.
It is the Mother’s evidence that her very fractured relationship with X is as a direct result of X’s exposure to the Father’s unremittingly negative view of her and the Father’s undermining of her relationship with X.
For these reasons the Mother is seeking orders that she have sole parental responsibility for X, Y and Z, that they live with her and that their time with the Father be suspended for a period of six months.
The Mother’s proposal is that at the conclusion of six months and subject to the Father engaging in and completing a Men’s Behavioural Change Program, a Keeping Kids in Mind parenting program and engaging with a psychologist such that he develops insight into how his current parenting is impacting X, Y and Z, the Father spend supervised time with the boys at (omitted) Contact Service (“(omitted)”). It is the Mother’s proposal that subject to the time at (omitted) proceeding satisfactorily, X, Y and Z spend unsupervised time with the Father each alternate Saturday from 10:00am to 5:00pm.
The Mother’s proposal is supported by both the Independent Children’s Lawyer and the family report writer Ms S.
The Father adamantly denies that he has exposed X to his negative views of the Mother or that he is undermining X’s relationship with the Mother. It is the Father’s evidence that X’s refusal to spend time with the Mother is X’s own decision because of the Mother’s long-standing mental and emotional abuse of X.
At the commencement of the hearing, the Father was seeking orders that he have sole parental responsibility for X, Y and Z, that they live with him and spend time with the Mother each alternate weekend from after school Friday to before school Monday.
At the conclusion of the evidence, the Father altered his proposal. It is now the Father’s proposal that interim orders only be made that provide that he have sole parental responsibility for X and that X live with him and spend time with the Mother as agreed. The Father proposes X continue to attend family therapy with Ms D and counselling with Mr D at Headspace. The Father further proposes that he ensures X has a mobile phone with credit so that X and the Mother can have regular telephone contact.
In relation to Y and Z, the Father proposes that on an interim basis the Mother have their sole parental responsibility, that they live with her and spend alternate weekends with him from after school Friday to before school Monday.
The Father otherwise proposes the matter return to Court in six months.

Background

The Mother was born on (omitted) 1983 and is aged 32 years. She works part-time during school hours as a (occupation omitted). The Mother has not repartnered.
The Father was born on (omitted) 1975 and is aged 40 years. The Father suffers from rheumatoid arthritis and is currently unemployed. The Father has not repartnered.
The parties married on (omitted) 2003 and separated on 7 November 2014.
When the parties first separated, X, Y and Z remained with the Mother and spent time with the Father.
Immediately after separation the Father was admitted to the (omitted) Centre in (omitted) for mental health reasons, having threatened suicide. He was hospitalised for two weeks.
Upon his release from hospital the Father agitated for X, Y and Z to live week-about with each of the parties.
It is the Mother’s evidence that in early December X began telling her that he wanted to live with the Father. At that time X was spending time only with the Father. It is the Mother’s evidence that in December 2014 the Father inferred he would take X to live in (omitted) with his Mother. The parties lived in (omitted) until 2012.
As a result of her concerns that the Father would collect X from school and take him to (omitted), the Mother attended X’s school on 11 December 2014 before the end of the school day to remove him from the school to prevent the Father from taking him to (omitted).
X was very angry when the Mother attended to remove him from school and became most distressed. His school principal and counsellor encouraged him to leave with the Mother.
When X continued to be angry and distressed after the Mother took him from school, the Mother rang the Father at 7:00pm that evening and arranged for the Father to collect X and take him to his home.
The Father has since referred to the Mother’s removal of X from school on 11 December 2014 as an “abduction”, a “kidnapping” and as the Mother “raping and violating” X. X has spent very limited time with the Mother since this date.
It is the Mother’s evidence that after the school incident the Father insisted that a shared care arrangement be put in place for Y and Z. The Father denies he insisted on this arrangement and that it was agreed to by the Mother.
The Mother commenced these proceedings on 13 May 2015.
On 15 June 2015, interim orders were made by consent which provided for the parties to have equal shared parental responsibility for X, Y and Z, for Y and Z to live week about with the parties and for X to live with the Father and spend time with the Mother each Friday from 3:30pm to 8:00pm.
The matter was otherwise listed for final hearing in the September circuit at Bendigo and for the preparation of a family report.
There was a notation to the 15 June 2015 orders that X was attending and would continue to attend therapeutic counselling with Ms M at CatholicCare in an effort to repair his relationship with the Mother.
Despite the Orders of 15 June 2015 X, did not spend time with the Mother every Friday. He spent only very limited time with her.
Ms S, family consultant, prepared a Family Report dated 10 August 2015. In paragraph 87 of her report Ms S expressed the view that:
…neither Ms King nor Mr King has demonstrated that they are capable of having the full-time care of the children.
Ms S recommended the then existing living arrangements for X, Y and Z continue, that the Father attend a Men’s Behavioural Change program as “his behaviour could be viewed as bullying” and the Mother attend counselling to assist to raise her self-esteem and to learn to be assertive.
In paragraph 88 of her first report Ms S stated:
It is my view that given the concerns raised this matter should not have a final hearing for at least six months to allow the above counselling and programs to take place as otherwise there would be no monitoring of the progress.
Given Ms S’s recommendation, the matter did not proceed to final hearing in the September sittings of the Court at Bendigo. The matter was adjourned to the November sitting of the Court for final hearing and orders were made appointing an Independent Children’s Lawyer and requested the Independent Children’s Lawyer to obtain a report from X’s counsellor, Ms M and provide it to the report writer, Ms S. The interim parenting orders made 15 June 2015 remained in place.
Prior to the November Bendigo Circuit, the Court was contacted by the parties’ solicitors to be advised that having received the report from Ms M, Ms S had recommended there be an updated Family Report. Ms S was not able to see the parties, X, Y and Z until December. The solicitors for the Mother sought the matter be listed for interim rather than final hearing in the November sittings.
In the November sittings the Mother sought that interim orders be made that Y and Z live with her and spend alternate weekends with the Father as she was concerned that the Father was undermining her relationship with Y and Z in the same way he had undermined her relationship with X. She also sought orders that X spend alternate weekends with her so that the brothers spent time with each other every weekend.
Both parties advised the Court that X had begun spending more time with the Mother, albeit that this time did not accord with the June 2015 orders and was as determined by X.
The Independent Children’s Lawyer supported interim orders being made in the terms sought by the Mother.
At the November sittings the Court was also advised that X was seeing Mr D at Headspace for personal counselling, that he and the Mother were attending Ms D for therapeutic counselling, the Mother was attending Ms M for personal counselling and the Father’s counsellor was Dr J.
After hearing the parties’ and the Independent Children’s Lawyer’s submissions, interim orders were made for Y and Z to live with the Mother and spend alternate weekends from after school (or 3:30pm) Friday to before school (or 9:00am) Monday with the Father. Orders were also made for X to live with the Father and spend alternate weekends with the Mother from after school (or 3:30pm) Friday to before school (or 9:00am) Monday.
Orders were also made that all changeover occur at (omitted).
An updated Family Report was ordered and the Independent Children’s Lawyer or her Counsel was requested to explain the interim orders to X, Y and Z.
After the interim orders were made, X refused to spend any time with the Mother other than for a short period on Christmas Day.
During the interviews for the updated Family Report on 14 January 2016, it is Ms S’s evidence that the Father became extremely angry with her and refused to participate in his one-on-one interview with her. Ms S asked the Father to leave. The Father continued to shout at her such that Ms S describes that she was fearful of the Father and had to threaten to call the Police before the Father would leave her rooms.
The Father denies it was he who was angry and agitated during the interviews with Ms S. It is the Father’s evidence it was Ms S who was angry.
As a result of the Father’s behaviour in her office Ms S made a notification to the Department of Health and Human Services (“DHHS”).
On 15 January 2016 there was an incident at changeover at McDonalds. It is the Mother’s evidence that she had delivered Y and Z to the Father for their time with him and that the Father parked his car behind her car preventing her from leaving. It is the Mother’s evidence the Father then approached her car and began banging on her closed car door window and shouting at her. He only left when she tried to call the police. The Mother describes being fearful of and feeling intimidated by the Father’s behaviour.
Whilst conceding he parked behind the Mother and approached her car, it is the Father’s evidence he only tapped on the window of her car as he wanted to discuss arrangements for Y and Z with her.
As a result of the incident at McDonalds, the Mother obtained an Interim Intervention Order against the Father. She also consulted the Centre Against Violence and now has a safety plan in place.

The Evidence
The Mother

The Mother relies on her affidavits sworn 7 April 2015, 1 September 2015, 26 October 2015 and 11 September 2016. The Mother also gave viva voce evidence at the final hearing.
It is the Mother’s evidence that she believes the complete breakdown in her relationship with X is as a direct result of the Father’s constant denigration of her to X. It is the Mother’s evidence the Father tells X she is a liar and that she has emotionally and mentally abused him, particularly when she removed him from school in December 2014. It is the Mother’s evidence the Father does not support X having a relationship with her which is evidenced by the Father not supporting X in spending time with her in accordance with the orders of the Court.
It is the Mother’s further evidence that she believes Y and Z to be exposed to the Father’s negative views of her but that their young ages and the intervention by the Court in reducing their time with the Father has meant that their relationship with her has been able to flourish.
As a result of the Father’s inability to support any relationship between herself and X and his inability to shield X, Y and Z from his negative views of her, the Mother proposes that all three boys live with her and that for a period of at least six months they spend no time with the Father.
It is the Mother’s evidence that she believes that this will be the only way that X, and Y and Z to a lesser extent, will be afforded any opportunity of having a meaningful relationship with her.
The Mother adamantly denies the Father’s allegation that she and X had a troubled relationship prior to the parties’ separation and she describes their relationship as a normal child/parent relationship.
It is the Mother’s evidence that prior to separation she was the primary carer for X, Y and Z.

It is the Mother’s evidence that after the parties married they lived in (omitted) where the Husband was employed as a (occupation omitted) and she was engaged in Home Duties.
After the Husband developed rheumatoid arthritis in 2012 and had to cease his employment, it is the Mother’s evidence that she continued to be the primary carer of X, Y and Z as the Father’s arthritis and resultant pain limited his ability to be actively involved in the care of the boys.
It is the Mother’s further evidence that the medication prescribed to the Father for the treatment of his arthritis and particularly the steroids, had an adverse impact on the Father who would become very angry and aggressive which she and the children found frightening and intimidating.
In the first family report Ms S recommended that the Mother attend counselling to assist her self-esteem and to learn to be assertive. It is the Mother’s evidence that she has been attending counselling with Ms M. It is the Mother’s evidence that she is definitely much stronger now than she was six months ago. It is her evidence that she has worked on herself and built up her self-esteem and that when she looks back on what she was like before and what she is now she cannot believe the progress that she has made both in relation to her sense of her own self-worth and her ability to be more assertive and firm around her management of herself and the children. It is her evidence that she intends to keep attending Ms M.
It is the Mother’s evidence that she knows that X, Y and Z love their Father and that he loves them. It is the Mother’s belief however that the Father is unable to filter what he says to the boys and cannot refrain from exposing them to his negative views of her.
It is the Mother’s evidence that the Father has openly told X, Y and Z that she is a liar and that he inappropriately shares with them Court documents and discusses the legal proceedings with them. It is her evidence the Father actively undermines their relationship with her. By way of example of this behaviour, the Mother gave evidence that after she filed her trial affidavit on 11 February 2016 Z and Y returned from spending the weekend with their Father and they were fighting. It is her evidence that when she told them it is not nice to fight, Z told her that the Father had said that they were to fight when they were at their Mother’s house and that Y told her their Father had told them to refuse to come with her at the conclusion of their time with him.
It is the Mother’s evidence that she and the Father have real difficulty in communicating. It is her evidence that they are unable to speak to each other as the Father becomes abusive and argumentative.
In relation to the use of the communication book that was provided for in previous orders, it is the Mother’s evidence that this has not been particularly successful as the Father does not use it. The Mother concedes that the Father suffers from dyslexia and would have some difficulty in communicating in this way. It is the Mother’s evidence however that the Father seems to be able to communicate reasonably well using text messages and was not opposed to the idea of them communicating by way of email.
During the interviews for the second family report, X raised with Ms S and the Mother that the Mother had not called him when he had forwarded her text messages requesting her to do so.
It is the Mother’s evidence that X texts her to call him using the Father’s mobile phone. It is her evidence that she is reluctant to call X back on the Father’s telephone for fear that the Father will answer the call and become abusive. It is the Mother’s evidence that it was her understanding that whilst X had his own mobile phone he had stopped using it because it had no credit.
It is the Mother’s evidence that since the arrangements were altered that provided for Y and Z to live primarily in her care, Y and Z have settled well and she has not had any issues with their behaviour or relationship with her other than the incident described earlier when they reported the Father encouraged them to misbehave when they are in her care.
The Mother was asked how she felt X would respond if orders were made as sought by her and how she would manage and support X during that transition. The Mother readily conceded that it would be very difficult and that X would be very unhappy and would act out and try to openly defy the orders.
It is the Mother’s evidence that she has also spoken at length to Ms D who is providing family therapy to herself and X and Ms D has indicated to her that she is prepared to work very closely with X to assist him to come to terms with Orders if they were made in the terms proposed by the Mother. It is the Mother’s evidence that Ms D has also indicated a willingness to work with Z and Y, who the Mother acknowledges will be impacted by the arrival of a distressed and defiant X to the household.
The Mother notes that X has a very good relationship with his counsellor at headspace, Mr D and that she would ensure that X also continued to attend upon Mr D for assistance.
It is the Mother’s evidence that she has very good support around her including the members of her Church. The parties are (religion omitted) and the Mother practices her religion. It is her evidence that she has spoken to the elders of her Church who are prepared to assist both she and X.
X has threatened to kill himself if forced to live with the Mother. He has told this to the Mother, his counsellor Mr D as well as the report writer Ms S.
It is the Mother’s evidence that Mr D has indicated that this threat of self harm may only be attention seeking behaviour on X’s behalf. However, it is the Mother’s very clear evidence that she takes X’s threats in this regard very seriously and that she has available the emergency Crises Assessment and Treatment Team telephone number in the event that she believes that X is at risk of harming himself in anyway.
It is the Mother’s evidence that she believes it is quite possible that if required to live with her, X will attempt to run away and return to the Father. It is her evidence that he has done this previously when spending some time with her. On that occasion she followed X slowly in the car and was able to speak to him, persuade him to get in the car and to come back to her home.
Under cross examination the Mother conceded that she knows that there is no guarantee that the orders that she seeks will be successful in repairing the relationship between herself and X. It is the Mother’s evidence that she believes X is at greater risk of harm if his current living arrangements continue than if her proposal is tried and fails.

The Father

The Father relies on his affidavits sworn 3 June 2015, 8 November 2015 and 24 February 2016. The Father also gave viva voce evidence at the final hearing.
The Father relies on the affidavit of his Mother, Ms M sworn 22 February 2016. Ms King was not required for cross examination.
It is the Father’s evidence that the difficult relationship between the Mother and X pre-dates the date of separation. He describes multiple arguments between X and the Mother, the Mother arriving home with X and X remaining in the car to calm down because he had been arguing with the Mother and that during the marriage the Mother often complained to him that she was not able to manage X.
The Father describes the incident at the school when the Mother removed X against his will as an emotional and mental “rape” of X and that the Mother “violated” X. It is the Father’s evidence that X was crying uncontrollably for hours after the Mother returned him to his care on the evening of his removal from the school, even though he had been returned to the Father’s care.
It is the Father’s further evidence that for many months after this incident, X would crawl into his bed at night and continue to cry about this incident.
The Father adamantly denies the Mother’s allegation that he does not encourage X to have a relationship with her. It is his evidence that it was he who organised the initial therapeutic counselling with Ms M at CatholicCare with a view to assisting X and the Mother to repair their relationship.
It is the Father’s evidence that he encourages X to spend time with the Mother but it is X who is reluctant to do so. When questioned as to what he does to encourage X to spend time with the Mother it is the Father’s evidence that he tells him that he needs to see the Mother and that on one occasion he even offered and gave X ten dollars to go to the Mother’s home.
In cross examination Counsel for the Independent Children’s Lawyer pressed the Father as to whether he was able to ensure that the children and X in particular complied with the Court Orders. The Father’s responses were as follows:
“I could get my children to comply with them, not a problem.”
When challenged as to whether he considered that he had ensured that X comply with the Court Orders the Father responded as follows:
“You are trying to goad me into saying something, okay, where a child has been extremely, extremely, extremely, distressed and abused by his mother … what you are trying to get me to do is make my son hate me as much as he hates his mother for what she has done. And you are trying to get me to say yes, I can’t – or yes, I can make him go, but why aren’t you going? This game is utterly disgusting to be played in court like this.”
It was put to the Father in cross examination that he had very little respect for the Mother. It is the Father’s evidence that he shows respect to people who show respect to him and that as the Mother has not shown any respect to him he does not show any respect to her.
The Father was asked whether he thought the Mother was capable of looking after X, Y and Z. He responded as follows:
“She has always been capable of looking after them. She chose not to when we were married. She chose to sit on the couch, but she is capable of looking after them.”
The Father was asked whether he thought the Mother is a good Mother. Whilst the Father initially resisted answering the question, when pressed the Father expressed the view that he did not believe her to be a good Mother toward X and based on what Y and Z were telling him, he did not believe that she was a good Mother to them either.
The Father was asked whether he believed the current arrangements whereby Y and Z live with the Mother and spend alternate weekends with him is working. The Father’s response was as follows:
“Well, the increasing bad behaviour by Z towards his brothers is indicative of Ms King and her personality completely. So no, I don’t think it is working...Z is taking on more of Ms King’s antagonistic behaviour more and more as the weeks go on, whereas prior, I used to take the children away from Ms King every day because she was very angry every night, and I used to take the boys for a ride nearly every night or somewhere away from her until she had calmed down because she would just get really angry …”
In the Father’s affidavit sworn 24 February 2016 the Father deposes the following at paragraph 54:
“I feel that Z’s behaviour and attention seeking has increased since he has been living with his mum. I did not previously see a lot of this kind of behaviour from Z when we were doing week about.”
The Father was questioned as to what he would do in the event orders were made as proposed by the Mother and X ran away and arrived at his door step. The Father’s responses were as follows:
“There would be nothing I can do. He’s there. I will keep him there until they turn up to pick him up…
I’m not going to send him out on to the street and say, “You have to stay out there.” He can come inside and I will ring the police or whoever I have to ring to come and pick him up.
Well, I would ring the police first of all, due to the fact of the restraining order that Ms King has on me. That would be about all, really, because after that, I’m sure they could get hold of her pretty quickly.”
When the Father was asked whether he would consider putting X in his car and driving him back to his Mother’s place, the Father responded as follows:
“No, because I’m not allowed to go within 250 metres of her house. So the best thing to do would be ring the police, they can come and take care of it…”
The Father was then asked that if there was an order of the Court that required him to return X to the Mother’s home in the event he ran away to the house what would he do. His answer was follows:
“That depends on the state of mind that he’s in. If he’s in a really distraught state of mind when he gets there, I would be talking to Ms D… as to what would be the best thing to do first of all.”
It is the Mother’s evidence that if her proposal was accepted it would take a lot of work from her to assist X in adjusting to living in her full time care. The Father was asked whether it was going to take a lot of work from him as well. His answer was as follows:
“Well actually, if that’s the case, there will be next to no work for me because I won’t be allowed to see my children at all.”
The Father was then asked:
“Do you have to make some changes sir?”
The Father replied as follows:
“I have to go back to my old self where I don’t get angry and don’t worry about it and just get on with life.”
The Father was asked whether he would be prepared to do a Men’s Behavioural Change Program as has been recommended by Ms S. The Father’s response was as follows:
“Men’s behavioural program means I have to have been a convicted physical abuser, because I’ve looked into that one.”
The Father indicated that he had done a Keeping Kids in Mind course but that at the time he did it he was taking anti-depressants to which he had an adverse reaction and as such a great deal of the course was not properly appreciated by him. He expressed the view therefore that “it would not hurt to go and do that one again.”
Throughout the entirety of the Mother’s viva voce evidence the Father played Candy Crush on his mobile phone, even after the inappropriateness of this behaviour was pointed out to him. When challenged about this behaviour in cross examination, it is the Father’s evidence that he has difficulty sitting still and needs to be doing something in order to be able to stay in the one place.
It is the Father’s viva voce evidence that he has not denigrated the Mother to X, Y and Z. It is his evidence that he does not say things behind her back but rather says them directly to her face. It is his evidence that he did say inappropriate things to the Mother over the telephone and it is possible that X may have overheard what he said.
In relation to Z and Y telling the report writer and others that the Mother is a liar, it is the Father’s viva voce evidence that it was not he who said to Z that the Mother is a liar, but rather Z who said that to him.
However, in the Father’s affidavit sworn on 8 November 2015 at paragraph 46 he deposes as follows:
“I have characterised Ms King’s behaviour as “lying” and have on occasion said this to our children. I know that I should not have said this.”
In the report prepared by Ms M, Children and Family Counsellor at CatholicCare pursuant to the orders made on 15 September 2015 she sets out the following under the heading “X’s relationship with his parents – Mr King”:
“The writer observed Mr King calling Ms King a liar, lazy and criticising her parentings on a number of occasions in front of X. Each time this happened the writer intervened to prevent this continuing. At times X seemed visibly bothered and on occasion he told his Father to stop saying things about her.
The writer is of the opinion that X is highly influenced by the negative views of his Father towards his Mother. For example, X said that his Mother had told lies about his Father at the (religion omitted) meetings which X believes had led to his Father being excluded.”
In the Father’s affidavit sworn 8 November 2015 at paragraph 45 he deposes as follows:
“I have been “dis-fellowshipped” from the (religion omitted) Church as a result of the things that Ms King has said about me and for the text messages that I sent to Ms King.”
When being cross examined by Counsel for the Independent Children’s Lawyer, the Father was asked whether he had been dis-fellowshipped from the Church as a result of the Mother’s lies. In response, the Father indicated that this was not the reason he had been dis-fellowshipped.
The Father was particularly scathing of the report writer, Ms S.
The Father was asked whether he had any respect for Ms S and replied that he had no respect for Ms S.
The Father indicated that he believed Ms S to be a liar and that whilst she did not lie in her reports she “was manipulative with what was said. She left a lot of things out that should have been put in there. She added things in there that did not need to be in there. So she did not lie, but she actually did something worse. She tried to manipulate a situation, which is far worse than lying.”
It was put to the Father that Ms S is a fairly important person in this process. The Father’s response was as follows:
“Well, Ms S is old and a bit doddery. I don’t think she should…what’s the best way to put this. She’s old and doddery. In her report, her last report, Z was sitting on my knee, because there’s no way Y could have sat on my knee. She writes in there, “Y was sitting on my knee.” Y is way too big to sit on my knee. He’s – weighs twice the amount. And she was no more than three feet away from him. She said that Ms King was only working three days a month. Ms King would have been sitting no more than two feet away from her when she told her that she was working three to four days, or three – two to three days a week. So if a woman who is sitting right in front of you can’t listen to what someone is saying and can’t see what’s going on, I really have no respect with or conscious that she is actually an expert in anything. She can print up whatever she likes on her computer and say, I’ve got the piece of paper. I can do that.”
The Father was asked to comment on the support given by Ms S to the proposals of the Mother and the Independent Children’s Lawyer. His response was as follows:
“Once again, Ms S is not exactly the most brightest spark. She can’t tell who’s sitting on whose knee. If you can’t tell that from three feet away, there is something seriously wrong… I discredit everything that she says.”
In relation to the incident during the preparation for the second report in which Ms S was moved to make a report to the Department of Health and Human Services because of the Father’s behaviour, the Father described what occurred as follows:
“Ms S has outrightly lied with quite a few things that she has said in there. Ms S got extremely angry with me when she has seen a copy of her first report underlined with things I had to ask questions for. She pushed herself away from the table, crossed her arms, and then, when I said, “This conversation is going to be – this interview is going to be recorded,” she stood up and said, “This interview is not going to be recorded. We are not going to have this interview if you’re going to record it.” I said, “Well, I’m going to record it because there’s no reason why I can’t.” Then she got quite angry with me about it.”
The following question was then put to the Father:
“If her Honour has made orders that X is to live with his mother, isn’t it obvious that the best thing for X is to live with his mother…?”
The Father’s response was as follows:
“Your Honour has no idea about X, has not spoken to him, does not know him at all, has not met him, has not – does not know any of his personality, and, to be honest, all she has read is what has been put in front of her, so your Honour would have, really, honestly, no idea, and I don’t mean any offence to her. But she would have no idea.”
The Father did not agree with the proposition that he had no respect for the Court or the orders that the Court makes.

Ms S

Ms S is a Regulation 7 Family Consultant who prepared two family reports in this matter, the first dated 10 August 2015 and the second dated 29 January 2016. Ms S also gave viva voce evidence at the final hearing.
In her first report, Ms S observed X, Y and Z to have a warm and close relationship with the Father. She observed Y and Z to also have a warm and close relationship with the Mother. She describes X’s relationship with the Mother as very troubled.
Under the heading ‘Evaluation’ at paragraphs 78, 79 and 80
Ms S states as follows:
78. It is my view that X, Y and Z have been unduly influenced by Mr King against Ms King. Mr King has undermined Ms King as a parent through telling the boys that Ms King lies. X shows Ms King contempt while Y has been left feeling confused as his experience of being with Ms King does not fit with how Mr King has described Ms King as a liar. Z is also confused as he wants to have a relationship with both Mr King and Ms King but he hears from Mr King that Ms King lies so then his experience of Ms King does not fit with what Mr King says. X has accepted what Mr King says about Ms King so he has been rejecting her. Mr King is doing and has done a great deal of damage to the three boy’s emotional well-being
79. X is at a very vulnerable stage of development and is moving into adolescence so unless the undermining of Ms King stops and can be undone, Mr King is going to find himself with a very difficult task ahead in managing X. If X at the age of eleven makes the decisions about what he wants and does not want to do then will become more and more difficult to manage. I was very concerned about X’s welfare from observing X’s attitude and behaviour toward Ms King which in my view is as a result of the undermining of Ms King by Mr King. Ms King now has the difficult task of explaining to X that she will not accept his rude behaviour toward her. It is not X’s doing that he has become contemptuous of Ms King but he now requires some assistance and firm management. In my view it is not acceptable that Mr King claims he tries hard to make X see Ms King but the damage has been already been done. If Y and Z were older and had lived with Mr King full-time from after the separation as did X then they may also be rejecting Ms King. As it is Y and Z are confused and finding it difficult to comprehend that they are repeatedly told Ms King is a liar which is against their core belief in Ms King and against their experiences of Ms King.
80. It is not clear as to whether Mr King understands the damage he is doing to the three boys by his constant denigration of Ms King but he needs to be told clearly how this is damaging to the boys core emotional well-being. Mr King needs to understand that the three boys have very different experiences of Ms King to his own experiences and they have their own perceptions (which Mr King is trying hard to change to his perception) and they are entitled to develop their relationships with Ms King based on their own experiences and not be moulded into Mr King’s expectations and perception.
When considering the best way forward for X, Y and Z, Ms S set out the following in paragraphs 85 to 88:
85.    It is my view that Mr King may struggle to meet the emotional needs of X, Y and Z and depending on how his arthritis is he may have periods when he struggles as a single parent to meet the practical needs of the children. X said that he had to assist Mr King to wash his back recently. In my view Mr King would try hard to meet these needs but it may be a struggle. It is my view that both Ms King and Mr King would struggle to meet the intellectual needs of X, Y and Z. It may be that Mr King believed that Ms King has difficulty in caring for the children so he believed that it would be best for the children if their care was shared. In my view Ms King may also struggle to meet the emotional needs of the children. If Mr King’s claim has any basis then Ms King may also struggle to meet the practical needs of the children.
86. It is my view that Ms King and Mr King should share the parental responsibilities for X, Y and Z but they each need to accept this and remain mindful they need to discuss issues about the children. They may need to attend mediation. It is my view that they should also start a communication book as a means of passing their information to each other about the children. They must attend mediation to set out rules and guidelines for using a communication book.
87.    The issue of shared care is vexing as there needs to be change made to what has been happening. Mr King must stop denigrating Ms King to the children and if Ms King has been denigrating Mr King to the (religion omitted) community then she must stop this. It is my view that neither Ms King nor Mr King has demonstrated that they are capable of having the full-time care of the children. For this reason I would suggest that the shared care arrangement continues with Y and Z while this must also be aimed for with X. It is my view that Mr King needs to attend a men’s behavioural change program as his behaviour could be viewed as bullying. Ms King needs to attend counselling to assist her to raise her self-esteem and to learn to be assertive. The problem with X’s troubled relationship with Ms King at the current time in my view prevents the three children living full-time with Ms King. In my view it would not be in the best interest of the three children to live full-time with Mr King. In my view the three children should not be separated which they would be if Y and Z were to live full-time with Ms King and this would not be emotionally healthy for X. In my view this leaves the current arrangement as the better option under the circumstances. In my view it is far from ideal but out of all the options this may be the better option for the three children. The shared care arrangement must only continue providing Mr King attends the men’s behavioural change program and Ms King attends counselling for her self-esteem.
88.    It is my view that given the concerns raised this matter should not have a final hearing for at least six months to allow the above counselling and programs to take place as otherwise there would be no monitoring of the progress.
In her second report at paragraph 10 Ms S makes the following observations in relation to the Mother:
I was impressed with some very positive changes made by Ms King from when I interviewed her in July 2015. Ms King has clearly worked hard to be firmer, particularly with X, and she has been able to be much more assertive in regard to Mr King.
In relation to the Father, whilst Ms S was able to observe him with X, Y and Z, her one-on-one interview with the Father did not take place because of the Father’s behaviour at her office at that time.
In relation to X, Ms S sets out the following in her second report at paragraphs 42 and 43:
42. X was asked if he has been spending time with Ms King on alternate weekends and he said, “No.” X was asked how come and he said, “‘Cos I feel uncomfortable near her and I can’t trust her.” X was asked how come and he said, “‘Cos she’s been lying to me all the time.” X was asked about what and he said, “About everything.”
43. X was asked if he knows about rules and he said, “No, I do but I don’t usually follow them.” X was asked how come and he said, “It depends if I think they are reasonable or unreasonable.” X was told that the Judge said he had to spend time with Ms King on alternate weekends so didn’t he think that’s what he should do. X said, “I don’t care what the Judge said. I’m staying with dad. I sort of care ‘cos of my brothers. If I went to mum’s, mum is always yelling, the same as Z.
Ms S asked X how he would feel if it was decided that he live with the Mother. X responded as follows:
“I wouldn’t be really worried ‘cos I’m not going to do that.”
Ms S then asked X how he would feel if it was decided that he live with the Father and spend alternate weekends with the Mother. X told Ms S that he would not see the Mother every second weekend and when asked why he replied:
“Cos I can’t trust mum. I feel uncomfortable and she doesn’t really care about me. I’ve tried to call her lots the last week and she hasn’t answered her phone.”
When discussing Y in her second report, Ms S indicated that she asked Y how he would feel if the current arrangements were to continue, that is living with the Mother and spending alternate weekends with the Father. She reports that Y told her he would “feel pretty not happy still” and that when asked why he said “‘Cos when we are hot and bothered mum doesn’t take us to the pool.”
Ms S reports she asked Y how he would feel if it was decided he live week about with each of the parents. She reports he replied “Pretty happy ‘cos we get to see dad more, ‘cos we get to see mum more.”
Ms S reports she asked Y how he would feel if it was decided that he live with the Father and see the Mother on alternate weekends. She reports Y responded “pretty not happy. I just like it how it was when they weren’t separated.”
When discussing Z in her second report, Ms S reports that Z indicated there were no bad aspects about the Mother. When asked about the Father Z told her that the Father had stopped talking about mum like telling that she lies and there were no bad things to report about the Father.
Ms S reports she asked Z how he felt about the current arrangement continuing and he told her that it would be fine. He also told Ms S that a week-about arrangement would “be perfect” and he would be happy with that. Z indicated to Ms S however that he would be “pretty upset” if it was decided that they live with the Father and only spent time with the Mother on alternate weekends.
In paragraph 72 of her second report Ms S sets out the following conversation she had with Z:
72. Z said, “Dad wants us to stay at his house most of the time and he’ll take us to a school that he wants us to go to.” Z said that Mr King told him that. Z then said, “Dad tells us kids everything. He whispers. I hear him do that.” Z was asked if after I saw them last time did Mr King tell them what I wrote and he said, “Yes.” Z was asked what Mr King said to him and he said, “He said that I said he lies.” When Z was asked how he gets along with X he said, “I don’t. We fight. He calls me a baby and he tackles me and he strangles Y and Y can’t breathe and X doesn’t stop and dad smacks X a little pat.”
In paragraphs 76 and 77 of her second report Ms S describes her observations of X, Y and Z with each of the parties. Her observations are included in their entirety as they are quite illuminating:
Observations of X, Y and Z with Ms King
76. At this time X had just finished his interview with me so he decided to sit in the room while I went to get Ms King, Y and Z who then came in. They all sat around the desk and they all started making paper planes. X did not greet Ms King. X then said to Ms King, “I called you many times and you didn’t answer.” Ms King said, “Maybe I was busy.” X then started verbally attacking Z. Ms King told him not to talk like that. X then pointed his finger across the desk at Ms King and said, “Don’t you tell me what to do.” Ms King said, “Don’t point your finger at me. It’s not appropriate to talk like that.” Following this Ms King asked X how he was at long jumps. X said, “None of your business. You should have answered your phone.” At this point they started flying their paper planes around the room. X told Ms King that she could stand in the corner to do hers and showed her which corner. After Ms King stood elsewhere X said, “I told you to stand in that corner.” Ms King disregarded this. X tried to be in charge. Y and Z tried to be agreeable, they smiled easily and often. X continued to be contrary and rude to Ms King. Ms King remained calm, patient but firm and very attentive. When X went to go out the door to fly the planes in the hall Ms King was very firm and she said, “No.” X did not go but then brought up how she did not answer the phone again. At the end they packed up.
Observations of X, Y and Z with Mr King
77. They all came into the room and Z sat on Mr King’s knee. Y sat next to him. There was lots of noise and chatter. They decided to play Connect 4 so X played Y. Mr King was helping Y. Mr King asked the boys what they had been doing and they were chatting about this. There was lots of noise and chatter. X then had his iPad on. At one stage Y said to Mr King, “Know why I love you? ‘Cos you’re my dad.” Mr King said, “Know why I love you? Cause you’re my son.” X and Mr King were chatting. The three boys were relaxed and comfortable. They smiled easily and often and made eye contact with Mr King. Mr King was very attentive and caring. X was playing a game on his iPad. Mr King gave Y his mobile to play with and Z played with some paper. They all continued chatting as they did different activities. At the end they packed up.
Under the heading ‘Evaluation’ Ms S stated the following:
79. From my observations, X continues to have a very troubled relationship with Ms King but seemed to continue having a warm and close relationship with Mr King. Y and Z continue to have warm and close relationships with Ms King and Mr King but it must be very difficult for them to maintain these relationships given Mr King’s increasing anger toward Ms King.
80. There has been no change in the way X feels about Ms King and he continues to dictate when he spends time with her. X also continued to treat Ms King in a contemptuous manner but as explained in the previous report, the damage to X has already happened. X experienced Ms King being undermined by Mr King while at the same time Ms King was not strong enough as a parent to prevent X from behaving so rudely toward her. In addition, more than likely X has been exposed to Mr King treating Ms King contemptuously over the years and he may now believe that this is how males behave. X is at a very vulnerable age moving into adolescence so the next seven or eight years for X will be very sad and difficult years. It is my view that X would be confused, angry and emotionally living in a wilderness. X and Ms King have been attending therapy together but there has been no movement. On the day of the interviews for this report, X was exposed to Mr King behaving in a verbally violent manner toward me. The sad part of all of this is that Mr King would be the male role model for X and he is demonstrating that it is acceptable to behave in a violent manner. Concerns were raised that X has started to self harm and talk about suicide. It is my view that it may be timely for X to be referred to the Child and Adolescent Mental Health Service for an assessment and treatment.
81. Y and Z have settled very well into living full-time with Ms King and in my view Her Honour made the best decision for them at that time and this arrangement should continue.
82. The issue of X living with Mr King remains very concerning given the behaviour exhibited by Mr King toward me in front of X and then toward Ms King in front of the three children at the changeover.
When giving her viva voce evidence, the proposal of the Mother for X, Y and Z to live with the Mother and spend no time with the Father for at least six months was put to Ms S. It is Ms S’s evidence that she doubts there could be any other way forward given the circumstances of the case.
Ms S was asked by Counsel for the Mother if the proposal to suspend the Father’s time with X for six months was a reasonable period particularly given that the proposal was that time also be suspended for Y and Z. Ms S’s evidence is as follows:
“…that’s a difficult one, because I have no doubt that X, Y, and Z do have very fond feelings toward their father. They do feel quite close in some ways to him, and so much longer may be a little unfair for Z and Y. As in regard to X, there would need to be very intensive work with him and, at the same time, Mr King would need to be doing a lot of work himself to make change. So if all those services and actions were in place, it may be workable for six months.”
Counsel for the Father put to Ms S that it would be in Y and Z’s best interests for the current arrangements to continue given their positive relationship with the Father and the evidence of the Mother that they are settled and happy in her home. It is Ms S’s evidence that whilst this is a very difficult question, X’s anger at not being able to see his Father, if they were the orders of the Court, would have an effect on the two younger boys and could create difficulties between the three children, especially if X was not seeing the Father and Y and Z were.
It was put to Ms S by Counsel for the Father that until the orders were made in November 2015 that increased the amount of time that X was to spend with the Mother, the relationship between the Mother and X had in fact been improving and therefore the best way forward to enable X to have a relationship with his Mother is to allow him to spend time with his Mother as he wishes. It is Ms S’s evidence that she did not believe that the previous arrangement in fact was developing and improving X’s relationship with the Mother as X’s time with the Mother was entirely on his own terms. Further, it is Ms S’s evidence that X’s level of anger and disdain for the Mother exhibited in the interview for the second family report did not show any form of improved relationship between he and the Mother whatsoever.
Ms S was asked what would be the impact on X of being allowed to continue to dictate the terms of his relationship with the Mother. It is Ms S’s evidence as follows:
“It would be disastrous for X in future relationships, not just with women, but also with men. He would not be able to develop an appropriate relationship. He would have great difficulty in settling. He would be quite, in my view, disturbed as a young teenager – and he’s not far from that – and also as a young male. And there’s risks of him being antisocial.”
Ms S was questioned about paragraph 43 of her second report which is as follows:
“43. X was asked if he knows about rules and he said, “No, I do but I don’t usually follow them.” X was asked how come and he said, “It depends if I think they are reasonable or unreasonable.” X was told that the Judge said he had to spend time with Ms King on alternate weekends so didn’t he think that’s what he should do. X said, “I don’t care what the Judge said. I’m staying with dad. I sort of care ‘cos of my brothers. If I went to mum’s, mum is always yelling, the same as Z.”
Ms S was asked whether the Father permitting X to only see his Mother when he felt like it and not in accordance the Court orders was creating in X a disrespect for authority and the necessity of obeying rules. Ms S said this is the case and that this is one of her major concerns for X going forward.
Ms S was asked about the Father’s behaviour when he attended upon her for his one-on-one interview as part of his preparation for the second report. Ms S described what happened as follows:
He appeared to be angry when he arrived. When it was time for his interview, he came into my office. There was no greeting. He stood up at the desk and he placed his mobile phone on the desk, and before we had time to go any further, he said, “Can I record this interview?” I just said, “No.” With that, he started shouting at me. I was a liar, he was shouting I was a liar. He wasn’t going to have the interview. I said, “Fine, we won’t proceed with the interview. Please leave.” Because he continued to shout, I became quite concerned and walked out of my office. I went round the corner to the reception. There was a new receptionist there on this day, and she just sat there looking like she was in shock and didn’t know what to do, because he came down the passage in front of X shouting – it was violent. It was quite violent, his behaviour toward me. I was quite fearful. X was sitting there watching all of this. I asked the receptionist to phone the police, and with that she looked, she didn’t quite know what to do. He continued yelling at me. I might add it was on camera at the reception centre. He continued this so I went to pull my mobile phone out to call the police. With that, he stormed out of the office, left X, then X ran after him.

The Husband’s evidence that it was Ms S who was agitated and was raising her voice and yelling at him was put to Ms S. It is Ms S’s evidence that this was not so. It is her evidence that she was very calm and that when he asked her if he could record the session she very calmly told him no. She further observed:
“I could see that he was angry by that stage. I wasn’t going to get him to retaliate in any way… he said he won’t stay for the interview. I said, “Fine, we won’t do the interview.” And I – because he was still shouting at me, I actually walked out of the office. I was quite fearful of this man, who is a very large man and, in my view, was being violent.”
In the report that Ms S made to the Department following this incident, one of the issues raised by her was a concern that the way the Father treated her was indicative of the way he treats women generally.

In her viva voce evidence Ms S confirmed that having observed the way the Father behaved towards her, this remained one of her concerns about the Father.
The Father’s evidence that the difficulties in the relationship between X and the Mother predates separation was put to Ms S. It is Ms S’s evidence as follows:
“Usually I would look closely at what may have contributed to a relationship breakdown like X has with Ms King... I do believe that the majority of X’s issues have started with the contribution that Mr King has made in regard to this. Mr King is extremely angry towards Ms King. He was talking to the boys a lot about her being a liar. And when I first saw the children, they spoke to me about that. It was quite clear that their relationship had been quite affected by Mr King’s attitude and anger toward Ms King…when Mr King started to be so angry toward Ms King I do not know…it is certainly clear that the majority of the influence was coming from Mr King’s anger toward Ms King.”
Counsel for the Father put to Ms S that the opinion she had formed that X would have ongoing issues in setting appropriate boundaries was based purely on his relationship with his Mother and not on relationships he has with other people or his behaviour at school. It is Ms S’s evidence that it was not just his relationship with his Mother that concerned her. She stated:
“It is also seeing how Mr King behaves, and that Mr King is X’s male role model whom he would identify with. And the behaviour that he has been exposed to by Mr King is very concerning, and it’s very much about that behaviour that X is learning from… in my view, I believe that the example set by Mr King provides sufficient evidence and information about the household that X lives in, and the role model whom X is exposed to full time, and the influences and the effects on X.”
It is Ms S’s evidence that she does not believe that X will have a relationship with the Mother if the current arrangements remain in place. It is her further evidence that she believes the only possibility of X having a relationship with the Mother is if orders are made in the terms proposed by the Mother and the Independent Children’s Lawyer.
Ms S was asked about the risk that X would self-harm if Orders were made as proposed by the Mother and the Independent Children’s Lawyer given his previous threats that he would kill himself if Orders were made in those terms. It is Ms S’s evidence that she did not undertake therapeutic assessment of X and that this is a matter better discussed with his treating therapist, Ms D and Mr D.
It is Ms S’s evidence however that she believes that the risk to X if his current circumstances do not change, being that he will become an angry, violent young teenager and young man with real difficulties in forming relationships with both women and men, poses a greater risk to X than if efforts are not made to try and intervene at this time to enable him an opportunity to develop a relationship with his Mother, to learn there are different ways to treat women and to understand that he is not old enough to be making decisions about the parent or people with him who has a relationship.
Ms S readily acknowledges that it will be an extremely difficult time for X and the people around him if orders were to be put in place that saw him living with the Mother and spending no time with the Father. Ms S indicated that X will certainly need a great deal of support and assistance. Ms S noted that the Mother has those supports and assistance in place and available to her and X if orders are made as proposed by her.
Ms S recognises that there is no guarantee that the proposal for X to live with his Mother will be successful, but she considered the risk of not trying to change his current circumstances is greater than not trying to do so.
Finally, it is Ms S’s evidence that the relationship that X, Y and Z have with their Father is sufficiently strong that it will not be impacted by a six month period of not spending time with the Father.

The Law

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Best interests of the child

Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals.
The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.

Section 60CC(2)

Section 60CC(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the child’s best interests.

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

The meaning of “meaningful relationship” was considered by the Full Court of CJ Bryant, DCJ Faulks and Boland J in the decision of McCall v Clark (2009) Fam LR 483. As their Honours noted in paragraph 109:
“The Act contains no definition of meaningful relationship.”
Having reviewed the decisions where the meaning of the phrase ‘meaningful relationship’ in the context of section 60CC(2)(a) had been considered, their Honours held at paragraph 118 as follows:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
Their Honours held at paragraph 119:
“We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in Section 60cc(2)(a) is ‘the prospective approach’, that is once the court is satisfied that it is in the child’s best interest to have a meaningful relationship with both their parents, then orders be framed in such a way that the children are given the best possible opportunity to have that meaningful relationship with both their parents.”
Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 considered the definition of ‘meaningful’ and having considered the definitions as set out in recognised dictionaries, held at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.”
That X, Y and Z have a close, loving and meaningful relationship with the Father is not in dispute.
That Y and Z have a close, loving and meaningful relationship with the Mother is not in dispute.
Currently, X has a highly conflicted relationship with the Mother. He has only spent very limited time with her since the parties separated in November 2014 and has spent no time with her since November 2015. X has been quite clear that he does not want to spend time with the Mother, save and except on his own terms and when he feels like it.
As such, at this time X does not have a meaningful relationship with the Mother.
It is the clear evidence of Ms S that she believes the cause of the difficulties of the relationship between X and the Mother is X’s exposure to the Father’s extreme anger towards the Mother, the Father’s failure to shield X from his highly negative views of the Mother and the Father’s failure to support that relationship or ensure that the orders of this Court for X to spend time with the Mother are complied with.
It is Ms S’s evidence that she believes that it is in X’s best interests to have a meaningful relationship with both the Mother and the Father and that he is at risk of long term emotional harm if he is not afforded the opportunity to have a meaningful relationship with the Mother as well as the Father.
It is Ms S’s evidence that the only possibility for X to be able to develop a meaningful relationship with the Mother is if orders are made that he live with the Mother and that there be a period of at least six months where he does not spend time with the Father.
As a result of the genuine anger X will have if orders were made for him to live with the Mother it is the further recommendation of Ms S that not only should X not spend time with the Father during this period, but neither should Y or Z. Ms S is concerned that the anger that X would direct towards Y and Z because they were seeing the Father and he was not, would be highly destructive to the relationship between the brothers and make things even more difficult for the Mother to manage in her home.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

It is Ms S’s evidence that if X continues to live with the Father the risk of him becoming an angry, violent young teenager and young man is extremely high.
It is the further evidence of Ms S that if X as a twelve year old young pre-pubescent adolescent is allowed to continue to dictate the relationship that he has with other adults and in particular his Mother it will be disastrous for X in future relationships, not just with women but also with men. It is Ms S’s evidence that X would not be able to develop appropriate relationships, would have great difficulty in settling and that he would be disturbed as a young teenager, noting he is not far from that already. She expresses real concerns toward him becoming anti-social.
X has told the Mother, Ms S, and his therapist that if he is ordered to live with the Mother then he will kill himself.
Whilst his counsellor Mr D suggested that his threat was more attention-seeking rather than a statement of intent, any threats of self-harm by any child are extremely concerning and must be taken seriously.
X has in place very good supports. His therapeutic relationship with both Ms D and Mr D is very strong and he has trust in and is able to confide in each of them.
It is the Mother’s evidence that she has had discussions with Ms D about the orders she is seeking in this Court and that Ms D has told her that she is willing to work closely with X to assist him in the event orders are made in the terms proposed by the Mother.
It is the Father’s evidence that he believes X has been and continues to be emotionally and mentally “raped” and “violated” by the Mother and that this is the reason that X is resistant to spending any significant time with her.
This supposed emotional and mental rape seems to relate primarily to the incident shortly after the parties separated when the Mother attended at X’s school and removed him against his will at a time when the Mother had a genuine belief that the Father was going to take X to (omitted) to live with the paternal grandmother. Whilst there is no doubt that X was genuinely distressed when the Mother removed him from school, the significance given to this event by the Father in circumstances where the Mother immediately acknowledged X’s distress and returned him to his Father’s care on the same day seems grossly out of proportion to what actually occurred.
It is apparent from the evidence that rather than putting this incident into perspective for X and telling him that his Mother was not trying to kidnap him given she voluntarily returned him to the Father’s care on the same night, the Father has perpetuated the belief in X that his Mother kidnapped him and therefore X cannot trust the Mother or be safe when he is in her care.
The Father has made no effort to shield X and also Y and Z from his very negative views of the Mother. He has told all three boys that their Mother lies and has at no time shielded them from the extreme anger he feels towards the Mother. I am satisfied the Father has overtly encouraged X, Y and Z to disobey their Mother and to act out when they are in her care.
In her first report, Ms S opines that if Y and Z were older and had lived full time with the Father after separation, as did X, they too would also be rejecting the Mother.
Whilst in paragraph 48 of the Father’s affidavit sworn 8 November 2015 the Father acknowledges speaking badly of the Mother in front of the children when with their counsellor, that he should not have done so and that he understands the impact that his comments have had on the children and has now stopped saying these things, it is quite clear from the evidence given by the Mother, by Ms S and from the Father’s own viva voce evidence that this is not the case.
It is clear from the evidence that the Father has not refrained from saying inappropriate things about the Mother in the presence of X, Y and Z. The best example of this is the evidence of the Mother that shortly prior to the hearing of this matter Z and Y told her the Father had told them they were not to do what their Mother told them and they were to act out in her home.
Perhaps the greatest concern in this matter is that it is apparent from the Father’s evidence at the final hearing of this matter that he accepts no responsibility at all for X’s refusal to spend time with the Mother. It is his clear evidence that X does not wish to spend time with the Mother because of her parenting X and her continuing emotional and mental abuse of him and that he has had no influence on X’s negative views of the Mother.
It is Ms S’s evidence that X in particular will suffer serious emotional and behavioural problems in the future if he continues to be exposed to the Father’s negative views of the Mother and the poor attitudes to women that the Father exhibits in front of X. Given this evidence, the Father’s response that in the event orders were made as sought by the Mother there would be nothing that he could or needed to do whilst the children were not in his care as they would not be with him is also extremely concerning.
In her first family report, Ms S expressed concerns about the Mother’s capacity to fully meet the emotional and intellectual needs of X, Y and Z because of her lack of self-esteem and ability to assert herself in her parenting and in withstanding the intimidation and aggression of the Father. Ms S made a very strong recommendation for the Mother to immediately undertake personal counselling.
The Mother has undertaken the recommended personal counselling and continues to regularly attend upon her counsellor.
In Ms S’s second report and in her viva voce evidence she spoke very positively of the changes made by the Mother. The Mother’s improved self-esteem and confidence was apparent when she was giving her viva voce evidence at the final hearing.
Given Ms S’s and the Father’s evidence, the Court must have a genuine concern that X, Y and Z are at real risk of psychological harm in their Father’s care.

Section 60CC(3)

Section 60CC(3) of the Act sets out the additional considerations that the court must look at when determining what is in the child’s best interests. Each of the matters under that section will be considered in turn where applicable in this matter.

Section 60CC(3)(a) Any views expressed by the child and any factors such as the child’s maturity or level of understanding the court thinks are relevant to the weight it should give to the child’s view.

It has been X’s wish since the parties separated that he live with the Father and only spend time with the Mother when he chooses to do so.
When speaking to Ms S in the preparation for the second report, Y and Z told her that their preferred option is to live equally with the Mother and Father. They also indicated that a continuation of the current arrangements were they live primarily with the Mother and spend alternate weekends with the Father would also be fine.
Interestingly, both Y and Z indicated to Ms S that they would not be happy with an arrangement that saw them living primarily with the Father and spending alternate weekends with the Mother.

It is Ms S’s unequivocal evidence that X’s wishes and the breakdown of his relationship with the Mother is as a direct result of his living with the Father since shortly after separation and his exposure to the Father’s anger towards, dislike of and unremitting negative comments about the Mother. For these reasons, whilst there is no doubt as to the strength of X’s wishes, very little weight can be given to their objectivity.

Section 60CC(3)(b) The nature of the relationship with:

(i) each of the child’s parents; and

(ii) any other persons, including grandparents or other relatives.

The nature of X, Y and Z’s relationship with the parties has already been well canvassed in this judgment.
It is common ground that X, Y and Z and particularly X have a strong and loving relationship with the paternal grandmother with whom they spent considerable time when the family lived in (omitted). X in particular has continued to spend considerable time with the paternal grandmother since the parties separated.
The Mother is (country omitted) born and most of her extended family remain in (country omitted). Whilst the maternal family have visited the Mother and the children in Australia, X, Y and Z’s relationship with the extended maternal family has been impacted by the relatively small amount of time they have spent with them.

Section 60CC(3)(c) the extent to which each of the child's parents has taken or failed to take the opportunity:

(i)        to participate in making decisions about major long-term issues in relation to the child
(ii)       spend time with the child; and
(iii)     (iii) communicate with the child.

Section 60CC(3)(ca) the extent to which each of the child's parents have fulfilled or failed to fulfil, the parent's obligations to maintain the child.

Not relevant.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

It is Ms S’s evidence that if orders were made in the terms sought by the Mother, the strength of the relationship between X, Y and Z and the Father is such that it would not be negatively impacted by a period of six months where they did not spend time with him.
The real concern in this matter is the statements made by X that if he is forced to live with the Mother, he will kill himself.
Given X’s current belief that he is not required to abide by the orders of this Court and his statement to Ms S that it does not matter what the judge says, he will not live with the Mother, there must also be a concern that even if orders were made for X to live with the Mother and not see the Father he will refuse to stay in the Mother’s home, will continuously run away and will be resistant to any efforts and supports that would see the Court orders put in place.
Whilst X acts out his anger at being forced to do that which he does not want to and which he cannot understand is in his best interests, the impact on Y and Z of having to live with an angry and possibly violent older brother must also be considered.
What also must be considered is that whilst the Mother is desperately trying to manage her angry, defiant and difficult eldest son, the time she has available both practically and emotionally to continue to parent Y and Z will be extremely limited, to their detriment, safety and sense of security and well-being.
When giving her evidence, the Mother was quite clear that she understood the difficulty and enormity of the task that she would be faced with in the event that orders were made as she sought.
It is her evidence that she has considerable supports in place in an effort to try and make such an arrangement succeed. This includes Ms D, Mr D and the elders of her Church. It is the Mother’s evidence that all are prepared to support X, Y, Z and herself during what will be a very difficult and challenging several months.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Not relevant.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii) (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

Whilst there was a genuine question about the Mother’s capacity to support X, Y and Z’s intellectual and emotional needs at the time of the parties’ separation because of her lack of self-esteem and ability to be assertive both in her parenting and her relationship with the Father, those concerns have considerably abated.
The Mother has undertaken intensive personal counselling to assist her in these areas and she continues to attend upon her personal counsellor as well as Ms D.
As has been previously set out in this judgment, this improvement in the Mother’s capacity is noted by both Ms S and by this Court.
Sadly, there is a genuine concern about the Father’s capacity to meet X, Y and Z’s emotional and intellectual needs. The Father lacks any insight into the impact that his unremitting anger, denigration and disdain for the Mother and his inability to shield those feelings and beliefs from X, Y and Z have on them.
Whilst the Father pays lip service to appreciating that he should not make disparaging comments about the Mother in the presence or hearing of X, Y and Z in his affidavit, the reality is he has failed to do so.
The Father models his disrespect for authority and for women in particular before X, Y and Z and does not acknowledge the inappropriateness of his behaviour or the poor example it is setting for his sons.
A most recent example of this behaviour of the Father is his inexcusable behaviour towards Ms S during the preparation of the second family report, most of which took in place in front of X.
The Father’s evidence that Ms S was agitated and angry when dealing with him is completely rejected. Ms S is neither “old or doddery” but rather a respected Family Consultant with many years of experience in this jurisdiction. The last thing an experienced professional like Ms S would do when faced with an angry, threatening and aggressive party is to inflame the situation by becoming angry and aggressive herself.
At no time did the Father apologise for his behaviour towards Ms S. Rather the Father continued his overt disrespect of Ms S in his evidence and in the offensive manner in which he referred to her.
Another recent example of the Father’s inability to meet his children’s emotional needs took place on the day immediately following his confrontation with Ms S.
Whilst collecting Y and Z for his time with the Mother, the Father deliberately blocked the Mother’s car so that she could not drive away. He then approached her, banged on the window of her car, tried to open her car door and raised his voice to her.
It is only when it was apparent that the Mother was going to try to call the Police that the Father left. This behaviour occurred in front of Y and Z and is another example of the kind of inappropriate role model that the Father currently is for his sons.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

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

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right

Not relevant.

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

There is no doubt that the Father loves X, Y and Z.
In the second family report the Mother was asked by Ms S her views on the Father as a parent. In paragraph 25 of her second report Ms S records the Mother’s response as follows:
“When asked her views on Mr King as a parent Ms King said that she thinks Mr King loves the children but speaks to them about inappropriate issues; that he calls Ms King a liar to the children. Some of his behaviours are not in the children’s best interest. Mr King is an active parent and spends time with the children but she does not think he has the ability to stop his inappropriate behaviour.”
This is a very fair minded and accurate description of the Father and his parenting by the Mother.
In contrast, the Father describes the Mother as a liar, as lazy, as failing to be interested in or engaged actively with X, Y and Z and of denigrating him to the children, to friends and to their Church community. Neither Y or Z make any complaints of this type of the Mother, other than to complain that she does not take them to the pool when it is hot.
I am satisfied that the Mother is a responsible, caring and loving parent. Like all parents she is far from perfect and it would appear during the marriage and in the period immediately after separation she was lacking in self-esteem and the capacity to be assertive in her parenting of the children. I am satisfied this was primarily because of the intimidation and undermining of her by the Father.
The Mother has engaged in personal counselling and has worked very hard to ensure that she has addressed these issues to the betterment of the parenting of her children.
In contrast, the Father’s inability to recognise the impact of his failure to shield his highly negative views of the Mother from X, Y and Z and to recognise that the very poor behaviour that he models to them in his disrespect to the Mother, Ms S and to authority are not the behaviours of a responsible parent.

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

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person

The Mother has obtained an Intervention Order against the Father as a result of his behaviour in the car park at McDonalds in January this year. Again, the Father was unable to acknowledge that his behaviour on this occasion was inappropriate or that the Mother was understandably intimidated and scared by his behaviour on this occasion.
Whilst the Father continues to raise the incident in December 2014 when the Mother took X against his wishes from his school, using terms such as it being a “rape” or a “violation” of X, that incident was neither sinister nor inappropriate.
Whilst it is the Mother’s evidence that she wishes she had dealt with that situation differently given X’s extreme reaction to it, her behaviour at that time was understandable.
The Mother recognised X’s distress and returned him to his Father’s care on the same day. The Father’s extreme language and description of this event and his continuing support of the excessive response that X had to it is most concerning and shows the Father’s lack of insight about how his response to this incident has exacerbated the distress X felt.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is conceded by Ms S that if the Court makes orders in the terms proposed by the Mother there is no guarantee that they will be successful or that X will comply with Orders in those terms without extraordinary support.
The Father’s proposal is that there be interim orders only made in the hope that the relationship between X and his Mother progresses such that this Court could satisfactorily make final orders that would enable all three children to have a meaningful relationship with both the parents.
Given the very difficult circumstances of this case, it is a matter where final orders at this time may not be appropriate.

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

The Mother is (country omitted) born. She is seeking orders that she be able to travel to (country omitted) with X, Y and Z each alternate year for a maximum period of three weeks so that she and the children are able to spend time with their extended maternal family in the land of her birth.
The Father is opposed to orders being made in these terms and expresses the concern that if permitted to do so, the Mother will not return to Australia with X, Y and Z.
The Mother denies the Father’s allegation that she is a flight risk. It is her evidence that she has lived in Australia all her adult life, that Australia is now her home, that X, Y and Z are Australian born and very settled here and that she is content and happy in (omitted) with strong friendships and close affiliation with her Church.
The Mother’s evidence in relation to her not being a flight risk is accepted by the Court. I also note that (country omitted) is a signatory to the Hague Convention on the Civil Aspects of Child Abduction.
X, Y and Z should be allowed the opportunity to travel to (country omitted) so they can experience the country of their Mother’s birth and spend time with their extended maternal family.

Presumption of Equal Shared Responsibility

Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared responsibility for the child.

This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In this matter the Mother is seeking orders that she have sole parental responsibility for X, Y and Z.
It is the Father’s proposal that on an interim basis he have sole parental responsibility for X and the Mother have sole parental responsibility for Y and Z.
It is common ground between the parties that they cannot communicate in any effective way in relation to X, Y and Z. Their efforts to use a communication book have been unsuccessful. The parties agree they are currently unable to speak with one another.
The Father’s overt hostility and anger towards the Mother that has continued unabated since separation and the Mother’s genuine and understandable fear of the Father is such that it is impossible to foresee in the short to medium term any capacity for these parties to be able to communicate in such a way that they would be able to make the important long term decisions for their children together.
In those circumstances it is quite apparent that the presumption for equal shared parental responsibility is rebutted and that an order will need to be made for the parent who has the primary care of the children or any of them to have sole parental responsibility for those children.

Consideration of Equal Time and Substantial and Significant Time

Where parties have equal shared parental responsibility for a child, section 65DAA of the Act sets out that the court must consider whether the child spending equal time or substantial and significant time with each parent is in the child’s best interests and consider whether such an order is reasonably practicable.
Where the court makes an order that one or other of the parents have sole parental responsibility, the Full Court in the matter of Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346, held that the court must consider the possibility of equal time or substantial and significant time in the context of whether such an arrangement would be in the best interests of the child.
Neither party is proposing that X, Y and Z live equally with each of the parties albeit it is the Father’s evidence that ideally he believes that this would be the best outcome for X, Y and Z.
At this time, neither party is proposing that the children spend significant and substantial time with the other parent as it is defined by section 65DAA (3) of the Act.
Given the circumstances of this matter, it is quite apparent that it would not be in the best interests of X, Y and Z that orders be made for either equal time or significant or substantial time at this time.

Conclusion

The matter for determination is what should be the living arrangements going forward for the parties’ three sons X, aged twelve, Y, aged nine and Z, aged seven.
The determination of that issue is essentially an assessment of what poses the greater risk to X, Y and Z. Is it a greater risk, particularly for X, that the current living arrangements continue as is the Father’s proposal, or that X, Y and Z live with the Mother and spend no time with the Father for at least six months to be followed by a period of supervised and then limited day time with the Father thereafter as is the proposal of the Mother supported by the Independent Children’s Lawyer.
At this time X does not have a relationship with the Mother and is resistant to doing so.
X’s stated reasons for not wishing to spend time with the Mother is his extreme reaction to the Mother removing him from his school against his wishes in December 2014, his belief the Mother lies to him all the time, because he feels uncomfortable near her and because he cannot trust her.
X has lived in the primary care of the Father since shortly after the parties separated in November 2014. Despite there being orders for X to spend regular time with the Mother, initially for a few hours each Friday and then for alternate weekends, X has never spent time with the Mother in accordance with the Court orders. He only ever spends time with the Mother when chooses to do so and entirely on his terms.
It is the Father’s evidence that X and the Mother have always had a difficult relationship and that X’s refusal to have a relationship with the Mother is as a direct result of her emotional and mental abuse of him. It is the Father’s further evidence that this difficult relationship existed prior to the parties’ separation. The Mother denies she and X had a difficult relationship prior to separation.
When asked to detail the emotional and mental abuse of X, the Father makes reference to the removal by the Mother of X from the school in December 2014, an event he describes as a “rape” and “violation” and because of the Mother’s continual lying.
When asked to expand upon how the Mother lies, the Father points to what he says are inaccuracies and untruths in the affidavit material filed by her in these proceedings. When asked to explain how X, Y and Z know of the contents of the affidavits filed in these proceedings, the Father concedes that he has told the boys what the Mother has said and further that he has told them that she is a liar.
It is the evidence of Ms S that X’s issues with the Mother are as a result of the Father’s comments and behaviours post separation. Ms S rejects that the Mother and X had a difficult relationship prior to separation.
It is Ms S’s clear evidence that the only possibility of X having a meaningful relationship with the Mother is if orders are made in the terms proposed by the Mother and supported by the Independent Children’s Lawyer.
It is Ms S’s evidence that if X lives in the primary care of the Father such that he will continue to be exposed to the Father’s negative views of the Mother, the Father’s disrespectful and rude attitude towards the Mother and women in general and is permitted to continue to flout authority, then X is at serious risk of becoming an angry, violent young teenager and young man.

It is Ms S’s further evidence that if X remains living in the Father’s primary care he is at risk of not being able to develop appropriate relationships, would have great difficulty in settling and would be a disturbed young teenager and young man, something he is not far from even now. Ms S is also concerned that there is a real risk of X becoming antisocial.
X has told his Mother, his counsellor Mr D and the report writer Ms S that if he is made to live with the Mother then he will kill himself.
Whilst his Headspace counsellor Mr D expressed the view to Ms S that X’s threats were more likely attention seeking and an expression of his anger towards his Mother than a statement of intent, any threat of harm made by a child must be taken very seriously.
X has also told Ms S that he does not care what the Judge tells him to do as he will stay with his Father.
The Father was asked why he did not ensure that X complied with the Court orders and spend time with his Mother as ordered. It is the Father’s evidence that whilst he could have made X comply with the Orders he was not prepared to do so as X would only end up hating him as much as he hates the Mother.
Whilst the Father professed to having respect for this Court and for its Orders, his real attitude is perhaps summed up in his response to the proposal that if the Court was persuaded to make Orders as proposed by the Mother it would reflect what was in the best interests of X.
The Father’s response was that I had no idea about X, had not spoken to him, did not know him at all, had not met him, knew nothing of his personality and all I would have done is read what had been put in front of me so that really I had no idea.
The Father was, if possible, even more dismissive of the evidence of Ms S. He called Ms S “old and doddery” and that she too was a liar and manipulative because of matters contained in her family reports.
When asked to indicate why he believed Ms S had lied he pointed to her incorrectly indicating in her first report that it was Y rather than Z that had sat on his knee during the interviews for the first report and that she had indicated that the Mother worked two or three days a month rather than two or three days per week.
The Father could not accept that some minor factual errors in Ms S’s report did not mean Ms S was a liar but rather she had made a simple mistake. That the Father used this as the basis to denigrate Ms S and to ignore and dismiss the concerns she raises about his behaviour and its negative impact on X, Y and Z is most concerning.
The Father exhibits absolutely no insight into how his behaviour has impacted on X and his ability to have a relationship with the Mother. Nor does the Father have any insight as to the genuine risk that his behaviour poses for X’s long term emotional and psychological well-being.
When asked by counsel for the Independent Children’s Lawyer what work he would need to do during the six months that he was not seeing X, Y and Z if orders were made in terms proposed by the Mother, the Father’s response was “none” as the boys would not be living with him and he would not be seeing them.
It is Ms S’s evidence that orders for X, Y and Z to live with the Mother and spend no time with the Father will be very difficult to implement.
The Mother readily and sensibly acknowledges that if orders are made in the terms sought be her that it will be extremely difficult and that X will be strongly resistant to and actively defiant of those arrangements.
It is the Mother’s evidence that she has spoken to the family therapist she and X attend, Ms D about her proposal and that Ms D has expressed a willingness to work with both X and the Mother to try and assist them to manage the transition to X living in her care.
It is the Mother’s further evidence that she is aware orders for X to live with her and for X, Y and Z not to see the Father for six months will also be particularly difficult for Y and Z. Y and Z will have a very angry and defiant older brother in their home and they will not see the Father who she readily acknowledges Y and Z love and enjoy spending time with.
It is the Mother’s evidence that she is very much aware of the threats that have been made by X, both in terms of self-harm and to run away and to defy the orders. It is the Mother’s evidence that she believes she has the appropriate supports in place to monitor X’s mental health and to support he and his brothers through what will be an extremely difficult and challenging time.
It is Ms S’s evidence that when balancing the question of risk, being the risk that X will attempt to act out his threats to self-harm and run away against the risk of the long term emotional and developmental damage to X if he continues to live with the Father, she is of the view that X remaining living with the Father is the greater of these two risks.
The proposal of the Mother and the Independent Children’s Lawyer is that X, Y and Z live with the Mother and spend no time with the Father for six months. During this period it is proposed the Father speak to the children by telephone every fortnight.
It is the proposal of the Mother and the Independent Children’s Lawyer that conditional upon the Father enrolling in and completing an Anger Management course, a Keeping Kids in Mind program, a Men’s Behavioural Change Program and engaging with the Department of Health and Human Services Child First Family Services and undertaking with all programs recommended by that service as well as engaging and complying with all treatment recommended by a psychiatrist, then at the completion of the six month period the Father commence supervised time at (omitted) Contact Centre. It is their proposal that upon receipt of a positive report from (omitted) and upon the recommendation of Ms D, the Father then spend unsupervised time with X, Y and Z each alternate Saturday from 10.00am to 5.00pm.
Whilst the Father in his proposal to this Court at the end of the evidence includes orders that he engage with the Department of Health and Human Services Child First Family Services and engage in the supports and programs recommended by them, there has to be real concern about the Father’s genuine commitment to undertaking these programs or acknowledging the necessity to do so given the tenor of his evidence at the final hearing.
Like Ms S, I hold genuine concerns about the efficacy of any orders made in the terms proposed by the Mother and the Independent Children’s Lawyer, given that X has been in the sole care of the Father for some eighteen months and would appear to be completely indoctrinated by the Father’s views of the Mother.
However, I am also of the view that to not try and afford X the opportunity to repair his relationship with the Mother and to be shielded from the Father’s poor behaviour and role modelling would be to do X a major disservice. X must be given the opportunity to avoid the risks to his long term emotional and mental health that have been so starkly outlined by Ms S if he continues to live with the Father. It is apparent that the only way this can occur is to put in place orders that will remove X from his Father’s care for a sufficiently lengthy period of time so that he is genuinely given the breathing space in which to form his own independent views of the Mother and develop a meaningful relationship with her.
X will not accept these orders and there will be an enormous amount of dislocation in the Mother’s household when he comes to live with she, Y and Z.
I hold genuine concerns for Y and Z during this transition because so much of the Mother’s time and energy will have to be devoted to trying to deal with X and his behaviours. This may leave little time for the Mother to provide the care and nurturing that Y and Z will require to manage living with X and also for them to deal with their own distress at not spending time with the Father that they love.
It will be vital that the Mother ensures that she has in place all the supports she has given evidence about and that those supports not only be available for X but also for Y, Z and herself as well.
Whilst, the Mother and the Independent Children’s Lawyer have put in place proposals for a way forward that would allow final orders to be made, their proposal could result in X, Y and Z never spending time with the Father in the event that the Father does not engage in the services and undertake the courses their proposal entails.
Such an outcome, particularly in respect to Y and Z, cannot be seen to be in their best interests.
In these circumstances, whilst ideally one hopes to finalise matters with the orders that are made, this is a matter where I have formed the view that final orders at this time are not in the best interests of X, Y and Z.
It is therefore my intention to make interim orders only that will provide for the Mother to have sole parental responsibility for X, Y and Z, for them to live with her and for them to spend no time with the Father. X, Y and Z will be able to communicate with the Father by telephone once a fortnight.
The orders will provide for the Father to undertake a Men’s Behavioural Change Program, to again attend a Tuning into Kids course and to otherwise engage with the Department of Health and Human Services Child First Family Service and follow their directions as to the programs and intervention he should undertake.
The parties will be ordered to enrol at (omitted) so that they are on the list in the event supervised time between the Father, X, Y and Z is ordered in the future.
The matter will otherwise be adjourned back before me in the November sittings of the Federal Circuit Court in Bendigo. At that time the Father will be required to place before the Court proof of his completion of the requested programs and confirmation that he has engaged with Child First and has followed their directions. The Father will need to satisfy the Court that he has developed an understanding of and insight into the necessity for him to change his behaviours and attitudes towards the Mother so that he can genuinely support X, Y and Z having a relationship with her.
The Mother will also place before the Court evidence of how X, Y and Z have fared in her household during the intervening period.
With that information, the Court will be in a much better position to assess what the best orders are for Y, X and Z going forward.

I certify that the preceding two hundred and eighty five (285) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 19 April 2016

[2016] FCCA 827

19 April 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Standing