Lawson and Lynch

[2018] FamCA 358

FAMILY COURT OF AUSTRALIA

LAWSON & LYNCH [2018] FamCA 358

FAMILY LAW – CHILDREN – With whom a child lives – Where the child has meaningful relationships with both parties – Where there is no need to protect the child against harm from either the mother’s neglect or any form of abuse by the father – Where the pre-eminent issue in the proceedings was the mother’s willingness and capacity to support the child’s relationship with the father – Where the mother’s conduct probably caused the child to align with her so the deterioration of his relationship with the father was the only likely outcome – Concluded the psychological detriment for the child resulting from the loss of his filial relationship with the father outweighs the emotional distress he will likely experience in adjusting to his residence with the father instead of the mother – Ordered the father shall have sole parental responsibility – Ordered the child shall live with the father and spend substantial time with the mother after a moratorium of about one month.

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 65DAA, 65DAC

Kuhl v Zurich Financial Services (2011) 243 CLR 361
U v U (2002) 211 CLR 238

APPLICANT: Mr Lawson

RESPONDENT: Ms Lynch

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

FILE NUMBER: NCC 2623 of 2014

DATE DELIVERED: 23 May 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 30 April 2018 & 1, 2 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Hepmac Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

1. All former orders relating to the child C, born … 2007 (the child), are discharged.

2. The father shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

3. The child shall live with the father.

4. The parties shall take all reasonable steps to ensure the child spends time with the mother as follows:

   (a)During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday, commencing on Friday 22 June 2018 this term and on the first Friday of each term thereafter.

   (b)For the first portion of the Autumn, Winter, and Spring school holidays, commencing at the conclusion of school on the last day of school term and concluding at 12.00 noon on Saturday on the middle weekend of the holidays.

   (c)For the first portion of the 2018/2019 Summer school holidays and each alternate year thereafter, commencing at the conclusion of school on the last day of school term and concluding at 12.00 noon on 5 January.

   (d)For the second portion of the 2019/2020 Summer school holidays and each alternate year thereafter, commencing at 12.00 noon on 5 January and concluding at 12.00 noon on the day before school resumes in the new school year.

5. Until Friday 22 June 2018, the mother is restrained from entering upon or approaching within 100 metres of:

   (a)The child;

   (b)The father’s residence; and

   (b)Any school attended by the child.

6. Orders 3 and 4 are suspended:

   (a)Between 9.00 am and 5.00 pm each Mother’s Day, when the child shall spend time with the mother; and

   (b)Between 9.00 am and 5.00 pm each Father’s Day, when the child shall spend time with the father.

7. For the purpose of implementing Orders 3, 4 and 6 hereof, the parties shall respectively ensure the child’s:

   (a)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term, at which time the other party is restrained from attending the school;

   (b)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term, at which time the other party is restrained from attending the school; and otherwise

   (c)Collection from and return to the McDonald’s Restaurant at B Town, NSW.

8. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

9. The father shall authorise and request the principal of any school attended by the child to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the child.

10. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

11. Leave is granted to the parties to furnish a copy of these orders and reasons to the child’s treating psychologist or counsellor.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14. Costs are reserved for 28 days.

15. Any and all other outstanding applications are dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2623 of 2014

Mr Lawson

Applicant

And

Ms Lynch

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the future parenting arrangements for an 11 year old boy who is the only child of the applicant father and respondent mother.

2. The pre-eminent issue in the proceedings was the mother’s willingness and capacity to support the child’s relationship with the father. The father contended the mother was either unwilling or unable to do so, in which event the child should live with him instead, for otherwise their valuable relationship will be lost. Conversely, the mother maintained she does support the child’s relationship with the father and so he should remain living with her, though she contended it was still necessary to truncate the time he spends with the father.

3. On balance, the evidence proved the child’s relationship with the father is compromised while he lives with the mother, though perhaps the process is quite unintentional, and the reversal of the child’s residence is necessary to preserve his important relationships with both parents.

Background

1. The subject child was born in 2007.

2. The mother has four older children from two former relationships. Two of her older children (Mr D and Ms E) were born to her former relationship with Mr F.

3. The parties ceased cohabitation in 2009, though they maintained their friendship and sexual intimacy for several years thereafter – the father asserted until 2012 but the mother said until 2014. Upon separation in 2009, the child remained living with the mother, but in the ensuing years the parties co-operated and agreed upon variable arrangements for the child to spend time with the father.

4. In September 2014, the mother allowed the child and Ms E to spend time at the home of Mr F, which infuriated the father because he has a low opinion of Mr F and did not want the child to associate with him. The disagreement between the parties caused an interruption to the time spent by the child with the father. He then commenced these proceedings almost immediately thereafter in October 2014 seeking orders for the child to live with him instead, for the child to spend time with the mother, and to restrain the mother from allowing the child to have any interaction with Mr F.

5. The proceedings were started in the Federal Circuit Court of Australia, where interim orders were made in October 2014, with the parties’ consent, providing for them to have equal shared parental responsibility for the child, for the child to continue living with the mother, for the child to spend substantial amounts of time with the father (including five consecutive nights each fortnight), and restraining the mother from allowing the child within 100 metres of Mr F.

6. Supplementary interim orders were made by the Federal Circuit Court in March 2015, April 2015, May 2015, and October 2016, but they did not vary the underlying parental arrangement. Although those orders applied until trial, the orders were not the subject of uniform performance by the parties. Sometimes the mother failed to ensure the child spent time with the father and on other occasions the father failed to avail himself of the child’s scheduled visits.

7. The Federal Circuit Court transferred the proceedings to this Court for hearing and determination in October 2016. An updated Family Report was prepared in April 2017 and the proceedings were originally listed for trial in November 2017. Regrettably, the trial was not reached due to lack of priority and was re-listed to commence on 30 April 2018.

Proposals

1. The father pressed for the orders set out in his Amended Application filed on 12 April 2018. Throughout the litigation he consistently applied for orders under which he would have sole parental responsibility for the child, the child would live with him, and the child would spend substantial time with the mother. The most recent amendment of his application was to propose a temporary embargo of three months duration on the child’s visits with the mother, so the child’s residence with him may settle without undue disturbance.

2. The genuine nature of the mother’s proposal at trial was quite uncertain. During the litigation she:

   (a)Agreed to interim orders in October 2014, under which the child was to spend time with the father for five nights per fortnight in school terms and for portions of school holidays;

   (b)Told the Family Consultant in November 2015 that the child should spend time with the father for four nights per fortnight;[1]

   (c)Filed a Further Amended Response on 1 December 2016, in which she proposed the child should spend time with the father for three nights per fortnight in school terms and for portions of school holidays;

   (d)Filed (through her former lawyer) a Case Outline document on 8 November 2017, in which she repeated her most recent proposal for the child to spend time with the father for three nights per fortnight in school terms and for portions of school holidays; and

   (e)Gave evidence in cross-examination at trial admitting that all of her past proposals did not and could not address her asserted concerns about the father and the risks of harm she perceives he poses to the child, in which event she was unable to articulate any proposal at all for the child’s future interaction with the father and intended to leave the problem entirely to the Court to solve.

   [1] First Family Report, para 9

3. Notwithstanding the tenor of the mother’s evidence in cross-examination, her counsel confirmed he was expressly instructed by her to seek the orders set out within her Case Outline document filed in November 2017. The minute of orders was extracted from that document and separately tendered.[2] In essence, her final proposal was for the child to remain living with her and for him to continue spending substantial time with the father. She was unable to say how or why she expected her proposed orders would be successfully implemented, given the interim orders made in October 2014 (with her consent) already designate a similar regime for the child and they have not been implemented at all for the last couple of months or on numerous other prior occasions in the last three years.

   [2] Exhibit M9

4. The Independent Children’s Lawyer did not begin the trial with any formative position, but after the evidence was closed she tendered a minute of the orders she proposed.[3] The proposed orders were very similar to the orders proposed by the mother. Curiously, she had “grave reservations” that, if orders were made in those terms, the child would actually spend any time with the father, but she “hoped” he would, even though she had no genuine expectation of it. Why she proposed orders she expected would probably fail was not adequately explained.

   [3] Exhibit ICL1

Evidence

1. The father relied upon:

   (a)His two affidavits filed on 27 September 2017 and 12 April 2018;

   (b)The affidavit of Ms G, filed on 27 September 2017;

   (c)The affidavit of Ms H, filed on 27 September 2017; and

   (d)The affidavit of Mr H, filed on 27 September 2017.

2. The mother relied upon:

   (a)Her affidavit filed on 27 September 2017;

   (b)Her proof of evidence dated 16 April 2018,[4] her adoption of the truth and accuracy of which she confirmed in evidence;

   (c)The affidavit of the maternal grandmother, Ms Lynch Snr, filed 27 September 2017; and

   (d)The affidavit of her adult son, Mr D, filed on 27 September 2017.

   [4] Exhibit M1

3. The parties and the Independent Children’s Lawyer also relied upon the Family Reports prepared by the Family Consultant on 3 December 2015 and 25 April 2017.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The Act requires the Court to consider, as primarily important in the determination of orders which will meet the child’s best interests, the benefit of him having meaningful relationships with both parents (s 60CC(2)(a)). The importance of that consideration is underscored by the statutory objective of ensuring children benefit from both of their parents being meaningfully involved in their lives to the maximum extent that objective is consistent with their protection against harm (ss 60B(1)(a), 60B(1)(b), 60B(2)). Apart from cases of abusive relationships, of which this is not one, children benefit from the development of good relationships with both parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are intrinsic to the Act (see U v U (2002) 211 CLR 238 at 285-286).

2. The mother believes her relationship with the child is comparatively more important to him than his relationship with the father, but she nevertheless expressly conceded at trial (through her lawyers) the child still does have and should continue in the future to enjoy his meaningful relationship with the father.

3. The father implicitly contended the mother’s concession was a ruse because he believes her behaviour is incongruent with the concession but, regardless of the correctness of his belief about her misconduct, she should be taken at her word with regard to the importance of the child’s relationship with him. If, for the purpose of legal proceedings, the mother asserts the child does derive benefit from his relationship with the father and maintains he should continue to do so, her admission must mean something. In any event, by reference to the evidence, the mother’s concession was correct.

4. The mother agreed to interim orders in October 2014 which provided for the child to spend substantial amounts of time in the father’s care. Although she said in cross-examination she was unsure whether the child then did have a good relationship with the father, she surely must have believed he did. Inferentially, she would not have agreed to orders in those terms unless she believed the child had and should continue to have a meaningful relationship with the father.

5. The Family Consultant conferred with the family on two occasions in November 2015 and April 2017 and, on each occasion, concluded the child had meaningful relationships with both parties. The child presented as somewhat detached from and disinterested in interaction with “each of his parents” when under observation by the Family Consultant, though more obviously so with the father than with the mother,[5] about which the Family Consultant was perplexed. He did not know whether to attribute the child’s detachment to his stress induced by the litigation, the parental conflict, something said to him by the mother, or for some other reason, but the child still spoke positively about the father and his relationship with him, which warm sentiments were incompatible with his cool demeanour.[6]

   [5] Second Family Report, para 63

   [6] First Family Report, paras 62, 63, 67; Second Family Report, paras 28, 55, 56

6. The Family Consultant’s conclusions about the quality of the child’s relationship with the father correlated with the observations of the psychologist to whom the child was taken for therapy in early 2015. He reported the child presented as “very comfortable” with the father, whom he cuddled for much of the first session and said he wanted to spend more time with him.[7] The mother trusts the psychologist’s opinions because she consented to his appointment as the child’s exclusive therapist by an interim order subsequently made in October 2016[8] and she confirmed in cross-examination the child likes and trusts him.

   [7] Father’s first affidavit, para 88, Annexure A-6

   [8] Order 1.2 made on 20 October 2016

1. By the time of the Family Consultant’s cross-examination at trial, he had not seen the child for a year. He was informed of the child’s burgeoning resistance over recent months to either go with the father or remain in his care, as required by the interim orders. He said in answer to questions posed by the Independent Children’s Lawyer that such recent events demonstrated the child’s relationships with both parents were probably damaged. He agreed the child was most probably “acting out”, though the reasons for that were not clear cut. In answer to questions posed by the mother, he agreed there was “some basis” for her belief that the child has an “anxious relationship” with the father, which belief she raised with him a year ago.[9] Importantly, the Family Consultant said the “causal factors” for the child’s anxiety was the “core issue” in the proceedings.

   [9] Second Family Report, para 39

2. The father then explored those “causal factors” in his cross-examination. The Family Consultant agreed the child might feel as though he is pressured to project an adverse attitude towards the father and to reject him, which he described as an “entrenched public persona” and discussed it as a potentiality in the last Family Report.[10] The Family Consultant agreed the child had certainly not given him any valid reason for feeling anxious about the father or for being resistant to spending time with him.

   [10] Second Family Report, para 57

3. As the mother contended, the father’s parenting style is probably more authoritarian than her own, but his relative inflexibility is hardly an adequate explanation for the child’s resistance to him and her multiple failures to implement the interim consent orders. The evidence did not reveal any other aspect of the child’s treatment by the father to be rationally productive of the child’s resistance to him. The most probable explanation for it is that the child feels pressure in the mother’s household to align himself with her against the father in the parental conflict. It was entirely uncontroversial the parties have a highly-conflicted parental relationship, which they have been unable to improve despite the Family Consultant’s repeated entreaties to do so. During his cross-examination the Family Consultant said words to the effect that “parental conflict is the underlying problem for the child”. In his last Family Report he warned the ongoing parental conflict was having a “debilitating impact” on the child.[11]

   [11] Second Family Report, para 13

4. The unrelenting conflict between the parties has made it untenable for the child to maintain his valuable relationships with both parents, particularly since he realises he is the focal point of their conflict and therefore at the centre of it. To survive the conflict he has grown to realise he cannot show mutual loyalty to his parents. The only way to minimise the emotional distress their conflict causes him is to demonstrate allegiance to one parent in preference to the other, at least whilst ever he lives with the mother. It does not matter whether the factual reality correlates with the child’s subjective perception because, while ever he believes it to be true, nothing will change. Further, if pressure is exerted upon him within the mother’s milieu, it does not matter whether it occurs intentionally or inadvertently because the consequences are identical. Nor does it matter whether the child’s stress is induced by the mother, his adult half-siblings, or all of them in combination, because the mother, Mr D, and Ms E will continue to associate with one another and hold unshakeable adverse views of the father.

5. The mother denied she influences the child against the father, but her denial could only logically relate to her behaviour which she realises is detrimental. She would be completely ignorant of and therefore unable to either confirm or deny any of her conduct or conversation which unintentionally influences the child. Moreover, she is probably powerless to change any behaviour she does not appreciate adversely influences the child.

6. The evidence which bears upon the dispute about the mother’s alignment of the child against the father is aptly discussed as an issue under s 60CC(3) of the Act as an aspect of the mother’s parenting capacity. For present purposes though, so far as s 60CC(2)(a) is concerned, several significant findings are warranted:

   (a)The child still does have a meaningful relationship with the father;

   (b)He derives benefit from the relationship;

   (c)He should desirably continue to derive benefit from the relationship; and

   (d)It will be difficult for him to do so if he continues to live with the mother. If he continues to live with her, his relationship with the father will probably be destroyed or irreparably damaged.

7. In final submissions, the mother conversely contended the father either would not or might not support the child’s relationship with her if he instead lives with him. It is a risk, because the father left the Family Consultant with the impression he does not recognise much “strength” in the child’s relationship with the mother,[12] but the mother’s submission was unconvincing for several reasons.

   [12] Second Family Report, para 24

8. First, the father expressly conceded (through his lawyers) that the child has a meaningful relationship with the mother from which he derives benefit and should continue to do so, which concession should be given the same weight as the mother’s reciprocal concession.

9. Secondly, unlike the mother, the father was not challenged in cross-examination with the proposition that his concession was an artifice and that he would not faithfully ensure any orders for the child to spend time with the mother would be implemented, as he should have been if the point was to be pursued. He was entitled to the opportunity to refute the proposition and his denial of the chance to do so was procedurally unfair (see Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 387-388).

10. Thirdly, the proposition was not raised until final submissions, by which time it was clear the mother’s continuing role as residential parent was under threat and so it wore the appearance of a scrambling afterthought designed to fortify her position. Her submission was pitched in the alternative as either a probability or a possibility, which implied she was not convinced of its force.

11. Lastly, while the conflict between the parties is so entrenched as to generate the potential of the father’s failure to support and promote the child’s relationship with the mother, the converse risk posed by the mother seemed far more pronounced, as experience has already demonstrated.

Section 60CC(2)(b)

1. The second primary consideration bearing upon the determination of the child’s best interests is whether he needs protection from any form of harm he may suffer from either subjection or exposure to abuse, neglect, or family violence (s 60CC(2)(b)). This factor was not eventually engaged as an influential feature of the proceedings but, during the litigation, each party made allegations against the other which should be acknowledged and formally eliminated.

2. On several occasions over the last couple of years the child sustained injuries (including fractures) through childhood misadventure while in the mother’s care. The father attributed his injuries to the mother’s neglect, which presumably meant he expected her to supervise the child’s more vigilantly, but his blame of her for those incidents was a hysterical over-reaction. While her parenting style may be more laissez faire than his, no supervision short of disallowance of the child’s participation in ordinary play on climbing equipment, skateboards, and scooters would prevent injuries of the type he sustained.

3. There is no need to protect the child against harm he may suffer through subjection to the mother’s neglect.

4. The child reported to the mother in late February 2018, following his penultimate visit to the father, that the father threw him to the floor during some altercation between them over him brushing his teeth and combing his hair before school. The child complained of a sore back, but he had no visible sign of injury. Then, in early March 2018, during the child’s last visit to the father, they argued over a passport application the mother either instructed or allowed the child to take to the father for signature. The father refused to sign. On the child’s return to the mother, he told her he was struck by the father during the confrontation, so she took him to the police to report the child’s alleged assault. The police took no action but, significantly, the mother said in cross-examination she still believes the child was assaulted by the father on those two occasions. She also admitted her belief the child remains at risk of harm due to his subjection to future physical abuse by the father, though such belief is entirely incompatible with the orders she proposed for the child to spend substantial time with the father.

5. There is no need to protect the child against harm he may suffer through subjection to the father’s physical abuse.

6. The mother alleged the child was privy to acts of sexual intercourse between the father and Ms H on multiple occasions during 2016, which they both staunchly denied. Although not expressly articulated in this way, the mother implied the child was harmed by witnessing those events and his observation of such activity might amount to “abuse” in the widest sense in which that term is defined under the Act (s 4(1)). The denials by the father and Ms H of their participation in any sexual activity together, let alone sexual activity witnessed by the child, were so convincing that even the mother eventually conceded the allegations could not be proven and she abandoned her application for an injunction preventing the child from being brought into contact with Ms H.

7. There is no need to protect the child against harm he may suffer through exposure or subjection to any form of abuse by the father.

8. Accordingly, the only consideration which bears primarily upon the determination of the child’s best interests is the desirability of his maintenance of meaningful relationships with both parents, which will prove difficult if he remains living with the mother (s 60CC(2)(a)).

Child’s best interests – additional considerations

1. Not all additional considerations prescribed by s 60CC(3) of the Act were relied upon by the parties so it is only necessary to address those which were submitted to be influential.

2. First and foremost were the parties’ respective capacity to provide for the child’s emotional needs (s 60CC(3)(f)) and the attitudes they each demonstrate to the responsibilities of parenthood (s 60CC(3)(i)).

3. As already discussed under the rubric of s 60CC(2)(a) of the Act, while living with the mother, the child feels unable to simultaneously maintain his valuable relationship with the father. The mother contended in final submissions that this issue was the “crux” of the proceedings, so she was cognisant of its importance. Her conduct most probably does induce the child’s belief that he has no option but to align himself with her against the father, even though his inducement may be unintentional on her part. The antipathy Mr D admittedly also feels towards the father could only serve to reinforce the child’s belief. There were numerous aspects of the evidence which, collectively, lay the foundation for that finding.

4. The mother has palpably negative views about the father, which the child could not help but notice. It would be impossible for her to shield him from her negativity, since it was common ground the child is intelligent and perceptive. The mother’s counsel confirmed she believed the father commenced and maintained this litigation motivated by his desire to punish her for her rejection of him, rather than because he has an overriding interest in promoting his relationship with the child. During her cross-examination, the mother said the father “has a lot of bitterness” and she was “not really sure” whether he was trying to salvage his relationship with the child. The father commenced these proceedings over three years ago and has consistently maintained the child will only be able to have a meaningful relationship with him if he lives with him instead, so the mother’s apparently honest doubts about the genuineness of his motivation and her suspicion of his vengeful intent exemplified the depth of her distrust and dislike of him. The Family Consultant entertained no doubts at all about the father’s motivation to ensure his strong relationship with the child[13] and the father conveyed the same impression during the trial.

   [13] Second Family Report, para 28

5. The enmity the mother feels towards the father is unfortunately betrayed by her words and deeds. Information provided by the child’s psychologist inferentially suggested the mother was involving the child in the dispute by sharing information about the proceedings with him.[14] The mother even admitted to the Family Consultant that she had denigrated the father to the child and did discuss the proceedings with him,[15] though she alleged the father similarly did so. An egregious example of the mother’s denigration of the father to the child was her revelation to him the father has another child. The child revealed his knowledge of that asserted fact to both the father[16] and Ms G.[17] Only the mother could have been the source of that allegation, since she alleges it to be true and the father denies it. Her conveyance of such information to the child could not likely have been for any purpose but to undermine his confidence in the father for keeping such a profound secret.

   [14] Second Family Report, para 18

   [15] First Family Report, paras 42, 45

   [16] Father’s first affidavit, para 301(g)

   [17] Affidavit of Ms G, para 38

6. Another stark example of the mother’s inclination to align the child with her occurred as recently as March 2018. The child visited the father and asked him to sign a passport application he took with him to the mother’s home. The grant of his passport application is necessary to permit his travel to Asia later in the year to attend his older half-siblings wedding, but it was not a pressing issue in March. The mother had already raised the issue with the father in previous weeks and, while he had refused an earlier request in 2014, he had neither confirmed his consent or refusal to the current request at that point. The child wants to travel to and attend the wedding with members of the maternal family and his denial of a passport would thwart his wish and anger him. The mother denied she instructed the child to take the passport application with him on the visit, but she deposed she put the application in his school bag to take with him,[18] so there was a degree of inconsistency in her evidence. In any event, she conceded she at least permitted the child to take the passport application with him. She admitted there was no urgency about it and she admitted she expected the father would refuse to sign the application, by reason of which only two inferences are reasonably open: either she did not give any thought to the dispute it might create between the child and father, as she said was the case, or she foresaw the dispute and hoped it would eventuate. In the first instance she displayed an alarming lack of insight, but in the second instance she would have been deliberately sabotaging the child’s relationship with the father. In either case, deterioration of the child’s relationship with the father was the only possible outcome.

   [18] Exhibit M1, para 25

7. Unfortunately, the imbroglio did not end there. On his return, the child reported to her that the father pushed him during their argument over the passport application. She then decided to report the incident to the police. Her statement implied she did so individually,[19] but that was not so. She was impelled to admit in cross-examination she took the child with her to the police station to report the alleged assault, so the child must have been aware his allegation was considered so important by the mother that she believed it was necessary to have the father investigated for prospective criminal prosecution. The mother said she did not give any thought to whether her involvement of the child in that formal investigative process might adversely affect his relationship with the father, but there was no other plausible outcome. Again, she either must have intended that outcome or she lacked the insight to foresee it. When those facts were recounted to the Family Consultant in cross-examination he said such behaviour by the mother was “extremely damaging” and tended to align the child with her against the father.

   [19] Exhibit M1, para 27

8. Even though the mother now accepts the evidence is not sufficiently strong to prove the father assaulted the child or carelessly allowed him to witness his engagement in sexual intercourse with Ms H, she still said she genuinely believes those events occurred as the child alleged. If she still honestly believes the child is at risk of harm in the father’s care, logically, she will be not be motivated to ensure he continues to visit the father and she will likely accede to his resistance to do so. The mother’s anxiety about the child’s safety in the father’s care was exemplified by her need to telephone him twice during each alternate weekend visit he spent with the father.[20] The compounding effect of the mother’s antipathy towards the father, her anxiety about the child’s safety, the child’s anxiety over the parental conflict, his resistance to spend time with the father, and the mother’s inability to enforce the existing orders requiring him to do so is plainly evident. It was episodic in the past but it is now typical, as the events over recent months show.

   [20] Second Family Report, paras 30, 43

9. The father commenced these proceedings in October 2014 because, at least in part, there were interruptions to the child spending time with him.[21] Consent orders were made between the parties in October 2014 requiring the child to spend time with the father for five nights per fortnight in school terms and for portions of school holidays.

   [21] Father’s first affidavit, para 58

10. During the months of January, February, and March 2015, the mother failed to present the child to the father for scheduled visits. The parties’ vexation was precipitated by their disagreement over the due date for the child’s return to the mother in the summer school holidays, even though the orders were reasonably prescriptive. The police were summoned and the mother was verbally abusive to the father in the child’s presence.[22] Astonishingly, the mother said in cross-examination she did not think the child would have been distressed to see her attend the father’s home uninvited, witness her engagement in heated argument with the father, and then see the police attend and quell their dispute. Her failure to contemplate the deleterious consequences for the child’s exposure to such overt conflict again demonstrates her lack of insight. The mother’s assertion to the Family Consultant, in November 2015, that she had never denied the father time with the child was false.[23] Although the father did have some make-up time with the child in February 2015, the parties still disputed how much make-up time he was given.

    [22] Father’s first affidavit, paras 68-83, 87, 98-102; Mother’s affidavit, paras 55-72

    [23] First Family Report, para 41

11. Problems again arose in August 2016, after the child reported to the mother he had seen the father and Ms H engaging in sexual intercourse, which he had alleged on earlier occasions in the year. The mother refused to allow the child to spend time with the father for about a week or more.[24] She apparently intended the cessation of the visits would continue indefinitely, or at least be of longer duration, because she said in cross-examination she had “no choice” but to allow the child’s visits to resume later in the month when she was unable to secure a grant of legal aid to make an application to change the interim orders. As the mother conceded at trial, the evidence did not vindicate the child’s allegations and there was no valid basis for suspension of the child’s visits with the father.

    [24] Father’s first affidavit, paras 134-149; Mother’s affidavit, paras 101-114

1. In 2017, on the child’s birthday, the mother withheld him from the father in the afternoon contrary to the orders. She admitted she did so, apparently because she thought the interim orders unfairly deprived her of time with the child that day. Suffice to say, it was not unreasonable for the father to insist on compliance with the orders in the context of the parties’ ongoing conflict because it is only the orders which establish certainty in the midst of their chaotic conflict.

2. More recently, the problem has escalated. Since December 2017, the child has refused to spend time with the father on multiple occasions and, on other occasions when he was presented to the father, he absconded back to the mother and remained with her. The child has not spent any time or even communicated with the father for the past two months.

3. In cross-examination the mother proclaimed her inability to rectify that unsatisfactory situation. She said she has always tried her best to persuade the child to go with the father but, on many occasions, he could not be convinced. When he absconded back to her she said she unsuccessfully tried to persuade him to return. She asserted there was nothing more she could do to ensure the child’s compliance with the orders, short of “dragging” him to and “throwing” him into the car.

4. When alerted to how it would therefore be pointless to make the orders she proposed, which would perpetuate the current broken regime, she protested she would do her “very, very best” to implement the orders. But, according to her evidence, she has already done her very best. Recent text messages she sent to the father when the child absconded from him, on their face, suggest she was indeed doing her best.[25] If her evidence is accepted as truthful then, in so far as compliance with the orders is concerned, her parenting skill must be exhausted. If it is not exhausted, then the only alternative explanation is that it has suited her to not try any harder to ensure the child spends time and communicates with the father. Either way, if the parenting regime is left largely as it is, there will not likely be any improvement.

   [25] Exhibit M4

5. There is clearly practical difficulty in ensuring the child spends time with the father if he remains living with the mother (s 60CC(3)(e)), but that needs to be balanced against the likely distress the child will experience if removed from the mother’s primary care (s 60CC(3)(d)). The Family Consultant said it could be “extremely damaging” for the child to be removed from the mother’s primary care, but that was in the context of a presumed finding the child was not being aligned with the mother because, if that was occurring, he had already recommended reversal of the child’s residence,[26] which opinion he confirmed later in his cross-examination.

   [26] Second Family Report, para 61

6. Regrettably, the mother continues to believe the truth of most everything the child reports to her, despite him clearly being an unreliable source of information. For example, the mother conceded his lurid sexual allegations against the father and Ms H could not be proven in the face of their credible denials. It must necessarily follow, on the balance of probabilities, that the child’s reports to the mother were deliberately false. His multiple accusations of their sexual trysts over many months, with attendant descriptive detail, could hardly have been innocently mistaken. Notwithstanding such an inescapable conclusion and despite her express admissions in cross-examination the child “definitely” knows of the high parental conflict and he might “tell the parents different things”, she clung to her belief in the truth of the child’s reports to her against the father.

7. That is not to say the child tells bare-faced lies due to his immorality or mischievous intent. The most likely explanation for his unreliability is his desire to show allegiance to the mother because he believes it is demanded of him. Making statements he expects will be well-received by the mother is one way his loyalty to her is established, because it dampens her apprehension that his loyalties might be divided. While he does not make reciprocal critical reports about the mother to the father, it does not concomitantly mean his reports about the father to the mother are more likely true. Rather, it probably means he does not feel the same degree of pressure to owe allegiance to the father.

8. The divergence between the child’s expressed views and his behaviour has progressively widened. He told his psychologist in early 2015 he wanted to see more of his father.[27] He told the Family Consultant in November 2015 it was “good” to spend time with the father and he wanted to spend four night per fortnight with him.[28] He told the Family Consultant in April 2017 that spending five nights per fortnight with the father “works well for him”.[29] At that time, the mother well knew the child wanted to spend alternate weekends with the father because she admitted it.[30] Now, only a year later, the mother is demonstrably unable to ensure the child even speaks to him. Nothing said or done by the father in the past year can rationally explain the widening gap between the child’s expressed views and his behaviour. The escalation in his behaviour should not be surprising because his plaintive request of the Family Consultant for the parental conflict to stop has not been heeded by the parties.[31]

   [27] Father’s affidavit, Annexure A-6

   [28] First Family Report, paras 56-57

   [29] Second Family Report, paras 52, 60

   [30] Second Family Report, para 9

   [31] Second Family Report, para 51

9. Although the child’s views deserve consideration because of his age and maturity (s 60CC(3)(a)), they are far from determinative, not least because the parties do not rely upon them. The child last reported, independently of the parties, that he wanted to spend five nights per fortnight with the father but did not want to live with him. Contrary to those expressed views, the father wants the child to live with him, but the mother wants him to live with her and spend only three nights per fortnight with the father, even though she has no expectation he will spend any time at all with the father. The child’s conduct in rejecting the father, particularly over the last few months, should not be regarded as an accurate reflection of his genuine feelings. Most likely, as the Family Consultant said, he is acting out because of his conflicted loyalties, which warning the Family Consultant issued at his first meeting with the family.[32] Alarmingly, the child’s stress was even so acute that, for a time, he was bed-wetting.[33] 

   [32] First Family Report, paras 14, 61

   [33] First Family Report, para 52

10. The father is not immune from criticism over the child’s predicament. He dislikes the mother too and he unjustifiably blames her entirely for the conflict. His attribution of blame to her for the child’s accidental injuries and his fixation on the minor but inconsequential variations in her versions of those events are an obvious example of his asininity, particularly when he was forced to concede the child was also injured in his care. The child was either bitten by a dog or scratched by a puppy when with him, for which a course of antibiotics needed to be prescribed. He also foolishly questioned the mother’s capacity to financially provide for the child’s physical needs when both parties struggle financially and he pays a paltry amount of child support. His unwarranted criticisms only causes their mutual dislike to galvanise.

11. The father certainly failed to take every opportunity to spend time with the child under the interim orders (s 60CC(3)(c)), for which he was criticised by the mother. Most recently, that occurred in March and April 2018. On 30 March 2018, the child attended the changeover venue with the mother but the father departed without him. The mother conceded in cross-examination she wrongly alleged the father did not attend the changeover venue at all.[34] The father sent a text message to the mother explaining he declined to put the child under any further pressure by demanding that he go. Again, on 21 April 2018, the child attended the changeover venue with the mother but the father departed without the child. Similarly, the father sent the mother a text message explaining he would not submit the child to the pressure of forcing him to visit if he was resistant.

    [34] Exhibit M1, para 29

12. Whether the child actually was resistant to spending time with the father on those occasions remains uncertain, but the father certainly perceived it to be the case. It could not be reasonably contended he was plainly wrong, given the multiple past episodes of the child’s refusal to go with him. Perhaps, with the benefit of hindsight, he should have insisted on the child going with him once he was actually present at the changeover venue, but the father’s decision was plausibly understandable even if mistaken. On other occasions, when the child did pass into his care, he absconded and both parties were concerned about his safety when walking alone between their homes – a distance of several kilometres along busy roads. It remains unknown whether the child felt humiliated or relieved on those occasions when he attended the changeover venue with the mother but the father chose to leave without him. If, as the father perceived, the child was resistant, he was probably relieved by the father’s departure because he was spared from the conflict over enforcement of the orders and no lasting harm was done. If, however, the child was willing to go and was humiliated by the father leaving without him, he is old enough to understand the confusion caused by his inconsistent attitude and any chagrin he felt should be minimised.

13. The mother and child both identify as Aboriginal, which means the child has the right to enjoy that culture (s 60CC(3)(h)). The child is enrolled at school as an Aboriginal and he eagerly participates in cultural events. The father was invited by the mother to attend those events, but declined to go. Most likely that does not represent his disinterest in the child’s cultural associations, but rather the way in which he avoids the mother’s physical presence, since she was keen to attend and watch the child at those activities. The father said he accepts the mother’s identification as Aboriginal is quite genuine and so he must logically accept the legitimacy of the child’s cultural association. But the child does not need to live with the mother to enjoy his indigenous culture, since the father does not undermine his identification as Aboriginal. The mother can immerse him in their indigenous culture if his visits with her are frequent and of substantial duration.

14. Otherwise, there was nothing to materially differentiate the parties’ positions. They can both provide adequately for the child’s physical and intellectual needs (s 60CC(3)(f)); the child enjoys warm relationships with members of the extended maternal and paternal families (s 60CC(3)(b)); and there is no attendant expense in ensuring the child is exchanged between the parties due to the proximity of their homes (s 60CC(3)(e)). Of course, the enormous practical difficulty ensuring the child spends time with the father will continue if he lives with the mother.

Conclusions and orders

1. It was common ground the presumption of equal shared parental responsibility was rebutted by the evidence (s 61DA(4)). The parties’ rank conflict precludes them sharing parental responsibility in the manner dictated by law (s 65DAC). The parties and the Independent Children’s Lawyer mutually proposed the allocation of sole parental responsibility to the parent with whom the child will live. Since parental responsibility will be vested exclusively in one party, s 65DAA of the Act is not engaged and need not be considered.

2. Broadly, three possible parental regimes emerged. They were:

   (a)Retention of the child’s residence with the mother. This was the option posited by both the mother and Independent Children’s Lawyer. It was a moot point whether the orders they each proposed for the child to spend substantial time with the father would be observed even if made, since such orders are not currently being implemented.

   (b)Reversal of the existing regime so that the child lives with the father, with orders providing for the child to spend substantial amounts of time with the mother. This was the option propounded by the father.

   (c)Making orders on only an interim basis, preserving the current regime, to test the mother’s veracity about whether she has the ability to ensure the child can spend time with the father, despite her sworn evidence she can do no more than she has already. The underlying assumption would be the later conversion of the interim orders to final orders, provided the mother proves compliant with them. Her counsel sought such an outcome as a fall-back position, though the father and Independent Children’s Lawyer both staunchly opposed it.

3. The last option is eliminated first. The mother said she could do no more to ensure the child spends time with the father. If she was being truthful then there is no point to be served by prolonging the litigation, which has been pending for long enough. The child is stressed by the conflict, which is probably perpetuated by the litigation, so his interests are served by finality not prolongation. On the other hand, if the mother was untruthful and she really is capable of restoring the child’s visits with the father, it would create a paradox to allow the mother more time to prove her capacity to do so and then conclude the litigation with final orders resembling those she proposed. Final orders to that effect could only be made in reliance upon her honesty to indefinitely ensure the child spends time with the father when it was her dishonest failure to do so which necessitated the further adjournment. Understandably, the father would always doubt her commitment to compliance without the Damoclean sword of unresolved litigation hanging over her.

4. The alternatives therefore distilled to two. The Family Consultant recommended the child should live with the father rather than the mother if the Court finds she is “attempting to alienate the father/child relationship”.[35] The terminology of the pre-condition implied he expected proof might be required of the mother’s intention to impair the child’s relationship with the father before it applied, but it emerged in cross-examination he was not implying any distinction should be drawn between intention and inadvertence. For reasons discussed, any form of conduct by the mother which has the effect of causing the impairment or destruction of the child’s relationship with the father – whether it is intentional or unintentional – is emotionally harmful to the child. The Family Consultant simply said in cross-examination the child will lose his relationship with the father if the mother cannot ensure their face-to-face contact. If she cannot ensure it, the reason she cannot ensure it loses relevance. The mother has not been able to consistently ensure the child’s face-to-face contact with the father and, over recent months, her failure has become the norm. Even if she would prefer it was otherwise, she is powerless to change the situation.

   [35] Second Family Report, para 61

5. The Family Consultant earlier reported it was difficult for him to conclude with whom the child should live,[36] but that was only recognition by him it was not his function to make any factual finding about whether the child’s relationship with the father is being compromised whilst he lives with the mother. Proof of the application of the pre-condition to reversal of the child’s residence was a factual determination for the Court. That finding is now positively made, in which event his former recommendation for reversal of the child’s residence was triggered. That was also the overall effect of his oral evidence in cross-examination. While he initially conceded to the Independent Children’s Lawyer and the mother that it could or would be emotionally damaging for the child to be wrenched away from the mother’s primary care, he adhered to his opinion that should still occur if the Court finds the child is aligned with the mother against the father, because staying with the mother would then make it “highly likely” he would lose his relationship with the father. His evidence coincides with the pre-eminent statutory consideration engaged by the evidence: the desirability of the child maintaining meaningful relationships with both parents (s 60CC(2)(a)). On balance, the child should live with the father.

   [36] Second Family Report, para 15

6. Of course, some features of the evidence pointed to retention of the child’s residence with the mother: she has always been his primary carer; he will be emotionally disturbed by his removal from her primary care; he may resist implementation of the orders and abscond back to the mother’s home, in which event more litigation might ensue to enforce the orders (s 60CC(3)(l)); and he will not see quite as much of Mr D and Ms E. The Family Consultant also agreed the parties’ different parenting styles may make it harder for the child to adjust to the change of residence, though he did not say the extra difficulty should preclude that outcome.

7. Those features of the evidence do not carry as much comparative weight as the overwhelming likelihood the child will lose his relationship with the father if he remains living with the mother. While he would then likely cease spending time with the father and cease communicating with him, that eventuality would not necessarily end his emotional turmoil. He would remain conscious of the father’s desire to restore their relationship at some future point, so he would need to constantly maintain his rejection of the father. His decision to shut the father out of his life would likely remain at the forefront of his thoughts. Even if his worry and guilt over that decision subsides, it will re-surface if and when he sees the father, which is liable to happen since they live only a few kilometres apart in the same fringe suburb of J Town. They could easily see one another at the local shopping centre or on suburban roads. Such worry will likely continue to torment him.

8. The long-term psychological detriment for the child resulting from the unjustified loss of his important filial relationship with the father is likely to be much more serious than the emotional distress he will experience in adjusting to residence with the father instead of the mother. By comparison, such distress is likely to be transient, rather than long-lasting and pervasive. The father said in cross-examination he would continue to resort to the child’s trusted psychologist to help the child adjust to the reversal of residence. That would certainly help, but whether it will be enough remains a moot point.

9. The Family Consultant agreed with the mother’s proposition put to him in cross-examination that retention of the child’s residence with her and the reduction of the amount of time he is supposed to spend with the father might help restore the child’s relationship with the father, but that was not enough to salvage her case. The Family Consultant only agreed it might work. He expressly said there was no guarantee and it would only be a “suck it and see situation”. The Court needs much stronger evidence than that on which to base its decisions.

10. The mother said in cross-examination that, if orders are made for the child to live with the father instead, she would like the child to spend time with her for five nights each fortnight and for portions of school holidays – in effect, the reversal of the existing interim orders. However, she is caught by the inconsistency between that wish and her primary proposal for the child to stay living with her and now spend only three nights per fortnight with the father. The reasoning behind her primary proposal was that the parties’ parenting styles were so different that the child’s stability required that he should live with the residential parent for longer and spend less time with the non-residential parent. She had a point, which was repeated several times during the trial. Orders will be made for the child to spend substantial amounts of time with the mother, amounting to four nights per fortnight (the mother sought five and the father proposed three) and portions of school holidays.

1. However, the child’s interaction with the mother will be suspended for the first month following his change of residence. The father’s proposal for an embargo of three months duration seemed too punitive. There was no admissible evidence to recommend adoption of three months in lieu of one month as the more appropriate duration. If the child is moved to live with the father, ostensibly against his wishes, then shutting the mother out of his life for the next three months is liable to increase the chances of his rebellion by absconding, particularly when he knows she only lives a few kilometres away.

2. No separate provision is made for the child to be exchanged for special occasions, apart from Mother’s and Father’s Days. The Independent Children’s Lawyer correctly submitted an increase in the number of changeovers would only create greater scope for the parental conflict to flourish.

3. No orders are made for telephone communication between the child and the parties. Both parties adduced evidence of their dissatisfaction about the way in which past telephone communication arrangements have failed. The mother cut off her landline and the father refuses to ring her mobile telephone. When the child visited the father in the past he felt pestered by the mother’s calls. Although the father sought orders for telephone communication, the mother did not. The child will be in their respective care frequently enough to render the lack of telephone communication relatively inconsequential.

4. The father sought continuation of the current interim restraint restraining the mother from bringing the child into contact with Mr F. The mother said in cross-examination she had “no difficulty” with such an injunction being made. The mother’s past admissions about the nature of Mr F’s character justify such an injunction.[37]

   [37] First Family Report, para 38; Father’s first affidavit, para 40, Annexure A-2

5. The mother abandoned her application for an injunction restraining the father from bringing the child into contact with Ms H.

6. The parties abandoned their respective proposals for specific orders about the child’s passport, accepting decisions of that nature would rest with the party vested with parental responsibility.

7. The Independent Children’s Lawyer proposed an order compelling the parties to engage in therapeutic counselling,[38] apparently in either the hope or expectation it might make them better parents. No such order is made, leaving aside any argument about the power to make such an order. Forcing them to endure counselling they do not want to accept will be unproductive. If they had wanted therapy, they would have sought it out long ago when it was recommended by the Family Consultant. In any event, given the finalisation of these proceedings, nothing would turn on compliance with the order or indeed its ultimate success or failure, unless the result was the catalyst for more litigation.

   [38] Exhibit ICL1, Order 7

8. All other orders are self-explanatory and could not be the subject of rational opposition.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 May 2018.

Associate:

Date:  23 May 2018