Leicester and Blackett & Anor

FAMILY COURT OF AUSTRALIA

LEICESTER & BLACKETT AND ANOR

[2016] FamCA 228

FAMILY LAW – PRACTICE AND PROCEDURE – Principal Registrar – Review of decision – Father’s application – de novo hearing – Whether orders suspending contact with the father should be discharged – Whether the child’s time with the father should be increased – Whether the child should attend a different high school – Whether the child should continue to attend upon a psychologist – Where there is highly disputed evidence as to the father’s conduct towards the maternal grandparents – Where the child has expressed his own views on the matters during counselling.

FAMILY LAW – JURISDICTION – Whether s 65K of the Family Law Act 1975 (Cth) (“FLA”) affects the standing of third parties to bring an application for parenting orders – Where one of the parents has died – Whether the High Court’s decision in Vitzdamm-Jones supports the father’s contention that s 64(1) of the FLA (as it then was) is an invalid exercise of Commonwealth powers pursuant to s 51(xxi) of the Constitution – Where the maternal grandparents filed an application for parenting orders pursuant to ss 64B, 64C and 65C of the FLA – Where there is no existing parenting order – Whether the father’s argument should be summarily dismissed.

FAMILY LAW – EVIDENCE - Admissibility – Whether reports by the child’s psychologist are inadmissible pursuant to s 102A of the FLA – Whether the evidence is resulting from the examination of the child – Whether the evidence relates to the “abuse of, or risk of abuse of” the child – Whether the child was examined without leave of the Court – Whether the Court should exercise its discretion by admitting the evidence.

Australian Constitution ss 51(xxi) & (xxxvii)
Commonwealth Powers (Family Law-Children) Act 1990 (QLD)
Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 4(1), 61B, 61C, 61D, 64B, 64C, 65C, 65DAC, 65DAE, 65K, 102A
Judiciary Act 1903 (Cth) s 78B

Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383

APPLICANT:

Mr Leicester

FIRST RESPONDENT:

Ms Blackett

SECOND RESPONDENT:

Mr Blackett

INDEPENDENT CHILDREN’S LAWYER:

Kyle Terrance

FILE NUMBER:

BRC

6033

2014

DATE DELIVERED:

11 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

4 April 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENTS:

Ms Pendergast

SOLICITOR FOR THE RESPONDENTS:

Munro Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance

Legal Aid Queensland

Orders

That paragraph 4 of the parenting order made by Principal Registrar Filippello of this Court on 28 January 2016 is hereby discharged.
That until further order, notwithstanding the equal shared parental responsibility order made by Judge Lapthorn of the FCC on 18 July 2014:
(a)the maternal grandparents shall continue to be able to take the child, B born … 2004 (“the child”) to attend upon Mr C, psychologist and family counsellor, for therapeutic counselling, particularly in respect of, but not limited to, emotional issues the child continues to experience following the loss of his mother and the ongoing family conflict between his maternal family and his father, as and when recommended by Mr C and for as long as Mr C recommends that it continue; and
(b)the said Mr C shall solely determine whether or not any of the adults in the child’s life, including his sisters, his maternal grandparents and his father, are to be invited to be engaged with and involved in that counselling process or even to sit in on any of the counselling sessions, and it is for Mr C to determine the level of any face to face, written or verbal communication that he wishes to engage in with any of those adults in respect to any aspect of the counselling process.
That all other outstanding interim applications are dismissed.
That the Independent Children's Lawyer shall be at liberty to forthwith provide a copy of these orders and reasons for judgment to the said Mr C and she shall also be at liberty to provide a copy of them to Mr D, if and when she engages him to do an updated family report in the proceedings.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6033 of 2014

Mr Leicester

Applicant

And

Ms Blackett

First Respondent

And

Mr Blackett

Second Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

The Court is to determine amendments to existing interim parenting orders after a de novo (fresh) hearing on the merits of competing applications for such amendments that were previously heard and determined by Principal Registrar Filippello (“the PR”) on 28 January 2016. As of right, the father filed a review of the PR’s decision seeking different orders to those made by the PR. As they were entitled to as a consequence of the review being a de novo hearing, the maternal grandparents also sought different orders to those made by the PR. The Independent Children’s Lawyer (“the ICL”) submitted that the Court should make the same orders as the PR did.
Twelve year old the child B, born in 2004, is the subject of these contested parenting orders proceedings between his father and his maternal grandparents. Sadly, the child’s mother died in February 2014 after a long illness.
The father and the mother had been married from 1992 until their marriage was dissolved in December 2011. During their marriage, they went through a number of periods of turbulence and tumult, experiencing a number of relatively lengthy separations before separating finally, on the maternal grandmother’s account in 2007 and on the father’s account in or around the end of 2009.
Twin daughters were born in 1996. They were transitioning into their teenage years at the time of their parents’ final separation and they are now young adult women.
B was, of course, only still a young boy when his parents finally separated. He continued to live with his sisters and his mother, as he had done during all earlier periods of separation of his parents, from the time of final separation until his mother’s untimely death.
The children maintained their relationships with their father through the periods of separation, including after final separation, through arrangements negotiated and agreed to by their parents, though the father asserts such arrangements became far more difficult to put in place as between the parents after their relationship ended finally and he commenced a new relationship with the woman he subsequently married after his marriage to the mother was dissolved.
The mother and the children had lived at the property of the maternal grandparents near E Town on and off during some of the separations of the mother and the father, and they lived there for some months in the lead up to the mother’s death.
The mother made it clear in a Last Will and Testament and in a recorded bedside conversation not long before her death that her dying wish was for her three children to remain living with, and to be cared for principally by, their maternal grandparents.
From very soon after the mother’s death, overt conflict between the father and the maternal grandparents began when the father went to the maternal grandparents’ property to collect the child and to take him to live with him.

After intervention by the maternal grandparents and the child’s two older sisters, and apparent distress demonstrated by the child at the prospect, he remained living with his maternal grandparents at that time. So, too, did the child’s sisters.
After participation in child inclusive mediation with a very experienced mediator and a psychologist, and with the adults not being able to reach any agreement on the child’s care arrangements, the maternal grandparents commenced these parenting orders proceedings in the Federal Circuit Court (“FCC”).
Interim parenting orders were made on 18 July 2014 by a FCC Judge after a contested hearing. They provided for the child to continue to live with the maternal grandparents until trial but also for him to spend alternate weekends and half of his school holidays with his father. They conferred equal shared parental responsibility for the child on the maternal grandparents and the father. They provided for an ICL to be arranged to represent the child in the proceedings. As will become clear, relevantly they also provided:
That parties (sic) do all things necessary to facilitate the child attending grief and family counselling with such counsellor as the parties may agree and that the parties engage with the counsellor as the counsellor may request or recommend from time to time.
The matter was listed for a final hearing over two days on 18 November 2014.
I was informed by the parties at the hearing before me that there were two matters listed for trial on that day in 2014 and this matter did not get reached. It was then listed again for hearing in mid-2015.
Just prior to the trial commencing, the father, through his written Outline of Case, raised apparent challenges to the Court’s jurisdiction to entertain the maternal grandparents’ application, and to the validity of what he considered to be relevant provisions of the Family Law Act 1975(Cth) (“the FLA”) having regard to the Australian Constitution. The FCC Judge, on becoming aware of that, adjourned the trial and made orders that the father serve his material on the Commonwealth Attorney-General and the Attorneys-General of the States and Territories pursuant to s 78B of the Judiciary Act 1903 (Cth).
When the matter was mentioned again by the FCC Judge later in October 2015, his Honour transferred it to this Court. Without having any of his Honour’s reasons before me, I would only be speculating as to the reason for that. It is probably safe to consider it had something to do with his Honour’s consideration of the apparent complexity of the matter.
There is nothing on the face of his Honour’s order that confirms that the father had complied with the obligation to serve his material on the Attorneys-General of the Commonwealth and the States and Territories.
Soon after the matter was transferred to this Court, dispute about the high school that the child was to start at in 2016 caused that issue and others to become the subject of the competing applications that were listed for hearing before the PR in late January this year, the determination of which is now under review.

The first issue

At the hearing in my judicial duty list on Monday 4 April, the father began by raising what he called “the jurisdictional issue”, apparently preferring not to describe it as a constitutional challenge. In short, he made the submission that s 65K of the FLA is the relevant section of the Act in this matter and, in seeking to explain his submission, he cited the 1981 judgment of the High Court in Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383.
The father contended, without being able to take the Court to any relevant passages in that judgment, that the decision was authority supportive of his submission that I understood to be that in a matter where one of the parents has died, s 65K “covers the field” and that third parties not party to the marriage of the parents of a child, have no standing to bring an application in a Court exercising jurisdiction under the FLA for parenting orders. The father confidently asserted that a reading of the High Court’s judgment would confirm that. He confirmed, when asked, that his position was that if the Court agreed with his submission, that the existing parenting orders should be effectively declared to be “invalid” and that the child should be immediately placed in his care.
I was told by counsel for the grandparents that the father had not sent notices to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth). In fact, counsel told the Court that after the matter had been transferred to this Court a Registrar had again directed the father to take a certain course that would see his challenge listed and determined as a short cause after proper notice to the Attorneys-General. Counsel said the father had not done that and had not raised this challenge before the PR.
The father did not take issue with those assertions made by counsel for the grandparents. Although perhaps somewhat remiss of me, I did not pursue those matters with the father but, as he was intent on making the challenge, I heard his submissions.
In the circumstances, it is, I consider, apposite to refer to s 78B of the Judiciary Act 1903 (Cth). It provides:
Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3) For the purposes of subsection (1), a notice in respect of a cause:
(a)shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and
(b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.
(4)The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5)Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
Conscious as I am of the obligations imposed by that statutory provision, I firstly consider, as is my statutorily imposed duty, whether I should proceed any further with the matter at this point. Having heard what can only be respectfully described as the father’s rather inelegant oral submissions, having read the slightly less inelegant written submissions on the point that he included in the Outline of Case that he filed in the FCC in June last year (that he expressly read and relied upon before me), having considered the provisions of the Act and relevant provisions of the Commonwealth Powers (Family Law-Children) Act 1990 (Qld) and having read the judgment in Vitzdamm-Jones, I am completely satisfied that there is absolutely no merit in the father’s submissions that were centrally focused on the standing of the maternal grandparents to bring an application for parenting orders and/or the Court’s jurisdiction to hear same.
I am, with respect to the father who impressed as articulate and of reasonably good intelligence, satisfied that the submission is so plainly unmeritorious that it can be dealt with and dismissed without any need to adjourn the determination of the matters immediately in issue or to put the father to the trouble of having to serve material on the seven Attorneys-General of the Commonwealth and the States or, indeed, for them to be troubled to devote valuable resources to the issue.
The father’s challenge to the grandparents’ application around this issue is unfortunately misguided and plainly wrong.

The decision in Vitzdamm-Jones

In Vitzdamm-Jones, the High Court was required to determine a number of questions directly relating to the interpretation and validity of various sections of the Act arising out of two different disputes that involved parenting orders having already been made as between parents, one of the parents having subsequently died, and third parties not party to the marriages then becoming involved in litigation about the “custody” of the subject children after the death of the parent. The proceedings were yet more in a line of proceedings that went to the High Court in the early years after the enactment by the Commonwealth Parliament of the FLA that examined and determined the proper interpretation and validity of various provisions of the FLA having regard to the constraints imposed on the legislative powers of that Parliament by the Australian Constitution.
In deciding the questions, the High Court had to consider whether the two separate proceedings fell within the definition of “matrimonial cause” contained within s 4(1) of the FLA (as it then was). That was principally about determining whether this Court had exclusive jurisdiction in the matters, such that they could not be heard in a State court. Amongst other things, the High Court also had to consider whether s 61(4) of the FLA (as it then was) was a valid exercise of Commonwealth legislative power. That provision was then in these terms:
(4) On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage-
(a)the other party to the marriage is entitled to the custody of the child only if the court so orders;
(b)the other party to the marriage or any other person may make an application to the court for an order placing the child in the custody of the applicant;
(c) in an application under paragraph (b) by a person who does not, at the time of the application, have the care and control of the child, any person who, at that time, has the care and control of the child is entitled to be a party to the proceedings.
Each of the seven Judges of the High Court wrote separate judgments. By a majority of 4 (Gibbs, Stephen, Mason, and Murphy JJ) - 3 (Barwick CJ, Aickin, and Wilson JJ) the question as to whether s 61(4) of the FLA (as it then was) was a valid law of the Commonwealth as being a law with respect to marriage within s 51(xxi) of the Constitution was answered “yes”. Despite that determination, for a reason not based on the validity of the subsection but rather upon the interpretation of the phrase “in whose favour a custody order has been made”, by a majority of 4-3 (Stephen J switching to the other grouping), the Court determined that the Family Court did not have jurisdiction to hear the Vitzdamm-Jones proceedings. That was because an order granting joint custody to the parents had been made prior to the death of the parent and the majority determined that for the section to apply to confer jurisdiction on this Court, custody had to have been previously granted by order to one parent (the deceased parent) over the other.

Although the father’s exact understanding of what the Vitzdamm-Jones decision actually determined is not clear to me, if it is his view that the judgment determined s 61(4), as it then was, to be invalid as not supported by a Constitutional source of legislative power, he is plainly wrong.
In any event, s 61(4), as it then was, has long been replaced in the FLA. The intent of the legislature, exhibited in its content, is now exhibited through s 65K of the FLA. It provides:
(1) This section applies if:
(a)a parenting order is in force that provides that a child is to live with one of the child's parents; and
(b) that parent dies; and
(c) the parenting order does not provide for what is to happen on that parent's death.
(2) The surviving parent cannot require the child to live with him or her.
(3)The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.
(4)In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.
Between 1986 and 1990, all states except Western Australia referred most of their legislative powers in respect of children to the Parliament of the Commonwealth. Queensland did this by way of the Commonwealth Powers (Family Law – Children) Act 1990 (QLD). The reference power of s 51(xxxvii) of the Constitution permits the Parliament of the Commonwealth, as a consequence of the referral, to legislate for these states that referred the legislative power, including Queensland, in respect of, amongst other things, the custody and guardianship of, and access to, children. That explains the need to no longer refer to “a party to a marriage” in any section of Part VII of the FLA as the Part now applies to all children, whether born of a marriage or outside marriage. The validity of the section as a valid law of the Commonwealth is supported either by being a law with respect to marriage (s 51(xxi) of the Constitution) where the child is a child of a marriage (see Vitzdamm-Jones), or otherwise by being a law with respect to the custody and guardianship of, or access to, the child (the referral legislation and s 51(xxxvii) of the Constitution) where the child is a child born outside marriage.
“Custody” orders are no longer made under the FLA. In their place, “parenting” orders are now made. That change is also reflected in the words of s 65K, as it is throughout Part VII of the FLA.
The particular provision of s 65K now includes words that expressly say in what particular circumstances the section applies. They are all the words in sub-paragraph (1) of the section. It is only if those factual circumstances exist that the remaining provisions of the section have any effect. If they do not exist, the section has no application to other factual circumstances. It does not otherwise cover any particular “field”. It does not apply in every circumstance where a parent has died.
There is absolutely no dispute in this case that when the mother died there was no parenting order in force that provided for the child to live with her. The child had lived with his mother to the time of her death by agreement between the mother and the father. Without any doubt then, on the mother’s death, s 65K did not apply and none of its remaining provisions had any application. The father’s submission that notwithstanding that fact, somehow its provisions “cover the field” in circumstances where a parent dies outside the coverage of the express provisions of s 65K(1) is beyond comprehension. His incomprehensible efforts to invoke the support of High Court authority by reference to the decision in Vitzdamm-Jones gives him no assistance, where I infer he believed it did, namely with respect to the issue of the constitutional validity of the then existing s 64(1). As I have said, the High Court, by majority of 4-3 determined it to be a valid exercise of Commonwealth legislative power, in any event.
In those circumstances, pursuant to s 61C of the FLA, in the Act in its current form since 2006, each of the parents had parental responsibility for the child prior to the mother’s death. After her death, the father by survivorship, retained parental responsibility for the child. Accordingly, after the mother’s death, at law, no other person but the father had parental responsibility in respect of the child. At law, the grandparents had no parental responsibility in respect of the child, let alone any that usurped the father’s parental responsibility for him.
Section 61B of the FLA defines “parental responsibility”. It means, in relation to a child, all the duties, powers, responsibilities and authority which by law, parents have in relation to children. Plainly, that includes determining where the child lives, with whom the child lives and where he goes to school.
It is, in my view, to the apparent credit of the father that when he went to collect the child from the grandparents’ property after the mother’s death that the father left without the child after it was clear that transition was not going to occur smoothly and that he did not attempt to physically force the issue. Neither did he take any steps to physically force the issue before mediation took place and then before the grandparents filed their application. That demonstrates, in my judgment, some respect for the views that were being expressed by the child, his sisters and the deceased mother’s family members at the time.
The grandparents then filed the application for a parenting order. The term “parenting order” is defined in s 64B. That section provides:
(1)      A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order .
(2)      A parenting order may deal with one or more of the following:
(a)      the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)      the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)       maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)       a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note:  Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
(3)Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
(4)The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:
(a)      letter; and
(b)      telephone, email or any other electronic means.
(4A)Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the terms or operation of the order; or
(b)      reaching agreement about changes to be made to the order.
(5)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order .
(6)      For the purposes of this Act:
(a)a parenting order that provides that a child is to live with a person is made in favour of that person; and
(b)a parenting order that provides that a child is to spend time with a person is made in favour of that person; and
(c)a parenting order that provides that a child is to have communication with a person is made in favour of that person; and
(d)      a parenting order that:
(i) allocates parental responsibility for a child to a person; or
(ii)provides that a person is to share parental responsibility for a child with another person;
is made in favour of that person.
(9)      In this section:
"this Act "includes:
(a)       the standard Rules of Court; and
(b)      the related FCC Rules.
Section 64C provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person. That clearly includes grandparents. Section 65C provides who may apply for a parenting order. It includes either or both of the child’s parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child. Clearly, the grandparents of the child applied to the FCC for a parenting order pursuant to s 65C not any other section, such as s 65K.
I have absolutely no doubt whatsoever that s 64B, s 64C and s 65C are valid exercises of the legislative powers of the Commonwealth Parliament having regard to the marriage power (s 51(xxi)) and the referral by the States, including Queensland, of all their powers relating to the custody and guardianship of, and access to children (s 51(xxxvii). Comparing, as the father has done, an application by a grandparent for a parenting order brought after the death of a parent when there is no existing parenting order, to the fact that a right to commence an application for property adjustment orders is extinguished upon the death of a party does not assist the father at all. What is determinative of the question is whether there is statutory provision in the FLA for the grandparents’ application and whether that statutory provision is a valid exercise of the legislative power of the Commonwealth Parliament. Clearly, both of those requirements are satisfied here.
Without a doubt, in my judgment, the grandparents had standing to apply for a parenting order when they did, and they still do. Without a doubt, in my judgment, this Court has the jurisdiction to hear and determine a parenting orders application brought by a child’s grandparents with a surviving parent being the respondent. The father’s challenge to the grandparents’ right to bring the parenting orders application and to the Court’s jurisdiction to hear it, as I understood him to articulate it, fails.
There is no need to adjourn the consideration of the argument or to trouble the Attorneys-General on the point, as would plainly be required if there was an inkling of merit in the father’s arguments. The proper way to deal with such a challenge where it is clearly doomed to fail, which it is, is to dismiss it summarily, which I do.

Further parental responsibility issue

The father also raised arguments around the issue of parental responsibility, particularly in the light of s 61B, s 61C and s 61D of the FLA and the FCC Judge’s interim order that conferred equal shared parental responsibility for the child on the two maternal grandparents and the father. His argument referred to the fact that his Honour the FCC Judge had simply conferred “equal shared parental responsibility” on the three adults and did not more specifically refer to any particular issues about which, or pertaining to which, that parental responsibility referred. His argument appears to be that he continues to have an undiminished parental responsibility for the child notwithstanding the FCC Judge’s specific order and that the grandparents have some lesser parental responsibility as the Judge’s order did not “clearly define” the “extent of those powers”.
Again, with respect, I am quite satisfied that the father is wrong about that.
I have already set out the provisions of s 61B and s 61C. Section 61D also, relevantly, provides:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
Accordingly, the parental responsibility for the child that the father had after the mother’s death (pursuant to s 61C and survivorship), that could properly have been described as “sole parental responsibility”, was all of that defined in s 61B. However, upon the making of the parenting order by the FCC Judge on 18 July 2014 that conferred parental responsibility for the child upon the maternal grandparents and the father as “equal shared parental responsibility”, those circumstances were changed quite markedly.
By that order, the maternal grandparents were given the exact same “parental responsibility” in relation to the child as the father had, namely that same parental responsibility defined in s 61B. Their parental responsibility was not expressly restricted or limited in any way. As such it related to all matters of parental responsibility, including matters of a day to day nature as well as issues that fall within the definition of “major long-term issues” contained in s 4 of the FLA.
On the other hand, there was no express diminution of any aspect of the father’s parental responsibility either. It continued as it was before, as defined in s 61B, save for the imposition by the statutory provision of s 65DAC of the FLA of certain obligations on all three of the adults upon whom the Judge had conferred equal shared parental responsibility. Section 65DAC provides:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
In circumstances such as the case under consideration, the conferral of equal shared parental responsibility upon the maternal grandparents and the father, requires consultation between all three parties when a decision about a “major long term issue”, as that term is defined, is to be made. It also requires each of them to make a genuine effort to come to a joint decision about that issue. Perhaps most importantly, the conferral of equal shared parental responsibility by the order, and the effect of s 65DAC(2), requires the decision to be made jointly by all three persons. I consider this to mean that if it is not made jointly (and that means by all three agreeing and not by a 2-1 majority) it cannot be made at all unless by further parenting order of the Court.
The decision about the high school the child was to attend from the start of this year is a good example of such a decision. The maternal grandparents and the father could not agree upon that and it was properly brought before the Court to be made the subject of a further parenting order. Whilst that equal shared parental responsibility order continues, all decisions about major long-term issues are to be determined by agreement after consultation and genuine effort to come to a joint decision, or by further parenting order.
Of course, s 65DAE applies to decisions being made by the father or the grandparents whilst the child is in his or their care pursuant to the parenting order that are not decisions about “major long-term issues” as defined. Consultation with the others is not required in such circumstances.
It appears to me from the submissions I heard the father make and those I read in his Outline of Case, that he misunderstands matters pertaining to parental responsibility and, for this reason, I have dealt with his submissions on this point as I have.

Another preliminary issue – admissibility of certain evidence

Counsel for the maternal grandparents read and relied upon an affidavit of Mr C filed by the maternal grandparents on 27 January 2016. Mr C is a psychologist in private practice in F Town who specialises in family and relationship counselling. Mr C has been in private practice for around 27 years, after having been a counsellor in the employ of this Court, including having been a Director of Court Counselling with the Court for 10 years.
Mr C has been seeing the child and counselling him since September 2014. He has continued to see him, at least up until very recently. He was initially engaged by agreement between the father and the maternal grandparents, reached after negotiation, as required by paragraph 8 of the interim parenting order of the FCC Judge of 18 July 2014. That provided:
That parties (sic) do all things necessary to facilitate the child attending grief and family counselling with such counsellor as the parties may agree and that the parties engage with the counsellor as the counsellor may request or recommend from time to time.
Exhibited to Mr C’s affidavit are two reports that were requested by the solicitors for the maternal grandparents. The reports are dated 4 December 2015 and 27 January 2016 respectively. They include, amongst other matters, responses to specific questions asked of Mr C by the solicitors for the grandparents. The letters containing those questions and the requests for the reports are also exhibited to the affidavits.
At the hearing on Monday 4 April, 2016, counsel for the maternal grandparents also tendered into evidence a further report of Mr C dated 2 April, 2016 and the letter of request for the report that also contained questions Mr C was asked to respond to.
The father objected to the affidavit being admitted into evidence and he objected to the tender of the latest report and letter as well. Due to time constraints, I admitted the documents into evidence as “Exhibit 1” subject to determining the objection in this reserved judgment.
I understood the father’s objection to be two pronged. He referred to s 102A of the FLA and submitted the report is inadmissible because of the operation of that section. Apart from referring me to the section, again the father was unable to expand in any meaningful way on the submission that relied upon it. In addition, he pointed to the undisputed evidence that he had, in March 2015, withdrawn consent to the child continuing to attend upon Mr C for counselling and submitted that Mr C’s evidence should not be admitted because he has continued to see the child for a long time after that consent was withdrawn and did so with limited input from the father. Although the father was not able to articulate it as such, I understand this submission to effectively be one made in reliance on s 135 of the Evidence Act 1995 that provides, relevantly :
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
…

I note at this point that the exclusionary discretion provided for in s 135 is not excluded from operation in this matter by s 69ZT of the FLA.
As to the first of the grounds of objection, s 102A provides:
(1)Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.
(2)Where a person causes a child to be examined for the purpose of deciding:
(a)to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or
(b)to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused;
subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.
(3)In considering whether to give leave for a child to be examined, the court must have regard to the following matters:
(a)whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;
(b)the qualifications of the person who proposes to conduct the examination to conduct that examination;
(c)whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;
(d)any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings;
(e)      any other matter that the court thinks is relevant.
(4)In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:
(a)the evidence relates to relevant matters on which the evidence already before the court is inadequate; and
(b)the court will not be able to determine the proceedings properly unless the evidence is admitted; and
(c)the welfare of the child concerned is likely to be served by the admission of the evidence.
(5)      In this section:
"examined " , in relation to a child, means:
(a)      subjected to a medical procedure; or
(b)examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).
Note:  Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the law against hearsay.
The section makes certain evidence inadmissible in these proceedings subject to a discretion to admit it where the Court is nevertheless satisfied of particular matters. Accordingly, the first obligation in determining the objection on this ground is to determine if the evidence of Mr C is evidence that is inadmissible under the section.
A number of questions arise. Is the evidence of Mr C “evidence resulting from the examination” of the child? If so, does the evidence relate to “the abuse of, or the risk of abuse” of the child? If the answer to both these two questions is “yes”, was the child “examined without the leave of the court”? If the answer to that question is also “yes”, then the evidence can only be admitted through the specified discretionary exception to the prohibition on admissibility provided for in s 102A(4).
The definition of “examined” is set out in the section. It means, in relation to a child, “examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant)”. Mr C is a psychologist. He reports that he started seeing the child after referral by the child’s general practicing doctor for him to help the boy with “anxiety and depression”, but that it was then confirmed by the ICL that he was “counselling” the child (presumably in conformity with the FCC Judge’s order). Mr C certainly was not engaged to examine or assess the child with a deliberate view to providing a report or reports to the Court, although the FCC Judge’s order did not specifically make the counselling non-reportable, as can be done by order.
Although not specifically engaged to examine or assess the child for the purposes of providing a report to the Court, but rather to counsel the child and help him deal with his emotions around grief and family issues, I am satisfied that the discharge of Mr C’s counselling services necessarily required, and requires on an ongoing basis, some degree of examination and assessment of the child’s mental and emotional state in order for the counselling to be therapeutically beneficial.
Whilst Mr C is a specialist family and relationship counsellor, the terms “family counsellor” and “family consultant” used in the FLA are expressly defined in the Act (see s 4(1) and s 11B and 10C). There is no evidence before the Court that Mr C meets any of the statutory requirements to be considered either a “family consultant” or a “family counsellor” as those terms are defined, though I accept that he might. However, without any such evidence, I cannot find that he does. Accordingly, I consider the answer to the first of the questions posed above is “yes”, the evidence of Mr C is evidence resulting from the “examination” of the child.
The second question requires consideration of the definition of the term “abuse” that is contained in s 4(1) of the Act. It is defined as:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
The only possible part of that definition of abuse that is relevant in this case, on the evidence that is before me, is that contained in (c). The question then becomes one of whether the evidence of Mr C relates to the child being caused to suffer, or the risk of the child being caused to suffer serious psychological harm.
Having read the content of all three of the reports prepared by Mr C that are objected to, I am satisfied that their content does relate, albeit in a general way, to the child being caused to suffer, or the risk of the child being caused to suffer serious psychological harm through the continued overt conflict about him between the loved adults in his life. Accordingly, that being my finding about the reports, the answers to both of the first two questions is “yes”.
Finally, I must determine then whether the child was “examined without the leave of the court”.
It is clear, in my judgment, that it is the examination or assessment of the child that requires the leave of the Court in the terms of this statutory provision for the evidence arising therefrom to be admissible, not the subsequent production of a report that is sought to be adduced into evidence.
In this case, Mr C was counselling the child pursuant to the FCC Judge’s order that I have set out above. The examination or assessment of the child that preceded the production of each report appears, therefore, to have the Court’s sanction or approval, such that it arguably occurred with the leave of the Court. However, the order of the FCC Judge required the parties to do all things necessary to facilitate the child attending counselling “with such counsellor as the parties may agree”.
The presenting circumstances invite the Court then to consider whether the requirement for agreement only relates to the selection of the counsellor in the first place or whether it means that ongoing agreement is necessary to support the continuation of the counselling and, therewith, any examination or assessment that takes place as part of that counselling process.
I am of the view that the true meaning of that order required ongoing agreement between the parties (and “parties”, of course, includes the ICL) as to the counselling taking place with a particular counsellor. I consider that reading the order as requiring only initial agreement as to the identity of the counsellor who the child would see, but not ongoing agreement for the child to continue to attend upon that counsellor in order to support such counselling continuing, would be stretching things beyond the plain meaning of the words. It is unreasonable, in my view, without more, to consider the Judge intended that the child would be able to continue to be taken to a counsellor, originally identified and chosen by agreement, if, after the family had experienced that counselling, one or more of the parties withdrew his or her agreement to that counsellor continuing to counsel the child.
It follows then, that I consider that any “examination” of the child by Mr C following the withdrawal by the father of his consent or agreement to that continuing must be said to have been “without the leave of the Court”. That is, at least up until 28 January 2016 when the PR made a further interim order providing:
The child be at liberty to continue to attend upon Mr C, Psychologist, and that any party be at liberty to engage with Mr C or any other family member that Mr C considers important.
Plainly then, in my view at least, any “examination” of the child that took place after that date as part of his counselling has been undertaken with the leave of the Court. The fact that the father has sought a review of the PR’s determination and orders does not invalidate them for any of the period that they have been operable, even if his review succeeds in having new orders made.
This leads to the position that the first two of Mr C’s reports attached to the affidavit filed 27 January 2016 contain evidence resulting from “examination” of the child conducted “without the leave of the Court” but that the third report dated 2 April 2016 which reports on three sessions with the child that have taken place since the PR’s January 2016 order contains evidence resulting from “examination” that did occur with “the leave of the Court”.
Accordingly, having regard to these findings and determinations, I consider that the third report is not inadmissible pursuant to s 102A, but that the first two are, prima facie, inadmissible. That determination is then subject to the conditional discretion to admit the evidence conferred by s 102A(4). There are three elements to that exercise, set out in (a) –(c) of s 102A cited above.
In determining a parenting order, be it on a final basis or an interim basis, the Court must have regard to the best interests of the child as the paramount consideration. In considering what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) and (3) of the FLA.
Those matters include the need to protect the child from psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. They also include any views expressed by the child.
Family violence is defined in s 4AB(1) of the FLA. It includes violent, threatening or other behaviour that coerces or controls a family member, or causes the family member to be fearful. Section 4AB(3) provides that a child is exposed to family violence if the child sees or hears it or otherwise experiences its effects.
Section 60CD(2) of the FLA sets out how the Court may inform itself of views expressed by a child and it includes in (c) “subject to the applicable Rules of Court, by such other means as the Court thinks appropriate”.
I consider the evidence in the first two reports of Mr C does relate to relevant matters, particularly those s 60CC(2) and (3) factors that I have referred to specifically above. They contain evidence of views directly expressed by the child to Mr C about relevant matters, including an incident that is, in my view, properly described as an incident of family violence, namely the incident where it is alleged the father threatened to kill the grandparents whilst driving away from a handover with the child in the car and within earshot. They contain evidence of the boy’s views expressed to Mr C about the high school he wanted to attend. Those views and assertions of fact are, in my view, independently reported to the Court by Mr C, albeit adduced into evidence by the grandparents. In that respect, the reports provide evidence about matters upon which the evidence otherwise before the Court is inadequate. I consider it otherwise “inadequate” because any such evidence otherwise before the Court is evidence of the grandparents or the father, or is older evidence (such as Mr D’s report) and cannot be considered in the same manner as the independent, recent reporting of Mr C, an experienced family counsellor.
Whilst the Court would still have to determine the proceedings if those first two reports were not admitted into evidence, the best way to determine proceedings “properly” in my view, is to have the best evidence available before the Court. These reports constitute the best evidence of the child’s views and his assertions of relevant fact as they have been gathered in therapeutic counselling by an experienced, independent expert. Without them, being aware of their existence, I do not consider that I could determine the proceedings “properly”.
As consideration of the views of the child is mandatory in considering his best interests (subject to considering any factors that the Court thinks are relevant to the weight it should give to those views), it could not be doubted that his welfare is likely to be served by admitting the evidence being considered.
Accordingly, I exercise the discretion conferred on the Court by s 102A(4) to admit the first two reports of Mr C (attached to his affidavit) along with the other report that was tendered as “Exhibit 1”.
As to the second ground of objection, the father relied heavily on the fact that Mr C continued to see the child for counselling despite the father withdrawing his consent for such counselling to continue, seemingly asserting that this somehow demonstrates, or at least creates a perception of bias against him by Mr C. I consider the logical extension of his argument is that there is a consequential danger that the evidence contained in the reports might be “unfairly prejudicial” to the father and that the danger outweighs its probative value, thus invoking the discretionary consideration provided for in s 135 of the Evidence Act 1995 (Cth).
I consider it relevant to bear in mind that the father’s complaint that contributed to his withdrawal of consent for Mr C to continue counselling the child was that Mr C was demonstrating an apparent unwillingness to engage with and involve the father in the process. Importantly, it was counselling for the boy, not the boy and the father. The FCC Judge’s order made that clear and included the words “that the parties engage with the counsellor as the counsellor may request or recommend from time to time”, thus plainly leaving it to the counsellor to determine the level of engagement with and involvement of the adults of the family in that process.
I am not satisfied, on the evidence I have seen, and without more, that there is any bias on the part of Mr C or that his continuation of counselling in the face of the withdrawal of the father’s consent for it to continue makes his observations and opinions thereby likely to be unfairly prejudicial to the father. Nor am I at all satisfied that any danger (or risk) of such unfair prejudice outweighs the probative value of the evidence constituted by Mr C’s reports.
I will not exclude them on these discretionary grounds.

The issues to be decided then

The interim parenting orders of the PR of 28 January 2016 provided for the discharge of the FCC Judge’s orders in so far as they provided for the child to spend time with the father every alternate weekend and half the school holidays and in respect of telephone and/or skype communication between the child and the adults.
The orders effectively provided a break in the time that the child was to spend with the father until 22 April 2016, where after it was to recommence every third weekend from 6:00 pm Friday to 6:00 pm Sunday and then during half of the June/July and September/October school holidays. They also provided for the boy, at his volition, to be able to communicate with the father by any means at any reasonable time and for the father, at his instigation, to be able to communicate with the boy each Wednesday evening and each Saturday evening when the boy is not with the father. The orders also provided, by consent, where the handovers would occur.
The PR’s orders also determined that the child should go to the F Town College from the start of the 2016 school year which is the boy’s first year in high school and, as already discussed, that he can continue to see Mr C for counselling.

The Competing Positions

The father seeks orders that the PR’s orders be discharged and be replaced by interim orders that provide for the boy to live with the maternal grandparents and to spend three weekends in four with the father and all of the school holidays, save for about 10 days over Christmas and New Year which he would spend with the grandparents.
The father wants the boy to attend G Town School, for handovers to be changed around to suit that fact, and for counselling to be arranged around the child’s wishes rather than the counsellor’s views. He wants orders that the child be accompanied to counselling by his grandparents and the father on an alternate basis and for counselling to be restricted to dealing with “[B’s] grief at the loss of his mother and development issues”.
The grandparents seek a discharge of the PR’s order that provides for the child to spend time with his father and seek an order that the child spend no time with his father and not communicate with him until further order or agreement, with the matter to be adjourned to another date after a further report is obtained from Mr D, who did the earlier family report.
As recorded already, the ICL contended for a position that would simply see the PR’s orders remaining in place and dismissal of both the competing applications for variation of those.

The Evidence

The father relied upon his own relatively lengthy affidavit and also read his written Outline of Case filed last year before the trial in the FCC that never took place. The grandparents relied upon a number of affidavits of the maternal grandmother, the May 2015 family report of Mr D and the reports of Mr C. The ICL relied on all of the orders made to date and Mr D’s report.

The High School

Dealing firstly with the choice of high school, in my judgment, the critically relevant evidence is as follows:
·B attended primary school at F Town College when he lived in F Town with his mother and sisters. His sisters went to high school at the same school. Although the child switched to attend the local religious primary school in E Town when the family moved to live at the maternal grandparents’ property, his sisters continued to attend high school at F Town College and graduated from Year 12 there in 2014;
·Mr D, the family report writer, reported that in May 2015 the child expressed the desire to return to his “old school, [F Town College]” for his high schooling that he knew then was commencing in 2016;
·B told Mr C when he saw him on 20 January 2016 that he was just wanting to get back to school and was wanting to attend F Town College (“FTC”);
·Since the PR’s decision of 28 January 2016, the child has been attending the FTC;
·Mr C reports in his latest report that he has seen the child three times since the end of January and that based on those “recent discussions” the child is settled and happy at the FTC;
·The maternal grandmother says the child tells her how happy he is to be back at the FTC. She says he is proud of his uniform and looks after it. She says he loves his religious studies in particular;
·The maternal grandmother also says the child has a particular friend, H, who also attends the FTC, who has been his close friend since he attended the school in primary school a few years ago. He has other friends from those days still at the school and he has made new ones;
·A letter from his Year 7 co-ordinator includes the words “I am pleased with how the child has settled so far”.

For the hearing before the PR, the father was seeking a parenting order that the child live with him and attend school in I Town close to where he would be living if he was with the father. On this review, apart from the father making the challenge to the standing of the grandparents and the jurisdiction of the Court that I have already disposed of, he otherwise was asking for a parenting order that the child continue to live with the grandparents on an interim basis. Despite that, he was still seeking an order that would move the child from FTC to G Town School.
Although he had been critical of the choice of that school as well in the affidavit he relied upon (filed originally in support of the application for the child to live with him and go to school in I Town) he now submits that it would be better for the child to go to school in G Town as opposed to F Town as it is located between his place of residence and the maternal grandparents and would facilitate easier contact between the father and the child.
The father was particularly critical of the child attending FTC. He says the child has to undertake extensive bus travel to and from the school seeing him away from home from early in the morning until around 5:00 pm. That did not appear to be disputed by the grandparents, although with the boy’s two sisters now attending university in F Town there might be capacity for them to assist in transporting the child to and from school.
The father is critical of the school teaching creationism and is opposed to his son being taught that, even though he concedes he agreed, by compromise with the mother, for the children to go to that school when they were living with her in F Town.
He is critical of the grandparents for wanting the boy to go to the FTC, contending that they do so simply to “negatively impact the time available for the child to spending (sic) with [him]” by moving his schooling geographically further away from where the father lives. He also contends that they “cynically draw on the emotions associated with him returning to the school he attended whilst his mother was alive”.
This is an interim decision that now awaits a final hearing that should have taken place in the middle of last year. That it did not because the father raised the plainly unmeritorious arguments about standing and jurisdiction is extremely regrettable, and one the father probably will now regret, as I remarked at the hearing.
The father’s position on a final basis appears to remain one of proposing that the child be moved to live with him in I Town where he will be put into school there. Having regard to all of the matters already discussed in particular, but also to the balance of the evidence adduced before me, I simply and readily reach the conclusion that moving the child from the FTC where he has started high school, where he is happy and where he has apparently settled well, and ordering that he attend the school in G Town, would not be in his interests for a temporary period where after a final hearing he could very well be moved again.
I will not make an order that causes the child to have to change high schools now on an interim basis.

Time with the Father

The break that the PR put in place on 28 January 2016 in respect of the child’s time with his father has almost finished. On the evidence I have read, such a break appears to have been in accordance with the child’s best interests and his own views.
The maternal grandparents contend that an ongoing break would accord with those best interests and the child’s views. According to Mr C’s latest report it would appear to accord with the views that the child has expressed to Mr C, namely, that he does not want visits with his father. Mr C opines that the father’s current expectation that the child spend three weekends in four with him as well as all of the school holidays signals that he does not understand the child’s immediate needs, which are essentially for the father to be responsive to the child and his views and for the conflict between the adults to abate.
The father pressing for three weekends in four appears to be in accord with the recommendation of Mr D made at the end of his family report of May last year. That must be considered in the context of it being recommended as an appropriate final outcome and one that might lead to a decision by the child later in his teenage years to go and live with his father. Those recommendations were also made, on my reading of them, in the context of opinion that by relentlessly pressing for what can essentially be considered “parental rights” as opposed to what is in the best interests of the child, the father risked alienating all three of his children for the long-term.
On the evidence, it appears the conflict did not abate after that report was made. Instead, the father was critical of the report and Mr D in his written Outline of Case and continued to press his “parental rights”, including by raising the now dismissed challenges that I have dealt with in this judgment. In addition, there was by all accounts a very distressing set of factual circumstances that unfolded immediately after a handover of the child from the maternal grandmother to the father in late November 2015. The facts are heavily disputed by the father and the maternal grandmother, and, seemingly, the father and the child.
Much of what transpired on that occasion is said to have happened within the father’s car. The maternal grandmother deposes in one of her affidavits to what she says the boy told her about it. The father denies almost all that but admits to becoming angry and stressed and using abusive language. Mr C reports that he gave the child an opportunity to talk about the incident and asked him some questions to elicit his responses. Mr C says that they were principally consistent with the version that the maternal grandmother had deposed to.
The father does not dispute that the child is correctly reported by Mr C. However, he does assert that the version of events given by the grandmother as being attributed to the child and as confirmed by the child to Mr C is false and that it has been made up to damage him. He asserts that the child has participated in that “conspiracy” under the negative influence of his grandparents.
Amongst things said to have happened that are in dispute are threats made by the father to the child that he (the father) was going to kill the maternal grandparents. At least from the grandparents’ side, it is alleged that the child became highly distressed and protective of them as a consequence and there after began to intensify in his reluctance and determination not to spend time with the father.
I cannot actually make factual determinations on such highly disputed matters on an interim hearing and I will not. Suffice to say, whatever is the cause, the child is, I accept, at least expressing the view that he does not want to see his father.
Not only is that much of Mr D’s May 2015 prognostication seemingly proving true, but also the now young adult sisters of the child are completely alienated from the father and have no contact whatsoever with him and have not for quite a lengthy period of time.
Whilst the father would have me accept that is all the maternal grandparents’ evil doing, I cannot determine that on an interim basis either.
Considering the undisputed reality of the child’s current position, I cannot accept that now simply following that recommendation for the child to spend three weekends in four and virtually all of the school holidays with the father is in his best interests. With respect to the father, I would expect that if that regime was put in place right now it would hasten the demise of such relationship that the father and the boy might still have left.
Like the ICL and the PR clearly accept, and as I said at the hearing, it is very important for the child that he maintains a meaningful relationship with his father as he grows into adulthood, particularly as he is his sole surviving parent and as one cannot expect, given the natural order of things, the aging grandparents to necessarily outlive the father.
Whilst the father’s apparent inflexibility and lack of insight into the role that he has played in the circumstances developing as they have are extremely concerning, I remain hopeful that if the time that the child spends with the father is limited, even if by Court order if not by the father’s understanding responsiveness to the child’s immediate needs, rather than being suspended completely, that the relationship will not become entirely estranged. Given the child is now 12 years of age, whether that happens or not will now principally depend on the behaviour of the adults around him, particularly the father’s behaviour when the child does spend time with him.
I do not intend to make an order that discharges or varies the order made by the PR in respect of the time that the child spends with the father or the communication that they are to have. I consider, as I have said, those orders reflect a best interests determination for the child at this point in time.
Both of the grandparents are to know that compliance with the orders is expected by the Court. the child is to know that it is a good thing for him to go and spend time with his father. A fresh reading of Mr D’s report might assist the grandparents and the child’s sisters realise that the child does benefit from spending time in his father’s care and in his father’s household.
It is also hoped that the father might take this opportunity to reflect upon how he deals with the child, lest he lose him completely if he continues down the same path he currently follows. I can say no more on that, save for observing that just as counselling is good for children who are having emotional and relationship difficulties, so too is it good for adults. The father would likely benefit from some himself in the circumstances of this case. I will leave that for him to decide as opposed to ordering him to undertake some. It is always more therapeutic if undertaken willingly.
I do not consider that adjourning the matter now for another interim hearing pending the preparation of another family report is appropriate. If the parties are determined that this matter is to go to a trial, when it is ready to be entered into a trial judge’s docket, I expect the ICL might then seek an updated report from Mr D that focuses particularly, though, of course, not exclusively, on the views then being expressed by the child and matters relevant to the weight that might be given to those by the Court.

As to the counselling of the child

I am satisfied that the child benefits from being able to discuss his emotions, his feelings, and his circumstances with a professional such as Mr C and to receive the therapeutic counselling assistance that Mr C provides. I will not make an order that causes that to cease, nor do I consider that an order that restricts the ambit of such counselling in any way is appropriate.
I do, however, consider that paragraph 4 of the PR’s order should be discharged and replaced with some more specific orders that make clearer my determination that the counselling should continue for the time being as and when Mr C considers it should occur and that it is for Mr C exercising his professional judgment as to whether and, if so, how he engages with the adults in the child’s family in this counselling process. I will make orders for that.

From here

The matter is listed for a further directions hearing before a Registrar in May, so I do not need to make an order listing it for further trial directions. It must now await entry into a trial judge’s docket.
I will, however, also order that a copy of these reasons for judgment be provided by the ICL forthwith to Mr C and also to Mr D, if and when Mr D is engaged to undertake an updated family report.
I make the orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 April 2016.

Associate:

Date: 11 April 2016

[2016] FamCA 228

11 April 2016

Key Legal Topics

Areas of Law

Family Law

Constitutional Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Standing

Abuse of Process

Summary Judgment