Lockley and Bardot
[2016] FCCA 1982
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOCKLEY & BARDOT | [2016] FCCA 1982 |
| Catchwords: FAMILY LAW – Parenting – change of residence – best interests of 8½ year old boy – significant evidence by Mother’s sister that strongly supported the Father – repeated opportunities by the Mother during the trial to re-consider her position in relation to the child’s time with the Father and other beliefs she held in relation to the Father which independent evidence established were untenable (e.g. whether the Father had any mental health issues, which expert evidence confirmed that he did not) – the Court’s strong view that the Mother would continue not to promote the child’s relationship with the Father – expert evidence that the Mother and child were in an enmeshed relationship that also resulted in a separation dynamic between them – expert evidence also concluded that the child was being “conditioned” by the Mother regarding the child’s views of the Father – expert evidence not accepted by the Mother who relied upon her own observations and assessment – evidence clearly supported a good, happy and relaxed relationship between Father and son – change of residence ordered. |
| Legislation: Family Law Act 1975, ss.60B(1), 60CA, 60CC(1), 60CC(2), 60CC(3)(a) – (l), 65DAA |
| Cases cited: Maluka v Maluka (2012) 45 Fam LR 129 |
| Applicant: | MS LOCKLEY |
| Respondent: | MR BARDOT |
| File Number: | SYC 8874 of 2007 |
| Judgment of: | Judge Neville |
| Hearing dates: | 27, 28 & 29 June 2016 |
| Date of Last Submission: | 29 June 2016 |
| Delivered at: | Sydney |
| Oral Reasons Delivered on: | 30 June 2016 |
| Written Reasons Provided: | 2 August 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms Y Swifte |
| Solicitors for the Applicant: | Swifte Law, Sydney |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | McCabe Partners Lawyers, Taren Point |
| Counsel for the Independent Children’s Lawyer: | Mr Cook |
| Solicitors for the Independent Children’s Lawyer: | S P Nasti & Co, Drummoyne |
ORDERS
The Father have sole parental responsibility for the child X, date of birth (omitted) 2007 (“the child”). The Father is to ensure that he keeps the Mother informed on a regular basis of all matters relating to major long-term issues in relation to the child.
The child resides with the Father.
The child spends time with the Mother as follows:
(a)During school term:
(i)Each alternate weekend from Friday after school until 4.00pm Sunday.
(ii)Such other time as may be agreed between the parties in writing (see further: notation A).
(b)During school holidays:
(i)For one half of each gazetted New South Wales term school holidays including Christmas holidays being the first half in years ending in an odd number and the second half in years ending in an even number.
(ii)The first school of a school holiday period is to begin after school on the day that school closes and conclude at 4.30pm on the day which is halfway through the holiday period.
(iii)The second half of school period to begin at 10.00am on the day which is halfway through the school holiday period and end at 5.00pm on the day before commencement of the new school terms.
(iv)Changeovers for holiday contact will take place at McDonalds at (omitted).
(c)In addition to the child spending time with the Mother as set out in paragraphs 3.1 and 3.2 above the child will spend time with the Mother:
(i)From 12.00 noon Christmas Day until 12.00 noon Boxing Day in years ending in an odd number;
(ii)If the child’s birthday falls on a weekday that the Mother is not scheduled to spend time with the child, from 3.00pm on the day prior to the child’s birthday until 9.00am on the day of the child’s birthday;
(iii)If the child’s birthday falls on a weekend that the Mother is not scheduled to spend time with child, for 6 hours on the child’s birthday from 12.00 noon to 6.00pm;
(iv)For Mother’s Day each year if it falls that a weekend the Mother is not scheduled to spend time with the child from 5.00pm on the Saturday before Mother’s Day to 5.00pm on Mother’s Day;
(v)On the Mother’s birthday from 12.00noon to 6.00pm if her birthday falls on a weekend that the Mother is not scheduled to spend time with the child and from 3.00pm to 9.00am the following morning if the Mother’s birthday falls on a weekday where the Mother is not scheduled to spend time with the child.
Telephone time shall be for at least twice per week unless otherwise agreed in writing between the parties on such dates and times as are agreed in writing between the parties. The dates and times shall at least be once during the week and once during the weekend.
The parties will each be entitled to attend all events involving the child including but not limited to:
(a)Sporting fixtures;
(b)Extra curricular activities that allow for parental attendance or participation;
(c)Any organisation or club of which the child is member;
(d)School functions and events, parent/teacher interviews, school concerts and assemblies, swimming and sporting carnivals and other functions held at or organised by the school that allow for parental attendance or participation irrespective of which day of the week such occasion falls on;
(e)The parties will contribute equally to the registration and/or enrolment and uniform costs arising from the child’s extra curricular activities including sporting activities and the parties agree that such shared costs will be in addition to any child support assessment.
The parties will keep each other informed as soon as it is reasonably practicable of:
(a)Any medical problems or illness suffered by the child whilst in their care.
(b)Any medication that has been prescribed for the child;
(c)Any medical appointments with any medical doctor, psychologist, counsellor or therapist regarding the child;
(d)Any social, school or religious functions which a child is to attend;
(e)Any contact telephone number;
(f)Any matter relevant to the welfare of the child;
(g)The parties will contribute equally to the costs of any medical physiotherapy, dental and occupational therapy and pharmaceutical expenses relating to the child and such cared costs will be in addition to any child support assessed in relation to the child.
The parents shall ensure that any school the child attends shall be provided with an authority by which each parent is entitled to receive any and all reports, notices and any other correspondence from the school.
The parties will each have day to day responsibility for making decisions about the child’s welfare whilst the child is with that party in accordance with these Orders.
The parties will communicate with one another as follows:
(a)The parties will use courtesy and consideration when communicating with each other about the child and they will limit those communications to matters relevant to the child’s care, welfare and development.
(b)Ordinarily the parties will use text messages for the purpose of communication except in cases of emergency when they use their phone for the purpose of making a phone call.
The parties will not use language which is derogatory to the other parent or to the other parent’s partner or family or have discussions about the other parent that are negative, in the presence or hearing of the child and they will ensure that no other person speaks in such a manner about the other parent or the other parent’s partner or family in the presence or hearing of the child.
NOTATION A
The Court notes that the Father sought an order that in the week that the Mother is not scheduled to spend alternate weekend time with the child, that the child spend time with the Mother from Wednesday after school until before school on Friday. While the Court does not have any issue with this proposal in theory, the practicability of the child travelling from his school to his Mother’s home mid-week, would seem to be too onerous on the child.
IT IS NOTED that publication of this judgment under the pseudonym Lockley & Bardot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8874 of 2007
| MS LOCKLEY |
Applicant
And
| MR BARDOT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30th June 2016, I delivered detailed oral reasons following a trial that had concluded the previous day. What follows are those reasons revised from the transcript.
The matter concerns the Court’s determination of what final parenting Orders are in almost nine year old X’s best interests,[1] pursuant to section 60CA of the Family Law Act1975 (“the Act”). The Orders of each of the parties and the late-breaking Orders from the Independent Children’s Lawyer (“the ICL”) are set out later in these reasons.
[1] X’s date of birth is (omitted) 2007.
I note that at the outset of the trial the ICL’s position was for X to remain living with his Mother and to spend significant and substantial time with his Father. By the end of the trial, the ICL’s position had changed in the light of the evidence of the parties, the expert Dr R, and notably by the Mother’s sister, who gave strong evidence in the Father’s favour and equally strongly against the Mother. At the end of the trial, the ICL advocated that there be a change in residence of X in the Father’s favour.
Also at the outset of the trial, based upon (i) what the Court had read and before any oral evidence was provided, and (ii) notably in the light of Dr R’s “preferred position” or principal recommendation set out in his Report (Exhibit A, considered later in these reasons as well as Dr R’s oral evidence), the Court indicated that (a) the expert’s principal recommendation seemed to be well founded, and (b) if this remained the case, a more likely course or outcome would be that the child would continue to live with the Mother and spend significant and substantial time with the Father.
Like the ICL, the Court’s position changed significantly in the course of the trial, notably in the light of
(a) Dr R’s evidence, which was to the effect that if there was to be a change in residence, in his view, X would ultimately come to accept that change especially since he was considered to be a resilient child;
(b) the Mother’s evidence and in particular her lack of insight into the importance of the child’s relationship with his Father and that (in my view) she would not facilitate that Father-son relationship;
(c) the Mother’s inability and refusal to accept the evidence of the Family Consultant and similarly the evidence of Dr R that the child’s time with the Father did not need to be supervised because there were no relevant risks in relation to that time;
(d) the Mother’s inability and refusal to accept Dr R’s evidence that the Father did not suffer from any mental health condition;
(e) Dr R’s unchallenged evidence that (i) the Mother and the child were in a relationship that was characterised by a “dynamic of dependency” and “intense separation anxiety” (this almost 9 year old boy still sleeps with his Mother), (ii) the Mother has some dependent personality features, (iii) the observations between the Father and the child were all very positive, (iv) the Father is a capable caring parent who will facilitate a relationship between the child and the Mother, and (v) the child’s desire to have a “full family” that included his “Mother, Father, sister and brother.”
(f) the impressive and balanced evidence given by members of the Father’s family; and
(g) the impressive and very persuasive evidence of the Mother’s sister, which was strongly in the Father’s favour and equally strongly against the Mother.
In addition to the expert report, and an earlier family report from Ms C, dated 11th August 2015 (Exhibit B), the Court had the benefit of case outlines from the parties and from the ICL, which included basic chronologies. I set out below the Father’s chronology. From my reading of the chronologies, there is not much contest over dates of seminal events; because it is a very straight-forward chronology, I consider it to be sufficient for current purposes, rather than, for example, the Mother’s very detailed chronology that specifies a wide range of matters by reference to affidavits (and given that the ICL’s Case Outline did not provide a chronology). The Father’s chronology was as follows:
1) (omitted) 1963 Date of birth of the Father’s partner, Ms G
2)(omitted) 1965 Birth of the Mother, now aged 51 in (country omitted)
3)(omitted) 1966 Date of birth of the Father, now aged 49 years.
4)1969 Mother aged 4 immigrates to Australia
5)1987 Father joins Alcoholics Anonymous (AA)
6)1992 Ms D, Father’s daughter from a previous relationship born, aged 24
7)1993-2000 Father resumes alcohol dependence.
8)2000 Father ceases drinking alcohol
9)2001-2006 Parties work together at (employer omitted)
10)Late 2006 Parties have a romantic relationship for a few months
11)(omitted) 2007 Child of the proceedings, X born [now] aged 8½
12)Late 2007 Mother brings proceedings in the Federal Circuit Court seeking that the Father be declared as X’s father.
13)Late March 2009 Incident involving Ms D and the Mother during changeover. According to the Father, the Mother slaps the Father on the face.
14)1 May 2009 Father convicted at the Local Court at Newtown of assaulting the Mother and placed on a Good Behaviour Bond. AVO in place for two years.
15)2009-1 February 2014 Father does not see X
16)7 August 2013 Mother files a Further Application seeking an order for X’s passport (“passport application”)
17)14 October 2013 Father files Respondent [sic – Response] to Mother’s Further Application (“passport application”)
18)6 December 2013 Court makes orders for the Father to have supervised time with X on an interim basis
19)1st February 2014 Father’s first visit to X since 2009
20)11th April 2014 Father’s first overnight visit to X.
21) 25th April 2014 Child denied time with his dad
22)May 2014 Mother accuses the Father of pouring hot water on X
23)16th May 2014 Child denied time with his dad, being make up time
24)4th July 2014 Child denied time with his dad.
25)2014 R, X’s nephew born, aged 2
26)29 August -7 November 2014 The Father attempts unsuccessfully to see X.
27)30 April 2016 X sees his dad with A and R at (omitted)
28)14 May 2016 X sees his Dad with A at (omitted), (the Father’s home Sydney suburb).
Orders Sought
The Mother’s Orders Sought were as follows:
1)That the Mother has sole parental responsibility for the child X ("the child") born (omitted) 2007.
2)That the child lives with the Mother.
3)That the child spends time with the Father each alternate Saturday from 10:00am to 2:00pm supervised by Ms T or Interrelate at (omitted).
4)That if Interrelate at (omitted) is unavailable for any reason the child shall spend time with the Father supervised by (omitted) or a similar private supervision service with the Father to pay all associated costs thereof.
The Father’s Orders Sought were:
1)That the Father have sole parental responsibility for the child X, date of birth (omitted) 2007 ("the child ").
2)That the child resides with the father.
3)That the child spends time with the Mother as follows:
3.1 During school term:
3.1.1 Each alternate weekend from Friday after school until 4.00pm Sunday.
3.1.2 In the week that the Mother is not scheduled to spend alternate weekend time with the child, from Wednesday after school until before school on Friday.
3.2 During school holidays:
3.2.1 For one half of each gazetted New South Wales term school holidays including Christmas holiday~ being the first half in years ending in an odd number and the second half in years ending in an even number.
3.2.2 The first school of a school holiday period is to begin after school on the day that school closes and conclude at 4.30pm on the day which is halfway through the holiday period.
3.2.3 The second half of school period to begin at 10:00am on the day which is halfway through the school holiday period and end at 5.00pm on the day before commencement of the new school terms.
3.2.4 Changeovers for holiday contact will take place at McDonalds at (omitted).
3.3 In addition to the child spending time with the Mother as set out in paragraphs 3.1 and 3.2 above the child will spend time with the Mother:
3.3.1 From 12.00 noon Christmas Day until 12.00 noon Boxing Day in years ending in an odd number;
3.3.2 If the child's birthday falls on a weekday that the Mother is not scheduled to spend time with the child, from 3.00pm on the day prior to the child's birthday until 9.00am on the day of the child's birthday;
3.3.3 If the child's birthday falls on a weekend that the Mother is not scheduled to spend time with child, for 6 hours on the child's birthday from 12.00 noon to 6.00pm;
3.3.4 For Mother's Day each year if it falls that a weekend the Mother is not scheduled to spend time with the child from 5.00pm on the Saturday before Mother's Day to 5.00pm on Mother's Day;
3.3.5 On the Mother's birthday from 12.00noon to 6.00pm if her birthday falls on a weekend that the Mother is not scheduled to spend time with the child and from 3.00pm to 9.00am the following morning if the Mother's birthday falls on a weekday where the Mother is not scheduled to spend time with the child.
4) The parties will each be entitled to attend all events involving the child including but not limited to:
4.1 Sporting fixtures;
4.2 Extra curricular activities that allow for parental attendance or participation;
4.3 Any organisation or club of which the child is member;
4.4 School functions and events, parent/teacher interviews, school concerts and assemblies, swimming and sporting carnivals and other functions held at or organised by the school that allow for parental attendance or participation irrespective of which day of the week such occasion falls on;
4.5 The parties will contribute equally to the registration and/or enrolment and uniform costs arising from the child's extra curricular activities including sporting activities and the parties agree that such shared costs will be in addition to any child support assessment.
5)The parties will keep each other informed as soon as it is reasonably practicable of:
5.1 Any medical problems or illness suffered by the child whilst in their care.
5.2 Any medication that has been prescribed for the child;
5.3 Any medical appointments with any medical doctor, psychologist, counsellor or therapist regarding the child; ·
5.4Any social, school or religious functions which a child is to attend;
5.5 Any contact telephone number;
5.6 Any matter relevant to the welfare of the child;
5.7 The parties will contribute equally to the costs of any medical physiotherapy, dental and occupational therapy and pharmaceutical expenses relating to the child and such cared costs will be in addition to any child support assessed in relation to the child.
6)The parties will each have day to day responsibility for making decisions about the child's welfare whilst the child is with that party in accordance with these Orders.
7) The parties will communicate with one another as follows:
7.1 The parties will use courtesy and consideration when communicating with each other about the child and they will limit those communications to matters relevant to the child's care, welfare and development.
7.2Ordinarily the parties will use text messages for the purpose of communication except in cases of emergency when they use their phone for the purpose of making a phone call.
8)The parties will not use language which is derogatory to the other parent or to the other parent's partner or family or have discussions about the other parent that are negative, in the presence or hearing of the child and they will ensure that no other person speaks in such a manner about the other parent or the other parent's partner or family in the presence or hearing of the child.
9) In event that the Court orders Residence for the Mother:
9.1 That there be [sic] an Equal Shared Parental Responsibility for the child.
9.2 That the child live with Father:
9.2.1 During school terms, every alternate weekend from Wednesday (before that weekend) after school until the following Monday before school.
9.2.2 One half of the school holidays, the details being consistent with the details as set out in paragraph 3.2 above
Statement of Issues & Outline of Principle
As already noted, the primary issues for consideration and determination are with whom should X live; the time-with arrangements for the non-resident parent (including whether or not any supervision of that time was required – the Father had been spending time with X, for a period of time, supervised); and the issue of parental responsibility.
A helpful jurisprudential touchstone to assist the Court to navigate the invariably delicate legislative pathway is conveniently set out in Brown J’s judgment in Mazorski v Albright.[2] There her Honour helpfully set out what she termed “the twin pillars” of Part VII of the Family Law Act 1975 (“the Act”), namely, subject to any relevant statutory refinement, the children of a relationship should have, to the degree that it is in their best interests to do so, a meaningful relationship with both parents and equally the children of the relationship should be protected from any relevant risk or harm.
[2] Mazorski v Albright (2008) 37 Fam LR 518. Brown J’s decision has been cited with approval in a significant number of Full Court judgments, including McCall v Clark (2009) 41 Fam LR 483, Sigley v Evor (2011) 44 Fam LR 439, and Maluka v Maluka (2012) 45 Fam LR 129.
In detail, in Mazorski v Albright at [3] – [6], her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus (emphasis added):
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
...
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Against this outline of principle, these reasons proceed as follows: (a) I provide an overview of the evidence; (b) I also provide a basic summary of the submissions; (c) I outline the Court’s general observations in relation to the evidence; and (d) I then make some very brief comments by reference to the so-called legislative scaffold in Part VII of the Act. However, before embarking on this course, it is apposite to make some comments in relation to the expert evidence that was before the Court.
Expert Evidence
First, I note the following comments from Ms C's Family Report (Exhibit B). Relevantly commencing at par.53 of that Report, she said (it is as well to set out her evaluation in full) (emphasis added):[3]
[3] I note that Ms C was not required for cross examination.
EVALUATION
[53] The parties in this matter only ever briefly dated and neither considered themselves to have been in a solid relationship of any consequence. They separated without rancour and (it appears) did not think too deeply about what parenting arrangements might be made for the baby that Ms Lockley was pregnant with. Mr Bardot’s relative lack of interest in the baby during Ms Lockley’s pregnancy and after X’s birth appears to stem from his belief (at the time) that X was not his child.
[54] When it was confirmed that X was indeed his child, Mr Bardot initiated mediation and the parties developed a parenting plan, the structure of which was dictated by X’s young age at the time.
[55] This plan was interrupted by the incident that occurred at changeover in 2009 and Mr Bardot’s subsequent decision to not pursue the matter of spending time with X. While this is understandable in some respects, it was unfortunate for X as he then spent the next five years without his father in his life. If X had been in the process of forming an attachment to his father in 2009, he would have experienced the sudden absence of his father as emotionally destabilising and confusing.
[56] The way in which X resumed spending time with his father in 2014 appears to have been a sound and child focused plan, whereby there was a supervised reintroduction phase, then a day time visit phase and finally, the commencement of overnight time, implemented over a period of several months. This would have provided X with a relatively gentle and safe introduction to his father and his father’s family.
[57] However, given X’s obvious shyness, timidity and lack of confidence, this significant change would have been emotionally challenging for him, and also for his mother, who is his primary (and possibly only) attachment figure.
[58] Ms Lockley’s last experience of Mr Bardot and his family in 2009 would not have been pleasant. However, even five years later Ms Lockley appears to still harbour considerable resentment and anxiety arising out of this incident and it is likely that she has communicated these feelings to X. The way that Ms Lockley responded to the cupcakes that X made for her whilst he was spending time with his father would have given X a very clear message that his mother cannot abide his father or his father’s family. This, and other behaviours of his mother, would have placed X in a loyalty bind which may have contributed to him exaggerating or over-emphasising his ‘fear’ of his father (in order to dutifully fulfil his mother’s need to find his father wanting). There are strong indications that Ms Lockley’s boundaries with X are undesirably loose, so that he is the recipient of all her unfiltered (negative) thoughts and feelings about the paternal family. It goes almost without saying that it is not appropriate for a parent to place their child in the middle of adult conflict in this way. X would feel confused by the dissonance between what his mother says and feels about the paternal family and X’s experiences of the paternal family (as being largely positive ones).
[59] Ms Lockley’s view that Mr Bardot has a mental illness is not borne out by the material before the Court, or by Mr Bardot’s presentation or narrative on the day of the Family Report interviews. Ms Lockley’s accusation that Mr Bardot is “unstable” was vague and amorphous; and when it seemed that this view of Mr Bardot was under challenge, Ms Lockley then alleged that Mr Bardot’s history of alcoholism was a risk factor for X. Mr Bardot was shocked that Ms Lockley had brought his substance abuse history up, but to his credit he was then candid about his past battles with drugs and alcohol and he talked about how he continues to maintain his sobriety. There is absolutely no material or evidence before the Court which suggests that Mr Bardot’s substance use history presents any risk at all to X.
[60] The multiple incidents that were alleged by Ms Lockley to have created a sense of fear of his father in X when he was spending time with him in 2014 are well documented in both parties’ affidavits, as well as in the affidavits of various members of Mr Bardot’s family. The issue that Ms Lockley appears to be most concerned about is that Mr Bardot has deliberately, with intent, harmed X on multiple occasions. Analysis of this material indicates that incidents as such did occur but the harm was minor (and mostly negligible) and there was no malicious intent on Mr Bardot’s part. The one incident that would be of concern (if it is true) is where Mr Bardot was alleged to have slapped X multiple times on the face. However, this is quite a bizarre allegation, in that it was supposedly over X “not remembering” text messages sent by his father. This simply does not make sense.
[61] Mr Bardot has attached some text messages sent by X to him, in his affidavit. The father’s sister has also done the same. These messages indicate that in 2014, X thought warmly of his paternal family and wanted to keep in contact with them. They are not the messages sent by a child who lived in fear of these adults.
[62] When he was interviewed, X seemed hesitant to express any particular views about his father. His recounting of why he was “scared” of his father sounded rehearsed and even X himself did not sound convinced that they were actually anxiety provoking events. X’s behaviour when he saw his father (after a break of 12 months) was not indicative of a child who has previously been scared of a parent. X appeared quietly happy to see his father, and it took him only a few minutes to relax and be comfortable in his father’s presence.
[63] In light of the above analysis, it is submitted that there is no need for X’s time with his father to be supervised. X’s time with his father should occur on a regular and predictable basis, and be of sufficient duration to maximise the development of a close and trusting father/son relationship.
[64] If the Court considers that it is in X’s best interests for him to resume spending unsupervised time with his father in the future, Ms Lockley will find this challenging. She may try to extract information out of X that affirms her belief that he is not safe, and she may once again seek to limit or suspend X’s time with his father. X may once again feel obliged to recount all the bad things that happened at his father’s house, because he knows this makes his mother happy, not because bad things are necessarily happening. X will be hesitant with his paternal family at first, because he is unsure of how to behave when he is caught in between his mother’s expectations and prophecies and his father’s need for him to relax and be comfortable (around many people).
[65] In order to short circuit this process, and keep X safe from the emotional harm that occurs to children caught up in loyalty conflicts, it would be helpful for X to be referred to counselling and ideally to a specialist service such as ‘The Anchor’ (run by Unifam in (omitted)). This service will also work with both parents to ensure that they understand the impact of their behaviour on X and it will assist them to develop strategies for co-parenting successfully in the future.
[66] One of Ms Lockley’s greatest fears is coming into contact with Mr Bardot’s extended family. Whether or not these fears have any basis in current reality is a moot point. Ms Lockley is anxious when confronted with multiple members of Mr Bardot’s family and Mr Bardot needs to be mindful of this and act with sensitivity, as long as any arrangements made are still reasonable and practical ones. One way to avoid confrontations is to have Interrelate as the nominated changeover location (where school is otherwise not an option). If there are changeovers that cannot be done at either school or Interrelate, then each parent should attend on their own.
[67] The parties currently live some distance from each other, which militates against X spending extended periods of time with his father during school terms. For this reason, it would be in X’s best interests for him to spend half of the NSW school holiday period with his father and paternal family for periods of up to one week at a time and up to three weeks in total (over Christmas/New Year).
RECOMMENDATIONS
[68] It is recommended that the parents equally share parental responsibility for the child X.
[69] It is recommended that X live with his mother.
[70] It is recommended that X spend time with his father in the following way:
· Immediately and for a period of three months: each alternate weekend from 9am on Saturday morning until 5pm on Sunday afternoon;
· Thereafter, each alternate weekend from after school on Friday until 5pm on Sunday afternoon;
· In NSW School Holiday periods: for one week of each short school holiday period and in the Christmas/New Year period, up to three (non-consecutive) weeks;
· Christmas: in odd years, from 2pm on Christmas Eve until 12pm on Christmas Day and in even years, from 12pm on Christmas Day until 5pm on Boxing Day, with time either side of these days to be agreed by the parties in accordance with the arrangements for school holiday time.
[71] It is recommended that the mother be prohibited from unilaterally suspending X’s time with his father for any reason, or in any way preventing X from spending time with his father as specified in final orders.
[72] It is recommended that both parties contact ‘The Anchor’ program run by Unifam in (omitted) for the purposes of referring X for counselling, and further that both parties attend this service as required and complete any such courses as X’s counsellor might recommend.
[73] It is recommended that a copy of this Family Report be released to X’s allocated counsellor to assist them in their work with X and his parents.
I note, amongst other things, that Ms C said, as did Dr R, that X’s time with his Father did not need to be supervised. That was noted in paragraph 63 of Ms C’s report. I agree with and accept this recommendation. I have already noted that the Family Consultant was not required for cross-examination.
It should also be noted here that, notwithstanding the clear comments and recommendations in Ms C’s report made in August 2015, given the Mother’s stance and evidence at trial, notably in relation to the Father posing a risk to X and that the Father continued to suffer from some unidentified mental health issue, they made not a jot of difference to the Mother. She had almost a year prior to the trial to re-evaluate or re-consider her position and what was in X’s best interests in the light of the clear comments by the Family Consultant. It is difficult to see what difference the comments and recommendations in the Family Report made and or what reflective assessment the Mother undertook of that Report. Given her evidence at trial, it made little or no difference at all.
Indeed, in the course of her evidence, she confirmed that she did not accept Ms C’s clear comments, for example, about the lack of evidence to support any need for X’s time with his Father to be supervised.[4]
[4] See Transcript (27th June 2016) p.41. Hereafter simply “T” followed by the page number.
Further, given how similar many of the observations, comments and recommendations were between the two experts, notably about the Mother’s acute anxiety, the relational dependency between Mother and son, the relaxed and comfortable nature of the Father and son relationship and the lack of risk posed by the Father (contrary to the Mother’s constant assertions), in my view it was even more concerning how intransigent the Mother was during the course of the trial in maintaining her oppositional stance to the Father on almost all fronts. Most unfortunately, her evidence at trial repeatedly showed an abject lack of insight about the risks her conduct posed to X generally in reinforcing their mutual (but different) dependency and most particularly the risk her conduct posed to the importance for X of his relationship with his Father.
I turn then to the Report and oral evidence of Dr R.
Report of Dr R
It is important to record the following matters from Dr R’s report.[5]
[5] Unfortunately, there is a dissonance between the line numbering in the Report of Dr R, as filed, and the electronic version provided by his Office. In such circumstances, I have simply removed the line numbering and inserted paragraph numbers (as well as noting the relevant page number). A copy of the Report with paragraph numbers will be provided to the parties and to the ICL for ease of reference.
The Child’s Views: X’s wishes or views and Dr R’s comments in relation to same are set out among other places at pars.36-38 (p.9) (emphasis added):
[36] X is currently sleeping and eating well and his mood is good. He does get anxious. He likes things to be perfect. He also likes to be close to his mother. She believes that he was also aware that she suffered from her medical treatment when she was sick. “He saw that I suffered. He won’t separate easily.” He missed a lot of school. He lost a lot of Fridays. There were about 10 Fridays because this was the day that the father would try to pick him up. He would stay at home with his mother on Fridays. “Yes, I was home on Fridays.” He also sleeps with her in her bed. When he doesn’t go to school he stays at home and likes to be close to his mother.
[37] Ms Lockley stated that she believed that X was telling her the truth about the father hurting him. She wants supervised contact to occur. She also believed that Mr Bardot had a drug and alcohol problem and mental illness. “I believe his father has a problem. He wants to hurt X to get back at me. I am the trigger. He wants to hurt me through X.”
[38] The supervised visits would be satisfactory because X would be safe. “I want a psychiatrist to observe the interaction between X and Mr Bardot and to give an assessment.” This request for an assessment was ironic in fact that this was the process that I was doing and she didn’t seem to have insight into this was exactly what I was performing. She repeated that she wanted a professional to observe the interaction between the father and X. “If the supervisor says he’s not in danger and assures X then I will be happy.”
The following further comments by X are taken from pars.45 - 47 (p.11):
[45] I asked if X had any other worries. He said [sic] X was worried about losing his mother. He was worried that his father was going to keep him and not let him see his mother. “I’m worried about losing mum.” I asked if he had any other wishes. X said that he did have a nephew and he liked to see him. He also had a big sister A whom he liked to see. He related well with his mother, also his Nan and uncle. Then I asked him to explain how important his family members were. He said, “Mum is the most important to me. I miss her a lot. I worry about her. I mainly worry about mum. I’m worried that dad might keep me from mum”.
[46] His wishes were explained. “I wish to have a great family. I want to have a sister and brother and a dad and a mum. I want mum in that family too. I want to all be together.” X seemed to be inferring that he would like his father, mother and A and her nephew to all is one big happy family together.
[47] I asked what he thought the Judge would decide. He believed that he should stay with his mother. He wanted the Judge to stop his father from keeping him. I asked what it would be like if the Judge could stop the father from keeping he and he could still have a short visit with this dad. “Maybe.” Again he said the best thing to happen would be to have a big family. The worst thing would be, “to go with dad and miss mum all the time.” His biggest problem is missing his mother.
Then at pars.102 – 105 (pp.21 – 22), Dr R stated:
[102] X appears to be a happy, healthy 8 year old child who’s in year 3 at school and performing well. X appears to be developing normally both cognitively and emotionally for his age. He functions quite well at school and with peers. The major difficulty has is the separation dynamic between him and his mother which is I believe a mild form of separation anxiety disorder. This difficulty in separating from his mother has particularly emphasised when he has attempted to see his father and also his poor attendance at school. I believe that at some level, X is aware that his mother is fearful of losing him to the father. He has interpreted this as separation fear that he will be taken by his father and never see his mother.
[103] X clearly has a close relationship with his mother but it’s overly close and somewhat enmeshed where the emotional boundaries are blurred between them. He is quite happy to stay at home. He stayed at home on 10 Fridays last year, which was partly to enjoy being close to his mother but also to avoid possibly going to see the father. This seemed to be supported by the mother.
[104] I believe that X has a strong yearning to see his father and be involved with his sister A and A’s son R and also his cousin H. He clearly was very positive about his father and his half-sister. He talked about wanting to have a full family with mother, father, sister and brother. I believe he was referring to the family members. The mother wasn’t able to understand that this is what he was asking for. He was very pleased to see his father.
[105] I believe that his complaints about his father were a learned response from the repeated questions and answers to his mother. He acknowledged that he couldn’t really remember what had happened but he did make statements that his father stepped on his foot, knocked him on the head with a football and smacked him on the cheek. However, none of those incidents led to him to not want to see his father and it wasn’t clear that he had a clear memory of those incidents. His main issue was his separation anxiety and his fear of losing his mother and missing his mother. I believe his major wish is to be involved in a broader family. His main wish, “I want to have a sister, brother, dad and mum in that family too, altogether.” I formed the view that his major concern was losing his mother and fear of disappointing her but that his major wish was to be involved with the father and the father’s family.
Finally, at pars.109 – 111 (pp.22-23), Dr R commented:
[109] X has developed separation anxiety disorder with his mother who has emitted a dependent anxious dynamic. He finds it difficult to separate from her. He’s constantly anxious and clingy to her. He’s worried about losing her and his fear about Mr Bardot is that he will prevent him from seeing his mother. Ms Lockley, I believe is also fearful of losing X but doesn’t seem to be able to acknowledge this fear. This dynamic has made it difficult for Ms Lockley to allow contact. I believe that she has unwittingly misattributed X’s reluctance to separate from her as fear of seeing the father. X does in fact does want to see his father and is very keen and eager to form a relationship with the broader family.
[110] In addition, X has learnt and has some conditioned responses in relation to answers. He acknowledged that he couldn’t really remember what had happened but he’s learnt that there were several incidents that he should repeat such as being stomped on the foot, slapped on the face, hit on the head with a ball as reasons for not seeing the father. However, he did indicate that he wanted to see the father by saying that he would wear clothes and to not be slapped and stomped on.
[111] In essence, I believe that the major problem is the separation anxiety dynamic between Ms Lockley and X and this has made it difficult for X to be able to see Mr Bardot. Mr Bardot has found it difficult to understand despite his attempts to be reasonable and positive that Ms Lockley has not accepted his apology and also his gracious intentions such as the cupcakes and the stone heart.
In addition to these observations and comments by Dr R, it is also important to note the following further remarks from the Report. For example and in my view very significantly, Dr R noted the stark contrast between X’s reaction and demeanour when with his Father and when he was observed with his Mother. At pars.67 and 68 (p.14), the Report records (emphasis added):
[67] X was very pleased to see his father. Mr Bardot was calm and relaxed with X. They sat and interacted in a very positive and congenial way. I asked them what they liked doing together. X said that he couldn’t really remember because it was a long time ago. However, he clearly was thrilled to see his father. Mr Bardot explained that they would go to the park across the road and play with other children. They talked about playing in the sand. Mr Bardot reminded X that they did go to the shops. X liked playing with H and they sometimes played on the Xbox together. X added that he remembers going to Hungry Jacks.
[68] They were quite bubbly together. Mr Bardot reminded X about the park. X was beginning to interact with other children and it would have been positive if that had occurred over a longer period of time.
In contrast to this very positive inter-action, at pars.71 – 74 (p.15), Dr R noted the following concerning reaction and comments (emphasis added):
[71] There was a stark difference in his behaviour with his mother. X was quite relaxed and happy and jubilant with his father. However, when he saw his mother he became very anxious. He wanted to sit on her lap. He was holding her hand. He was clinging to his mother.
[72] I asked them what they liked to do. They said they liked to play with each other. He likes to spend time with his mother. He likes to be living close to his mother. Ms Lockley said that they love swimming together. They go to the movies and play board games. X said that he wanted to get another board game. He spoke with a high pitched voice. He was clinging to his mother. He continually wanted to sit on her lap. The mother wanted him to sit separately. He was irritating his mother by touching her. He was cuddling his mother and trying to touch her continually. X said, “You will look after me.”
[73] Ms Lockley was concerned about this clingy behaviour. She was pleased that they were going to the Anchor Program and that there would be some counselling to help X. I asked X if he had anything he wanted to say to his mother. He said, “I want a new family. I want a new dad, brother and sister and a new nanny.” Ms Lockley looked a little confused by this statement about wanting a new family. She didn’t realise that X was referring to wanting his father, mother, brother and sister all to be together.
[74] When X said a new nanny she became upset and said that he’s already got a nanny. She said, “She loves you.” He then became anxious and worried about her responses and worried that he’d upset her. Then I asked him about his father. X’s response as he was looking at his mother, “I don’t know.” Then Ms Lockley said in a very authorative [sic] way, “Tell the truth.” This seemed to be a trigger word and he responded as if conditioned. He said, “Sometimes he hurts me mum. Also he hurts me in the bath tub. He smacked me. He stomped on my foot.” Then I asked X if there were any good things about his father. He said, “I can’t remember.” X mentioned that it was good to see his nephew and his cousin H. Ms Lockley was interested that he remembered H. It seemed that X felt under a lot of pressure from his mother and was uncertain about how to answer questions about the father’s family.
In relation to observations concerning the child and each of his parents, firstly, regarding X and his Mother, Dr R noted the following.
Commencing at par.84, Dr R outlined the nature of X’s relationship with his Mother. Relevantly, at pars.87-90 he said (emphasis added):
[87] … X’s relationship with Ms Lockley has been a very anxious one. There was intense separation anxiety. He has difficulty letting go of her. He sleeps with her. He follows her closely. He cannot let her go when he’s in her company. He does have significant separation anxiety. After contact started there was some recognition that there was reluctance of X to separate from Ms Lockley to attend contact. Ms Lockley interpreted this reluctance as a negative feeling about seeing the father. She enquired as to why he didn’t want to go and it would appear that X has tried to find some answers. The stories and accounts that he has given appear to be extremely trivial. He claimed that the father may have put some hot water on him; stomped on his feet; hit him on the head with a football. These responses have now been conditioned and learnt.
[88] Despite the problems in the child being able to separate and attend the contact with the father. He appears to be developing well at school. He is developing well socially and academically. He has a good relationship with friends. He’s achieved well academically well at school.
[89] Overall the relationship between the mother and son is a happy, health one. There is a strong degree of separation anxiety which the mother is happy to get some help with through the Anchor Program. She does find this a concern. She doesn’t seem to understand that the separation anxiety that X has from her is the major issue for her to deal with, not fear of the father. Overall I formed the view that the child was developing well in the mother’s care and that she was a capable caring parent. However, I do have concerns about her difficulty interpreting the child’s separation anxiety and misattributing his separation anxiety to the reluctance to see the father and undervaluing the potential benefits of the child’s relationship with the father.
[90] In addition, she underestimates the fear that X has about losing her considering she’s had serious illness in the past and also potentially her fear of losing him because she’s quite isolated from her family.
In addition to these comments, Dr R opined at a little length on matters that he treated under the heading of “The Mental Health of [the Mother] Ms Lockley.” Beginning at par.91 (p.19), the report writer said the Mother did not have any serious mental health issues but in comments that are in my view very significant, at par.94 he said (emphasis added):
[94] I believe a dynamic of dependency with X has created a separation dynamic between her and X. X finds it difficult to separate from her and I think she finds it difficult to separate from him; therefore he has the separation dynamic with her. When he’s away from her he seems to function quite adequately. Therefore, I believe that she does have some dependent personality features although I don’t believe that it reaches a level of being personality disorder. These dependent features contribute to separation dynamic between her and X. I don’t believe there is enough evidence as yet to qualify for a personality disorder as she’s quite capable of working and supporting herself and providing for her child.
In relation to the inter-action of X and his Father, Dr R said (emphasis added):
[98] Overall, the father has not attempted to undermine the child. I believe that he has reacted at times angrily but he has also attempted to be congenial and demonstrate good will. It is also of interest that the maternal aunt is supporting him in this process.
[99] I formed the view that Mr Bardot was a capable caring parent. I believe that he should have a substantial role in X’s life. If required, I believe that he could be a residential parent. He does have insight and competence I believe in how to provide for the biological, psychological and social needs of the child. I do believe he wants to support a relationship between the child and the mother if he were to have residence. However, the change of residence from the mother to the father would be an enormous jump for the child as he is fearful of losing the mother.
In relation to Dr R’s assessment of the Father’s mental health, at par.100, he said:
Mr Bardot appeared to have a normal healthy early life. His major problems occurred during his teenage years. He developed alcohol and drug dependent [sic]. The major problem has been alcohol abuse. To his credit he has learned to manage this by utilising the fellowship and Alcoholics Anonymous. He possibly had some mild depression from his troubled teenage years and dependency on alcohol. However, he’s shown a lot of personal strength and fortitude by overcoming his substance abuse and addiction and in being able to work and support himself and assist his family.
I might note here that on the last day of the trial, documents were produced under subpoena from the Father’s general practitioner, which confirmed that the Father is not now and has not been treated in the past for any mental health issues. This is in circumstances where the Mother has held the firm belief that the Father does suffer from some mental health issue – although she never identified any particular kind of mental health issue, or what features she saw that gave rise to her “diagnosis” of the Father. Very unfortunately, she would not accept the expert opinion of Dr R that the Father suffered from no such afflictions. Only the records from the Father’s GP would satisfy her in this regard. In my view, such intransigence, in the face of expert psychiatric evidence (from Dr R) showed little insight and little general appreciation in relation to the role of evidence both in litigation and in life more generally rather than simply holding on to a belief that had/has no sustainable basis or reason to be so held.
In relation to the parenting dynamic, so to speak (with more said later in these reasons), Dr R said, at par.109 (emphasis added):[6]
X has developed separation anxiety disorder with his mother who has emitted a dependent anxious dynamic. He finds it difficult to separate from her. He’s constantly anxious and clingy to her. He’s worried about losing her and his fear about Mr Bardot is that he will prevent him from seeing his mother. Ms Lockley, I believe is also fearful of losing X but doesn’t seem to be able to acknowledge this fear. This dynamic has made it difficult for Ms Lockley to allow contact. I believe that she has unwittingly misattributed X’s reluctance to separate from her as fear of seeing the father. X does in fact does want to see his father and is very keen and eager to form a relationship with the broader family.
[6] I have quoted this paragraph earlier in these reasons but it is as well to highlight it again here.
At the conclusion of his Report, Dr R recorded what he describes as “possible outcomes”. They are:[7]
1. Should X continue to live with Ms Lockley and not have contact with Mr Bardot I believe that this would be a sad outcome and X would feel a great sense of loss and abandonment. This is likely to have a long term impact on X and affect his personality with poor self-esteem.
2. The next possibility is for there to be supervised contact. I believe that supervised contact would be better than no contact, but is not likely to last for any length of time and it would inevitably break down.
3. The third option would be for there to be regular substantial contact with the father. I believe that this would be a positive and the optimal outcome for X. I believe that he is keen to form a relationship with Mr Bardot and the paternal family. This would enrich his life and assist his overall development. He has a strong relationship with his father and mother and this would also balance his life. The main problem is that Ms Lockley is anxious about losing X and this anxious dynamic could result in further learned responses from X that might create a problem and further allegations against the father.
4. The next possibility is for Mr Bardot to take over the care of X as the primary carer and for X to have contact with the mother. I believe that this would be an enormous change for X. He’d find this extraordinarily difficult to make the change although; I believe it would be possible. He would be extremely anxious and worried about his mother. Ms Lockley would be distraught at losing X and there would be a lot of emotional turmoil but I do believe that it is a possibility. X presents as a competent and strong young boy and I believe is resilient. Mr Bardot would support a relationship between X and the mother.
[7] The numbering here has been kept as per the unaltered Report, thus “possible outcomes 1-4”.
Finally, Dr R outlined his recommendations (as per the unaltered Report, which are numbered 1-10):
1) I recommend that X continue to reside with Ms Lockley. Overall I believe that Ms Lockley is a capable caring parent and that she wants to provide well for X. He is developing well in her care. The major problem and difficulty that she [sic – “has”] is recognising the importance of Mr Bardot and X’s life and the potential value that he can provide for X. She is fearful of losing X but doesn’t have good insight into this. She is also unaware that she has unwittingly conditioned X to make certain statements about not wanting to see the father that are not based on any substance such as being stomped on the foot and hit on the head with a soft ball. If Ms Lockley is able to become aware of the separation anxiety dynamic that she has with X is the major problem, and not Mr Bardot, then she is likely to make a good decision. However, if she is unable to understand this dynamic and perhaps her personality is more disturbed than I have realised then this would be a major worry.
2) I would recommend that there be regular contact with the father. I would suggest that there should be day time contact one day per fortnight. There is no need for supervision. The supervision is likely to create more problems than it can resolve. At this point I wouldn’t introduce overnight contact. It is more important for there to be regular fortnightly day time contact on one day of the weekend, so that X can develop some regularity and substance in his relationships with the paternal family and for Ms Lockley to be able to cope with her anxiety about X going to contact.
3) The handovers would need to be perhaps through a third person so that there wasn’t potential for conflict at handover. X is likely to find it difficult to separate from his mother and so it would be better for the third person to be the conduit.
4) I would recommend neither parent denigrate the other parent in front of the child.
5) I would recommend that neither parent use any drugs or alcohol.
6) I would recommend that both parents attend some post separation counselling courses.
7) Ms Lockley and X need assistance from an experienced child clinical psychologist to assist with the separation anxiety disorder and difficulties that are preventing contact from occurring.
8) Both parents would benefit from their own individual separate counselling to help them deal with their situation.
9) I would recommend that Ms Lockley accept the intended apology that Mr Bardot had offered. Ms Lockley needs to understand that X has learned conditioned and learned responses that are a reflection of his separation anxiety from her. She does understand there is a separation anxiety problem and she welcomed the Anchor Program. The Anchor Program should also continue.
10) Should Ms Lockley be unable to overcome her anxiety and continue to misattribute X’s anxiety and project the blame onto the father, this would be a worrying outcome. Under such circumstances the court could consider a change of residence to the father. This would not be my preferred outcome, as I believe X does have a solid foundation with Ms Lockley and is developing well in her care. However, he does need a relationship with this father and father’s family to develop a healthy completed self-concept and for there to be good personality development. If there are spurious allegations made against the father and the mother’s unable to facilitate a relationship between X and the father then I would support a change of residence to the father.
Dr R's Oral Evidence
Due to scheduling and availability issues, Dr R’s oral evidence was interposed part of the way through the Mother giving her evidence. His evidence was quite limited. It may be summarised as follows.
Dr R confirmed that the child functions reasonably well.
Regarding a change in residence, Dr R confirmed that the child’s concern here would be to make sure that he knew that the Mother was “okay” when he was not with her and that this arrangement would need a bit of time in order to build a solid base with the Father. He said he thought that X was a robust child who could cope with a change in residence. Unsurprisingly, he said that there were significant “pros and cons” with a change in residence. It would be important, he confirmed, for the child to feel safe being with the Father.
He suggested on the basis that if there was to be a situation whereby the child stayed living with the Mother and started to spend more time with the Father, that there needed to be some period of supervised time, which was primarily to enable the Mother, as it were, to acclimatise to such an arrangement whereby, ultimately, X would be spending unsupervised time with his Father. He suggested counselling or some sort of treatment for the Mother in relation to helping her deal with her anxieties.
In answer to questions put to Dr R by Counsel for the Father, the psychiatrist noted (in accordance with what was in his Report) the child’s clear expression of his wish to have a relationship with the Father and the Father’s family.
He confirmed that the Father was a capable parent, in his view, and that it was unusual for a child to be so comfortable with the Father and rather more so than with the Mother. This was particularly in circumstances where the child has not spent a lot of time with the Father.
He confirmed that he regarded the Father to be mentally very healthy; in fact, really quite strong, having come through the various matters that he referred to in his Report regarding drug and alcohol use and the Father now abstaining from those substances.
Dr R said that, if the child was to continue living with his Mother, it would be best for the child to have substantial time with the Father, including weekend and overnight time although at the beginning of such time it might have to be just simply day time.
In relation to the Mother’s proposition to the child telling him that the Father was unwell in his head, Dr R confirmed his agreement with the general proposition that, if such a statement was left unqualified, this could amount to some form of abuse.
In the course of Dr R’s evidence, there was the following exchange with the Bench in relation to a change in residence (emphasis added):[8]
HIS HONOUR: And am I right, Dr R, that in your report that a change in residence is not your preferred or primary position?‑‑‑Correct. That was based on the fact that it was my expectation that based on my report and also the family report and I guess other information that has been provided to her, that the chance of the child having a good relationship with the father and also being secure with her was, I think, jointly held that that was likely to be successful. However, if the mother is unable to relinquish her fears and continues to hold beliefs that the experts have felt are not a great concern for the child – in other words, the child is at risk of being harmed – then it does create a dilemma where if she keeps holding that position that the child is likely not to have a relationship with the father and that relationship would breakdown. So the best outcome for the child is to have a relationship with both parents. And if – if you form the view that by staying in the mother’s care that he will not be able to have a realistic relationship with the father, then a change of residence where he could have a relationship with both parents may be better for him in the long term.
[8] T 61.
The Parties’ Evidence – General Comments
Before getting to the detail of the evidence, I note a couple of matters regarding evidence that were canvassed in Dr R’s evidence, as well as in the evidence of the parties in some detail. The basic elements of the allegations that found much of the Mother’s concerns about the child spending unsupervised time with the Father are set out summarily below.
In many respects, the Mother’s evidence was founded upon, amongst other things, four incidents said to have involved the Father and the child. They are set out in the Mother’s affidavit filed 30th October 2014 (pars.3-6).
The said incidents related to the following allegations, all of which are said to have taken place in 2014:
(a)On 29th March 2014, it was said that the Father stomped on the child’s foot “about five times” and the stomping stopped only when X screamed;
(b)On 2nd May 2014, it was alleged that during a sleep-over at the Father’s house, the Father poured hot water over X while he was in the bath;
(c)On 7th June 2014, it was alleged that while playing in a park opposite the Father’s residence and while his partner was not present, the Father threw a football at the child’s head. The incident caused the child pain and to cry.
(d)On 26th July 2014, at the Father’s residence, it was said that the Father “kept smacking X on the right cheek.” It was further said that the reason given by the Father at the time to X was because the child had not read a series of SMS messages.
The Mother believes the incidents to have occurred and in many respects, understandably, she believes her son in relation to these incidents. However, the Father denies these incidents categorically. There is no independent evidence, notably, from any doctor or from any other relevant outside source to corroborate them. The Father’s daughter gave clear, straightforward evidence of the so-called bath incident and that related, amongst other things, to X quite readily returning to play the Xbox, untroubled, shortly after the alleged incident. Dr R doubts the incidents occurred. I share Dr R’s doubts about any of the incidents having occurred, or certainly having occurred as set out in the Mother’s affidavit. Much of the relevant evidence, in my view, undercuts X’s account and the Mother’s reliance upon it; it is set out later in these reasons.
Indeed, from the evidence given, at the end of the trial the Mother seemed to accept that she would need to re-think her belief in X’s account of the events charged by him against his Father as set out above.
Further, there was a physical contest incident involving the parties in 2009 which resulted in there being issued an Apprehended Violence Order against the Father. He had apologised to the Mother twice previously; Dr R recorded the incident and other basic details surrounding it in his Report (see pars.81, 96, 111 and in Recommendation 9).
During the Father’s evidence, again he gave, in my view, a very gracious and fulsome apology to the Mother, which she finally accepted. She had earlier said that an apology under oath would make a big difference to her. That difference, and in the light of other evidence, led her to say that she would have to re-think X’s account of the 2014 incidents noted earlier in these reasons.[9]
[9] See the discussion with the Mother, from the third day of the trial, at Transcript (29th June 2016) pp.5-8.
While this concession of sorts by the Mother showed some insight, it was not, in my view, by any measure a thorough and proper reassessment of her position. It still remained guarded. Perhaps that was because it had been such an entrenched view for such a long period of time.
The Mother’s Oral Evidence
The Mother said that it was certainly in the child’s best interest to spend time with the Father, simply because he is the Father. She said that that is a view she has held since 2007 and she adheres to it today.
She recounted at a little length long periods of time when X and the Father did not spend time together and this was invariably predicated on the basis that it was the Father’s responsibility to initiate time between Father and son. In my view, she did not take any appropriate responsibility for having any responsibility herself to initiate those occasions. Indeed, the limited times that she did do so, she maintained that it did not go well or that it was not followed through.
In relation to X’s concerns in relation to the four incidents in 2014 detailed earlier in these reasons, Ms Lockley has told the child on a number of occasions that “she lost the Father” and that he was “sick in his head.” This was her attempt (in my words) to explain the Father’s alleged conduct towards X. She says that she does not want the child to be alone with the Father, she does not accept that the child is channelling her fears but otherwise she says she has no anxieties. In my view, the evidence generally of the Mother clearly does not support this conclusion; nor does the expert evidence before the Court. That evidence patently supports a finding that the Mother and the child are very anxious and that their anxieties are mutually reinforcing, each of the other, but in circumstances where there is no independent evidence to support such anxieties.
The child has said that he has enjoyed spending time with the Father at Interrelate. The Mother accepts that supervised time at such an agency is not sustainable in the medium or even the long term.
The Mother worries that the Father might hurt the child. I will come back to this in the light of the Mother’s later evidence.
It was put to the Mother that there was no medical evidence in relation to the foot-stomping incident and that the disclosure was made some little time after the incident was said to have occurred. It was also put to the Mother that it is not uncommon for a child to tell a parent what they want to hear.
The Mother did not accept that this is what is going on in this instance. She said, amongst other things, that the child has raised for example, the bath/hot water incident on a number of occasions. Likewise, she says that the child maintains his position in relation to the Father throwing a football hard at the child’s head making him cry.
The Mother also maintained that the Father was using these proceedings, amongst other things, to get back at her because she says that the Father says to her that she has ruined his life. At the same time, the Mother said that she thinks the Father wants to love the child.
The Mother accepts that there is no mention of the Father’s alleged mental illness by Dr R but she does not accept the evidence of Dr R. This was her primary position, if I may speak about it in those terms.
In relation to one example of the Father not spending time with the child, it was confirmed that for a period of time the Mother withheld the child from school on Fridays and sent a note to the school that the child was attending a personal or family matter and that the Mother home-schooled the child on these occasions. But this was directly intended to thwart the Father spending time with the child on these occasions. The Mother did not accept the proposition that it was her responsibility, or that she had any responsibility, to keep the Father informed about any matters in relation to the child.
She did accept that in 2015 the child was not fearful of the Father albeit invariably such times as were spent together were at a contact centre.
When the Mother told the child that she was going to Court today and asked the child who he wanted to live with, she said the child said that he wanted to live with the Mother but she confirmed that he did not appear fearful.
To return briefly to the Mother’s evidence where she has told the child that the Father was sick in his head, she also confirmed that she told X that if the Father took tablets he would be nice to him in the future.
Ms Lockley confirmed that there is no medical evidence that the Father has a mental illness. She has based her view in this regard on her long experience with mental illness, specifically in relation to her brother who has significant mental health issues and her Mother, who she says has significant gambling issues.
Again, she confirmed that she was aware of the indication from Dr R that the Father is not mentally ill but, again, I note that the Mother does not accept the evidence of Dr R certainly in this respect.
She said that in relation to the Father’s contention in his affidavit material and also as noted by Dr R, she gives some credit to the Father for him not drinking. However, she said that the child has seen beer in the Father’s fridge at his residence.
In relation to the alleged “cupcake incident”, which I need not detail other than to indicate that X and the Father made cupcakes as a gift for the Mother but she threw them in the bin. She said she did this because she feared that the Father may have “spat in them” just as he had spat in her face in 2009.
In my view, this was quite remarkable evidence by the Mother, which unfortunately indicated such a jaundiced view of the Father in the circumstances.
When I asked the Mother questions about what would make the parenting relationship better or easier with the Father she suggested that changeovers be at a neutral location, that communication be via text or email, that the Father should not hurt the child and that he should be a better parent.
The Mother confirmed that she has no income at the moment. She is waiting to move back to the Inner West, either (omitted) or (omitted), where she has said on a number of occasions during the trial that she will be able to be re-employed by a company with whom she has previously worked. She said that she looks forward to resuming her studies and earning an income. She said that she receives no support from her family members and in particular that her Mother is not responsible or reliable. She said that she has wonderful and supportive friends who are like her family.
She confirmed that X has always been clingy to her and that this happened she said particularly during the time when she underwent a mastectomy and chemotherapy.
Ms Lockley went through various options regarding supervision of the Father’s time with X, which I need not traverse in any detail here.
Ultimately, after hearing evidence from the Father and other of his witnesses, she accepted that there was no malicious or deliberate intent by the Father in relation to the so-called football incident (referred to earlier). Similarly, the Mother accepted that in relation to the hot water incident in the bath there was no physical effect (i.e. scalding, blistering or other medical condition) from the hot water, if that is what it was. It was difficult to know exactly how to interpret what actually went on but it was clearly an issue for the Mother.
Ms Lockley said that the child was not sporting and more bookish. I interpose here that the Father has said that he calls X “the professor”, which maybe neatly captures, obviously not in any critical or pejorative way, that the Father considers X to be rather a studious type of child and at this stage of his life at least, rather less interested in being a super athlete.
One final matter may be noted from the final day of the trial. It arises out of questions put to the Mother by the Bench following earlier evidence, for example, given by the Father.
I put to the Mother, in the light of her earlier evidence, that if the child spent more time with his Father and especially if there was a change in residence, this would actually enable the Mother (in my words) to get back on her feet because it would give her time and opportunity to study in a more relaxed way and she would have more time available to be able to work and get herself established financially. To this, she simply said that she had been able to juggle all of these things (i.e. parenting, work, study) in the past.
Very briefly in relation to other evidence on the Mother’s behalf, I simply note that in the very short time that her close friend Ms T gave evidence, it was difficult not to be impressed by (a) her openness and (b) her willingness to assist the Mother (and the Father) in any relevant way in relation to supervision – or anything else. Indeed, Mr Bardot readily acknowledged the obvious capability and goodwill of Ms T.
In this respect this was a, if not the, most critical question in the case, he submitted. Counsel noted that, if the child continued to live with the Mother, significant and substantial “time-with Orders” would likely be unsustainable because the parties cannot communicate.
Mr Jackson referred to those parts of Dr R’s report that recorded the stark contrast and behaviour of the child with the Mother who was described as being very anxious, whereas with the Father he was described as relaxed, happy and jubilant. He suggested that such comments about such noticeable changes in behaviour and demeanour of a child when with a resident parent and the other parent with whom there has been significantly less “time with” was both highly unusual and tellingly stark.
Of particular moment was the reference in Dr R’s report where he referred to the child being conditioned by the Mother.
For my part, even at this juncture, I must agree that the ‘conditioning’ of the child by the Mother and the almost claustrophobic environment provided by the Mother to the chid which has led to the “dynamic of dependency” between them, are very significant and highly problematic considerations for the Court in making Orders that are in X’s best interests.
Mr Jackson put it that perhaps the Mother has not properly considered or is not able properly to consider her “conduct” with the child whereby, as assessed by Dr R, she is conditioning him to be anxious, especially in relation to spending time with his Father. And even in the light of the Mother’s evidence given on the last day of the trial, it suggested he submitted, that it did not give the Court any comfort or confidence that the Mother’s views in relation to the Father and her levels of anxiety would change quickly or easily – that would enable the child’s relationship with the Father to be maintained, let alone promoted.
After traversing the Father’s history in relation to being an alcoholic – understandably, he stressed Dr R’s comments about the extraordinary fortitude and strength of character of the Father. He also noted that no mental health issues had been raised by anyone against the Father, other than the Mother.
Again, Counsel stressed in my view reasonably, the very candid and sincere apology by the Father to the Mother in relation to an incident between them in 2009. He also referred to comments set out in the report of Dr R regarding a certain propensity by the Mother to undervalue the benefits of the child’s relationship with the Father and that she does not seem to recognise the bond between Father and son even now. Mr Jackson again noted the child was very pleased to see the Father and was very comfortable in the Father’s presence.
He accented, again, in my view, reasonably and properly the Mother’s evidence where she said that she will always follow the child’s wishes. This led him to submit again how the Court could be confident on that evidence alone that the Mother would be able to uphold and promote the child’s relationship with the Father. The Mother’s response to the conflict between the parents generally was that “it’s not my fault.” And (on the Mother’s evidence) if any Orders are made by the Court that permitted the child to spend unsupervised time with the Father and anything untoward happened, then it would be “on the head of the Court”; it would not be her responsibility.
He then used a phrase that has some political ancestry; he mentioned about “maintaining the rage.” Respectfully, I did not realise that Mr Jackson was sufficiently old to recall such a phrase (from 1975 and the dismissal of the Whitlam Government). However, his point here was in relation to the Mother maintaining her “rage” about the problems in the Father’s relationship with the child in the light of the incidents from 2014.
Counsel submitted that there was still some fairly serious welfare issues that needed to be addressed, such as the Mother’s decision to withdraw the child from school on Fridays for some months precisely to ensure that the Father’s time with X could not proceed (which was confirmed in the Mother’s evidence). Counsel noted also that the Mother was living in a household, albeit separated by a brick wall, where there was an environment of clear mental illness. There were concerns expressed about the Mother refusing to provide the Father with the address of her proposed residents in (omitted).
In relation to the change in residence, accepting that any change in residence would doubtless be difficult, Mr Jackson referred to the evidence of Dr R who said that the child was firm and robust. The maternal aunt (Ms S) gave similar evidence: the child is a resilient child. And, he submitted, the Father and his family have the capacity to manage challenges of a change in residence.
Counsel acknowledged whatever the Orders ultimately made there would be some teething issues, even “time with” Orders. If the child was to continue to live with the Mother it was submitted that any supervision did not need to be any longer than two months; but even in those circumstances, there would remain a question, it was submitted, about whether or not the Mother would be capable of promoting the child’s relationship with the Father.
Counsel then went through the statutory pathway in an abbreviated form. The pathway was set out in the case outlines of both of the parties. While I have had regard to the material contained in each of the Case Outlines, a number of significant matters have changed in the light of the evidence given at trial and have been addressed in the course of the oral submissions of the parties. Accordingly, it is in my view, unnecessary to reproduce the summary of statutory considerations as set out in the Case Outlines as filed.
The ICL’s Submissions
The ICL’s submissions were very brief.
Counsel for the ICL suggested that, on the evidence and by reference to Dr R’s report (pars. 3 and 4 on p.22), there were really only two options: either the child lives with the Mother and spends significant and substantial unsupervised time with the Father, or the child lives with the Father and spends regular time with the Mother.
He suggested that the Mother’s anxieties might create a problem and that the strongest analysis of what is going to happen in the future is best undertaken by considering what has happened in the past. He noted that the Mother had refused to budge one iota until the third morning of the trial when there was a concession that she might be wrong in relation to the child’s allegations against the Father, and that she would have some counselling to try to understand these matters.
In short, the ICL supported that there be a change in residence. Amongst other things, the ICL noted concerns in relation to the Mother’s brother and listed a range of concerns there. He noted and stressed the evidence of the paternal aunt and how the Court should be impressed with her evidence. For these general reasons the ICL supported and supported very clearly and strongly, that there should be a change in residence for X from the Mother to the Father.
Observations on the Evidence
In addition to what has been said earlier in these reasons, it is appropriate for the Court to make some further comments on the evidence.
First, as already noted, I was and remain very concerned that the Mother did not, until seeing the medical records from the Father’s GP, accept that the expert evidence of Dr R. Nor did she accept the comments and observations of the Family Consultant.
Secondly, the Mother was, in my view, quite intransigent in relation to a range of matters. These included, in particular, her assessment of the Father’s so-called mental health issues and his [alleged] failure to apologise to her for the so-called spitting incident, when in fact he had apologised twice previously, including when the parties were with Dr R.
Dr R recorded that an apology was offered by the Father during the course of the interviews. Yet this apology was rebuffed by the Mother.
I confess that I was and remain very concerned by significant parts of the Mother’s evidence. Her general intransigence was significant, as was her lack of insight into the impact of her conduct on X generally (e.g. in feeding his anxiety and dependency on her) and in turn on his relationship with his Father (e.g. in telling X that his Father was “not right in his head”) as I have noted more than once in these reasons.
In the course of her evidence, on a number of occasions I put to her various risks she courted by taking such a determined and unyielding attitude towards the child spending time with his Father. I gave her a number of opportunities to reconsider her position especially in the light of Dr R’s evidence but she steadfastly refused, or was unable, to take any more reflective or insightful assessment of, for example, the expert evidence of Dr R.[12] This and the evidence more generally, led me to view her as lacking in insight into what was in X’s best interests.
[12] Among other places, see T 3 – 4; 18 - 19 (Transcript 28th June 2016).
It was and is also of particular concern to me that the Mother said on a number of occasions that she follows X’s wishes. I put to her, in one exchange, the analogy of driving a parenting bus and asked who was driving it. While she said that she was the one driving that bus, in my view, it was clear that she followed X’s wishes almost without question. It is clear that, in the Mother’s residence, X was and is driving the parenting bus which is given no guidance by the Mother, in part because of the deeply enmeshed relationship between Mother and son.
Therefore, in answer to the question of what confidence can this Court have in the Mother complying with Orders for the child to spend time with the Father, supervised or otherwise and in particular promoting the child’s relationship with the Father, most unfortunately I have little confidence that the Father and son relationship would be in any relevant way properly or reasonably promoted by the Mother. I make this as a formal finding based on the evidence particularly that of the Mother, Dr R, the Father and from the Mother’s sister, Ms S. In making such a finding, I am acutely conscious of the comments by the High Court in cases such as Fox v Percy, at [23] (Gleeson CJ, Gummow and Kirby JJ) (internal citations omitted; emphasis added):[13]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[13] Fox v Percy (2003) 214 CLR 118.
The Legislative Scaffold
In going through the legislative pathway very summarily, I note that Counsel for the Father stressed that, given the antiquity of the file, the relevant pathway is as it existed prior to the 2011 amendments. In addition to what has been stated earlier in these reasons, in all of what follows should be taken as formal findings by the Court. I will refer to only those considerations that are relevant to the matter currently before the Court.[14]
[14] In this regard, I am acutely conscious of the Full Court’s comments in SCVG v KLD (2015) 51 Fam LR 340, notably but not only at [87] – [89]. See also the comments by the Full Court in Browne & Keith [2015] FamCAFC 143 at [22].
Firstly, in relation to the primary considerations in section 60CC(2), in my view the child has a meaningful relationship with both parents. This is so remarkably but happily so between X and his Father, notwithstanding the relatively brief times that X has spent with his Father.
The protection of the child is a significant consideration in this matter, not as alleged by the Mother regarding the Father’s purported conduct towards him but unfortunately and notably because of the enmeshed and dependent relationship between Mother and child.
In relation to the additional considerations in s.60CC(3), first in relation to the views of X, these were expressed in the report by Dr R to which I have already referred. I note in particular X wanting to be part of a large family. Conversely, in the light of Dr R’s evidence, notably but not only in relation to the ‘dynamically dependent relationship’ between Mother and son, while-ever that relationship remains in place the greater the levels of dependency and anxiety of both Mother and X and in turn the risk of alienating X from his Father and the Father’s wider family.
In relation to the nature of the relationship of the child with each of the child’s parents, again I note that it is a quite enmeshed relationship between Mother and son. According to Dr R, it is one of dynamic dependency and there is a significant separation anxiety dynamic. It is otherwise relatively relaxed and comfortable with the Father according to the observations of Dr R.
In relation to other persons, it is of some moment, as submitted by Mr Jackson, that the Mother’s sister (and her children) gave such strong evidence in the Father’s favour and so strongly opposed to the Mother. In addition, the Father’s wider family, including his daughter, who he not unfairly described as X’s big sister or something to that effect, as well as her son (X’s cousin) are relationships of some significance from the Court’s perspective especially since R (and H) are of a similar age generally to X.
In relation to subparagraph (c) regarding the willingness and ability of each of the child’s parents to facilitate and encourage a positive, continuing relationship between the child and the other parent, again I stress that in my view, this is a very significant issue. I have mentioned on more than one occasion my concerns about the Mother’s inability to promote such a relationship between Father and son. In this regard, I note the following matters (among other things) which I have noted earlier in these reasons (i) the Mother withholding X from school on Fridays to prevent him spending time with his Father, (ii) her insistence on seeing independent evidence (and rejecting that of Dr R) to assure her that the Father was not suffering from any mental health condition.
In relation to subparagraph (d), I accept Ms Swifte’s submission that a change in residence would be “a very big call.” But if the evidence supports making such a “call” in the best interests of the child, then the Court cannot shy away from doing so.
Regarding subparagraph (e) and mattes of “practical difficulty”, logistics are very relevant here. If the Mother stays where she currently is in (omitted) or even if she moves to (omitted) or (omitted), matters of logistics such as transport between the Father’s residence in (omitted) and the Mother’s residence (wherever it may be at the time) is not going to be easy. But such is life in a large and busy city.
In terms of the capacity regarding each of the child’s parents to provide for the child’s needs (sub-paragraph (f)), basic care issues are really not at the forefront of the matters before the Court. They relate more so to each parent’s capacity to provide for the child’s emotional /psychological and emotional wellbeing. X’s academic side is obviously not an issue because he is doing well at school, according to the school reports tendered. My concern, as regularly stated, is that I share the concerns that have been expressed by Dr R regarding the psychological and emotional dependency between Mother and son.
In relation to subparagraph (g), which relates to the maturity, sex, lifestyle and background of the child, those matters in my view have already, in effect, been canvassed by comments made earlier in these reasons, notably in relation to the dynamic dependency between Mother and son. Likewise, in relation to subparagraph (i), I have very significant concerns about the dependent relationship between Mother and son, the Mother’s almost smothering relationship with X and her utterly distrustful relationship with the Father. I have no confidence that she will promote X’s relationship with the Father, in part because she lacks significant insight into the importance of X’s relationship with his Father (and his wider parental family).
In relation to family violence, the only matter that was formally raised was the AVO taken out by the Mother against the Father in 2009, now quite some time ago.
In relation to what Orders the Court thinks will be the least likely to lead to the institution of further proceedings in relation to the child, in my view, with some tweaking the Orders that I consider to be in the best interests of X are those that are sought by the Father. Further, if the child continues to reside with the Mother and her current attitudes and dispositions towards the Father persist, there is in my view, a significant risk that the Father will be forced to pursue further litigation to ensure that he spends regular time with X.
In addition to the above matters, I otherwise accept the submissions by Counsel for the Father and by Counsel for the ICL.
Accepting that there will almost certainly be some initial difficulty, I accept the evidence of Dr R that X’s robust disposition will enable him to cope with living with his Father and spending regular time with his Mother. Such a course is, in my view, clearly in the child’s best interests. Accordingly, there must be a change in X’s residence.
It is not part of the Orders of the Court to determine when that occurs but I would simply suggest that it should be perhaps halfway through the next school holidays.
Finally, because of the utterly strained and distrustful relationship between the parties, in accordance with the Orders sought by the Father (supported by the ICL), there should be an Order for sole parental responsibility in the Father’s favour (but who is nonetheless to keep the Mother informed of relevant decisions regarding major, long-term issues for X). And in the light of such an Order, no consideration of s.65DAA arises.
Before concluding these reasons, I wish to do two things. First, I simply repeat the summary of the basal evidentiary reasons why, in my view, it is in X’s best interests that he now live with his Father and spend regular time with his Mother, thus:
(a) Dr R’s evidence, which was to the effect that if there was to be a change in residence, in his view, X would ultimately come to accept that change especially since he was considered to be a resilient child, that the Father was a capable and caring parent who would support the child’s relationship with the Mother;
(b) the Mother’s intransigent evidence and in particular her lack of insight into the importance of the child’s relationship with his Father, and that (in my view) she would not facilitate that Father-son relationship;
(c) the Mother’s inability and refusal to accept the evidence of the Family Consultant, and similarly the evidence of Dr R that the child’s time with the Father did not need to be supervised because there were no relevant risks in relation to that time;
(d) the Mother’s inability and refusal to accept Dr R’s evidence that the Father did not suffer from any mental health condition;
(e) Dr R’s unchallenged evidence that (i) the Mother and the child were in a relationship that was characterised by a “dynamic of dependency” and “intense separation anxiety” (this almost 9 year old boy still sleeps with his Mother), (ii) the Mother has some dependent personality features, (iii) the observations between the Father and the child were all very positive, (iv) the Father is a capable caring parent who will facilitate a relationship between the child and the Mother, and (v) the child’s desire to have a “full family” that included his “Mother, Father, sister and brother.”
(f) the impressive and balanced evidence given by members of the Father’s family; and
(g) the impressive and very persuasive evidence of the Mother’s sister, which was strongly in the Father’s favour and equally strongly against the Mother.
Secondly, it is apposite to conclude these reasons by quoting the comments by the Full Court, from quite some time ago, about the risks of on-going litigation.
In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[15]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[15] In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
Similar comments have, of course, been regularly made by the Full Court many times since, not least in the context of parents seeking to re-litigate parenting matters where final orders have been made – on which more later. Nonetheless, they bear repeating even at this early juncture.
In a somewhat similar vein, Strauss J (again as part of a Full Court, this time comprising Fogarty & Bell JJ – Fogarty J agreeing [at p.296] with Strauss J) in Freeman, said (at Fam LR pp.297 – 298) (emphasis added):[16]
[16] In the Marriage of Freeman (1986) 11 Fam LR 293; (1987) FLC ¶91-857.
The welfare of the children is, in this case, as in others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being. Another important reasons for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 2 August 2016
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