LONCAR & CODY

[2020] FamCA 977

FAMILY COURT OF AUSTRALIA

LONCAR & CODY [2020] FamCA 977

FAMILY LAW – CHILDREN – Undefended parenting – Where the respondent mother has discontinued her application for final orders – Where the father has not complied with trial directions and did not attend on the date listed for undefended hearing – Where the Independent Children’s Lawyer (“ICL”) sought orders that the father have sole parental responsibility for the child, that he lives with him and spends time with the mother as agreed between the parties – Where risks of physical and psychological harm in the mother’s care – Orders made largely as proposed by the ICL.   

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA

Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Loncar

RESPONDENT: Ms Cody

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2880 of 2010

DATE DELIVERED: 20 November 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 22 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: No Appearance

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

Orders

1. That all previous parenting orders in relation to the child X (“the child”) born … 2008 shall be and are hereby discharged.

2. The child shall live with his father.

3. The father shall have sole parental responsibility for the child.

4. The child shall spend time with his mother as agreed between the parties subject to the parties, in reaching such agreement, giving consideration to the child’s expressed wishes.

5. The child shall have liberal reasonable telephone, facetime and other electronic communication with his mother subject to his wishes and for this purpose, the father shall ensure that the child is provided with the mother’s current contact details.

6. The mother shall be at liberty to provide to the child gifts and cards including but not limited to for his birthday and Christmas and other such special occasions, with the father to promptly provide such items to the child upon receipt.

7. That the parents shall be restrained from:

   (a)       Denigrating one another in the presence or hearing of the child;

   (b)       Utilising any form of physical discipline in relation to the child;

   (c)       Using or being under the influence of any illicit substance in the child’s presence; and

   (d)       Consuming alcohol such that their blood alcohol concentration would exceed the legal limit to drive whilst in the child’s presence.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2880  of 2010

Mr Loncar

Applicant

And

Ms Cody

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long-term parenting arrangements for the parties’ only child, a boy aged 12 (“the child”).

2. Final parenting orders were previously made with the consent of the parties in August 2010 providing that the parties share parental responsibility for the child, that child live with the mother and spend substantial and significant time with the father. This arrangement continued, albeit with ongoing issues between the parties, until September 2016 when the father unilaterally retained the child in his care and withheld the child from spending time with the mother due to significant concerns for the child’s safety in her care. The father then commenced proceedings in October 2016 seeking orders that he hold sole parental responsibility for the child, that the child live with him and spend no time with the mother.

3. The mother who was initially engaged in the proceedings filed a Notice of Discontinuance on 17 January 2020 and thereafter ceased participating in the proceedings. Although the father did not formally withdraw from the proceedings, he failed to comply with directions for the filing of trial documents made on two occasions and also failed to attend at the final hearing (though provided an explanation of sorts for his absence to the Independent Children’s Lawyer (“ICL”) appointed in the proceedings) which was conveyed to the Court.

4. At the hearing and in the absence of the parties, the ICL pressed for final orders as she proposed. The ICL was concerned that the dismissal of the proceedings (which had been foreshadowed at the previous court event if the father failed to comply with trial directions) could lead to further litigation which she considered would be detrimental to the child. Although the ICL accepted that there is still a real possibility that the parents will not abide by court orders if made, she considered that orders would at least provide a framework to guide the parties.

5. The ICL proposes that the father have sole parental responsibility for the child (with a requirement that he notify the mother in writing within seven days of any decision made in exercise of parental responsibility), that the child live with him and spend time with the mother as agreed between the parties with the parties to give consideration to the child’s expressed wishes in reaching such agreement.  The ICL also proposes quite detailed orders in the event that the parties were not able to reach agreement about the child’s time with the mother which would see them engage a therapist or the child’s time with the mother taking place at a contact centre. The ICL also proposes orders that the mother have liberal reasonable telephone and electronic communication with the child and that she be at liberty to provide the child with gifts and cards on special occasions.

6. The ICL also pressed for orders to be made restraining the parties from denigrating one another in the presence or hearing of the child, utilising any form of physical discipline in relation to the child, using or being under the influence of any illicit substance whilst in the child’s presence and consuming alcohol such that their blood alcohol concentration would exceed their legal limit to drive whilst in the child’s presence.

7. The question for me to determine is whether it is proper to make orders as proposed or dismiss the application having regard to the best interests of the child being the paramount consideration in determining the dispute.

Background

1. The mother who is 41 and the father who is 38 began living together in August 2007. Their only child was born in 2008.

2. The parties separated in January 2010 when the child was just under two.

3. After separation the child lived with the mother and spent time with the father on an infrequent basis.

4. In May 2010 the father filed an Initiating Application seeking various orders including for an equal time arrangement and then in August 2010 final parenting orders were made with the parties’ consent that they have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father two out of every three weekends on a three week cycle.

5. In … 2013 the mother gave birth to a child of a subsequent relationship (“the child’s maternal half-brother”).

6. The father deposes that following separation and while the consent orders were operative the child made a number of disclosures which he considered to be allegations of abuse and neglect in the mother’s care. A significant incident disclosed by the child to the father occurred in February 2014 which the father reported to police. The police made an application for an Apprehended Domestic Violence Order (“ADVO”) for the child’s protection and the Grounds for Application include the following details of the incident:

   About 7.00pm on Friday 28 February 2014 the [mother] dropped the [child] off in [the father’s] care. Upon seeing the [child], [the father] observed a small 1 centimetre cut just above his left eye. When asked, the [child] told [the father] “Nothing. I’m not supposed to talk about it”. When further asked, the [child] told [the father] “Mummy said I’m not allowed”. [The father] asked if he would like to talk in private, to which the [child] agreed where he disclosed “Mummy threw a phone at me because I wokeded my brother up”. After further questioning [the child] stated to [the father] “It was with the home phone. She was very angry. Please don’t tell Mummy I’ve told you and I’m also not allowed to tell [the father’s wife]”…

   …

   About 10.00 am on Saturday 1 March 2014 [the father], [the father’s wife] and  the [child] attended…Medical Centre and saw [name of doctor] where the [child] openly disclosed the [mother] threw a phone at him which caused the cut. [Name of doctor] stated the [child] had a fresh healed cut to above his eye and contacted [the Department]…

   About 12.30pm on Sunday 2 March 2014, police attended [the father’s address]…spoke to the [child] (with [the father’s] permission) where he disclosed “I used to live in Sydney but my father ruined my house and broke my mums heart”, “My mum threw a phone at me because I wokeded up my brother…” When asked if it hurt, the [child] said “yes” and when asked if  Mummy took him to a doctor the [child] replied “I forgot”…

   Police observed a small laceration above the [child’s] left eye

7. On 3 March 2014 a Provisional ADVO was issued for the child’s protection restraining the mother from assaulting, molesting, harassing or threatening the child, engaging in conduct that intimidates the child or stalking the child.

8. In May 2016 the father’s current wife (“the father’s wife”) gave birth to a child of their relationship.

9. In September 2016 the father retained the child in his care and unilaterally ceased the child’s time with the mother (who was at that time the primary carer pursuant to the court orders) due to concerns for the child’s safety. The cause of the father’s concern as set out in his affidavit is a matter to which I will return. The child has remained living with the father since this time.

10. On 21 October 2016 the father filed an Initiating Application in this Court seeking orders that the child live with him, that he have sole parental responsibility for the child and that the child spend no time with the mother.

11. On 9 March 2017 the parties met with a family consultant for the purposes of the Child Responsive Program. The contents of the family consultant’s Memorandum to Court (“the Memorandum”) dated 10 March 2017 is a matter to which I will return later in these Reasons. It suffices to say that the family consultant considered the child’s presentation at the interview to be highly concerning and recommended that the child’s relationship with his mother be managed therapeutically. The family consultant expressed the view that the child should not spend any interim time with the mother without therapeutic support as she was concerned that any time the child spent with the mother that was not in a therapeutic setting may result in conflict and/or a behavioural incident which may be harmful to the child.

12. On 22 August 2017 with the consent of the parties orders were made that the parties participate in family therapy and that they ensure the child’s participation as recommended by the family therapist. Orders were also made with the consent of the parties restraining them from making critical or derogatory remarks about the other in the presence or within hearing of the child and requiring that they do all things necessary to ensure that no other person does so, and restraining them from discussing the proceedings with the child.

13. On 20 March 2018 orders were made for the parties to participate in court ordered mediation facilitated by the ICL.

14. It would appear that family therapy did not take place as previously ordered as on 19 September 2018 orders were made with the consent of the parties that they engage in family therapy. This therapy was to address parental communication and to support the parents and child in relation to spending time with the mother.

15. On 29 January 2019 orders were made with the consent of the parties that the family attend upon a single expert psychiatrist for assessment and expert opinion. The expert’s Report was then released by the Court to the parties in June 2019 and further orders for the parties to attend mediation facilitated by the ICL.

16. The parties were unable to reach agreement through mediation and then in January 2020 the mother filed a Notice of Discontinuance, withdrawing her application for parenting orders.  

17. As the father continued to seek parenting orders, directions were made that the matter proceed to undefended hearing.

18. On the date fixed for final hearing, the father had not filed a consolidated affidavit in accordance with trial directions. The undefended hearing was adjourned and a notation made that the father was informed if he did not comply with the further directions the matter may be dismissed on the adjourned date.

19. On 22 July 2020 the proceedings were listed for final undefended hearing a second time. There was no appearance by the father on this date and he also failed to comply with trial directions. The ICL relied upon affidavits previously filed by the father in seeking final orders.

The father’s allegations of the mother’s violence and neglect

1. In an affidavit filed earlier in the proceedings the father deposes to the child reporting a number of incidents which the father considered to be disclosures of family violence or neglect, some of which will be canvassed in the discussion of the contents of the Memorandum.

2. The father alleges that in May 2010 the mother “bit [the child] deeply”. He deposes that the mother justified this behaviour by saying that the child, who was 18 months old at the time, had bitten her and she had to teach him a lesson that biting people was wrong and causes hurt so she bit him back. The expert addressed this allegation made by the father and commented that he was not aware of other evidence to support it.

3. In the course of the proceedings the mother has not disputed that in February 2014 she threw a home phone at the child causing an injury above his left eye. The nature of this incident will be returned to when considering the expert evidence.

4. In late 2014 the father reported to the Department formerly known as Family and Community Services (“the Department”) that he had observed the child to be “zoned out” and “very anxious” when he drove the child to the mother’s home at the conclusion of the child’s time with him. He reported having asked the child why he was so anxious to which the child responded that the mother was going to ask him “heaps of questions” when he got home and that if she found out the child had a good time with the father she would make him take off his clothes and lay on a bed while she smacked him with a wooden spoon. The father also reported that the child disclosed the mother had told him to be nasty to his step mum (the father’s wife). The father deposes that the Department “chose not to intervene”.

5. The father deposes that (at an unspecified time) he “became aware” that the mother “regularly places [the child] in a corner at her house and kicks him wearing heavy boots” and that the child was whipped using a stockman’s leather whip and regularly hit with a wooden spoon.

6. The father also deposes that the mother threatened the child with further violence if he disclosed any of the mother’s “private business” including the violence perpetrated towards him.

7. The father deposes in an affidavit filed earlier in the proceedings that on 9 September 2016 the child refused to go home from school and demanded that police be contacted. According to this affidavit “the school subsequently became aware of the violence that was perpetrated against [the child] and noticed significant bruising on [the child]”. The father says that the school reported the violence to the “child welfare authority” who he understands then attended the school and interviewed the child and the mother. The father asserts that the child was then placed in the care of a friend of the mother and that he was not “made aware” of the incident at the time.

8. According to the father’s affidavit the school notified him three days later of what had happened and he then spoke to a caseworker from the Department. He deposes to the following conversation between himself and the caseworker:

   [Caseworker]: We are currently conducting an investigation and [the child] has been returned to the care of [the mother] for the time being after spending a night with [the mother’s] friend.

   [The father]: Why was I not contacted to collect [the child]. Why has [the child] been returned to [the mother’s] care given the disclosure of violence?

   [Caseworker]: [The mother] told us that you were not involved in [the child’s] life and that you would not be willing to collect him. [The child] has been returned to [the mother’s] care because [the child] advised that he was happy to do so after having a private conversation with [the mother]. Would you be willing to have [the child] in your care?

   [The father]: Absolutely, I have been fighting for this for a long time.

9. The father asserts that on 16 September 2016 the child spent time with him in accordance with the court orders and during this time reported that he did not want to return to the mother as he was scared of her hurting him and that he wanted to live with the father. The father then did not facilitate the child’s return to the mother and the child has lived with him since this date.

10. The father deposes that when he asked the child why he was severely punished, the child responded that he “did nothing at all” and that he was in his room getting changed when the mother came in and “started hitting me with a wooden spoon”. The child allegedly then went on to say that “the bruises were very bad earlier in the week but have now started to look better”. The father took photos of the bruises he observed which he annexed to his affidavit filed early in the proceedings.

11. The father deposes that on 11 October 2016 the child participated in a phone interview with a caseworker from the Department. The father asserts that following this interview the caseworker informed him that the child is very angry towards the mother, does not wish to return to her care and that the father should not facilitate time between the mother and child until the child requests to spend time with her. No notes or record of this conversation have been tendered from documents produced on subpoena by the Department.

12. On 9 November 2016 the father emailed a caseworker from the Department as follows:

    I needed to draw your attention to something very important regarding [the child’s] situation. He has confided to both my wife… and I that he inflicted the bruises in attached photos (from early September) upon himself and blamed this on his mother in order to escape living with her. He was worried that he would not be believed, be made to stay with her and was scared and tired of her abuse. He said that he felt that he had to do this so the Police and I could have visible proof of her abuse “and lock her in jail so she can’t hurt anyone else ever again”…

13. The father filed a further affidavit on 28 November 2016  in which he deposed:

    3. I refer to paragraph 44 of my previous affidavit where I annex photographs of [the child’s] bruises taken when [the child] came into my care. At the time of swearing and filing my previous affidavit, it was my understanding that the respondent [mother] inflicted those bruises on [the child]. [The child] had confirmed this on many occasions to me, the Police, his school and the FACs caseworker.

    4.On 6 November 2016, [the child] and I had the following conversation:

    [The child]: “Dad those bruises I showed you when you picked me up from mum’s house I did them myself.”

    [The father]: “Why did you lie about this?”

    [The child]: I was worried they would not believe me, and scared they would send me back to live with her and get hurt. So the police would see the bruises and lock her in jail so she cant hurt anyone else ever again.”

    [The father]: “[Name of child] you should not lie and definitely not about anything like this. We need to tell the truth about this.”

    [The child]: “Please don’t tell anyone about this, it is really embarrassing for me and they will send me back to live with my mum. We can keep it a secret.”

1. Otherwise the father deposes that at an unidentified time the child disclosed that the mother would not help the child get ready for school or make breakfast or lunch for the child and that he had often gone to school without food.  He also asserts that the child told him that the mother would make him walk to get pizza by himself when she did not feel like cooking.

2. The father also complains that the mother allowed the child to watch MA15+ movies from a young age which he understood to include violent and sexualized content.

The Child Responsive Program Memorandum

1. At the time of the Child Responsive Program the child was nine years old. The child presented to the family consultant as “highly agitated”, expressed his frustration at having to wait for the family consultant, challenged the family consultant’s questions and expressed “significant anger” throughout the interview, largely directed at the mother. The family consultant observed that the child “presented as defiant and argumentative at times” and tried to insist that the family consultant provide him with information about what the mother had said about him during her interview.

2. The child told the family consultant that he started living with the father because the mother had been “abusing” him which he explained to mean that she kicked him, threw a telephone at him and lied about the father to him. He also later said that the mother had smacked him with a wooden spoon.

3. The child reported to the family consultant that he had claimed bruises on his arms were caused by the mother because he wanted to live with the father but that they were actually self-inflicted which he had admitted to later because he knew it was wrong not to tell the truth.

4. The child denied that there was anything good about the mother but said that he missed her a “tiny bit” because “she’s [his] mother”.

5. The child asked the family consultant numerous times whether the mother had claimed to the family consultant that he had autism, which he explained meant that he was “crazy”. The child told the family consultant that he had ADHD, which he explained meant that he was hyperactive.

6. The child told the family consultant that he wanted to spend time with the mother once per month for not more than a “couple of hours” but wanted the father, the father’s wife or the paternal grandfather to be present.

7. The child told the family consultant that he did not want his maternal half-brother to turn out like him, and explained that he was “miserable and rude” and thought that the maternal half-brother should not be living with the mother.

8. When asked how his time had been speaking with the mother over the phone, the child gestured a ‘thumbs down’ sign, and explained that he and his mother usually argued over the phone and that the mother had been upset but that she was “faking”. The child told the family consultant that the mother thinks he is stupid and dumb.

9. The father told the family consultant that he had witnessed the child arguing with the mother on the telephone in the past and said that the child’s behaviour could be irritable and agitated when he was talking to the mother. The father said that if the child were to spend time with the mother (supervised by the paternal grandfather) and became angry to the point of a behavioural incident, he did not know if the paternal grandfather would be able to contain and manage the child.

10. The mother told the family consultant that she considered the child may have autism and that his doctor was of the same view. She also raised concern about the father’s attitude to the child’s ADHD, and claimed that the father had described the child’s condition as “mild”. The father indicated that the child was concerned about autism as the mother had told him he had it in the past. The father told the family consultant that the child’s paediatrician denied any concerns regarding autism and that a paediatric review the month prior only maintained his initial diagnosis of ADHD.

11. The father told the family consultant that during his relationship with the mother she was physically violent towards him, including that she had punched him, broken his nose, pushed him and thrown things at him. He reported that this had resulted in police attending their residence. The mother denied perpetrating any violence towards the father during the relationship and asserted that there had been occasions where the father had tried to strangle her, that the father had punched holes in walls trying to get to her and that there were many occasions where she had to lock him out of the house or sleep in her car. The child also said that the mother had told him that the father had tried to choke her, but he said he did not believe this to be the case.

12. The father reported to the family consultant that the child had been exposed to violence during the relationship and following separation, and that at one changeover police attended when the mother physically assaulted him and his wife in the presence of the child.

13. The father told the family consultant of the incident which resulted in an ADVO being issued for the child’s protection and asserted that the child had sustained other injuries over the years caused by the mother as she had thrown items at the child, kicked him and hit him with kitchen utensils.

14. The mother initially denied having caused the child any injuries, but later confirmed that she had injured the child’s eye on one occasion when she threw a phone at him, had kicked him on another occasion and had hit him with a wooden spoon “a couple of times”.

15. Both parties conceded that they previously used marijuana and the father told the family consultant he had concerns that the mother still used marijuana as well as drinking alcohol to excess. The mother also alleged that the father used to deal drugs.

16. The mother told the family consultant that she had been diagnosed with depression and post-traumatic stress disorder. The mother also asserted that the father had anxiety.

17. The family consultant opined:

    [The child’s] presentation was highly concerning. It may be that his attitude towards [the mother] is a product of his experiences of her. It is recommended that this be managed therapeutically, rather than [the child] using any spends time arrangements as an opportunity to share his feelings with [the mother], as this may result in conflict and/or a behavioural incident that may be harmful towards [the child]. It would appear that [the mother] would be unlikely to be able to effectively manage [the child’s] anger in an effective way…It is not recommended that any interim time occur without significant therapeutic support.

18. In relation to the mother’s initial denials of injuring the child but later concession to having assaulted him on numerous occasions, the family consultant expressed concern about the mother’s “level of insight and reflective parental functioning”. The family consultant considered that it was possible that the mother continues to experience mental health difficulties or personality dysfunction.

19. The family consultant expressed the view, given the assertions by both parties, that it would be “highly detrimental” to the child if he were to witness conflict between the parties.

20. The family consultant was of the view that the child and mother should engage in family therapy and that they should not spend time together until sufficient therapeutic support can be provided.

The Expert Report

1. In May 2019 the mother and child attended upon an expert psychiatrist for the preparation of an Expert Report. The expert did not interview the father and it is recorded in the Expert Report that this was due to “financial restrictions” which “prevented the father from being able to partake in the interview process” and finance a full report and comprehensive assessment. Therefore the Expert Report focusses predominantly on the mother’s mental health, the mother’s relationship with the child and the child’s wellbeing.

2. The expert is highly qualified and experienced. He is a specialised child, family and adult psychiatrist in clinical and forensic capacities.  In preparing his report the expert had access to various documents produced on subpoena from police, the Department, the child’s paediatrician, the child’s school and medical professionals as well as the Memorandum and affidavits and other documents filed by the parties in the proceedings.

3. The expert derives a history of the mother’s mental health issues and misuse of illicit substances from a “Victims Compensation Report…dated 29/6/06”. The expert records:

   There were symptoms of depression and distress with eating disorder, and alcohol and cannabis use from the age of 15. [The mother] left home and enrolled in year 11 in… and then began to work as a prostitute for about 3 months. It was noted that she also later did work as a stripper in… For about 10 years she was reliant on drug use especially cannabis to numb her emotional pain. As well as amphetamines and occasional LSD use, ecstasy and heroin. Apart from the school counsellor she hadn’t had any psychological treatment until she met with a sexual assault therapist…in March 2005.

4. The mother explained during her interview with the expert that she was the victim of ongoing sexual abuse by a family friend between the ages of nine to 14. The mother was later diagnosed with post-traumatic stress disorder and experienced major depression for which she used marijuana as a way of dulling her emotions. The expert opined that the mother’s mental health problems were a combination of chronic post-traumatic stress disorder from her teenage years which were combined with a persistent depressive disorder or chronic low grade depression that has affected her overall functioning. Her current treatment includes medication and ongoing psychological treatment.

5. The expert also reviewed the child’s school records in preparation for the report and recorded the following:

   The teacher in kindergarten noted that [the child] was having difficulty suppressing impulses. He was running away from school. He was having difficulty coping with changes and transitions. There were outbursts of aggression and violence towards staff and he had difficulty calming down. He needed to miss a lot of class time because of his behavioural problems and his anxiety.

   The school counsellor…identified that there was a problem at the beginning of 2013 because of concentration problems, tantrums, noncompliance and outbursts of anger.

   Diagnosis: There was a previous diagnosis of ADHD. There was also on this occasion a diagnosis of post-traumatic stress disorder. He’s been involved in a serious car accident. He was demonstrating significant anxiety and anger outbursts.

6. Records reviewed by the expert produced by the Department contained the following record:

   …It was noted that [the mother] and [the father] were in a conflictual relationship with some documented domestic violence incidents between 2008 and 2010. There were 5 reports to Community Services documenting concerns of child exposure to violence and domestic violence between the parents. After the separation there were further reports of concern of [the child’s] welfare in the mother’s care, general mental health concerns. [The child] suffered a laceration to his head when his mother threw a mobile phone at him in frustration. She reported herself to the school.

7. Material reviewed by the expert prepared by a clinical psychologist contains the following information in relation to the child’s behavioural issues:

   … clinical psychologist report dated 17/10/13 noted significant behavioural problems with ADHD.

   The behavioural problems in 2013 [the child] required 1 to 1 supervision.

   On 14/2/13: [The child] hit a year 6 student who was quite distressed.

   18/2/13: [The child] was angry and kicking furniture. There were no social interactions with other children observed.

   There was a description of an incident undated in a report from the school counsellor. [The mother] had approached the author to find out where [the child] was. “[The mother] said she was very angry at him. She said he had lied to me and she had hoped he would tell me the truth but she knew that he wouldn’t…She then said that his bag was in lines, but he wasn’t. So demanded to know where he was. She was talking very fast, mentioning multiple times that he was lying to me. She said she had just had enough of him and she was sick to death of him. Then she said he had two bruises on his arms and she said, get him to tell you how that happened, he’ll probably lie and say it was me, but he did it to himself.”… “She was speaking really quickly and appeared to be on something like speed or ice.”

8. Records produced on subpoena by the Department and reviewed by the expert contained the following entries:

   …entry dated 15/11/15 child protection case worker and … made a home visit to meet [the mother] and her son [the child’s maternal half-brother]: [the mother] indicated she was happy to engage with the Brighter Futures program. “[The mother] stated that she felt she could no longer take on the full responsibility for [the child] as it has been very difficult at times and now it was time for [the father] to step-up and take responsibility. [The mother] did not accept that [the father] would follow through with meeting [the child’s] needs in particular his counselling needs and his medication.

   In the home visit…: the natural mother said, “As sad as it sounds to say, I feel as though a weight has been lifted off me in a way. It’s like a peace has descended on the house. I was so exhausted and it was all about [the child]- he needs so much attention and I also worried about how that might be affecting [the child’s maternal half-brother].”

9. During the mother’s interview with the expert she reported the same types of incidents of violence allegedly perpetrated by the father as she had reported to the family consultant, including the strangulation of which she said: “He put his hand around my throat. I went unconscious and I couldn’t see”. The mother gave details of another incident which she says occurred when the father was returning the child to her care. The mother says that the father “ripped [the child] out of my arms” which caused the child distress and resulted in police attendance.

10. The mother also described an incident which occurred when the father turned around with the child in his arms and when the mother raised her arms to collect the child she “accidentally collected [the father] in the nose”. She denied any intent to harm the father.

11. The mother denied any substance misuse from the age of 18.

12. Although the expert did not interview the father, the expert did observe him with the child in the waiting area and commented that the child appeared happy and calm sitting with the father. The expert also observed that the father was cooperative and waited quietly whilst the interviews were conducted.

13. The child was interviewed individually and with the mother. The expert opined that the child “showed a lot of emotion and distress” throughout his interview with the mother but that during his individual interview the child was controlled.

14. During his individual interview the child indicated that he had spent some time with the mother over the Christmas period (December 2018). He described two of the weeks he spent with her as good and the other week as bad. The child said that during the last week the mother spoke negatively of the father but was unable to say precisely what negative things she had said.

15. In response to questioning about his wishes, the child told the expert that “It’s best for mum to go away” and said that his worst worry would be “to go back and live with her”. The child answered that his main wish was “that mum could be a better person. She can’t change. She’s tried multiple times but it’s disappointing”.

16. In response to being asked about any traumatic experiences, the child gave details of an incident which he said “I was dumped on the side of the road when I was 7 or 9. She came back 15 minutes later. I was on the side of the road. I went to the top of the street. She came back 15 minutes to get me. I don’t know why. She’s a liar”.

17. The child variously stated that he did not want to see the mother but then also said he would see her if it was supervised by someone. The child indicated that he likes to see his maternal half-brother and said “but I can’t because he’s with my mum”. He also indicated that he has a good relationship with his paternal grandparents but that he doesn’t have a relationship with his maternal grandparents.

18. During his interview with the mother, the child accused the mother of various incidents of abuse and neglect and repeatedly claimed that she had blamed the father for various incidents that had occurred in the past. At the end of the interview the mother asked if she could hold the child. The expert observed that the child was compliant but looked awkward and not expressive, yet the expert gained the impression that the child did enjoy that his mother held him.  

19. The mother apologised to the child (after the child raised the subject matter) for the incident during which she acknowledges she threw a phone at the child. The mother reported that she had taken the child to the doctor after and had “belted [her]self up” over what she had done. She also explained to the child that she had thrown the phone at the child to try and stop him from jumping on the maternal half-brother who was a baby at the time but also acknowledged that it was the wrong thing to do.

20. As to the child’s relationship with the mother, the expert opined:

    Overall however I believe, that despite the attachment difficulties, there is a loving relationship with the mother and son and I believe it needs to some (sic) professional assistance to help their relationship. An additional complicating factor has been that there has been some pressure on [the child] to align with the father as openly he repeated that he was siding with his father several times in his interviews using adult statements about the mother taking responsibility, taking the blame, admitting fault.

21. The expert opined:

    Unless there is other information to confirm that there was any physical abuse, apart from the mobile phone incident [the child] did report that he may have been hit with a wooden spoon and may have had some choking. However, it’s not clear to me that physical abuse was the significant issue between [the mother] and [the father]. The major issue was the insecure attachment as [the mother] was struggling to cope with the load of the two children.

22. The expert opined:

    My formulation is that [the child’s] problems are largely in relation to an attachment disorder resulting in trauma and high levels of anxiety from his disrupted relationship with his mother. [The child] may also have ADHD. In order to treat an attachment disorder he would benefit from a stable attachment with an attachment figure such as his father and have significant security in his home residence and school as well as the ability to have some healthy intermittent contact with his mother.

23. As to the mother’s parenting capacity, the expert opined:

    I believe that [the mother] is quite capable of providing for the biological needs of her children. I believe that she’s intelligent and has good insight and is able to care physically for her children. I am not aware of there being any particular problems…

24. The expert was not able to form a clear view about the issue of physical abuse.

25. The expert expressed some concerns that the father may have taken advantage of the situation and have influenced the child to think negativity of the mother. The expert considered that it would be helpful for the father to undergo some therapy to limit his negativity towards the mother and reduce any adverse influence on the child of negativity towards the mother. The expert opined that some of the child’s statements about being on the father’s side, believing his father, wanting his mother to take responsibility, and considering the mother at fault suggested that there had been some family discussions that have influenced the child’s opinion on his mother as being the person at fault and her needing to admit fault which he considered to be unhelpful for a child having such adult style opinions and the expert considered that the father may need to take more significant steps to relieve the child of this feeling of responsibility.

1. The expert concluded:

   My view was that it was an attachment disorder where there was a significant failure of the mother child relationship. However, this doesn’t mean that there isn’t still a significant potential relationship on a substantial basis that could occur in the future. Therefore I would recommend that some contact could occur… I would suggest that there should be some initial supervised contact. Therefore, I would suggest that there be 3 months of monthly supervised contact either at a contact centre or with a trusted adult for 2 hours. Presuming, that this is successful I would then recommend unsupervised contact increasing to 4 hours for 3 months and then increases to day contact and eventually weekend contact once a month. I believe should be adequate to maintain and not overburden [the mother] and also allow [the child] to have a relationship with his brother.

2. The expert recommended that the mother should have ongoing supportive therapy, dialectal behavioural therapy and acceptance and commitment therapy to help her with emotional regulation. He also opined that the mother should consider interpersonal therapy to assist her to further deal with some of her early trauma.

3. The expert also recommended that both parents attend appropriate parenting courses and post separation counselling courses.

4. The expert also considered that the father would benefit from therapy to help him focus on how to support the relationship between the child and the mother and maintain a non-blaming positive focus that explains the mother’s difficulties from her mental health problems. The expert continued that it would be important for the father to be aware that the child is likely to continue to have insecure attachment issues that will need to be managed in an ongoing way including the father having a secure attachment approach to his parental management. The expert opined that the father needs to find a way to help the child develop a good relationship with his mother and take a non-blaming approach.

5. The expert was of the view that the child requires ongoing management with a paediatrician who should review his ADHD diagnosis each 12 months as this could manifest into an anxiety disorder. The expert also considered that the child should have ongoing psychological treatment with a clinical psychologist to assist him with his insecure attachment and anger outbursts. The expert was of the view that the mother needs assistance from the child psychologist to develop a more healthy relationship with the child.

6. Although the expert was not tested on his opinions some weight must be given to the same having regard to his experience and expertise.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

Benefit to the child in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act, but the Full Court in McCall & Clark[1] approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] as a relationship which is “important” or “of consequence”.

   [1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

   [2] (2007) Fam LR 518.

2. The orders proposed by the ICL will see the child continue to enjoy a meaningful relationship with the father and will see no change to the child’s living arrangements for the previous four years. Although the father did not comply with trial directions that he file an application setting out his current proposed orders, it is the ICL’s understanding that his position in general terms is that the child spend time with the mother in accordance with his wishes. The ICL’s proposal is that the child spend time with the mother as agreed between the parties who are to give consideration to the child’s wishes. She also proposes alternate orders if the parties cannot reach agreement being that they first seek the recommendation of a therapist (who it seems has been engaged with the family in the past) and in default that the mother spend supervised time with the child for a minimum of two hours each fortnight.

3. The expert considered that the child would benefit from an opportunity to rebuild his relationship with the mother, and considered that despite the attachment issues in the mother-son relationship, there is “significant potential relationship on a substantial basis that could occur in the future”.  The expert recommended that this relationship start with initial supervised contact which could ultimately progress, after some time, to unsupervised and overnight time that would be “adequate to maintain and not overburden [the mother] and also allow [the child] to have a relationship with his brother”.

4. The framework proposed by the ICL aligns with the recommendations of the expert and would enable the child to start rebuilding his relationship with the mother with some structure to this arrangement. However such an arrangement will have little prospect of being implemented as the mother has withdrawn from the proceedings and the father is also now disengaged. In these circumstances it must be taken that the mother does not wish to pursue orders as a means to rebuild her relationship with the child. There is some possibility of this occurring under the ICL’s proposal that the child spend time with her as agreed between the parties.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. There is a need to protect the child from physical violence perpetrated by the mother which arises from the undisputed evidence that she assaulted the child by throwing a phone at him, kicked him and hit him with a wooden spoon. There is insufficient evidence from which I could make a finding about the father’s other allegations of violence or neglect and asserted by the child in the course of the interviews with the family consultant and expert.

2. I consider that the greater risk of harm to the child in these proceedings is psychological harm that could arise from the child spending time with the mother in circumstances in which he may feel unprotected or without some safeguards in light of the steps the child has taken to avoid spending time with the mother in the past. The expert considered that it was “quite extraordinary for a child of this young age of 8 to cause bruising to demonstrate his distress about being with his mother”. For this reason the need to protect from psychological harm must be given significant weight in determining orders that are in the child’s best interests. 

3. It is also apparent that the parties’ relationship was volatile, with each party asserting that the other perpetrated serious family violence against the other. The expert considered that the child would have been at an age where he would not be able to remember exposure to such violence had it occurred and also considered that it was not clear that physical abuse was the significant issue between the parties. Nonetheless, the history of the parties’ relationship needs to be considered in making orders that will protect the child from exposure to family violence.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

Nature of the child’s relationship with each parent and other significant persons

1. As has been explained earlier in these Reasons the child’s relationship with the mother is extremely fractured.  At the time of the final hearing the child had not spoken to the mother for some months and had not spent any time with her for over a year. Between 2016, when the child began living with the father, and the time of the meetings with the expert in May 2019 there had been very little contact between the mother and child. He had only spent time with the mother on three or four occasions during this period, most recently for a three week period over Christmas 2018, which according to the child was not entirely positive.

2. The child who is now 12 years old has expressed a clear desire that he does not want to spend time with the mother. Nonetheless the expert considered that the child “was clearly distressed, hurting and wanting a close relationship with his mother which he admitted but fearful that he will be hurt and let down by his mother”.

3. It was apparent to the expert that the child has developed an alignment with his father. The expert opined that the child is “aligned with his father; however, the alignment of children can occur gradually and become more extreme”.

4. The expert said:

   It’s possible the alignment could be due to misinformation and manipulation by the father. It’s possible that the alignment could be due to the fact that he was mismanaged and poorly cared for emotionally and didn’t have his needs met adequately by his mother which caused him to become distance from her (sic). The lack of contact with his mother may have also contributed to feeling more aligned with the father. He’s distressed and grasping for understanding as to why he’s distressed may lead him to become more aligned with his father...

   In addition, court proceedings and conflict between parents can lead to children needing to feel more aligned with one parent than the other. I believe that his stated wishes are not to see his mother and not be exposed to her, however, I believe his true wishes or his true views are that he could have a close relationship with his mother if she could improve and admit, as he stated, take responsibility and admit her problems.

5. The ICL submits that given the child’s age and high level of conflict between the child and mother, the child’s views should be given weight, but also acknowledges that the child has behavioural issues and has not had the benefit of a predictable and structured relationship with his mother for some time.

6. The expert considered that the child does want a relationship with his mother but is fearful about having his hopes raised and then being disappointed. For this reason the expert concluded that while the child’s stated wishes were to not have a great deal of contact with the mother, he believed that the child’s true wishes are to have a close loving relationship with her and his younger brother and for this to occur in a safe manner, as he said “supervised or something like that”.

7. On the whole the expert considered that there is a strong relationship between the child and his mother and believed that the child cared about his mother based on his clearly stated belief that he would like things to be better between the two. The expert also considered that the mother desperately wants a relationship with the child, but this must be called into question given her withdrawal from the proceedings.

8. The child has expressed a desire to maintain a close relationship with the maternal half-brother who lives in the mother’s household, but it is difficult to structure orders to support this relationship in these circumstances.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. The mother disengaged in the proceedings and in doing so can be taken to have forfeited her opportunity to participate in the child’s life. On the limited evidence available, it would also appear that the mother has failed to engage in decision making for the child for some time and previously conceded in the proceedings that she struggled with the child’s behaviour while the child was living with her.

2. The father has generally been the more responsible parent in recent times though his disengagement from the proceedings is concerning.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. There is no evidence available as to whether the mother has provided the father with any financial support for the child since the child moved to live with the father in 2016.

Likely effect of change in the child’s circumstances

1. The orders sought by the ICL will see the maintenance of the status quo for the child such that he will continue to live with the father as he has done for the last four years.

Practical difficulty and expense involved in spending time with and communicating with the other parent

1. Although the parties live some distance apart this has not been an impediment to the child spending time with the mother in the past and is not likely to be an impediment in the future, if agreement can be reached between the parties for that to occur.

Capacity of each parent and any other person to provide for the child’s needs

Maturity, sex, lifestyle and background of the child and either parent

1. The child has significant emotional needs which arise from his behavioural issues associated with his diagnosis of ADHD. It also consider it likely (attaching weight to the views of the expert) that the child’s high emotional needs relate to an attachment disorder from his disrupted relationship with his mother. The child has been documented as having “significant anxiety and anger outbursts” and school records considered by the expert record that the child as having had “difficulty suppressing impulses”, “difficulty coping with changes and transitions”, “outbursts of aggression and violence towards staff” and that he has had to miss a lot of class time because of his behavioural problems and his anxiety. It is clear that the needs of the child are significant in these proceedings and as such the parents’ capacity to provide for the child’s needs is a weighty consideration.

2. On the father’s evidence, which is uncontested given the mother’s disengagement, the mother failed to provide for the child’s needs in a number of ways, which included providing inadequate support in the child’s school preparation, allowing the child to travel unsupervised to purchase food at a young age and perpetrating excessive physical discipline.

3. The objective material reviewed by the expert in the proceedings records the mother having previously acknowledged to a caseworker from the Department her difficulties in caring for the child and her feeling that she “could no longer take on the full responsibility for the child”. Of particular concern in relation to the mother’s capacity is that despite her documented concern that the father might not meet all of the child’s needs (in particular n relation to counselling and medication) she still felt as if a “weight [had] been lifted” in the child spending it seems more significant time in the father’s care (towards the end of 2015).

4. The objective evidence considered by the expert and the mother’s own admissions indicate that she has had a traumatic past which has impacted on her mental health and her approach to parenting and ability to care for the child. The expert was of the view that the mother did not have a great deal of insight into the fact that she had been unable to properly care for the child except on the occasion that she conceded that caring for the child became too much for her. Even then the expert considered that the mother looked for diagnosis such as ADHD or autism to explain the difficulties she had in caring for the child.

5. On the limited evidence available it seems that there are significant shortcomings in the mother’s parenting capacity though I also attach weight to the expert’s view that the mother “cared a great deal for [the child] and with help would be able to provide some input into [the child’s] life”.

6. While it appears on the evidence available that the father is capable of providing for the child’s day to day needs, as opined by the expert, there is some question as to his capacity to facilitate a relationship with the mother which raises some concern about his capacity to provide for the emotional needs of the child. I am also somewhat concerned about his disengagement from these proceedings which raises questions about his capacity to recognise the importance of having orders to support the child’s parenting arrangements.

Family violence

1. As discussed earlier, an ADVO was previously in place for the child’s protection from the mother but this has now expired.

2. The mother and father both acknowledged during the proceedings that there was conflict that occurred in the presence of the child during their relationship. The expert opines that given the child was only two when the parties separated, the child was probably too young to have a clear memory of the family violence he was exposed to during the parties’ relationship. The expert opines that although it is unlikely that he would have any clear memory of any violence, this could still have had significant impact on his attachment security.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. This consideration is extremely weighty in these proceedings. It would be preferable to make orders that would not lead to the institution of further proceedings given that the proceedings have been on foot for approximately five years and there have also been earlier parenting proceedings. The child has been through several interviews including with the expert, the Department and a family consultant as well as meetings with the ICL. I accept the ICL’s submission that the child has a higher than usual level of engagement with third party adults due to his ADHD diagnosis and behavioural issues and for this reason it would be in his best interests for the proceedings to be concluded. I am of the view that the orders least likely to the institution of further proceeding are those sought by the ICL given that both parents have disengaged from the proceedings.

Any other relevant fact or circumstance

1. Some of the orders proposed by the ICL such as seeking advice from a therapist and registering with a contact centre would require parental engagement. In disappointing circumstances where neither parent is currently properly engaged in the proceedings, I am not satisfied that the parties would comply with the various alternative orders proposed by the ICL and for this reason I propose only making the order that the child spend time with the mother as agreed between the parties.

Conclusion

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.

3. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for him (subsection 61DA(4)).

4. In this case there are reasonable grounds to believe that the mother has engaged in abuse of the child and for this reason the presumption does not apply.

5. The father deposes in affidavits filed earlier in the proceedings to difficulties he has encountered in exercising parental responsibility with the necessary input of the mother. In particular the father gave an example to the family consultant of the mother in the past having failed to sign necessary documents to facilitate the child enjoying an overseas holiday with the father and his paternal family.

6. As the mother has completely disengaged from the proceedings, and in circumstances where there is a lack of a co-parenting relationship, I am easily satisfied that it would be in the child’s best interest for the father to have sole parental responsibility for him.

7. Having regard to all of the factors in relation to the best interests of the child as discussed I make orders as proposed by the ICL.

8. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 November 2020.

Associate: 

Date:  20 November 2020