LUNA & GOLDBERG

[2019] FCCA 610

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUNA & GOLDBERG [2019] FCCA 610

Catchwords:
FAMILY LAW – Parenting – Father seeking a change of residence for a child aged almost 13 who has not spent time with him for nearly two years – father alleging parental alienation – where parental alienation is not made out and where even if it was the destructive effect on the child of a change of residence would not justify such an order being made – child to live with the mother and spend time with the father in accordance with her wishes – mother to have sole parental responsibility for the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Hearn & Sempers [2017] FCCA 3357

Mazorski & Albright (2007) 37 Fam LR 518

Applicant: MS LUNA

Respondent: MR GOLDBERG

File Number: TVC 292 of 2008

Judgment of: Judge Terry

Hearing dates: 4, 5, 6 & 8 February 2019

Date of Last Submission: 8 December 2018

Delivered at: Newcastle

Orders Pronounced: 21 February 2019

Dates Delivered: 21 & 22 February 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Duane

Solicitors for the Respondent: Turnbull Hill Lawyers

Counsel for the Independent Children’s Lawyer: Mr Rugendyke

Solicitors for the Independent Children’s Lawyer: Denise Clark Solicitor & Advocate

ORDERS

1. All previous orders related to the child [X] born … 2006 (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. In the event that the child expresses a desire to spend time with her father, the mother shall use her best endeavours to encourage and facilitate that time with the father taking place.

5. The father shall be at liberty to send cards, photos and gifts to the child at any time and the mother will ensure that such communications and gifts are delivered to the child and that she be permitted and encouraged to respond to same as appropriate.

6. Each parent is restrained from denigrating the other parent in the presence or hearing of the child nor allowing any other person to do so.

7. The father shall be at liberty to obtain copies of any school reports, photos, newsletters or other information with regard to the child’s education and to speak directly with school staff as to the child’s progress and in this regard the mother shall ensure that the father is fully informed in relation to the child’s school enrolment details.

8. The father shall be restrained from attending the child’s school.

9. The mother shall ensure that the father is kept fully informed at all times of the names of the child’s treating general practitioner as well as any treating medical specialists, any therapists or psychologists and the father shall be at liberty to liaise directly with those treating professionals in relation to the child’s health and welfare.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

TVC 292 of 2008

MS LUNA

Applicant

And

MR GOLDBERG

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves parenting arrangements for [X] who will be 13 in April. She commenced high school about three weeks ago.

3. The father has spent no time with [X] since she ran away from school in March 2017 on a day he was supposed to collect her. He said that he accepted that [X] was saying that she did not want to see him but it was his case that the reason she had rejected him was aligning behaviour by the mother and that there should be a change of residence to ensure that she had a relationship with him as well as with her mother.

4. The orders sought by the father were that [X] live with him and spend regular time with the mother. He also sought an order for equal shared parental responsibility.

5. The mother sought an order that [X] live with her and have no contact with the father. She said that the father’s behaviour had resulted in [X] rejecting him and that she was not willing to force [X] to spend time with him if she did not want to do so.

6. The mother sought an order for sole parental responsibility.

7. At the end of the trial the Independent Children’s Lawyer proposed that the child live with the mother, the mother have sole parental responsibility and the child spend time with the father in accordance with her wishes.

The evidence

1. The evidence in the father’s case was given by the father and the paternal grandmother who lives in Tasmania. The paternal grandmother was in the father’s home when an incident occurred in October 2014 and she principally gave evidence about that incident.

2. The mother was the only witness in her case.

3. A single expert report was prepared by Dr A. I will comment on that report later.

4. I had some concerns about the father’s evidence. He did not adequately deal in his affidavit with important incidents such as the incident in October 2014. He did not admit that he shouted and slammed a door.

5. The father’s evidence about the date of separation did not stack up with the plethora of other evidence in the case including his own. He was also not always a reliable historian.  

6. The father said that he was aware that the mother had made complaints that he was emotionally reactive at times. He said that he did not accept this and he told Dr A that the mother exaggerated and pathologised his behaviour. However he sent the mother an email in early March 2017 which I will refer to later which was a prime example of him being emotionally reactive. It was an example of just the kind of behaviour the mother complained about and the father denied to Dr A he was guilty of.

7. I was concerned with the approach taken by the father at trial in relation to some of the things the mother had done or not done. The mother was cross-examined extensively about the fact that she had not read the letters the father had been sending to [X] as if this was something she should be criticised for. It is interesting to note that Dr A said this in his report:

   At the very least, the father should be able to send cards and letters to [X] and Ms Luna needs to undertake not to intercept or read such material although her compliance with any such undertaking is doubtful.[1]

   [1] Family Report paragraph 117

8. That was in Dr A’s report and yet the mother was subjected to quite stringent criticism in cross-examination because she had not read the letters.  It was as if the mother could not win.

9. The mother was also criticised for going on Facebook at the end of the first day of the trial seeking information about whether [B] employees were subject to alcohol testing. The answers she received were all polite and they all reinforced that [B]’s alcohol testing was rigorous.

10. The mother sought information which is out there in the world now and I cannot understand why she was criticised for seeking information in that way.

11. In summary I have some concerns about the approach taken by the father in running his case and some concerns about his evidence. However I will have to assess the evidence about issues in dispute as they arise. The fact that I have some concerns about the father’s reliability as a witness will have some relevance to the findings I make but it does not automatically determine the findings.

Background

1. The father is 39 and the mother 33. They met in 2004 when the mother was 19 and the father 25. The mother was living in Town C and the father was in the [D] Employer at Town C.

2. In … 2005 the father was posted to Town E and the mother moved there with him.

3. [X] was born on … 2006 and she is the parties’ only child.

4. The parties separated in January 2008 when they were living in Town E. [X] was not yet two and the mother left Town E with [X] and went back to Town C. She returned but left again in February.

5. In due course the father commenced proceedings seeking a recovery order and in mid-2008 an order was made for [X] to live with the father in Town E. That order was carried into effect. The mother remained in Town C and travelled up and down to spend time with the child.

6. There was a dispute about exactly what happened as the year wore on. The mother’s evidence was that in October 2008 the father handed the child to her for eight weeks. She said that he then took the child back but on 31 December 2008 handed her over again and from then on allowed the child to live with the mother.

7. The father did not admit to those incidents and I am not going to try to make a finding about whether they occurred although I have no particular reason to believe the mother would make things like that up.

8. There was no dispute however that in February 2009 final orders were made by consent for the child to live with the mother in Town C and spend time with the father. [X] was then two years and 22 months old and she has lived with the mother in Town C ever since.

9. In 2009 the father obtained a transfer to [F] Employer in Sydney. He alleged that there was some sort of a reconciliation or attempted reconciliation between the parties after he relocated to New South Wales and the story which he convinced Dr A had merit was that over the next few years he and the mother effectively continued their relationship even though they were living in two different locations.

10. The mother disputed that. She said that she lived separately from the father and that he often forced her to go to his house to do things like collect the child.

11. The mother’s version that the parties were separated during this period and that there was no real reconciliation fits much better with the overall evidence than the father’s version.

12. The father alleged that he would think things were going well and then find out the mother was seeing someone else.[2] That is much more consistent with the mother in fact feeling that she was separated from the father and pursuing a separate life. The father’s story that the parties were in some sort of a relationship until 2012 is also not consistent with paragraph 120 of his affidavit where he talks about struggling to have access to [X].

    [2] Father’s affidavit paragraphs 99 & 100

13. The father left his [F] Employer in 2012 and in that year the mother re-partnered with Mr G who is now her husband. She bought a house in Town C and in March 2013 the father moved to Town C and rented a unit near the mother and subsequently bought a house five minutes from her home.

14. There were a number of incidents in 2013 in respect of the father. In July he was arrested for high range PCA. He was subsequently admitted to Town H Hospital for three days for alcohol detoxification. In August he was admitted to Town J Psychiatric Ward for four days.

15. In August the father consented to an ADVO for the mother’s protection. In September he was charged with breaching the ADVO. In November he set up a car in a manner which would have affected his death by carbon monoxide poisoning. A family member called the police and he was prevented from carrying out that plan.

16. However on any view the time between the father and [X] seems to have continued throughout that period notwithstanding all those incidents in the father’s life.

17. In February 2014, as confirmed by school records, [X] went to the school office and asked if she could ring her mother. She said that her Dad was going to pick her up and she was worried he would not bring her home.

18. The mother was contacted and went to the school office and the records make abundantly clear that she did not attempt to stop the father seeing [X]. She said she would try and facilitate time occurring and she did. She also suggested that the [X] be engaged in counselling and had a discussion with the school about that occurring.

19. The father made a written complaint to the school in April 2014 in the context of counselling being organised alleging that the mother was coaching [X] to be negative about the father but there is no evidence to support that allegation.

20. In October 2014 there was an incident when the child was spending time with the father. She was supposed to go home on a particular day and the father wanted her to stay over because his mother was there. It is understandable that he would have wanted that and he rang the mother to try and arrange it but she would not agree.

21. The father became extremely angry. He started shouting at the mother on the phone and after he got off the phone he slammed a door. We know that happened because the paternal grandmother told us about it in the witness box and [X] referred to it in a letter she wrote to the father a little bit later on under the auspices of her psychologist Mr K.

22. The father also had [X] record a message saying that she wanted to stay an extra night.

23. [X] returned home and upon her return home she told the mother the father had threatened to kill the mother and her partner with a knife. The mother promptly ceased time and filed an application seeking to discharge the February 2009 orders and asking the court to make a no time order.

24. Dr A ruminated at length on whether the child had actually come up with that assertion herself or whether she had been coached.

25. There is nothing in the evidence to suggest that [X] was coached to make such a statement and she continued to claim that the father had made that threat when speaking to Dr A in 2018. I will return to that issue later.

26. In March 2015 orders were made for [X] to spend supervised time with the father at … Contact Centre. However upon seeing that there was going to be a delay in that commencing the father organised for Mr L, a private supervisor, to supervise instead and the mother agreed to that occurring.

27. Time supervised by Mr L occurred from March 2015 to August 2016 and during this period [X] was engaged with Mr K for counselling.

28. The mother tendered Mr K’s notes and they are illuminating. I am not certain that Dr A read them. He may or he may not have. If he did, he did not see the things that I saw because the notes suggest that at this stage although [X] expressed some fear of the father arising out of the October 2014 incident and referred to another comment he had made that day about being on tablets to stop him killing himself and said that he was shouting and she was shaking during the incident, she also said that there were times when the father was a nice Dad and she enjoyed spending time with him.

29. I cannot understand how anyone reading that can come to the view that there was alienation going on but I will address that later when I talk about Dr A’s conclusions.

30. Mr K’s notes suggest that at that stage there still foundation there for the child to recover a good relationship with the father and it appears from Mr L’s notes that she mainly enjoyed the supervised visits.

31. [X] did not like some of the things the father was saying to her. She talked to Mr K about that and he suggested that she write a letter to the father and a copy of that letter is attached to the mother’s affidavit. In the letter [X] said that she did not like her father asking her if she wanted to live with him.

32. The father denied receiving the letter. I do not know what to make of that.

33. At trial evidence was given about a couple of disputes that arose about where the visits supervised by Mr L were to occur. I do not consider that significant. For a lengthy period of time the orders were complied with and the child went to the father and it appears from Mr L’s notes that by and large she had a reasonable relationship with him at the visits.

34. I am a little bit concerned about Mr L’s notes. There is some augmentation in the typed notes compared to what is in the handwritten notes but there is largely consistency between the two sets of notes in terms of Mr L saying that the child enjoyed her time with her father and I accept that this was the case.

35. Supervised time could not go on forever and the parties could not reach an agreement about what should happen in the longer term and the matter was listed for trial in August 2016. However the parties settled the matter and it did not have to run to a trial.

36. Orders were made by consent for the father to do a Facing Up or a Taking Responsibility course or another course authorised or under the auspices of Region 1 Psychology and once he completed half of the sessions to commence spending unsupervised time with the child. The orders provided for a continuation of supervised time until he had done half the sessions.

37. Unfortunately the matter ran off the rails almost straight away because the Facing Up and Taking Responsibility courses are both lengthy courses which take 18 weeks to complete. The mother presumed that it would take nine weeks for the father to do half of the course. The father enrolled in a course run by Region 1 Psychology called Keep Calm and Take Responsibility which consisted of 6 sessions and he did half the course in one week and then turned up wanting unsupervised time.

38. I indicated during the hearing that I wished I had inquired more thoroughly into the orders and realised there was a problem before I made them but the father’s legal representatives also bear some responsibility for what happened.

39. The mother was self-represented and it was incumbent on the father’s lawyers and indeed the Independent Children’s Lawyer to make sure that she properly understood what she was consenting to. There was a major difference between the course the father actually did and the two courses that were named in the order which the mother thought he would be doing and to allow the matter to go forward with that kind of confusion was asking for trouble.

40. The mother was also treated somewhat churlishly by the father’s solicitors when she asked for some information about the Region 1 Psychology course. She was brushed off and told the father had done the course and that was all she needed to know.

41. I accept that the mother was genuine in her concern about the length of the course because she wrote to the father’s solicitors about it within a couple of weeks of the orders being made.

42. Because of the dispute about whether the father had complied with the order there was a period when time did not occur between [X] and the father and the father filed a contravention application.

43. However the parties moved past that and [X] began to spend regular unsupervised time with the father. She spent time with him over the Christmas school holidays in accordance with the orders and continued to do so into February 2017.

44. On Friday 3 March 2017 the father went to school to collect [X] and found that she had run away and gone to the mother’s home. He went to the mother’s home and demanded that she make the child available. The mother refused to open the door and given the history of the matter in terms of ADVOs which I will refer to later I cannot blame her for that but she also refused in any way to make [X] available and the father has not spent time with the child since then.

45. One of the complexities in this matter is that it is difficult to put one’s finger on why it was that on that particular weekend [X] chose to run away. There is no compelling evidence before me to explain that. However she did run away and the mother had reached the point where she would not force her to go if she did not want to go.

46. A meeting was arranged between the father and [X] at Mr K’s office. That seemed to go well, at least according to Mr K. However it did not result in [X]’s time with the father resuming. A meeting set up in the principal’s office on 17 March. The father went to the school to take part in that but [X] did not go to the office. She left the school and went to a friend’s place.

47. There was a confrontation between the parents at the school on 28 April and another confrontation on the Friday before the Mother’s Day weekend and on that occasion the police were called to the school. At that point the father gave up on trying to enforce the orders in that way and filed some further contravention applications.

1. I heard the contravention applications on 4 September 2017. Contravention applications are often very technical. I could not be satisfied the orders had been contravened and I dismissed the applications and on 14 September 2017 the mother filed an application to vary the final orders.

2. In December 2017 an order was made for the father to be able to send letters to the child. He has sent her seven letters since then. In March 2018 a single expert report was prepared by Dr A, a clinical psychologist. That did not result in the matter settling and it was listed for trial before me and I heard it earlier this month.

The family violence and conduct allegations

1. The family violence and conduct allegations in this matter are extensive. There is a limit to the findings I can make about them but I can make some assessments of probabilities in relation to some aspects of them and they are an essential background to considering what is going on between these parents.

2. There is a flavour of nastiness in the evidence the father gave about the mother both in his affidavit and to Dr A. He alleged that she was promiscuous in Town E. On his version of events the problems in the relationship arose from her promiscuity and the word promiscuity is used in Dr A’s report.

3. The father alleged that the mother drank to excess and that she was occasionally violent, doing such things as throwing objects. He made very few admissions in his affidavit about his own conduct although he made some admissions about calling the mother offensive names.

4. The mother filed a very lengthy affidavit which caused me considerable dismay on the first day of the trial. I have now read it. It took me over three hours to do so.

5. In her affidavit the mother complained about the father’s drinking and gambling. She alleged that on various occasions he punched her, grabbed her around the neck, shoved her, threw her across the room, threw her onto the floor, kicked and strangled her, broke into her house in Town C, stalked and harassed her, punched holes in the wall, punched a windscreen, and verbally abused her calling her names such as “slut” and “fucking dumb bitch”. She said that this mainly happened when he was drinking but sometimes happened when he was not.

6. The mother also complained about a variety of controlling behaviour perpetrated by the father and it was the mother’s take on the past that the father, in the early years, was not truly interested in [X] and was simply trying to get back with her.

7. The mother provided very detailed evidence about alleged incidents of family violence. There is evidence about it in paragraphs 23, 25, 28, 37, 38, 39, 40, 51, 52, 55, 58, 60, 65, 67, 70, 78 and 83 of her affidavit.

8. In paragraph 232 the mother said that the father tried to break into her house. She said she called the police. They came and he left. Then he tried to break in again and on this occasion I think the neighbours called the police and I think that was the occasion where the father was capsicum sprayed and charged with resisting an officer.

9. The mother also made allegations in paragraphs 234, 238, 239, 240, 241, 243, 246, 255 and 279. She referred to verbal abuse of Mr G in paragraph 273 and there are further allegations in 335, 336, 341 and 342.

10. Those are just some of the allegations; there are others in the affidavit.

11. The mother alleged that the father also behaved in ways she found intimidating such as frequently failing to return the child at an agreed time, forcing her to drive a considerable distance to pick the child up and threatening to cancel the child’s passport so she could not go to Country M with the mother on the mother’s honeymoon with Mr G.

12. The father vigorously denied committing any acts of physical violence; he made that clear in the witness box and the way the trial was conducted does not allow me to engage in a fact-finding exercise about that issue. So extensive were the mother’s allegations that it would have required a trial of about two weeks in length and copious cross-examination and tendering of documents for me to drill down into all the allegations in a way which meant I could make findings about them.

13. However I cannot simply ignore all of the allegations the mother made about the father because some of the father’s behaviour about which there was no dispute confirms that there may well be merit in some of the mother’s allegations.

14. Some of the mother’s assertions about the father were very accurate. She alleged that he had a problem with alcohol and that is certainly true because he had two very high range PCA convictions.

15. The father also made admissions about subjecting the mother to some very offensive verbal abuse and the police were called in relation to the parties on a number of occasions.

16. In June 2007 the paternal grandmother called the police and the father was charged. Nothing came of that because the mother agreed to support the father in Court.

17. In June 2009 after an argument between the parties in Town C, an ADVO was made for the mother’s protection.

18. The mother said that in October 2009 the father tried to break into her unit, and the father agreed that he broke the door handle. He also agreed that he was angry. That was the occasion when he was capsicum sprayed and charged with resisting an officer and destroying and damaging property and he pleaded guilty to those charges and an ADVO was made.

19. In October 2009, and I think I got these two events confused a moment ago, neighbours called the police and the father admitted calling the mother a “fucking bitch” and a “fucking slut”. He was charged with assault and breach of ADVO. Those charges though were ultimately dismissed.

20. The mother alleged that she was subjected to many, many abusive text messages and there is absolutely no doubt that she was. An examination of the messages attached to her affidavit reveals that in spades.

21. I cannot make findings about the mother’s allegations about physical violence but I know that in the past the mother was subjected to reams of text messages containing very offensive name-calling and otherwise. I know that there was police involvement in June 2007, June 2009 and twice in October 2009.

22. I know those things and I cannot make the finding which it seems the father wanted me to make, namely that the parties were both the same and were as bad as each other. I do not accept that.

23. The father’s counsel said that I should bear in mind that the mother had consented to orders in 2016 but it needs to be remembered that she did so thinking that the father had agreed to do an 18 week perpetrators’ course so her consent to those orders was entirely consistent with her allegations about the father.

24. I do not accept that both parties are impulsive, aggressive and prone to argument. There is no evidence that the mother has ever indulged in that sort of behaviour in respect of the father. There are no concerning text messages sent by the mother. There are no complaints to the police about the mother. There are no ADVOs made against the mother and the father trying to paint each party as the same smacks of not accepting any responsibility for his behaviour.

25. Dr A said this in his report and it is actually quite concerning:

    Mr Goldberg acknowledged that his behaviour in the past, particularly in 2013 and 2014, had been emotionally strained. From his perspective, he had been goaded and provoked into emotional displays. [3]

    [3]Dr A Report paragraph 67

26. There is no evidence to support a finding that the father was goaded or provoked into calling the mother vile names in text messages or into any of the behaviour that resulted in the police being called. I do not accept that this was the case and it concerns me that the father accepts no responsibility for his behaviour.

27. [X] was very clear that the father made the threat in October 2014. I do not accept that there is any evidence that the mother coached [X] to make those statements.

28. I do not necessarily accept that the father intended to harm the mother. This is the kind of invective people come out with when they are angry, the kind of invective that indicates a loss of control and is perhaps intended to frighten and upset people. But I do not accept that [X] was either coached into making the allegation or made it up herself.  

29. The father’s case was that no matter what findings I made about the past I should not allow that to govern what happened in the future because notwithstanding that he did not do the 18 week perpetrators course he had demonstrated in the past couple of years that he has been able to behave in a mild mannered and reasonable fashion and that created a real possibility that the parties might be able to have a good relationship in the future and that he might be able to have a good relationship with [X].

30. I will have to consider that later on but I want to stress that when there has been that kind of history between parties it is a very difficult history to move past, especially if one party denies culpability for things they have done. It is a very difficult history for people to just swallow and move past.

The parties current circumstances

1. The mother is married to Mr G whom she began seeing in 2012. She lives with him in Town C and they have two children: [N], who was born in … 2016 and [O], who was born in … 2018. The mother is expecting another child soon.

2. The mother is not currently working because she has the care of the children.

3. [X] lives with the mother and began high school in the Town C area about three weeks ago.

4. The father lives in Town C about five minutes from the mother’s home. He is employed in the Employer. He is not currently in a relationship.

5. There was no evidence that in recent times the father had been involved with the police or had any adverse incidents in his life. This Court relies on evidence, not gossip and hearsay and there is no evidence that the father had anything adverse going on in his life at the moment.

6. The only relative that I am aware of in relation to the father is the paternal grandmother who lives in Tasmania. She has a good relationship with the father and she came to Court to support him.

[X]’s best interests

1. Any orders I make about [X] must be orders which treat her best interests as the paramount consideration and to determine her best interests I must have regard to the matters in s. 60CC(2) & (3) of the Family Law Act.

2. I will start with the additional considerations in s. 60CC (3). The first of those is the child’s views and there is absolutely no doubt that [X] currently does not want to see the father. That is confirmed by what she said to Dr A. He referred to her views in paragraph 46 and 47 of his report. He pointed out that [X] genuinely believed that the father threatened her mother’s life and threatened Mr G. She told Dr A that she had not seen her father for a year and felt that had been easy.

3. [X]’s expressed view is that she does not want to see her father and she refused to be observed with him during the session with Dr A.

4. Children’s views are relevant in parenting proceedings. I have to take their views into account but they do not determine a case.

5. The father’s case is that [X] is expressing that view because the mother has aligned her and estranged her from the father.

6. The mother’s view is that it is realistic estrangement given what [X] has experienced in the past.

7. I will have to deal later on in the judgment with what I do with those two hypotheses but in terms of [X]’s views there is no doubt that at the moment that she does not want to spend time with her father.

8. I must consider the nature of the relationship of the child with each of her parents and any other relevant people.

9. [X] has a very strong relationship with her mother, her step-father Mr G and her siblings. At present she has no relationship with her father. Dr A referred to it as a relationship which had waned. She did not want to see him at the report interviews.

10. Although Dr A was highly critical of the mother and quite supportive of the father he did say this in his report:  

    For [X], the issue is that when she sees her father, she does not enjoy spending time with him and feels pressured by him. I suspect this is also in part because Mr Goldberg has done significant damage on his own part to that relationship. He does not know how to be calm and how to facilitate a good time in their relationship without trying to be reassured by [X] that she loves him and wants to spend time with him, which [X] views as her having to make choices.[4]

    [4] Dr A Report paragraph 56

11. I must consider the extent to which each party has taken or failed to take the opportunity to spend time with the child, make a decision about the child or communicate with the child.

12. It was the mother’s case that at least until fairly recently the father was not really interested in [X] and was pursuing time with her as a means of staying in contact with the mother and that in the early days, before the mother re-partnered with Mr G, he did this in the hope that it would lead to the mother re-partnering with him.

13. I cannot make a finding about whether that was the case in earlier times. The situation between these parties is so conflicted and so fraught that there is always a risk of people misinterpreting things and supposing things which are not true. I do not accept that the father is currently not interested in [X] as an individual and a person. The evidence suggests that he has a genuine interest in his child.

14. I repeat what I said earlier, that the child told Mr K in 2015 that she had good times with the father as well as less good times, and that suggests that the father and the child have had a very positive interaction at various times in the child’s life and suggests that the father has a genuine interest in [X].

15. I must consider issues of child support.

16. The father said that he was paying $972.00 per month. I am not sure how long he has been doing that but child support is not an issue in this case because there was no suggestion that either party was motivated by child support considerations in bringing their application.

17. I must consider the likely effect of any change in the child’s circumstances.

18. The father proposed a very significant change; he proposed a change of residence, and although during final submissions it appeared that his counsel considered it a somewhat unlikely outcome the father did not resile from it as being his preferred position.

19. Dr A referred to the likely effect of the court making such an order in a number of paragraphs in his report. He said as follows:

    One of the thoughts I had at this point was that if in fact Mr Goldberg’s account is correct, then the only opportunity he would ever have to develop a relationship with [X] would be for [X] to have a change of residence and live with him and have the opportunity to have her concerns disconfirmed by living safely with him. However given that [X] is close to her siblings it appears to me impossible for that to occur. An inevitable consideration, given the history, is the likelihood that [X] would continue to run away if forced to live with the father.[5]

    [5] Paragraph 105 of the Expert Report.

20. He also said as follows:

    In considering this issue a stark choice looms. Either [X] loses contact with her father for the foreseeable future, and suffers ongoing trauma and distorted beliefs about relationships as a result, or she engages with her father, which re-energises the competition between the parents and will no doubt lead to significant attempts by Ms Luna to undermine any such restoration of contact. As a result [X] will experience an increase in her anxiety level, at a time she is transitioning into adolescence, which may well complicate her transition into high school and create behavioural disturbance. It may be that the Honourable Court will count the cost to [X] too high to resume contact with her father at such a sensitive time in her development. The likelihood is that it would be so overwhelming to her, and so challenge her relationships with family, peers and school, that it would simply be untenable now, despite the benefit of developing some kind of relationship and identity with her father.[6]

    [6] Paragraph 118 of the Expert Report.

21. In summary although Dr A’s view was that the mother was aligning the child and preventing her having a relationship with her father he was not  supportive of a change of residence and expressed in a number of different places in the report the likely potential harm to the child of making that change.

22. The father sees a change of residence as a solution to the problem of [X] being willing to spend time with him but it may not be a solution at all. It may just may make their relationship worse and impossible to retrieve in the future.

23. I must consider the practical difficulty and expense of the child spending time with a parent.

24. The parties live five minutes apart so distance is not an issue as far as enabling time to occur is concerned.

25. I must consider the capacity of each parent to provide for the needs of the child, including her emotional and intellectual needs.

26. Absent there being merit in the complaints by the father about the mother impeding his relationship with [X], which he would deem emotional abuse, the mother is doing an excellent job of parenting [X].

27. [X] is a delightful child who is achieving well at school. She is embedded in a good home with her mother, her step-father and her two little sisters. She is being very well looked after.

28. The father was critical of the mother for allowing the child to call Mr G Dad. I always struggle with that because children who live in blended families, especially when they have younger siblings who call the adult male in the home Dad, must find that whole situation very difficult and if they know perfectly well who their father is I am not convinced that it follows automatically that the fact that they call a second person Dad is detrimental to them having a relationship with their biological parent.

29. I had a case that I had to decide about 12 months ago where a child had been brought up by a step-father and his mother from a very young age and had also always had a relationship with his biological father.[7] The parents had had a very brief relationship and then separated. The mother re-partnered. By the time the matter came to Court the child was 13. It came to Court because tragically his mother was killed in a car accident. The step-father wanted the child to stay with him and the child’s siblings. The biological dad wanted the child to live with him.

    [7] Hearn & Sempers (2017) FCCA 3357

30. The child called both men Dad. It had never been a problem for him. He knew perfectly well who they each were. He had a good relationship with them both and he called them both Dad. So it does not follow as night follows day that this is a problem. Neither does the child putting down the name Mr G on an enrolment form indicate that there is some sort of aligning behaviour going on. Again it is a difficult situation for a child living in a blended household with siblings who bear a particular surname.

31. I will have to consider the issue of whether the mother is impeding the relationship later when I come to the conclusion in the judgment.

32. The mother expressed concerns about the father’s alcohol use and he has convictions for two very high range PCAs in 2013 and he was admitted to hospital for detox in that year.

33. The mother remains suspicious that the father prioritises drinking over his time with [X] or that he sometimes drinks too much but there is no evidence which would allow me to make a finding that this is the case and this Court relies on evidence.

34. There is no evidence in terms of COPS events, driving charges or issues at work and there is very clear evidence that the father is rigorously breath tested at work. I cannot find that the father currently has an alcohol problem based on the evidence before me.

35. The mother expressed concerned about the father’s mental health and there were some very significant issues for him in that regard in 2013 but there is no evidence that he has recently had any issues with his mental health.

1. I have concerns about the father’s capacity to provide for the child’s emotional needs. It appears from Mr K’s notes the child was very shaken and upset by what happened in October 2014. She described that in some detail to Mr K. The father accepts very limited responsibility for what happened or for the impact on the child of the shouting, the door slamming and the threat and if you believe Mr K’s notes another comment he made at the time.

2. What the father is doing is denying the child’s reality which is always a very difficult situation.

3. There is reference in Mr K’s notes to the child making many complaints that the father does not listen to her. The father denied receiving the letter that Mr K suggested the child write to him saying that she did not want to live with him.

4. If the father has a blunted capacity to deal with the child’s emotional needs it is concerning because if I make an order for a change of residence and the situation is on a knife edge, any insensitivity by the father in dealing with the child will see her running off straight away.

5. I was unimpressed by the evidence the father gave about the arrangements he would make if the child came into his fulltime care. His plans were inchoate.

6. The mother said that during the 2016/17 Christmas school holidays the father dropped the child off to her on eight occasions at 5.30 am and then picked her up again at 5.00 pm because he needed to go to work. There is nothing wrong with the father needing to go to work; it is good that he is working, but when he was pressed in the witness box about his plans for caring for the child he seemed to be thinking as he went along about what he might do.

7. He mentioned that he had spoken to some friends about providing assistance but when he was pressed about that he said that all he had spoken to them about was whether they were supportive of him and they had said they were.

8. The father put forward no detailed plans about how the child was going to be looked after when he was at work or how she was to be got to school if he had to leave too early to drop her off.

9. I was concerned about the fact that he had not thought those things through. In a situation like this any little failure to plan ahead and properly look after the child is inevitably going to result in her running off.

10. When the father was asked what he would do if the child did run off he said that he would be happy to know she was safe with her mother and would leave her there.

11. It would be gravely concerning if I disrupted [X]’s life and put her with the father in the hope that the arrangement would stick and it did not stick for some reason or another and the father just let her run back to the mother. She would be with the mother without any Court order supporting it in a situation where there have been so many contravention applications, threats to call the police and solicitors letters. That situation would result in incredible stress and difficulty for the parents and the child.

12. I have reservations about the father’s parenting capacity, not because of his mental health and alcohol use because I cannot make a finding that they are current issues but about his capacity to provide for the child’s emotional needs and his capacity to logistically care for the child on a day-to-day basis were she to be put into his care and about what might happen if he was insensitive or did not have proper plans in place.

13. I have to consider family violence.

14. I have gone over that in considerable detail already so I will not go over it again in this section.

15. I have already mentioned some of the family violence orders that were made and the allegations about breach of them. I do not think I mentioned that there was also an ADVO made in August 2013 without admissions. The father was charged with breaching that as well so the difficulties with conflict between the parties and breaches of ADVOs continued into 2013.

16. I must consider the attitude to the child and responsibilities of parenthood demonstrated by each of the parents.

17. That will not assist me as a separate issue. I am conscious of the allegations about the mother aligning the child. I will deal with those separately in the judgment.

18. I must consider the child’s maturity, sex and background.

19. [X] is nearly 13. To change her residence against her will would be potentially destructive enough and to order it if there was a real risk that things might happen in the father’s home or that care arrangements might not be properly thought through in the father’s home, increasing the likelihood of her running away, would be concerning.

20. I must consider whether I should make the order least likely to lead to further proceedings.

21. The father’s orders are most likely to lead to further proceedings and the mother’s are least likely because she seeks a neat no time order.

22. The Independent Children’s Lawyer proposed that the child spend time with the father in accordance with her wishes. In theory that should not have the potential to lead to further proceedings but I will discuss that later on.

23. I must consider any other relevant matter.

24. An extremely important matter is that the child is almost 13 and she has been involved in Court proceedings and conflict between her parents for 11 years and it has to stop.

25. I then go back to the primary considerations.

26. The first of those is the benefit to the child of having a meaningful relationship with both of her parents.

27. It would benefit [X] to have a meaningful relationship with both of her parents, in other words, a relationship which was significant, valuable and important to her.[8]

    [8] Mazorski & Albright (2007) 37FamLR 518

28. The father has had some difficulties in his past. It is his case that they arose out of his employment. The mother does not accept that. She said they pre-dated that but it really does not matter where the problems came from. There is no doubt the father has had his problems but at present he appears to be functioning well in the community and [X] told Mr K in 2015 that at times he was a nice Dad.

29. It would benefit [X] to spend time with her father provided she was not exposed to incidents such as the one in October 2014 but whether it is within the power of this Court to restore this situation has to be seriously open to question.

30. I do not accept, and I will go into this in more detail later, that the mother has set out throughout this child’s life to alienate her from the father.

31. The mother said as follows in her affidavit (some spelling changes made, and the question sheets she is referring to are sheets she was asked to complete by Dr A):  

    The question sheets on [X] and myself were done to reflect us now not the torture suffered over the last ten years+. For years I was abused by Mr Goldberg living in constant fear, sleeping with the light on, etc. No one truly understands the impact an aggressive, mentally unstable person can have on someone’s life. I’m just extremely lucky to be here today. At the same time I’ve tried to support Mr Goldberg’s relationship with [X] to the point where all avenues have been exhausted. For example would a parent who is apparently alienating a child pay $220 a session with Mr K to rebuild the relationship between a father and daughter? While our family is living on one income. I’ve honestly done my best not to let my feelings towards Mr Goldberg impact [X]’s relationship with her father. She has always had photos of her father, his phone number and a phone to call him etc. These days even with all the social media [X] is more than capable of contacting her dad through, example, Instagram, if she wished. However, even with [sic] all this technology available to her refuses to contact her father. It’s now came to the point [X] has made her own decisions and doesn’t want to see her father which is why I started another application.[9]

    [9] Paragraph 612 of the mother’s affidavit.

32. I have included this passage because it begins with the mother putting forward what she says is the misery of some of the things that happened in the past but then setting out some things she has done that are positive in terms of [X] knowing her father; for example having photographs of the father available. I do not accept that the albums she brought to Court are not available to [X] if she wants them and I am also mindful of the fact that despite all the problems between these parties, for six years this child spent time with the father fairly regularly. I do not accept that this is an alignment case.

33. The other primary consideration is the need to protect the child from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.

34. The father has committed acts of family violence against the mother in terms of repeated derogatory taunts of her. You only got to have a look at the text messages in her affidavit to see that demonstrated beyond doubt. The father said that this sort of thing was not likely to happen again in the future. I cannot necessarily exclude that possibility.  

35. The father gave evidence in his affidavit of two occasions, one in July/August 2013 and one in September 2016 when he did the course with Region 1 Psychology, when he said he had learnt something about controlling his behaviour.

36. The father said that the July/August 2013 course taught him about triggers so that he would not fire off angry and abusive text messages and be abusive to people but the abusive text messages did not stop.

37. In October 2014 he made a threat after the mother would not agree to him keeping the child for a night.

38. In late 2016 the father did the course with Dr P of Region 1 Psychology and in his affidavit he said this:

    Dr P then asked me to explain my choices because I had chosen the card “respect” to represent an ex-partner. Dr P and I then had a discussion to the following effect about my choice. Dr P, “Why did you choose respect for an ex-partner?” Mr Goldberg, “I need to have respect for my ex-partner so that I can demonstrate love for my daughter.”[10]

    [10] Paragraph 251 of the father’s affidavit.

39. He went on to say as follows:

    Dr P explained to me that domestic violence is a reaction to poor self-control and failure to manage anger. One of the fundamental things that I learnt is that if I am placed in a situation where I may get angry I must first think of the fact that I cannot control someone else’s behaviour but I can control my own behaviour. An example of this given to me by Dr P was that if my ex-partner does not allow [X] to spend time with me, I can choose to get angry and send her an abusive message, or I can choose to keep calm, plan a response, stay above the line and not react to the situation.[11]

    [11] Paragraph 254 of the father’s affidavit.

40. Then in March 2017 when the father was upset because the child ran away he sent this:

    Ms Luna has called the police and lodged harassment against me from when I went to her house Friday afternoon to pick [X] up. She is a fucking sick, mentally disturbed fuck who thrives on causing drama.

41. The father’s attitude to the mother has not changed one jot. He has learnt better not to express it but his attitude to her just flares up like that when he gets frustrated.

42. The father lost it in front of [X] in October 2014. It caused damage to his relationship with her which by now he probably cannot undo. It only takes one reaction like that to cause damage which cannot be undone and the father has not demonstrated that he has learnt to be able to stop doing that. The risk of something of the sort occurring again is another thing which concerns me about making an order for the change of residence.

43. The text message is family violence. It was not meant for the mother but it was sent to her. It is family violence and I cannot be satisfied the father has learnt from the courses that he has done not to behave in that way. However it probably concerns me more in terms of what [X] might be exposed to if she upset the father, did something he did not like or ran away if I changed the residence so it may be a matter that is better considered as a parenting capacity issue.

Parental Responsibility

1. I am going to defer a decision about this until I make a decision about the residence. Usually because of s. 65DAA of the Family Law Act I have to make this decision first but in this particular case I think it is important that I leave it until after I indicate what my conclusion to this matter is.

Conclusion

1. The parties have been in dispute about [X] since she was less than two years old. Legal proceedings occurred between 2008 and 2009 and 2014 to 2016. In 2017 there were contravention proceedings and the current proceedings have been on foot since 2017.

2. The Independent Children’s Lawyer did not support a change of residence for the child or an order compelling the child to spend time with the father and that was because of Dr A’s opinion about the damage that would be caused to the child if a change of residence were forced on her and the high likelihood she would run away.

3. Counsel for the Independent Children’s Lawyer submitted that it did not matter whether the current situation had arisen as a result of alignment, alienation or realistic estrangement; I simply had to deal with the situation as it was and that meant that there was no justification for ordering a change of residence.

4. I am not going to order a change of residence but I do not accept that I should avoid dealing with the issue of why the current situation has arisen. I am not prepared to leave the situation as one where the father might walk out of this courtroom feeling justified in going about the community telling others that he is a victim of parental alienation.

5. The hypothesis the father asked the Court to accept was that the current situation had come about because the mother had aligned the child and caused her to reject him. The single expert endorsed that hypothesis as one of the reasons why the current situation had arisen although he said that the father’s behaviour was also a contributing factor.

6. The mother is certainly adamant that she will not compel the child to spend time with the father. She was quietly and persistently firm in that position throughout over a day of cross-examination by the father’s counsel and counsel for the Independent Children’s Lawyer. However that does not of itself make this an alignment case.

7. The submissions made on the father’s behalf were to the effect that he was functioning very well in the community and had been for the last few years. He had a good job. There had been no recent incidents between himself and the mother which had justified police intervention. There was no admissible evidence that he continued to drink heavily. There was no critical incident in February or March 2017 which explained the child refusing to spend time with him and so what other explanation could there be for her rejection of him than alignment?

8. Bolstering his case that the mother was aligning the child was his concern that she allowed the child to call Mr G Dad and had allowed the child to use the surname Mr G when enrolling at a sports academy.

9. The father went further though than alleging that the mother had recently taken steps to align the child. He maintained to this Court and to Dr A that the mother had been aligning [X] with herself and alienating her from him for many years. He successfully convinced Dr A that the mother was guilty of this but in my view it is not made out on the evidence.

10. The parties separated when [X] was under two years of age and she has lived with her mother since early 2009, in other words for the last 10 years. Between February 2009 and October 2014, a period of almost six years, she spent time with the father year-in and year-out. It continued during periods when he had mental health crises, when he was involved in suicide attempts, when he had an alcohol problem which resulted in him being charge with two very high range PCAs and losing his licence and when the mother had many reasons to make complaints to the police about his conduct.

11. The following evidence in the mother’s affidavit has a ring of truth:  

    I have tried to support Mr Goldberg’s relationship with [X] for an extremely long time, especially when he has had no licence and found it extremely difficult to see her. Some examples are driving to Sydney, meeting him at the train station at odd times, having to leave work early and staying in car parks for hours after work waiting for [X] to get off the train. Even one Christmas I drove [X] all the way down to Sydney so Mr Goldberg could see [X].[12]

    [12] Paragraph 452 of the mother’s affidavit.

12. The contact between [X] and the father continued year-in and year-out during a period when based on the text messages the mother attached to her affidavit the father frequently subjected her to verbal abuse and denigration.

13. The mother ceased to make the child available in October 2014 after the child reported that the father had made a threat. I do not accept that I should dismiss that as being the result of coaching by the mother. There is no evidence to support such a finding.

14. The mother sought a no time order after that incident but over the next two years she complied with orders for the father to spend supervised time with the child. [X] by and large responded very well to the father although he did not deal with her complaint that he was asking her too many questions. There is nothing in what happened during that period to suggest that the mother was aligning the child or trying to turn her against the father.

15. In August 2016 the mother settled the case and agreed to orders for the child to continue to spend time with the father and notwithstanding that she felt she had been tricked about the course the father was to do, she made the child available to the father until the child ran away from school on 7 March 2017.

16. Since then the mother has not been willing to make the child available.

17. Dr A expressed the opinion that the mother was intent on restricting [X]’s time with the father and had coached and aligned her but some of the statements in his report which underpin this conclusion are simply inaccurate.

18. Dr A said that there was clear evidence in the school file in 2014 that the mother had coached the child and in cross-examination he repeated that there were notes that the teachers were concerned about the mother’s negative coaching of [X] and had expressed concern for the child’s wellbeing in the context of the mother’s coaching and attempts to alienate her from the father.

19. An examination of the relevant exhibit indicates that this is simply wrong. The only one asserting “negative coaching” at that time was the father. The school notes from February 2014 say as follows:  

    On Thursday (week 4) [X] came to the front office and asked if they could ring mum…she said that dad was going to pick her up and she was worried that he wouldn’t bring her home so she wanted office ladies to ring mum and say she was sick so mum would come and take her home.

    I rang mum and just said that [X] was a little anxious about arrangements and I just needed to clarify…mum said that dad would be picking her up…he hadn’t had her for a couple of weekends as there had been other family stuff, but it was amicable

    Mum said she would ring dad just to let him know that [X] was a little anxious, but he could still collect her as planned.

    Dad turned up just before lunch time and went in with copies of court orders.

    Mum turned up 5 minutes later, she saw dad (dad didn’t see her…she said there was an AVO?? between them, she was happy to sit in your office where dad wouldn’t see her)

    Mum told me that she had come up to school to reassure [X] that it would be okay to go with dad, while I was chatting with her she said that [X] was becoming quite anxious about the situation and mum wondered about counselling as she felt that [X] needed to talk with someone, not mum or dad, about her feelings and coping with the situation, I said that although we had a counsellor at school her workload was quite big, we could go that way (may be waiting time) or if she was happy to arrange counselling out of school that may be quicker to get in to, mum said she was happy to do out of school but wasn’t sure of options, I said about seeing GP and doing the 6 session thing – but I wasn’t sure if there had been some recent changes so said I would check and get back to her.[13]

    [13] See Exhibit “L”.

1. Remember this is in February 2014, only very shortly after what can only be described as an annus horribilis for the father in terms of suicide attempts, drink driving charges and involvement with the police.

2. Dr A is incorrect in the assertion he makes about what those notes say.

3. I have some sympathy for Dr A. It took me over three hours to read the mother’s affidavit. He may well have been swamped by material but his take on this material is simply wrong and it significantly underpinned his findings. He mentioned it twice in his report.

4. Dr A also said in his report that there was a history of the mother, where possible, trying to restrict [X]’s time with the father. That is factually inaccurate when the ten year history since separation is considered.

5. There are significant inaccuracies in Dr A’s report about the family violence allegations. Again I have some sympathy for him because of the massive amount of material but there are things in the report that are just wrong.

6. He referred to the allegations of family violence by the mother and said that all police reports in this regard were historical, in the sense that she only made those allegations of violence post-separation.[14] That is simply not true. Allegations of physical abuse and property damage which resulted in ADVOs being made were made on a number of occasions between 2007 and 2013.

   [14] Dr A report paragraph 34

7. The father was charged on more than one occasion. On one occasion he was convicted. One ADVO was made in 2007 after the paternal grandmother called the police. There was an incident in 2009 when neighbours called the police.

8. The mother has certainly made allegations of family violence which were not reported to the police at the time but this situation is all too common, in fact more common than not, in family violence matters. It does not mean by itself that the allegations are not true.

9. Notwithstanding everything that occurred after separation and all the father’s difficulties, the mother continued to make the child available to spend time with him. In February 2014 she was proposing counselling. She paid for the counselling and time only stopped in October 2014 after [X] reported the threat.

10. The following statement in Dr A’s report IS NOT supported by the evidence:

    [X]’s perceptions of the father are, in some part, the product of Ms Luna’s incessant hostility toward the father –

11. That is the father’s case but it is not borne out by the evidence.

12. I also do not accept that [X] has no photographs of the father and that photographs had been expunged – to use Dr A’s word – from the mother’s household. I prefer the mother’s evidence about the albums in her home.

13. Dr A appears to have accepted the father’s case theory that the issues between him and the mother between 2009 and 2012 or 2013 were due to either access issues or issues with the mother sending the father mixed messages about the relationship. The mother’s evidence on the other hand, which is much more plausible given the totality of the evidence I have already mentioned, is that the father was obsessed with her, endlessly abused her and crossed boundaries and refused to let her get on with her life. That hypothesis is much more consistent with the evidence. The father was not a reliable to completely frank witness and I do not accept his case theory.

14. What happened between the father and the mother between 2009 and 2012 may have been a little more nuanced than the mother now suggests but a much more compelling hypothesis than alienation to explain where we are in this case is that the situation has arisen as a result of the father’s behaviour over many, many years.

15. There is ample evidence in the mother’s affidavit about the abusive text messages the father sent to her. There is the father’s outburst in March 2017 which indicates that his underlying attitude to the mother has not changed and in the light of that text message and the father’s failure to do the 18 week perpetrator’s course, how can I blame the mother for saying enough is enough and that if [X] is saying she does not want to see the father the mother is not going to force her to do so.

16. The fact that the mother has taken that position does not make this an alignment case. The more compelling hypothesis is that the father’s behaviour has led to a situation where the mother does not support [X] spending time with him. I am not convinced, as Dr A is, that if [X] genuinely wanted to see the father and the father was able to convince the mother that his view of her had truly changed and that he genuinely respected her, that she would prevent that happening.

17. It would be very regrettable if the father walked out of this courtroom believing that he had the right to tell people in the community that the parental alienation hypothesis had been endorsed and I want to make it very clear that I DO NOT ACCEPT that there is merit in Dr A’s opinion about the mother in the following passage in his report: 

    Ms Luna presents as a woman of high psychological functioning without obvious psychopathology. She provided an at times evasive history. Her self-report was self-serving. I note that she has consistently been assessed by court experts as willing to cooperate with and facilitate [X]’s time with her father, and has consistently done the opposite. The evidence available to me suggests she has deliberately set out to align [X] with her, discourage contact between [X] and her father, and taken advantage of the father’s emotional reactions and failures in self-control to further alienate [X] from him. It has to be stated that Mr Goldberg has been quite self-defeating in his behaviour and has assisted in his own disenfranchisement as a father by being unable to contain his anger, by his problematic alcohol abuse up to 2014, and by pressuring [X] to make choices when instead he should have been focussing on simply being present with her and enjoying her company.[15]

    [15] Paragraph 101 of the Expert Report.

18. That opinion of the mother is not consistent with the evidence. It is infected by misapprehension of some of the factual material and Dr A’s belief that there is clear evidence from teachers that in 2014 the mother was coaching and attempting to align [X], which he repeated twice in his report.

19. However I also agree with the Independent Children’s Lawyer that regardless of why we are in the current situation, we are in it and a change of residence cannot be supported. It would inevitably be destructive for [X].

20. It would not necessarily result in any improvement in her relationship with the father, because I am not convinced that the father has sufficient plans in place or sufficient capacity to deal with her emotional needs to make that work. He lives so close to the mother that it is inevitable that the child would float back to the mother and all that would mean is that we would have more contravention proceedings, more threats to call the police, more solicitors’ letters and more stress for this family. I am certainly not going to make that order.

21. The father’s counsel seemed to accept the probability that this would be the outcome and he pressed me to make an order for some time to happen, for instance, a movie or an outing. I am not be prepared to do that because of the history in this matter of contravention proceedings, threats to call the police, threats to call the Department and solicitors’ letters.

22. That is what the father resorts to when time does not happen as it should under an order. I am not prepared to make an order which might result in that happening because there is too high a risk that the mother would not be able to get [X] to go on the outing or even that [X] might run away part way through it.

23. The Independent Children’s Lawyer proposed that I make an order that [X] spend time with the father in accordance with her wishes and that the mother be required to facilitate the time if [X] expressed a wish to see the father.

24. I am going to make the orders in terms of the Independent Children’s Lawyer’s proposal which was thorough. I agree that it would be regrettable to make a no time order. It would be regrettable because the father has not had any issues in the community for some time and if the orders are left a little bit open there is a possibility that [X] might soften in her attitude to him and that she might be willing to agree to something and that some time might happen.

25. I remain slightly concerned about the possibility of further Court proceedings if these orders are made, for example because the father alleges that someone has told him that [X] has asked to see him and the mother is not facilitating it. I strongly hope that will not happen because given the conflict in these parties’ lives since 2008 and the repeated Court proceedings, not just in this Court but in Local Courts as a result of ADVO proceedings, the only gift they can give [X] is to make sure that there are no further Court proceedings.

26. Humpty Dumpty has fallen off the wall in this case. I have a scrambled mess of egg yolk, egg white and egg shell. This Court is not capable of putting that back together again. There is nothing I can do in this case but make the orders proposed by the Independent Children’s Lawyer.

ADDITION FROM 22/2/19

1. I have relisted the matter because it was a busy night last night and when we came to do the orders I realised I had made an order about parental responsibility but I had not done what I said I would do at the end and go back and deliver some brief reasons for that order. It probably speaks for itself given my other findings but I just wanted to tidy that up and I do not consider there is anything procedurally unfair about that. I am not altering my decision and I am not adding to the reasons after the father has filed an appeal.

2. The presumption in s. 61DA of the Family Law Act does not apply. I made some findings about family violence, in terms if nothing else of the property damage of which the father was convicted of in 2009 and the text messages he sent which come within the definition of repeated derogatory taunts.

3. I am then at large as to what I do in relation to parental responsibility and the only appropriate order is the one that I made namely an order for sole parental responsibility to the mother.

4. There is no relationship between the parents and considerable antipathy between them. That has been the case for a very long time. They do not have the capacity to discuss matters and productively reach an agreement.

5. [X] will not be spending time with the father in the immediate future. That may rectify itself in the longer term but in the immediate future the effect of the orders I have made is that it will not occur. The father will not have the knowledge of the child to make good decisions for her and indeed given her current attitude she might well feel considerable resentment about him being involved in decision-making which would not help the overall situation.

I certify that the preceding two hundred and thirty two (232) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  22 March 2019