MANY & QUEBEC

[2010] FamCA 444

FAMILY COURT OF AUSTRALIA

MANY & QUEBEC [2010] FamCA 444

CHILDREN - With whom a child spends time and communicates - Best interests of a child –allegations of family violence - consideration of the term ‘meaningful’ in the context of s60CC(2)(a) - order that there be limited communication and no time spent between the child and the father

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA, 60CC (2), 60CC(3), 61C, 61DA, 65DAA and s 65DAC

APPLICANT: Mr Many

RESPONDENT: Ms Quebec

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 118 of 2008

DATE DELIVERED: 4 June 2010       

PLACE DELIVERED: Hobart

PLACE HEARD: Cairns

JUDGMENT OF: Benjmain J

HEARING DATE: 20 & 21 May 2010

REPRESENTATION:

COUNSEL FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Respondent in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs C Benson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cope Family Law

Orders

1. All previous parenting orders in relation to J born … December 1999 (“the child”) are discharged.

2. Ms Quebec (“the mother”) have sole parental responsibility for the child.

3. The child live with the mother.

4. Both parents provide a post office box address or other mail address to the other party (through their respective solicitors) within fourteen (14) days of the date of these orders and keep the other party informed, through such addresses, of any change/s of mailing address.

5. The mother keep the father informed about:-

   (a)the child’s residential address;

   (b)the school to which the child attends;

   (c)any significant issue affecting the child’s health and/or education; and

   (d)the mother shall provide the father with a written report three times per year, setting out some detail of the child’s general progress and wellbeing.

6. The father be permitted to send birthday, Christmas, Easter and Father’s Day cards and presents (including mementos, drawings, photographs of himself and his family, toys and gifts such as magazines and other age appropriate gifts) to the child and also be permitted to send a letter to the child at intervals of no more than once per month.

7. The mother is required to make the letters, cards and presents available to the child and to keep the letters and cards for the child, should he wish to read them or see them.

8. The mother will support and facilitate the child displaying any gifts or photographs or other mementos sent by the father.

9. The mother will support and facilitate the child in responding to his father by sending letters, cards, gifts and mementos should the child express a wish to send such material.

10. Should the child express a wish to communicate with the father by telephone, email or other means, the mother will notify the father in writing and facilitate that communication.

11. The father shall be entitled to make arrangements with the child’s school to have that school send him school reports and/or school photographs at the father’s expense. Once the child attains the age of 14 years he may request the school to cease sending the father school reports and/or school photographs and having made that request the father’s entitlement to such material shall cease.

12. The father be and is restrained from having any face to face time with the child, attending the child’s school or otherwise communicating to the child, except as is provided in these orders.

13. The mother will enrol in and complete a program “focus on kids” or similar, within six (6) months from the date of this order.

14. Leave is given to the parties and/or the Independent Children’s Lawyer to provide to their respective personal counsellor/s or therapist/s, and the child’s counsellor/s or therapist/s and the child’s school, a copy of these orders, the underlying reasons and the three family reports prepared by the Family consultant. 

15. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

16. This matter be removed from the list of cases requiring determination.

17. The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from today’s date.

    IT IS CERTIFIED

18. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

    IT IS NOTED

19. The mother is encouraged to attend personal counselling or therapy to deal with any issues she may have regarding the need for her  to develop an ability to give the child ‘emotional permission’ to pursue a relationship with the father.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 118  of 2008

MR MANY

Applicant

And

MS QUEBEC

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. J was born in December 1999 and was aged ten and a half years at the date of this hearing.  His parents were arguing over what parenting arrangements ought to be put in place for him.

2. The father was essentially asserting that the mother had alienated the child from him and that a process needed to be put in place to enable the child, initially, to spend short periods of time with him but build up to a shared parenting time arrangement.  The father believed that there should be shared parental responsibility.  He was also of the belief that he was able to communicate with the mother and that the mother should learn how to communicate with him.

3. The mother asserted that the father had been violent to her and the child and that as a consequence the child has a real and deep fear of the father.  She says that she should have sole parental responsibility for the child and that the child should live with her. Further, the only communication between the child and the father should be through letters, cards and presents.  She adopted a slightly greater level of contact than that suggested by the Independent Children’s Lawyer, to include school information, a school photo and the provision of information, including a letter three times per year.

4. The mother says that when the child becomes old enough and wants to see his father she would be prepared to facilitate that time although, implicitly it would be on the basis that it is safe for the child.

BACKGROUND

1. The father was aged 52 at the date of the hearing and the mother aged 42.  The father has remarried and his wife, Mrs Many, gave evidence at the hearing.  The mother has remarried and her present husband, Mr Quebec, gave evidence at the hearing.

2. The father has an elder child who is aged about 30 and a grandchild aged about one. 

3. The mother’s present husband, Mr Quebec, has four children. 

4. The mother claims that the parties separated in July 2004.  The father claims that the parties to all intents and purposes reconciled during 2005 and separated in December 2005. At the time of separation asserted by the mother a temporary domestic violence order was made.  First in July 2004 and again in August 2004.  In September 2004 that domestic violence order was made final and operated for two years.

5. The mother says that the separation was marked by a significantly violent event in July 2004 and that in August 2004 the father threatened to harm her using a knife.

6. Since July 2004 the child has been in the mother’s primary care and there is no issue that the child is closely bonded with the mother.  Over 2005 the father and mother lived at various addresses. 

7. In December 2005 there was another instance of alleged violence.  As a consequence of that event the father was convicted of breaching the domestic violence order.  He was also convicted of common assault.  He was placed on a bond to be of good behaviour for a period of twelve months. It appears that the father entered a plea of guilty to those charges.  I accept the mother’s version of those events, having regard to the demeanour of the parties when giving evidence and the admission by the father of guilt in respect of the criminal matters.

8. In early 2006 the father commenced his relationship with his present wife.  Throughout that year the father complained of difficulties in spending time with the child.  The mother complains that the father was aggressive, dominating and abusive to and of her.

9. The mother says that the child began ‘acting out’ in 2007. From the evidence there is no doubt the child’s behaviour at school in that year was troubling.  This is not a reflection on the child but an acknowledgement of the serious emotional turmoil which he was enduring.

10. The father last saw the child in a regular sense in late 2007 and has not seen or spoken to the child since that time, except on two occasions in October/ November 2009 when endeavours were made for a reunification between the father and the child.

11. An Independent Children’s Lawyer was appointed in June 2008.  The hearing of this matter was conducted with the assistance of the Independent Children’s Lawyer and the counsel she had briefed. Neither parent had legal representation at the hearing although they had each had some legal assistance earlier in the legal process.

12. As both of the parties were unrepresented at the hearing and I assessed that they may have had difficulty differentiating between evidence and submission, I had them sworn in at the commencement of the trial so that any evidence they gave in the form of submission could be treated as evidence.  I endeavoured to make clear the approach that I was adopting and the difficulties they may have had in terms of submission and evidence.

13. In these reasons any statement of fact is to be regarded as a finding of fact.

WITNESSES AND ASSESSMENT

The Family Consultant

1. The first witness to give evidence was Ms O (“the Family Consultant”).  She prepared three family reports in relation to the child and his relationship with each of the parties.

2. In her first report dated 4 June 2008 the Family Consultant recommended the appointment of an Independent Children’s Lawyer, a psychiatric evaluation of the parents, reunification counselling and “given the level of dislike articulated by [the child] the writer recommends that [the father] refrain from communicating by phone or in person with [the child]”.[1]

   [1] At page 19.

3. A second report was provided by the Family Consultant in August 2009.  In that report she made some recommendations for reunification counselling and endeavours for the child to meet the father at a Contact Centre. That course was adopted and the outcome of counselling and the material from the Contact Centre were before the Court.

4. The endeavours to reunite the child with the father were unsuccessful.  The Children’s Contact Centre was so concerned about the impact on the child of the time he spent with his father that they recommended no further face to face meetings.  The counselling was likewise unsuccessful.

5. In her final report of 15 March 2010 the Family Consultant recommended that the mother maintain parental responsibility for the child, the child live with the mother and that the father write letters and cards.  She also recommended that the mother keep the father informed as to her whereabouts but there be no other face to face contact or direct communication.  Further she recommended that the father be entitled to receive school reports and a photograph.  The effect of this would have been identification contact only.

6. When questioned by the Independent Children’s Lawyer, the Family Consultant observed the child was extraordinarily reluctant to even interview.  At the interviews for the second family report he jumped a fence to avoid interview.  She said the child was devoted to his mother and would do what she said, but even at times his affection for his mother was not sufficient for him to be interviewed in relation to his father.

7. The Family Consultant’s evidence was that the child has very real memories of domestic violence and that he is genuinely afraid of his father. 

8. The child’s behaviour is that he is anxious before seeing his father but does not display that anxiety in the presence of his father.  At the conclusion of any time that anxiety comes back. 

9. The Family Consultant’s views in that regard are supported by the observations of the Children’s Contact Centre.  I accept her analysis of the child’s fear of the father.  I do this having regard to the findings I make later in these reasons in respect of the violence.

10. The Family Consultant had recommended reunification counselling, however she said it had a low success rate and in this case she was correct.  The father’s case was that the mother was overtly and directly encouraging the child not to have a relationship with him. 

11. I am not sanguine about the mother in terms of genuinely encouraging time, nor is the Family Consultant.  I am satisfied that the mother implicitly, and perhaps at some levels explicitly, expresses her views of the father and her fears of the father.  I am satisfied that this is not to the extent as asserted by the father.

12. I accept the evidence of the Family Consultant that the child was not being given emotional permission from the mother or her family to see the father. However the child’s view is fixed and having regard to his age and maturity it is a view which is strongly held and for which I must have significant regard.

13. The evidence of the Family Consultant, which I accept, is that even if the mother’s attitude to parenting changed, and the father was as innocuous in his behaviour as he asserts, this would not change the child’s view. I accept that evidence.

14. The Family Consultant says the father blames not only the mother but also her new husband for the change in the arrangements.  The evidence of the Family Consultant was that the mother no longer needed to appease the father’s violence after she entered into a relationship with Mr Quebec and could be more protective of the child and more assertive in terms of her dealings with the father.  I accept that evidence.

15. The Family Consultant said that the impact of face to face time or even direct communication between the father and the child would have an adverse impact on the child.  She said the anxiety of the child would be “just too great”.  The child would have greater anxiety, he may blame his mother and it may interfere with that significant relationship and the child would feel that he had no where else to turn.  I accept that evidence.

16. Interestingly the Family Consultant says the child is “curious about his father and is likely to accept low level communication such as that proposed”.  She says that “as long as the child knows where the father is and if a significant event occurs it is likely the child may, at that stage, consider a reunion with his father”.

17. She gave evidence about school reports and photographs and whilst I do not entirely accept her evidence with regard to forcing the child to have his school reports and photographs sent after fourteen, I do not intend to do so.  I accept her evidence having regard to the impact on the child that the father should not be permitted to attend school functions including parent teacher interviews.

18. In terms of the father himself the Family Consultant said that during the meeting she assessed him as being dominating and controlling.  He “snapped” at his new wife on one occasion and the consultant fears the child would be at risk emotionally bearing in mind her views that in the confines of an interview the father was assertive bordering on domineering and that the child would have difficulties managing in an uncontrolled environment. The father believed that if he were allowed to take the child fishing, with just the 2 of them, everything would work out. I do not accept that view of the father as it is absolutely contrary to the insistent and constant wished of the child and gives no weight to the child’s express fear of the father.

19. The Family Consultant observed that the father went from tears to anger as part of his method of domination or emotional manipulation.[2]  He used raised voice and he was aggressive.

    [2] Paragraph 105 of the family report August 2009.

20. I observed some of this behaviour during part of the cross-examination of the father by the Independent Children’s Lawyer.  The father became angry and determined.  He adopted an aggressive lean forward demeanour.

21. The Family Consultant also raised the question of the father’s alcohol intake.  The father had provided information to the Family Consultant which was different to his present wife.[3]  The father was quite agitated about questioning on his alcohol consumption in the final report.[4]

    [3] Ibid at paragraphs 41 and  55.

    [4] Ibid at paragraph 25.

22. The Family Consultant said that the child should not be ordered to go to counselling as it would be counter productive.  The work by the Family Consultant has been over three years and is in some ways not a snap shot but somewhat of a longitudinal study on him.  The Family Consultant said that she saw no signs of adverse comment from the mother in the first report.  At some levels I am concerned that Family Consultant is not alive to the involvement of the mother in the attitude of the child.

23. I generally accept her evidence including that set out above and that:-

    ·That it is a strong and persistent view of the child that he does not wish to see the father.

    ·That view arises out of his observations of significant violence between his parents and his genuine fear of his father.

    ·That the endeavours of the reunification have been tried but have been unsuccessful.

    ·That the risk to the child of emotional or psychological damage is far greater if he sees the father than if he does not see the father.

Dr K

1. The Independent Children’s Lawyer relied upon two reports of Dr K (dated 7 August 2008 and 15 September 2008).  No issue was taken as to the qualifications of Dr K.  He was cross-examined by both parents and came to the conclusion that[5]:-

   I don’t see either of these two people as having significant psychiatric or psychological disturbance or personality disorder or substance abuse that in itself would interfere with their ability to parent a child.

   From my assessment I would imagine that each of them has a fair amount separately to offer.

   But the critical issues appears to be the decision of the child that he does not want to see the father and does not want to have any contact with him.

   [5] Dr K’s report of  7 August 2008 at page 11.

2. Dr K went on to say:-

   … As far as I can see there is nothing to suggest that [the mother] coerced the child in that direction.  Indeed I get the distinct impression that she was unduly encouraging the child to see the father, even when he didn’t want to.

   So I see nothing to suggest that she has coerced the child in the direction of not wanting to have anything to do with the father.

3. In his addendum report[6] Dr K observes of the father:-

   … I don’t see [the father] as having significant psychiatric disturbance as such.  But I do have to concede that he appears to be a fairly aggressive fellow when frustrated – for example as in relationship to this matter in contact with the child.

   [6] Report of 7 September 2009 at page 2.

4. Dr K also says:-[7]

   But I have to say that my reading of the documentation suggests that the most important factor here is the child’s clear decision that he doesn’t want to have anything to do with his father.

   [7] Ibid.

5. This comment has to be seen in the context of a general comment as Dr K interviewed the parties and his views of the child were taken from them and from the documents and not from any interview of the child.

6. I accept the evidence of Dr K that he has observed that the father has an aggressive character and that neither parent has any diagnosable psychiatric or psychological condition.

Mr L

1. The father relied upon evidence of Mr L[8], a social worker employed by Queensland Health.   No issue was taken as to Mr L’s qualifications.  He is the father’s counsellor and has seen the father on regular occasions over recent years.  Mr L has not seen the mother or the child.  His role was to help the father deal with the stress and some indications of depression arising primarily out of these proceedings and not being able to see the child.

   [8] Affidavit of Mr L filed the 12 March 2010.

2. The evidence must be seen in the context that the only source of information of Mr L was that of the father.  Mr L had not seen the father intoxicated nor did he see any signs that the father abused alcohol.

3. I accept the evidence of Mr L although it must be seen in the context in which it was created, that is that the father is his patient and much of what the father has told this counsellor has been uncritically accepted.

The father

1. The father gave evidence in accordance with his affidavit filed 12 March 2010.  The father was not an impressive witness.  He prevaricated when answering questions and his evidence involved significant obfuscations.   His evidence is unreliable.

2. The father says he commenced a relationship with the mother in the later part of 1999 (his affidavit says 1989; however I accept the submission of the father that it was 1999).

3. The father was cross-examined in relation to a number of specific areas of violence.  His denials were sometimes framed as “I can’t remember” or “that they didn’t happen” or “that the violence was in defence [of behaviour by the mother]”.

4. He was cross-examined in relation to material from the police files.  The counsel for the Independent Children’s Lawyer asked the father if he had read that police material. When the father said that he had not he was asked if he would like some time to quietly and privately read it. When asked if he wanted time it was made as a suggestion to the father and I indicated I was prepared to give him time.  The father chose not to take up that offer.

5. He was cross-examined in relation to the observations made by Dr W in July 2004 as to the mother’s injuries which were consistent of her complaints of an assault.  He said he did not see the injuries but did not deny inflicting the injuries.  He admitted that he entered a plea of guilty in respect of breaching the domestic violence order, made to protect the mother, but minimised his culpability in relation to it.

6. He was asked about a previous issue of violence with another girlfriend in 1996 where the girl had swelling to the eyes.  His explanation was that she head butted him and the proceedings were struck out of court. 

7. The evidence of the father is troubling and must be treated with great care and generally needed to have some objective support to be regarded as reliable.

Mrs Many

1. Mrs Many is the father’s present wife and she gave evidence in accordance with her affidavit filed[9] in these proceedings.   Mrs Many is aged 31 and she and the father have been together for about four to five years.  She appears to be devoted to the father and identifies with his views.

   [9] 12 March 2010.

2. Mrs Many worked with the father for about six months and then at a restaurant near Cairns for about two years.  Whilst in Cairns she worked at a supermarket.  She has a driver’s licence and she does drive.

3. She was cross-examined in relation to the father’s drinking and drew back from what was reported to be said by the Family Consultant.  She was positive in relation to the child’s visits with the father and said that there was no abuse of alcohol by him nor was there any pushing or slapping.  She was not sure whether she had argued with the father and had cried, although her evidence was that if it had occurred she probably would have remembered it.

4. Her demeanour in the witness box was that she was clearly nervous and constantly looking towards the father. 

5. In regard to her evidence in relation to the father snapping at her, as reported in one of the family reports, she said was because she had “interrupted”.  She was clear that the blame was hers.  Having regard to the evidence of the Family Consultant I am satisfied that this was an example of Mrs Many supporting the father.

6. Mrs Many was in many ways an advocate for the father’s case (understandably).  I am concerned as to the quality of her evidence as she has identified so closely with his cause.  Towards the end of her evidence she said that the child had expressed a view to spend week about time with the father and the mother.  She said the child wanted to call her mum.  Having regard to the observations of the child by the Family Consultant I do not accept that evidence. I am concerned that Mrs Many’s evidence reflects the views of the father and not those of the child.

7. Mrs Many’s evidence needs to be seen in the context that she identifies with the father and supports his position.  As such its weight is seriously diminished.

The mother

1. The mother gave evidence in accordance with her two affidavits, one filed in April 2010 the other filed in April 2008.  They were both read into evidence.

2. The mother said that she moved to Tasmania in November 2008 and did not tell the father or the Independent Children’s Lawyer.  She lived in Tasmania for about six months.  Her explanation was that there was no contact order and an option was made available to them. The evidence of the mother in terms of Tasmania was inconsistent with that of her husband, Mr Quebec.  I am satisfied that the mother knew of the arrangements for the reunification counselling before the parties arranged to travel to Tasmania. I do not accept her evidence in that respect.

3. As to her evidence generally, I have concerns about the quality in some identified areas, but I assessed that most but not all of the time she was endeavouring to be frank when giving evidence.  She made concessions against her interests.  She conceded the father had good points in terms of his ability to cook as a chef and his artistic ability.  She gave evidence of the child having access to albums with pictures of the father and that he has a photograph of the father and himself in his room (although this evidence was at some levels impeached by the evidence of her present husband).

4. The mother sent the father a school photograph of the child in 2009.

5. I am satisfied the mother has on a mechanical level tried to encourage the child to visit the father.  I accept the evidence of the Family Consultant that the mother did not give emotional consent to that contact, having regard to the history of violence and abuse by the father. 

6. The mother gave evidence, contrary to her interests, about the letters she was asked to send to the father about what was happening to the child.  She did that prior to the meetings in October/November 2009 but she has not been consistent with those letters from that time.   

7. The mother asserted that an allergy of the child arose out of stress. Having regard to exhibit “F1” and the mother’s statements to the workers at the Children’s Contact Centre I am satisfied that the allergy most likely arose over the child’s consumption of oranges as indicated by the mother.  I do not accept her evidence in relation to the broader aspect of it in terms of stress.

8. There are some levels of exaggeration in terms of the mother’s evidence.  I have a more benign view of her evidence than that of the father, however, I retained a healthy scepticism of it.

Mr Quebec

1. Mr Quebec is the mother’s present husband and he gave evidence in accordance with his affidavit filed the 12 March 2010.   

2. As I have noted earlier in these reasons his evidence in relation to the move to Tasmania was somewhat different from the mother. 

3. In some areas his evidence was contradictory.  He said he had four children and understood how the father felt, however he then went on to say that the father had given up and waived his rights to the child as a consequence of the violence.

4. Mr Quebec also gave evidence in relation to the photographs the child had of the father.  The evidence was that there were no such photographs and the one that the child had, had been broken.

5. There was evidence that Mr Quebec and the father verbally clashed in 2006 and/or when Mr Quebec endeavoured to assist the mother by way of mediation.  There was no doubt that he used derogatory language of Mrs Many and I accept that Mrs Many described the mother as an “evil woman”.  There is great conflict between the mother and the father.

6. I have been careful in my assessment of the evidence of Mr Quebec as he is closely identified with and is supportive of the mother.  It has some value but needs to be treated with caution.

Ms C

1. The mother’s friend Ms C gave evidence in accordance with her affidavit filed 9 April 2010.  Much of her evidence is of a “cheer squad” variety and some of it is hearsay.  Of that evidence I attach no weight.  I accept her evidence in respect of the persistent telephone calls from the father to the mother and the evidence (including her observations of the mother) in terms of the events following the alleged assaults in December 2005.

Ms B

1. Evidence was provided by way of an affidavit by Ms B,[10] she was not required for cross-examination.  Ms B was a solicitor employed by the father.  Part of that material shows that the child has settled well into his new school although he still needs support.  I have had regard to the correspondence contained in that document.

   [10] Filed 9 April 2010.

RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. This is a proceeding to which the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies.

2. The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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 set out in s 60B(2) that underlie those objects are that, except when it 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. Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[11] for the child, subject to subsections 2, 3, 4 and 5.

   [11] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

5. If the presumption is found to apply and is not rebutted, as not in the best interests of the child, an order must be made in accordance with s 61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s 61DA.

6. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. 

7. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)).  This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time and the other requirements set out in s 65DAA.  In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.

8. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

9. How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:

   Primary considerations

   (2)          The primary considerations 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.

   Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)         Additional considerations are:-

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

10. A court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A court must consider each of the additional considerations separately. A court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.

11. A court also needs to evaluate the nature and quality of the parent child relationship.

Findings

1. There is an issue between the parties, not as to when separation occurred but what happened following separation.  The father said that after separation in July 2004 there was either reconciliation or attempts to reconcile.  He said he lived with the mother at the mother’s house and they would share different accommodation.  This continued up to December 2005.

2. The mother said that separation occurred in July 2004 and that the father was aggressive and dominating of her and contacted her up to ten times per day by telephone.   She says the father was aware of which school the child was attending.  The father asserted that he did not know where the mother was living.  On balance I prefer the evidence of the mother.

3. The mother said that she and the father did not reconcile but that the father insisted she stay during visits with the child and became violent towards her at those visits.  She said he lived on her back veranda at one but says their relationship did not resume.

4. The father was cross-examined in relation to a statement he made to the police in June 2006.  When questioned about firearms at the mother’s home he said he had not lived at that home for two years.  That was different to the evidence he gave in these proceedings.  I find that the parties separated in July 2004 and that, in accordance with the evidence of the Family Consultant, the father was endeavouring to continue to dominate and intimidate the mother from the time of separation until December 2004.

5. On 20 July 2004 the parties separated.  The circumstances of the separation, as asserted by the mother are:-[12]

   There was a violent fight between the father and mother on 20 July 2004.  The father threw the mother’s clothes onto the lawn and removed furniture from the house.  The police were called.  The mother had endeavoured to call the police but says that the phone was taken off her and broken on the road.  The police found the broken phone.  The police also observed the furniture on the lawn and the clothes scattered on the front lawn.  The mother gave a history of abuse consistent of being intimidated and harassed and said that the father had threatened to kill her and was aggressive to her.  The mother said she had attempted to leave in the past but was fearful of the father.  The mother complained that the father has physically assaulted her on that day including dragging her out of the house.

   [12] Annexure SMM2 to the affidavit of mother sworn 18 April 2008.

1. Part of the material before me was a report from Dr W dated 22 July 2009 where he observed the following:-

   ·          An area of bruising on the outer aspect of her left eye.

   ·          Swelling around the upper part of her throat.

   ·          Swelling about both sides of her jaw.

2. The description of the events set out by the mother to Dr W, and contained in her earlier affidavit, and to the police is quite chilling. 

3. The father denied the abuse as alleged.  He said that there was no physical violence, only shouting.  I do not accept his evidence.  I am satisfied that the father was physically and verbally abusive of the mother on that occasion and that there had been a history of threats, violence and abuse.  I am satisfied that the child was a witness to that violence.  I am also satisfied that the child has significant recollection of that violence.

4. The mother was traumatised by the violence and it was only when she formed her relationship with Mr Quebec that she was able to manage he response to the dominance and the aggression of the father.  From separation until December 2005/January 2006 the mother adopted a policy of appeasement to the father to protect her child and herself.  As a consequence she allowed the child to go with the father despite her concerns about the father’s anger and his inability to control his temper.

5. The father says he has attended anger management classes but says there is no need for it.  The father has shown a disposition towards aggression and intimidation.  This was seen by the Family Consultant and it is reflected in her reports.  The aggression of the father was obvious to me as the father became increasingly agitated when being cross-examined by Counsel for the Independent Children’s Lawyer.  He ‘eye balled’ her and lent forward in a purposeful way, his tone was at times menacing and aggressive. His body language was confronting.   To her credit the Counsel for the Independent Children’s Lawyer did not seem to allow this to faze her but it would be difficult for a child to resist such overtly aggressive demeanour.

6. I accept the evidence of the mother set out in her statement to the police dated 14 January 2006.[13] This set out details of the assaults by the father on the mother the preceding month.

   [13] Annexure SMM5 to the affidavit of the mother sworn 18 April 2008.

7. The father came to the mother’s home in December 2005 and the mother was subjected to an afternoon and evening of physical and verbal abuse.  The father was subsequently removed from the mother’s home and he was charged with assault and a breach of the domestic violence order.

8. The father endeavours to dismiss and minimise his behaviour at that (and other) time.  I am satisfied that the child witnessed the aggression and violence displayed by the father on that occasion and having regard to the evidence generally (including that of the mother, the family consultant and the child himself) I am satisfied that the child has been exposed to the father’s anger, aggression and violence on a number of occasions and that he has been emotionally traumatised by it.

9. The father was cross-examined in relation to an event in August 2004 when it was alleged that he threatened the mother with a knife to have her drive him to various places.  He denied that behaviour.  The mother’s evidence to the police was that he demanded that she drive him to a number of places and held a five inch stainless steel knife against her ribs and said the words:-[14]

   Drive me home … I will stick this through your heart.

   [14] Ibid.

10. It is also asserted that he said:-

    I will show you what a lunatic looks like.

    Or similar.

11. I accept the evidence of the mother in respect of this incident and generally as set out her affidavit sworn and filed 18 April 2008[15].

    [15] Ibid Annexure SMM6.

12. The father denied that he threatened the mother with a knife and said that he merely asked her for a lift to an intersection.  I do not accept his evidence, I prefer that of the mother.  This continuation of the violence and aggression by the father has had a significant impact upon the mother.

13. The father has a tendency to understate or minimise his involvement and he is evasive about a number of issues. 

14. The mother asserts the father is from time to time affected by alcohol which exacerbates his aggression, abuse and violence.  The father’s evidence in relation to alcohol is troubling.  On balance, I prefer the evidence of the mother in terms of her observations of the father’s use of alcohol and its impact upon the father’s personality and behaviour.

15. The father has limited insights into his aggression and sees no reason why he and the mother cannot communicate.  He takes no responsibility for his violence, coercion and control and the impact of that behaviour upon the mother and her ability to interact with him.  He blames her entirely for what he says is the alienating of the child from him.  He takes no responsibility in relation to his own behaviour.

16. The views of the child have been consistent.  Initially they are set out in the first family report:-[16]

    76.[The child] spoke of the abuse he claims to have witnessed.  He claims his father had “hit mum, me and [Mrs Many]”.  He hit mum a lot.  [The child] alleged “daddy used to grab mum, yell at her. Daddy would run after her, pull her back, keep her until she said something”.  [The child] stated during such incidents “daddy would not let [me] outside, I would look out the door”.  [The child] also claimed “the father” had hit him and after informing his mother he stopped spending time with his father.  [The child] could not recall informing his father or [Mrs Many] that he experienced headaches after being clipped on the head, and above the ear.  Although he recalled activities shared with [the father], [the child] indicated he did not always enjoy putt putt and go-carting.  According to [the child], if he was heard or struggled to do something, his father tended to “laugh at me; although it was funny”.  Of concern to [the child] was that his father informed him that “I must stay two days then I will get my remote control hovercraft [to take home],

    [16] At paragraph 76 of the family report dated 3 June 2008.

17. The child’s wishes not to see the father have been consistent and are both in terms of his words and in terms of has behaviour in doing what he can to avoid contact with the father, such as trying to run away from meetings with the Family Consultant.

18. The statement of the child, set out above, is consistent with the violence that the father displayed in December 2005.  There is a significant concern as to the psychological and emotional impact upon the child if he were forced to see this man whom he regards as a violent person.  There is also a concern as to whether the father could control his aggressive impulses with regard to the child. 

19. I am satisfied that the father probably hit the child over the ear and has denied it to protect himself.  I am not satisfied he is protective of the child.

20. The negative impact of the father on the child has been profound.  The father has attended the child at school and the mother says the child has been distressed.  I accept that evidence.

21. What is chilling in relation to the impact of the father’s violence upon the child is the material set out from the Children’s Contact Centre[17].  On the two occasions the child saw the father in September/November 2009 when a reunification attempt was tried was that the child showed high levels of anxiety before the visits but appeared overtly fine during the visits and was then highly anxious after the visit.  The workers at the Children’s Contact Centre were concerned about this as was the Family Consultant, as am I.

    [17] Exhibit ICL3.

22. The impact of the reunification process on the child meant undergoing more counselling and this confirmed the child’s view that he does not want to see or communicate with the father[18].

    [18] Exhibit ICL1.

23. In 2007 the contact between the child and the father caused difficulties which were observed in his behaviour at school.  These difficulties are set out in the mother’s affidavit filed 18 April 2008 and were profound.  The child’s teacher observed in October 2007 the following:-[19]

    Behaviour deteriorated towards the end of 1st term. [The child’s] behaviour has become unco-operative, noisy in class, defiant and disruptive.

    … Monday 21/5 – very defiant, disobedient, seemingly apathetic to consequences.

    … 19/7 – [child] threw glue and scissors … because he wanted to do an art activity different from what was asked of him.

    … On Monday he would often seem tired with dark circles under his eyes.  After another week of aggressive disruptive behaviour he was suspended.

    [19] Annexure SMM4 of the mother’s affidavit filed 18 April 2008.

24. I find that the impact of the time that the child spent with the father in 2007 was particularly disruptive. The child’s behaviour became almost unmanageable and in September 2007 the child was suspended from his school and I accept the mother’s evidence that the requirements for the child to overcome that suspension were such that it was necessary to enrol him in another school.

25. The mother says that the child was acting out and behaving badly until that school suspension in the second half of 2007.  She says she had discussed the issue with the father and after the suspension.  She had gone to the father’s home with the child to collect some of the child’s possessions.  (This was the weekend when the father had held the child back).  The mother gave evidence of the child being worried about the father talking to him about his misbehaviour. 

26. The father spent thirty minutes speaking with the child (according to the mother) with the child listening and nodding.  The mother, who has been the child’s primary carer, took the child’s behaviour during that time with the father as concerning and not open, I accept that evidence.    I prefer the evidence of the mother and I am satisfied that the poor behaviour of the child was the consequence of his fear of the father and his wish not to spend time with him.

27. In March 2008 the father delivered a letter to the child at school and the mother says, and I accept, that the child had emotional distress and wanted to change school again.  The mother’s evidence and the school report show that the child’s behaviour has markedly improved in the almost two and a half years since he has had regular direct contact with the father.

28. The mother agreed to the child spending two weeks with the father over the 2006/2007 Christmas period.  The mother says that the father unilaterally extended the time by one week.  The father denies that assertion and says the time was agreed between the mother and him.  His partner Mrs Many was ambivalent about this incident in her evidence.  I am satisfied that the father unilaterally extended the time and was aware that it was contrary to the wishes of the mother.  I am also satisfied that the child had wanted to go home to his mother at the end of two weeks but the father would not allow him to do so.  This was the father focusing on his needs rather that those of the child.

29. Shortly before the child was suspended from his previous school the father took extended time over a weekend contrary to the arrangements.  The father denied that he had done so.   I prefer the evidence of the mother in relation to that (and also in relation to the Christmas/New Year extension of time).

Section 60CC(2) Factors

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

1. There is no doubt that the child has a meaningful relationship with his mother and that that meaningful relationship should continue.

2. In terms of the relationship between the child and his father it is problematic to say the least.  I have accepted the evidence of the Family Consultant and the other evidence as to the child’s strong views about not having a face to face relationship with his father.  At the same time I find that the child is curious about his father.

3. There is generally an advantage in a child having a relationship with both parents, particularly a child of this age who will soon be entering puberty.

4. The father bears a heavy responsibility for the relationship between the child and himself, for it was the father, who was violent, abusive, controlling and over bearing.  The child has recognised this behaviour and has rejected both the behaviour and the father.  The father blames others but should look to himself for this result.

5. The Independent Children’s Lawyer says I ought to be critical of the mother for “giving the child permission” to reject the father.  It is hard to do so.  The mother has been a victim of violence as much, and at some levels, if not more than the child.  The evidence of the family consultant and to some extent the mother was that she needed both time and support to escape the emotional bonds of the abusive relationship.

6. I find that the mother endeavoured to avoid both the conflict and the re-unification process by moving to Tasmania in late 2008.  Again this should be seen in the context of the mother endeavouring to regain her life and stop the appeasement of the father following the violent, abusive and controlling relationship.

7. On balance, I am satisfied that face to face or other direct communication between the child and the father in this case would not be a benefit to the child and may be damaging of the child’s emotional and psychological health.  Having regard to the evidence I find that at this time the child will not benefit from a relationship between himself and the father and further that any such relationship would  not be meaningful (in a positive sense) for the child.

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

1. As I have indicated earlier, I accept the evidence of the Family Consultant that any face to face contact and direct telephone or other electronic communication would impose enormous emotional and psychological hardship upon the child.

2. The father lacks insight into the impact of his violence upon the child and has either denied or minimised it.

3. I am satisfied that the child observed the violence in December 2005 and I am satisfied that he has observed other instances of violence both prior and subsequent to that event.

4. I accept the statement of the child that the father has, at least, reduced the father’s new wife to tears and he has seen violence or aggression in the father’s household after separation and after the events of December 2005.

5. The control exercised by the father can be seen by his extension of the two week holiday in December 2006 or January 2007 in the absence of the consent of the mother.  I accept the evidence of the mother and I reject the evidence of the father.  The child wanted his mother but the father denied that need of the child.

6. In the second half of 2007 the father again held the child back from the mother on a weekend.  I accept the mother’s evidence in that regard. 

7. I am satisfied that the father has difficulties in controlling both his temper and his aggression.  As such this places the child at risk of physical and/or emotional harm in the care of the father.

8. The father has undertaken courses, including anger management courses and counselling.  He has also attended a post-parenting course in an endeavour to show that he is able to care for the child.  Whilst he has undertaken these courses he has not genuinely acknowledged the culpability of his behaviour to either the mother or to the child.

9. The child observed the father pull the mother out of the house by the hair in December 2005 and was told to watch inside.  This incident involved a very high level of violence.  The child continues to his fears arising out of this and other violent and/or abusive incidents. 

10. The Independent Children’s Lawyer says the mother should be criticised for raising that issue of violence with the child.  I accept that submission, although as I have said earlier, such response should be seen in the context of the mother endeavouring to deal with the violence herself.

11. The violent behaviour of the father appears to be part of a long term pattern, entrenched behaviour and seems to be exacerbated by alcohol.  I am satisfied alcohol was a feature in the events at least in December 2005.

12. Both the mother and the child are traumatised by the violent, coercive and abusive behaviour of the father. I find that the risk of that behaviour re-occurring remains in place.

Section 60CC(3) Factors

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The child has consistently made it clear that he does not want to see the father.  This does not primarily arise from the mother’s fears it is based upon the child’s own memories of the events which he heard and saw and through which he was traumatised.

2. The father submits that the child was content with him and spent time with him for the two week holiday and also on the weekends between separation in July 2004 and late 2007.  That is indeed the case.  However, the behaviour of the child before and after those visits is instructive.  The child has well developed views that he does not wish to see the father and the impact of ignoring those views may be to threaten the relationship between the child and his mother (that being the child’s primary relationship).

3. The child’s views have been supported by the mother giving him emotional permission to reject the father (and I note and have regard to the evidence of the Family Consultant in that regard) and the mother’s implicit dislike of the father and his previous behaviour.

4. I give significant weight to the views of the child having regard to his age and relative maturity.

(b)the nature of the relationship of the child with:

(i)     each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. The child has a strong loving relationship with his mother, a good relationship with his step father and step brothers.

2. The only relationship the child has with the father is one of fear and rejection tinged with some curiosity. 

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. The mother has made it clear in a number of ways she does not support a continuing relationship between the child and the father.  She says this arises out of the behaviour of the father which I have dealt with earlier in these reasons.

2. The mother “goes through the motions” however, her heart is not in it.  She will do that which is mechanically necessary but the child is aware that his mother is not willing to facilitate the time between the child and the father.  There are, at many levels, sound reasons for the mother adopting this course.

3. The mother says that the child has access to photographs of the father including a photograph in his bedroom.  This evidence is contradicted by the evidence of the mother’s present husband who says there are no photographs and the one which existed was broken on or about the time they were travelling to and from Tasmania.

4. The mother has not attended the parenting course ordered during the course of these proceedings.  She gives a variety of excuses as to why she did not attend.  However, the only real conclusion I can come to is that she had no intention of going and only attended such counselling and meetings as were required by court orders if she could not otherwise avoid them.

5. The mother did not comply with the requirement to send the father information every three weeks as ordered by a Federal Magistrate.  The mother cried at the orientation session at the Children’s Contact Centre.  I accept the submission of the Independent Children’s Lawyer that although the mother has not set a deliberate course of alienation but she has facilitated it.

1. I am not satisfied that the mother will encourage a relationship between the child and the father.  She says that she will allow the child to see the father, in the future when he wants to do so.  I am not sure that she will encourage this to happen.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Either way if there is or is not time between the child and the father there will be negative impacts on this child.  The child is curious about his father and that curiosity is likely to continue.  I intend to put in place orders enabling the child to see the father if he chooses to do so.  At the same time I will put in place orders that the father not see the child unless it is in accordance with these orders or in accordance with the wishes of the child.

2. The effect on the child in seeing the father, in the child’s present state, is troubling.  In that regard I note the evidence of the Family Consultant as to the significant emotional turmoil that would be caused and also running the risk as to the disintegration of the child’s sense of self and the potential disintegration of the relationship between the child and his mother.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. This is not a relevant consideration in these proceedings. 

(f)the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. The mother has been the child’s primary carer since birth.  Apart from her implicit unwillingness to promote a relationship between the child and the father and giving the child emotional permission to not see the father there are no other significant criticisms of her parenting.

2. In terms of the father if the child is left in his care there is a real concern about the child being exposed to the father’s violence, aggression and his occasional excessive consumption of alcohol.  This is exacerbated by the father’s denial of his abusive behaviour.

3. During the course of the hearing the father attempted to be courteous and clearly saw himself as a victim.  He has limited insight into his conduct on both the mother and the child.

4. Counsel for the Independent Children’s Lawyer submits that the father deeply loves his son and that she has a degree of empathy for him in that regard, but unfortunately for the father the impact of his past behaviour and the risk of it recurring are such that direct communication would not be in the child’s best interest.  Further face to face time would be more about the needs of the father than the needs of the child. I accept that the father loves the child and I accept and adopt the submission.

5. As the Independent Children’s Lawyer submitted

   the child has seen way too much and has been given power beyond what he should have been given … [the child] needs peace and that means no time with the father. 

6. I accept and adopt that submission.

7. Hopefully, as the child becomes older his curiosity may lead to some direct communication between the father and himself.  This would need to come from the child when he was somewhat older and the child may then be better able to manage the conflict and anger which are part of the father’s character.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. The child is ten and a half and has experienced high conflict between his parents and serious domestic violence perpetrated by the father.  The child has developed serious behavioural problems post separation causing difficulties at school including his suspension.

2. Much of this arose at a time when he was seeing the father and from school reports he appears to have settled somewhat (although not entirely) since that time.

(h)    if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration in these proceedings.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. As I have said earlier the mother is generally a good parent and criticism of her should be seen in the context of the violent, abusive and controlling relationship from which she has now escaped.

2. The Independent Children’s Lawyer notes that each parent blames the other for the child’s behaviour.  That is the case, but the mother’s attitude to parenting has in the main been child focused.  In making this finding I have regard to all of the evidence including the mother’s initial approach to allowing a relationship between the child and the father (despite her misgivings) and her approach to the child’s suspension from school.   

3. The father’s attitude to parenting is self focused and lacks any insight. He read the family reports and other evidence as the child’s views of him and the child’s fears of being in the father’s care. Despite this the father submitted that a weekend fishing trip with just the two of them would solve the problem. This shows that the father does not understand the depth of the problem and more worryingly the primary source of the problem. The father’s violence to the mother in the presence of the child and to the child showed an abrogation of his responsibilities as a parent.

(j)any family violence involving the child or a member of the child’s family; and

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i)       the order is a final order; or

(ii)     the making of the order was contested by a person;

1. I have discussed family violence at length in these reasons and note there was a family violence order in place which has now expired.   The father was found guilty of the breach of the domestic violence order and was convicted of assaulting the mother.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. These proceedings have been on foot since February 2008.  It is in the child’s best interests for these proceedings to be brought to an end and for the Court driven counselling and social science investigations of him to cease.  The orders that I propose to make will achieve that end.

Section 60CC(4) of the Act

1. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)  spending time with the child; and

   (iii)  communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. Much of the earlier discussion addresses the matters contained in this provision. I do not need to repeat it again except to confirm that I have had regard to and considered the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, those set out in these provisions.

CONCLUSIONS

1. Having regard to all of the facts and circumstances in this matter, it is not a matter where there can be an order for equal shared parental responsibility.  The parents are barely able to speak to each other and the mother continues to struggle with the events that transpired.

2. It would be unworkable if these parents were to have equal shared parental responsibility of the child. It would probably mean that there would be further litigation.

3. The father from time to time acts contrary to the interests of the child and in his own interests in terms of exercising parental responsibility such as his refusal to return the child’s toy and the hovercraft (I do not accept his evidence that the hovercraft was broken and needed repairs).  I accept that the father was using the hovercraft as bait to try to persuade the child to come and stay with him.  The father’s extension of times, in particular the school holiday period in January 2007, was more about his needs than that of the child.

4. The father produced photographs of the child and him on holiday and interacting. This overlooks the impact of the violence and coercive conduct on the child, the child’s strong and persistent wishes and the evidence of the Family Consultant and the Children’s Contact Service of the child’s real anxiety at times he spends with the father.

5. I am satisfied that the mother has the capacity to properly exercise parental responsibility, as she has done in the past.  I will require her to inform the father of any significant exercise of that responsibility particularly in relation to health and education.

6. Having had regard to that finding I am not required to consider equal time or significant or substantial time.  I of course considered those matters in any event as I would in most parenting cases. In this factual situation it is not in the interest of the child for any time to be spent let alone equal or significant time.

7. Having regard to all of the findings of fact and the factors in this matter it is not a case where the child should spend any time with the father. 

8. It is a very serious step for a court to prevent a child from having any face to face time or direct communication with a parent.  This is one of those rare cases where it is in the child’s best interest that there is no such time and no such communication.

9. The mother was required to do a written report of the child’s progress every three weeks by a previous interim order.  The Independent Children’s Lawyer seeks orders that the mother provide written reports three to four times per year to the father regarding the child’s general progress.  The mother agreed to this course and I will put it in place.

10. Similarly, the mother agreed to the suggested order by the Independent Children’s Lawyer that the father be permitted to be provided with copies of the twice yearly school reports and a print of the annual school photograph of the child (not his class).

11. I make it clear the father is not permitted to attend at the child’s school or to see the child directly unless that communication or contact is specifically requested by the child and arranged in advance in writing.

12. Nothing in these orders shall impose an obligation upon the child to respond to letters, cards or presents from the father or to contact the father directly (whether in person, by phone, internet or otherwise) unless he is comfortable in doing so. 

13. The mother has not attended the program “focus on kids”.  The mother said she is willing to do that course and it seems to me that there should be no reason why she should not do so.  There is no adverse consequence and the mother may learn something of the impact of her behaviour on the child and the child’s emotional difficulties. 

14. As each of the parties and the child may be struggling with issues arising from the breakdown of this relationship I give leave for the parties, or either of them to provide to their personal counsellor or therapist, or the child’s counsellors or therapists or the child’s school copies of these reasons, the orders made pursuant to these reasons and the three family reports of the Family Consultant. 

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              4 June 2010