MATERANZI & SUSKAIN

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN

[2014] FamCA 454

FAMILY LAW – CHILDREN – Where the parties have been involved in several parenting proceedings involving the child of the parties since shortly after her birth –Where during the current parenting proceedings it became clear the major issue for determination was whether the child, who presently lives with her father, should spend some time with her mother or none at all – Whether, if it was decided that the child should spend some time with the mother, the issue for determination was whether it should be from Friday to Monday or Saturday to Sunday evening every second week – Where consideration of a number of ancillary orders including orders to facilitate changeover also required determination. – Where the court found that, not only has the mother repeatedly failed to comply with the orders of the court, but has done so in circumstances where the distress of the child has been aggravated – Whether there should be an order for equal shared parental responsibility – Where the difficulties in communication between the parents are such and the attitude of mistrust of the mother towards the father and his wife means that joint responsibility for the major decisions in the child’s life is unlikely to produce anything other than further conflict – Where the evidence sufficiently rebuts the presumption in favour of equal shared parental responsibility – Where order made that the father have sole parental responsibility – Where the court determined it is in the child’s best interests to make an order that there be no contact between the child and the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Marsden & Winch [2099] FamCAFC 152

Materanzi & Suskain (No 4) [2011] FamCA 337

Materanzi & Suskain [2012] FamCA 75

Rice & Asplund [1979] FLC 90-725

APPLICANT:

Mr Materanzi

RESPONDENT:

Ms Suskain

INDEPENDENT CHILDREN’S LAWYER:

Norman O’Dowd

FILE NUMBER:

SYC

776

2010

DATE DELIVERED:

27 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

20-21, 25- 27 February 2014 and 26 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Manfre

COUNSEL FOR THE RESPONDENT:

Ms Murphy

SOLICITOR FOR THE RESPONDENT:

Gonzalez & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all previous parenting orders in relation to H Suskain-Materanzi (‘the child’) born … 2004 are hereby discharged.
The father shall have sole parental responsibility for the child.
That the child shall live with the father.
That the child shall spend no time with the mother.
That the father shall do all acts and things necessary to make arrangements with Mr P for the child to spend time with her sisters J SP (‘J’) born … 2008 and D SP (‘D’) born … 2009 for a minimum of once each fortnight during school term for a period of not less than four (4) hours.
That within seven (7) days of the orders being made the father is to provide Mr P with a copy of this Judgment and a copy of these Orders.
That the mother is hereby restrained from attending upon any of the visits that the child has with the children J and D in accordance with Order 5.
That the mother is hereby restrained from approaching, attending and/or removing the child from CC School or any other school at which the child attends from time to time.
That the mother and the father each maintain an email account and keep each other informed of their current residential and mailing address, email address, mobile telephone number and landline telephone number at all times and notify each other of any change in their residential and mailing address, email address, mobile telephone number and/or landline telephone number within forty-eight (48) hours of such changes.
That the mother shall be at liberty to send the child cards and gifts for the child’s birthday, Easter and Christmas. Such cards and gifts are to be forwarded to the father’s mailing address provided pursuant to Order 9.
That the father shall be at liberty to inspect cards forwarded to the child by the mother and in the event that the father deems the contents to be inappropriate not give them to the child.
The father is to provide the mother, promptly upon receiving them, copies of all school reports relating to the child, school photos and is to send to the mother every three (3) months a photo of the child and a report of all significant events that have occurred for the child during those three (3) months. That material shall be forwarded to the mother at her mailing address as provided in Order 9.
That the mother is hereby restrained from contacting the child by any other means than provided for in these orders.
That the father shall do all acts and things necessary to ensure the child’s continued attendance upon Dr W for counselling.
That the independent children’s lawyer and the father shall be at liberty to provide a copy of this Judgment, the Orders and the two (2) family reports in this matter to Dr W and a copy of the orders to the child’s school. That material is to remain in the custody and control of Dr W at all times and is not to be shown to nor further copies provided to any other person(s) without further leave of the court.
That the father be restrained from:
(a)denigrating or criticising the mother or members of the mother’s extended family in the presence of or within the hearing of the child;
(b)discussing any aspect of these proceedings or any associated proceedings in the presence of or within the hearing of the child;
(c)showing any documents relating to these proceedings or any associated proceedings directly or indirectly to the child;
(d)altering the child’s name or causing the child to be known or referred to by any name other than ‘H Suskain-Materanzi’.
That the mother be restrained from:
(a)denigrating or criticising the father or members of the father’s extended family in any written communication forwarded to the child pursuant to Order 11;
(b)not writing to the child about any aspect of these proceedings or any associated proceedings in any written communication forwarded to the child pursuant to Order 11.
That the mother and the father by themselves, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of H Suskain-Materanzi, a female, born … 2004 from the Commonwealth of Australia until she turns the age of eighteen (18) years AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child, H Suskain-Materanzi, a female, born … 2004 on the Family Law Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name, H Suskain-Materanzi, a female, born … 2004, on the Watch List until … 2022 or further order of the court.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
That upon the independent children’s lawyer explaining these orders to the child then the order for the appointment of the independent children’s lawyer is hereby discharged.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 776 of 2010

Mr Materanzi

Applicant

And

Ms Suskain

Respondent

REASONS FOR JUDGMENT

Introduction

H Materanzi (‘the child’) was born in 2004 and is presently ten years of age.
In May 2004 the first of many parenting proceedings was initiated. An Independent Children’s Lawyer (‘ICL’) was appointed shortly afterwards. This is yet another parenting application in relation to the child.
As these proceedings developed it became clear the major issue for determination was whether the child, who presently lives with her father, should spend some time with her mother or none at all. If it was decided that the child should spend some time with the mother, the issue for determination was whether it should be from Friday to Monday or Saturday to Sunday evening every second week. Consideration of a number of ancillary orders including orders to facilitate changeover would also be required.
The child’s father Mr Materanzi (‘the father’) was born in 1971 and is presently 42 years of age. The child’s mother Ms Suskain (‘the mother’) was born in 1975 and is presently 39 years of age.
The parties met in early 2002. They lived together from March or April 2003 until they separated in May 2004.
In May 2004 the father initiated proceedings for interim and final orders.
On 17 November 2006 final parenting orders were made by consent, albeit after a number of days of hearing. Pursuant to those orders the child was to live with her mother and spend significant and substantial time with the father.
In October 2007 the mother alleged the father had sexually abused the child. An Assumption of Care Order was made which suspended the time the child spent with the father. After investigation, it was concluded that the child had a urinary tract infection and unsupervised time recommenced with the father.
In June 2009 the mother again alleged the father had sexually abused the child. Again, there was an investigation by the Joint Investigative Response Team (‘JIRT’). Once again the time the child spent with the father was suspended.
In February 2010 the father commenced proceedings in this Court.
In June 2010 the child commenced to spend supervised time with the father.
On 21 March 2011 the hearing commenced before Stevenson J.
Her Honour delivered Judgment on 14 April 2011. In relation to the sexual abuse allegations her Honour found:
62.I have carefully considered the evidence in relation to these allegations. Independently of the mother’s abandonment of the allegations, I am comfortably satisfied, and I find to the requisite standard, that the father did not sexually abuse [the child]. I find that the child would not be placed at unacceptable risk of supervised abuse in the unsupervised care of the father.[1]
[1] Materanzi & Suskain (No 4) [2011] FamCA 337
Her Honour ordered the mother and father have equal shared parental responsibility but that, in default of agreement, the father have sole responsibility for decisions about the child’s education and medical treatment. The child was to live with the father and spend time with the mother during school term each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and in the other week from the conclusion of school on Thursday to the commencement of school on Friday. Orders were made for holidays and special days.
Importantly her Honour also ordered:
That with the exception of those occasions when [the child] is taken to and from school at changeover, the mother and the father will make [the child] available for changeover at McDonalds Restaurant...
In 2012 the father brought a further application reducing the time that the child spend with the mother and for a restraint on the mother approaching the child’s school. Rees J heard this application on 28 February 2012.
Until 2012 the child had attended S Primary School. Rees J found the mother attended the school on an almost daily basis. She would attend for a number of reasons including changing the child’s lunch that had been given to her by the father and changing the child’s school clothes. The school records indicate that this was contrary to the school’s wishes which they had, unsuccessfully, tried to make known to the mother.
Her Honour also found that the mother was taking the child from school on Fridays soon after she had been delivered there by the father. She would not return her to school until Monday, shortly before she was due to be collected from school by her father. The child, thus, missed significant periods of school.
Due to these difficulties the father enrolled the child at CC Primary School commencing on 30 January 2012.
The mother attended CC School that day, the following day and had apparently also attended the school on the Friday before.
On Friday 3 February 2012 the mother attended CC Primary School at about 10 am and removed the child from the school grounds.
On Monday 6 February 2012 the child and the mother attended S Primary School, with the child dressed in her S Primary School uniform. The mother insisted the child be enrolled at the school.
The father then collected the child from S Primary School and returned her to CC Primary School later that day.
Rees J said:
12.The father gave evidence that in the school year which commenced on 30 January 2012 [the child] has attended school on only one Friday after she has spent Thursday night with her mother.
13.On each of the occasions when [the child] has spent a weekend with her mother she has not been brought to school on Monday.[2]
[2] Materanzi & Suskain [2012] FamCA 75
Her Honour clearly found that to be the position because her Honour concluded by saying:
34.It is important for [the child] to attend school regularly and it is important that her days at school should be uninterrupted by either of her parents. The Principals of both the schools that [the child] has attended have tried to impress upon the mother that her conduct is distressing to [the child] and is disruptive. [3]
[3] Ibid
Her Honour discharged the order made by Stevenson J as to the time that the child shall spend with the mother during school term and replaced it with the following order:
(1)(b)The child spend time with the mother during school term as follows:
i.Each alternate weekend from the conclusion of school or 3.00pm on Friday until 7.00pm on Sunday;
ii.From the conclusion of school on Thursday or 3.00pm to 7.00pm that evening in each other week;
iii.At other times as agreed between the parents in writing.
Her Honour also ordered:
(2)The mother is hereby restrained by injunction from approaching, attending and/or removing the child from [CC] School … or any other school which the child attends from time to time, without the father’s prior written consent and with the exception of those occasions when the child is to spend time with the mother in accordance with order 1(a) above.
On 11 September 2013 I delivered judgment and suspended the Thursday night time, on an interim basis, because of the continued difficulties with changeovers and the lateness that the child was being returned home to the father.
The mother is profoundly deaf. She is unable to read sign language. The proceedings were conducted with a same-time transcript appearing on the video screens throughout the court. When giving her evidence, so as to aid the understanding of it by others, the mother typed her answers, again with a typescript appearing on video screens throughout the courtroom. Her answers were then read onto the record.
In late 2006 the mother commenced a relationship with Mr P. They were married in late 2007. They have two children J born in 2008 and D born in 2009 (‘the child’s sisters’).
Although the mother remains living in the same house with Mr P, with their children, they regard themselves as separated, albeit living in the same premises.
In February 2009 the father commenced a relationship with Ms B (‘the father’s wife’). They married in 2011. The child has been living with the father and his wife since April 2011.
The father’s wife has a son of a previous marriage who is twenty-one years old and who remains living with them.
There are a number of specific issues that need to be discussed.

Non-compliance with orders and changeovers

As can be seen above there has been a history of non-compliance with orders of the court.
The father gave detailed evidence of difficulties at changeovers commencing on 8 May 2011.
In short, the father alleges that the mother was frequently late in attending changeovers, sometimes did not attend at all, required the father to collect the child from the mother’s house or the chicken shop near the mother’s house instead of McDonalds and sent a number of abusive text messages in relation to changeovers.
I will not deal with all of the occasions detailed by the father. Some more recent examples of the dozens provided the father’s affidavit sworn 28 January 2014 will suffice.
On 15 September 2013 the father and his wife arrived at McDonalds. The child and her mother were not there. The following text exchange then occurred, as summarised:
7.09 pmFather to mother: “We are at McDonalds waiting for [the child] to be returned. She should have been here at 19:00. Please advise on your eta”.
7.20 pmFather to mother: “We are at McDonalds waiting for [the child] to be returned. She should have been here at 19:00. We will wait till 19.30. If she is not here by then please bring her to our house by 20:30.”
7.25 pmMother to father: “[The child] is waiting for you as usual next to chicken shop”.
The father then left McDonalds and drove to the chicken shop a few doors away from the mother’s house. He could not see the child there. The following texts were exchanged:
7.33 pmFather to mother: “We are in front of chicken shop. Please allow [the child] to return to us.”
7.36 pmMother to father: “if you are then show yourself because we cannot see you”.
7.37 pmFather to mother: “On 11 September it was agreed to maintain handover at 19:00 at McDonalds. In future please follow current orders”.
The child was returned to her father shortly after 7.40 pm.
A similar set of events and text messages occurred on 13 October 2013. The child was not returned to her father until about 8 pm.
On 8 December 2013 the father and his wife attended McDonalds at 7 pm. The child and the mother were not there. The father then sent the following text messages, as summarised:
7.09 pmFather to mother: “We are at McDonald’s waiting for [the child] to be returned. She should have been here at 19:00. Please advise on your eta.”
7.22 pmFather to mother: “We are at McDonald’s waiting for [the child] to be returned. She should have been here at 19:00. We will wait till 19:30. If she is not here by then please bring her to our house by 20:30”.
7.32 pmFather to mother: “It is now past 19:30 and you have not returned [the child] as per court order. Nor have you advised as to when you will be returning her. Please deliver her to my house by 20:30.”
The father then returned home and he sent the following text messages:
7.50 pm“You failed to bring [the child] to McDonald’s as per court order. We are at home now please bring [the child] by 20:30 tonight”.
8.50 pm“Despite Court Orders, you have not returned [the child] to my care. Nor have you made your intentions known at all. Can you please at least advise that [the child] is ok. Thanks, [Mr Materanzi]”.
The mother returned the child to the father at about 9pm.
On 21 March 2013 the child was due to be collected by the father at McDonalds at 7 pm. The mother and the child were not there. There was an exchange of text messages. At about 8 pm, according to the father, he attended the mother’s home with the father’s wife. He said he could hear yelling and screaming from inside the home. He knocked on the front door and repeatedly said ‘[H] please come out where (sic) here waiting for you’. He said in his affidavit sworn 2 September 2013:
…
100.At one point the mother answered the door and started yelling at me in [the child’s] presence saying words to the effect of:
“Go away.Go call the police.”
I could see [the child] standing near the doorway looking helpless and she appeared to be in a distressed state. I observed that [the child] was covered in a bath towel and the mother then shut the door.

When the father attended the police station to seek the assistance of the police he was informed that the mother had alleged that the father had damaged the front door.
Mr P said of this event that the father came and knocked on the door, the mother answered it and said ‘Look she’s in the shower, she will be out in five minutes’ and then closed the door. He heard a bang from the door and went outside and saw the father’s wife at the front gate who said ‘This is ridiculous, what’s going on, where is [the child]?’ He agrees that the mother then called the police. In cross-examination Mr P agreed there was no damage to the door and that, as he had told the mother, there was no need to involve the police.
The police record of the incident is consistent with the father’s and Mr P’s version of the incident.
The mother said that she had attended at McDonalds with the child at 7.00 pm. That is not consistent with the above, including the child still being in the shower after 7.00 pm. Her evidence cannot be correct.
Apart from the unnecessary involvement of the police, there was no explanation given as to why, after the time due for changeover at McDonalds, the child was still in the shower at the mother’s home.
The mother did not deal with any of these specific incidents in her evidence. That was partly due, she said, to her losing her phone, and hence the text messages on them, in November 2013. She denied that she was generally late and asserted that many of the texts relied on by the father were not genuine as they had been sent well after changeover time despite the child having been returned at the correct time.
Other than for this assertion there is no evidence of this allegation. There is no suggestion of any complaint, at any time, that the father was creating such false texts. Given the relationship between these parties one would have expected a prompt and very pointed response to any such activities if they were taking place.
Taking into account those matters, I am satisfied that the evidence given by the father and the father’s wife, as to the text messages and conduct on changeovers, should be accepted.
In those circumstances, I find that not only has the mother repeatedly failed to comply with the orders of the court but has done so in circumstances where the distress of the child has been aggravated.
The mother herself said that, at changeover time, the child feels in the middle of it.
I have already referred to the two allegations of sexual abuse made by the mother.
During these proceedings it was suggested that the mother had attempted to make further allegations of sexual abuse and have notifications made to the relevant government department. The records are somewhat confusing. It would not be safe to place reliance upon them and I do not do so.
The mother read an affidavit sworn by her on 17 July 2012. It was prepared for use in earlier proceedings.
It contained the following:
23.64 …Except to say that the father is abusing [the child] emotionally and disrupting her school life and happiness by removing her from schools and making false statements that [the child] is happy at the new school with no friends.
Two annexures to that affidavit in particular were relied upon.
One of them, being Annexure ‘H’, was the extract of pages from the father’s wife’s son’s Facebook page. She complains about the son’s bad language, smoking, makes allegations of abuse of drugs and general misbehaviour. From this, it is apparently suggested that the home in which such a person lives would not be a suitable environment for the child.
The extracts are clearly from the Facebook page of a young man. The pages are from 2010 to early 2011. Thus they are not very relevant to his present behaviour.
He told the family counsellor for the preparation of a report in May 2013 that he gets on fine with the child but because of the age gap does not have a lot of interaction with her. He noted the allegations of drug use made against him stating that this had been raised before and that as he told his mother at the time he had experimented a long time ago but stopped because it made him sick.
A number of photographs are also annexed to the affidavit, being Annexure ‘I’. It is alleged those photographs show bruising on the child inflicted by the father. The annexed pictures are colour photocopies of photographs. I was quite unable to detect any bruising in those photos. When that was raised with counsel for the mother a clearer set of photographs were tendered. Once again it is impossible to identify anything that can clearly be identified as a bruise.
I have already referred to the unnecessary involvement of the police on at least one occasion.
The mother has previously alleged that the father and the father’s wife have hit the child around the legs. She also has alleged that they have not provided her with proper food.
The fact that the allegations described above were persisted with at this hearing, is a cause of concern. They demonstrate that the mother is keen to latch onto anything she can to support her case and damage the father’s position. Other than for the mother’s say so there is no evidence to support them and I am satisfied that the mother’s complaints are misconceived.
On 14 October the child injured one of her fingers. She had a small hairline fracture and dislocation to the growth plate which required a minor procedure under anaesthetic. The operation was fixed for a Children’s Hospital on 18 October 2013. Through a series of texts it was arranged that the mother would visit the child shortly prior to the operation. The events as described by the father, in his affidavit sworn 28 January 2014, were then thus:
13.At about 2pm on Friday 18 October 2013 my wife Jana and I attended [the Hospital] with [the child] and waited in the Surgical Short Stay Division. The mother had not yet arrived and I sent her a further text saying: “Please let us know what time you will be here. [The child] might go in at any time now.” Shortly thereafter the mother by exchange further brief text messages and she arrived with [Mr P] and [the child’s] sisters [J] and [D]. Prior to the mother’s arrival [the child] became distressed and repeatedly said to me words to the effect of: “Don’t tell mum. I don’t want mum to know I was having fun with my friends from school when I hurt myself” and “If mum was coming I have to have mummy’s clothes on or she’ll get upset with me”. [The child] became very anxious and we arranged for [the child] to put on a surgical robe in order to reassure her that her mother would not see her in normal clothing. When the mother arrived I noticed [the child] was attempting to cover the positive comments made by her friends on the cast of her right forearm and hand. [The child] looked noticeably uncomfortable and awkward interacting with her mother but was noticeably relaxed with her sisters.
The father’s wife described the child as getting distressed and scared because, although the child likes to see her mother, the child was at the time wearing clothes not from her mother. When she is with her mother she only wears clothes provided by her mother. The father’s wife describes helping the child remove all her clothes, including her underwear, and placing her in a surgical gown prior to her mother’s arrival. She said the child calmed down after she had changed into the gown.
The mother described the child as happy to see her and not anxious and that she showed her the cast on her arm.
It is the father’s and the father’s wife’s evidence that the child needs to have two sets of clothes one provided by the mother which she wears when with the mother and another set at other times. This is, according to them, because the mother becomes upset seeing the child in the clothes provided by the father which the child, in turn, finds distressing so she avoids the situation. She has two lunch boxes for the same reason.
The mother denies that this is so and asserts that it is the father and the father’s wife that will not allow the child to wear clothes provided by her when with them.
The position of the father is supported by the school records that show the mother attending at the child’s school to change clothes, shoes and lunch boxes on numerous occasions.
Given the school records, I have no difficulty in accepting the father’s wife’s apparently genuine evidence.
Returning to the hospital incident, it matters little whether or not the cast was shown to the mother. It is not surprising that the child, now suitably clad, was happy to see her mother.
Importantly, this evidence demonstrates that the child was upset to the point of being clearly distressed by the thought of the mother seeing her in clothes provided by the father, even to the extent of her underwear.
The family consultant describes it as being very significant for the child, if it occurred. She indicated that this anxiety suggests that the child fears her mother might abandon her if she saw her in the father’s clothes and that she, thus, had the fear of abandonment or fear of the loss of a loved one, the mother.

A note written by the child

The mother relied upon a hand written note of the child’s which the mother said was written in the January school holidays in 2014. She persisted with that evidence, denying that it had been written the weekend before the hearing commenced on 24 February 2014, until confronted with the fact that part of the note was written on a school circular dated 12 February 2014.
Before setting the note out in full, it is necessary to remember that it is not unusual for the child to communicate with her mother in note form due to her mother’s deafness.
The note, being Exhibit 38, says:
a boy told me [derogatory rhyming names].”
The teachers are mean and we get in trouble for asking a question. I asked if i could get a drink and the teacher screamed no sit back down no speaking
a boy called me [derogatory name] and i said stop i dont like it and he scratched me and it was bleeding and it hurt and stung so I told the teacher and she said i’ll be fine.
[Ms B] says: oh why would she bring food we have food here thats Just stupid.
She wants to buy me lunch boxes but monster ones - i say i already have She says why fricken hell
She says stop it
I never talked to her about school
I only say to him that I want to go to [S Primary School] and that I don’t like the school because i get teased about my name and last name.
I feel sad and angry when [Ms B] screams at me and says bad words about mummy and when i scream back [Ms B] tells him and i get in trouble and get sent to my room he screams at me and puts me in my room he screams dont do that ever agiain and promise you wont do it again and I just walk away
I don’t want them to hug me or kiss me but they try to do it to me and I say no go away but they just say dont say that.
I dont have any fun with them
Why did you do that i wanted that i don’t like your food i want the food mummy cooks me.
when i write things down it is always true and i dont lie
I dont like living with them I feel tired, sick, sad, angry
(As per original)
The mother denied that she had caused the child to write the note or that the note represented her questioning the child in relation to the material in the second family consultant’s report which had just been released.
The purpose of the tender was obviously to try to establish that the child has no close relationship with the father and his wife, she is distressed by living with them and that she is not properly cared for by them.
The content of the note differs from what both the mother and the child told the family consultant.
The family consultant recalled that the mother had told her that the relationship between the child and the father had improved because he had bought her clothes and food that she likes. There was, thus, a perception of improvement.
The family consultant concluded that this note confirms some of the questions she had raised about the child’s sense of freedom to express positive dimensions of her relationship with the father to the mother and to hide affectionate aspects of that relationship.
Mr P said that the child presented a positive picture of the father’s house and her relationship with him but that he had observed her saying different things to her mother. He told the family consultant that she wants to please both parents that but he thought the child was more honest with him than with the mother.
The father and his wife say that the child will not show affection towards them in front of the mother.
The evidence of Mr P, the father’s wife and the father on this issue is of one piece. It is accepted. It is consistent with the concerns of the family consultant.
Thus, in the words of the family consultant, it is not necessary to determine whether the mother recruited the child to write the above note or not because, in either event, the purpose of the note is to meet the mother’s needs and not the child’s needs. Directly, or indirectly, in writing the note the child is trying to please her mother. It indicates that the child is in danger of having to create what the family consultant described as a ‘split self’ whereby the child will say different things to each parent to please them.
On the other hand, the father says that he and the child talk little about the mother. She does talk to the father’s wife about her mother saying that she at times misses her mum and her sisters. The father’s wife says that more recently she has asked the child if she wants to talk more about her mother. The child is doing so and is slowly starting to question if things are true.
It is thus telling that the child can say positive things about the mother to the father’s wife and say positive things about the father and the father’s wife to Mr P but that she cannot not do so with the mother. Rather, she says markedly negative and derogatory things to the mother about the father and the father’s wife.
The child made no complaints about her father or the father’s wife to the family consultant. She did say that she trusts the father and feels safe with him.
Of her most recent observation of the child with the mother, the family consultant noted the display of affection between the child and the mother to be not quite genuine, perhaps exaggerated and to use her words ‘stilted’.
All of this clearly establishes that the relationship between the child and the mother is such that the child feels the need to say derogatory things about the father and his wife in order to please the mother and to ensure, at least in her eyes, the continued love and acceptance of her by the mother.

Principles to be adopted

I must apply the relevant principles of the Family Law Act 1975 (Cth)(‘the Act’). Having regard to the objects of the part dealing with children as set out in s 60B. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration. I am obliged to consider the matters set out in s 60CC of the Act.
Section 61DA(1) provides:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility for the child.
Sub-section (4) provides:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
One of the primary considerations raised by s 60CC is the benefit to the child of having a meaningful relationship with both of the child’s parents.
If a no contact order is made there will be no relationship, let alone any meaningful relationship, between the child and the mother.
Making an order for contact, albeit limited contact, with the mother will give the child the opportunity to maintain a relationship with the mother. That relationship is, however, harmful for the child in many ways and it could not be described as a meaningful relationship.
The real issue in this case is whether it is in the child’s interests to have contact with her mother or not. If it is, in fact, not in the child’s interest to have contact with the mother that is the order that should be made, notwithstanding it would end the relationship between her and the mother for the foreseeable time.
The second primary consideration to be taken into account is the need to protect the child from physical, psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It was suggested during the hearing that the conduct of the mother in requiring the child to meet the mother’s emotional and psychological needs, rather than the reverse, is capable of causing psychological harm. It is difficult, however, to see how such conduct, even if extremely undesirable, constitutes abuse, neglect or family violence.
There are a number of other matters that must be considered pursuant to s 60CC.
The child has clearly expressed her view to the family consultant, and to the father’s wife, that she would like to live with the mother. She is ten and her views must be given some weight.
For the purpose of the first report of 2 May 2013, when initially when asked about where she would like to live, the child said she had no views to express. When asked to make three wishes her first was to live back with her mum and the second was to go back to her old school. She said she wanted to go back to live with her mum because of her sisters, her room and because she misses the mother. The family consultant added ‘she made it clear that she finds these issues relating to the parenting arrangements too hard’.
At the time of the interviews for the second family report dated 12 February 2014 the child expressed no express wishes. The family consultant recorded:
21.[The child’s] protestations regarding how much she misses her mother and her sisters, and her tearfulness when describing this, notwithstanding, she declined to offer any views about what her living arrangements should be.
Of the child’s wishes the family consultant said in her first report:
48.[The child] has expressed a wish to live with her mother and sisters. Whilst this is likely, to some degree, to reflect her missing her mother, stepfather and siblings, the possibility cannot be excluded that it might also reflect concern about the possible consequences of saying anything other than this. Regardless of the reasons for her expressing the wish, however, the decision as to where she lives, in this writer’s opinion, needs to made (sic) based on factors other than [the child’s] views. Perhaps one of the most important factors is parental capacity to understand, appreciate and empathize with [the child’s] position and, therefore, ability to help her with her feelings about her predicament. [The mother] does not appear to be receptive to the possibility of any interpretation other than her own for [the child’s] complaints about her father, his wife and life in his household. This does not position her to be able to help [the child] with her difficult feelings about her family situation. [The father] appears able to think about what [the child] says to him and about him as being related to her position between her mother and him. This positions him to be able to help her with her feelings about her difficult family situation.
Thus, if the position is that, if it would not be in the child’s best interests to spend time with the mother, for the reasons given by the family consultant, then her wishes must yield to those best interests.
There is no doubt that the mother and the child genuinely love each other and enjoy each other’s company.
The concern raised by the family consultant is whether that relationship, loving though it is, is based upon the child meeting the mother’s needs and not the mother meeting the child’s needs.

This is manifested by the child in saying unpleasant things to the mother about the father, the father’s wife and where they reside, the food she is given, the school she attends. It is also manifested by the child not being able to wear clothes given to her by the father in the presence of the mother.
The note that the child wrote is quite telling. Issues of food and school were well in the past and there is no apparent reason why the child would write about them unless to please the mother.
When it was suggested to the mother that the child had a number of friends at CC School the answer was to the effect:
No she said she speaks with them but sometimes they are not nice to her she compares their friendships to the ones at [S Primary School] and she stated having twenty-seven friends at [S Primary School].
Whilst it is true that the child said she would prefer to attend S Primary School the mother’s evidence is an exaggeration.
The child made no complaints about the father or his wife to the family consultant and confirmed that she trusts the father and feels safe with him.
The father says that the child has said to him in late 2013 and early 2014 words to the effect:
·    I have to wear the underwear and singlet mum bought for me
·    Please pack me more lunch today because mummy gets angry if I eat all the lunch you make me.
·    [Ms B] please do my hair so it looks like I did it myself.
·    If I don’t do what mummy wants me to do or say bad things about you and mum says I don’t love her and I should go back home to that bastard [the father] and his bitch girlfriend [Ms B].
·    Mum says if I won’t stay with her and keep coming back home to you and [Ms B] that she doesn’t care because she has my sisters [J] and [D] and they love her more than I do.
·    Mum gets angry and when I want to come back home to you and she yells at me saying “pack all your bags and go back to that bastard [the father] who wanted me to get rid of you and left us out on the street when you were a baby.
·    If you love me and your sisters you have to stay here.
·    I’m not allowed to call you Papa when I am with mum or Mr [P] because she gets angry and says I have to call you [first name].
The father’s wife says that on several occasions the child has said the following (these are examples not the entire list):
·    Mummy tells me you’re a bitch and you don’t love me.
·    Mummy says I shouldn’t wake up in the morning to go to school.
·    Mummy says I have to live with you and Papa because she was late getting me to school.
·    Mummy says I shouldn’t make any friends at [CC School] because I will be going back to [S School] soon so why bother.
·    Mummy says you don’t feed me properly and give me milk with hormones that is making me grow too fast.
·    Mummy says that if I don’t do what she says that means I don’t love her and I should stay with you and Papa because only my sisters love her.
·    Please don’t let mummy know about the fun activities I do when I am here with you and Papa it will make Mummy get angry.
·    Please don’t kiss me or hug me in front of Mummy because I will get into trouble.
·    Don’t return the food and things Mummy packs for me because she will get angry and say it is my fault.
·    I love being with you and Papa and I am happy here but that makes Mummy sad and angry.
There is no reason not to accept that evidence. The father, and his wife, in particular, struck me as genuine witnesses. More importantly, their evidence accords with the contents of the note produced by the child referred to earlier.
Accordingly, I find that the child wrote the note and says the things that she does to the mother so as to try and maintain the relationship with the mother.
The family consultant in her second report stated:
25.As previously stated by this writer, [the child’s] feelings of missing her mother and her sisters are likely to be quite genuine, however, it would also seem she is uncomfortable in expressing any similar positive feelings about her father in a context which her mother will also be aware of how she feels. If indeed, [the child] perceives her mother as being hurt or feeling threatened by her having a positive relationship with her father and stepmother, she is likely in the circumstances to try to protect her mother and her own relationship with her mother by lying to her about such issues. This is particularly so if her mother has, in fact, either deliberately or inadvertently, given her to understand that she could be rejected for feeling comfortable or happy with the current living arrangements.
I find the two possibilities referred to by the family consultant to be the position.
Thus, whilst there was a genuine and loving relationship between the child and the mother it has an undercurrent to it which, as identified by the family consultant, is not in the best interests of the child.
The child has a close and loving relationship with her two sisters and enjoys the role of being an elder sister. The relationship with her two sisters is one of great value and importance to her as evidenced by being one of her three wishes that she live with her sisters.
The child also gets on well with Mr P and members of Mr P’s family.
Although the child is reluctant, at least in circumstances where her views might be important to the mother, to express affection for the father, she obviously has a sufficiently close relationship with him to be able to say to the family consultant that she trusts him and feels safe with him. The father’s wife and the father obviously love the child deeply as well.
As to the nature of the relationship the family consultant said in oral evidence:
While [the father], from the text messages attached to his affidavit, would appear sometimes to get caught up in the “argy-bargy” between himself and [the child’s] mother, he nevertheless seems more able to appreciate [the child’s] difficulties in the situation between him and her mother.
Thus, despite the close relationship between the child and the mother, the underlying nature of the relationship raises serious concerns about the amount of time that the child should spend with the mother and significantly weighs against there being joint parental responsibility.
Each of the child’s parents spends time with the child when they can. Indeed, part of the problem of this case is that the mother seeks to spend and in the past sought to spend too much time with the child.
Participation in making decisions about long term issues in relation to the child for both parents is difficult because of the history of the matter and the orders that have been in place for parental responsibility.
Each of the parents maintains the child to the extent they can.
It is starkly obvious that if a no contact order is made there will be a significant change in the child’s circumstances. She will be separated in the foreseeable future from the mother.
I accept the evidence of the family consultant that orders involving no contact between the child and her mother would lead to the actual loss of her mother and her sisters. This would be painful for the child and there is a risk that she will blame herself for there not being any contact. There is no doubt she will genuinely miss the mother and undergo a grief reaction. That reaction will extend to the loss of contact with her sisters although this could be mitigated, to some extent, by providing for continued contact with her sisters.
The family consultant added that the issues arising from the loss from no contact with the mother are somewhat more straight forward to deal with than the issue of continued contact, especially if the child is well-supported, loved and able to express her emotions and loss freely. To this end the father and his wife seem to be able to offer such loving support and have indicated that they will support an order being made providing for the child to see her current counsellor.
In this case one would have thought there would not have been a great deal of practical difficulty in the parties organising the changeovers. That has not been the fact. Changeovers have been complicated by the mother not having had a car for a significant part of that period and by having two young children to care for. Since they have been going to school the position has eased somewhat because Mr P usually takes the child’s school aged sister to and from school.
Even so, the problems with changeover arise less out of practical difficulty than the deliberate actions of the mother not to facilitate changeover in a timely and helpful manner. Mere disorganisation on the part of the mother is not the sole answer. The texts sent to the father about changeovers suggest a deliberate lack of willingness to try to make changeovers work.
If a no contact order is made this will cease to be a relevant issue.
As discussed earlier changeovers continue to be a turmoil in which the child is caught right in the middle. Apart from the emotional upset it cannot be good for her routine. It is not at all desirable.
If changeovers continue to be between the parents there is no prospect at all that the position will change. The turmoil will continue as it has in the past. No one could propose an order that would cure the problem.
The mother does not accept that there is a problem – the mother maintained that most changeovers occurred on time without difficulties.
Changeover could be facilitated by the parents picking up and delivering the child at school. This, however, has been tried and it failed as set out earlier.
The difficulties with change over support there being order for no contact between the child and the mother.
The father proposes to move to the Suburb L area when the child finishes primary school.
If there is to be contact in the future such a move will cause practical difficulties. Although the mother has recently purchased a car it is registered for only one month. Financial circumstances suggest that she will not have the use of a car for long in the future. She would find it difficult therefore to deliver and collect a child to and from school or to and from the father’s home if it is near Suburb L.
In those circumstances it may well be that the only realistic solution is for the father to make the trip from Suburb L to the mother’s home.
This is further complicated by the difficult family situation in which the mother lives presently.
Mr P owns the house in which she resides in equal shares with his former partner. He says that they have effected a property settlement so that his former partner has no claim upon the house but this has not been formalised in relation to the title of the property. One of the reasons he continues to live under the same roof with the mother is that he does not wish to sell the house. He, of course, also has a relationship with his children, which keeps him living there.
It is impossible to predict what the short-term future holds for the mother and where she will reside. It cannot be certain that the present arrangement between her and Mr P will continue. If she were to move some distance away that would add to the practical difficulty.
Just prior to the commencement of the hearing the mother purchased a car from Mr P. It was suggested by her that this would enable her to effect changeovers more efficiently and enable her to effect changeovers at school. The mother registered the car, but only for one month. She did not say how she would be able to maintain the vehicle and its registration.
Given that Mr P has owned a number of vehicles for some time this is a case of too little too late. I am not satisfied that the mother will maintain the vehicle and its registration or that she can afford to do so.
The mother’s capacity to provide for the emotional and intellectual needs of the child is undermined by a number of matters. The mother responds to difficulties by blaming others. As has just been discussed the difficulties at changeover arise, not just from difficulties in practical implementation, but by deliberate acts of the mother and the failure of her to recognise that there is a problem. The family consultant said that it is likely to arise from issues of control – that is the mother by making changeover difficult asserts control over the child. She has an incapacity to comply with court orders. Quite simply, if she does not like them she does not comply with them.
Much was made, on her behalf, of the mother having not attended the children’s school for over a year, in contrast to her previous behaviour.
The reality is that that was not the effect of a change in heart of the mother but the effect of an express injunction restraining her from attending at the children’s school.
The mother said in her affidavit sworn 20 February 2014:
39.I seek to have equal shared parental responsibility for [the child]. I am willing to communicate with the father about major long term decisions. I acknowledge that there have been problems in the past but I note that my time with [the child] has been going well and I wish to be involved in decisions about her life.
That rosy view does not accord with the facts. There is no recognition by the mother that there is a significant problem that needs addressing. She has not sought any professional assistance to deal with the issues raised by the two family reports.
This is also true of the mother’s attitude to the child and the responsibilities of parenting.
The father and his wife appear to have the capacity to understand the child’s needs and are doing their best, in difficult circumstances, to meet them.
The child’s life has been marked by a long and extensive litigation. In this case it is highly desirable to make an order that is the least likely to lead to the institution of further proceedings in relation to her.
It is time that she was able to get on with her life without being the subject of court proceedings. The best way to achieve that is to make a no contact order. Whilst this will not entirely protect the child from further litigation it is much more likely to do than any order involving contact with both parents. That is certain to end in further litigation if the past is any guide at all.
If there is an order made, of any time for the child to spend time with her mother, the conflict and disputes over changeovers certainly continue.
The mother herself said the child is right in the middle of it. If orders for continued contact are made I have no doubt that in a few years another judge will be placed in the same position as me – being asked to decide between a no contact order and continued contact.
One course is much less likely to lead to further litigation rather than the other and that is there being a no contact order.

Whether there should there be an order for equal shared parental responsibility

The presumption of equal shared parental responsibility is to apply unless, by reason of abuse or violence, it is taken not to apply or where it is rebutted by evidence that it would not be in the best interests of the child for it to apply. The first does not apply in this case.
The presently existing order is that the mother and the father have equal shared parental responsibility for the child provided that the father has sole responsibility for making decisions about her education and medical treatment in default of agreement by the parents.
Since that order was made on 14 April 2011 there has been extensive non-compliance with those orders. That non-compliance by the mother has led to two judicial modifications of that order designed to restrict and limit the disruption caused to the child’s life by that repeated non-compliance.
Despite those attempts the breaches of the orders continue. The parties engage in lengthy correspondence, particularly about text about changeovers.
The mother’s behaviour, whether conscious or otherwise, in having the child say derogatory things about the father and his wife is continuing.
The circumstances are such that they have changed to such a degree that it is in the child’s best interests to reconsider the issue of parental responsibility. (See Rice & Asplund [1979] FLC 90-725, Marsden & Winch [2009] FamCAFC 152) If there is to be a no contact order it would not be appropriate for there to be equal shared parental responsibility.
The difficulties in communication between the parents are such and the attitude of mistrust of the mother towards the father and his wife means that equal shared parental responsibility for the major decisions in the child’s life is unlikely to produce anything other than further conflict.
The evidence sufficiently rebuts the presumption in favour of joint shared parental responsibility and an order will be made that the father have sole parental responsibility.
In those circumstances it is not necessary to consider the issues raised by s 65DAA.

Would it be in the child’s best interests for there to be a no contact order?

The choice is between a no contact order and an order whereby the child spends some time with the mother.
Each course has its own distinct advantages and disadvantages.
The advantage of a no contact order is that it will, to the extent an order in this case possibly can, reduce the risk of there being further litigation. It will remove the child from the environment where she has forced to act in her mother’s best interests rather than her own. It will avoid the risk, identified by the family consultant of developing a serious problem in relating to her father and to her mother in the future. It will remove the risk that she will develop problems in the future with core stability or her remaining in touch with her authentic self. All of these were identified by the family consultant as being risks in continuing to spend time with the mother.
I accept that evidence.
It follows that I find removing the child from spending time with the mother will stop having to dissemble in relation to the father, remove feelings of guilt and being a traitor to him in doing so. This will avoid the risk of ending up with the problems of self-esteem for the child and how she views herself.
There are distinct disadvantages to a no contact order.
The child will suffer a loss not only of her mother but of her sisters. The loss of her sisters can be modified to some extent by an order that she continue to have contact with them and Mr P said in evidence that he was prepared to facilitate this. Nevertheless, the relationship with her sisters will not be as it has been.
Accordingly, the child will go through a grieving process. There is a real risk that she will blame herself for there being no contact with the mother which would be most detrimental to her.
A further and important disadvantage, in the words of the family consultant, was the long-term impact of the child having to live in two worlds, one where she could be positive to the relationship with the father and one where she needs to present at negative view of the father.
The advantage of the child spending time with her mother is that they both genuinely love each other and the child loves and adores her sisters.
Weighing these matters in the balance is not easy.
The family consultant was not prepared to make a recommendation as to which was the better course. This is no criticism – it is impossible to predict what the outcome of either course may be. It will be hindsight which will determine whether the choice was correct or not.
I have decided that there should be a no contact order.
I bear in mind the long-term risk to the child of the long-term exposure to the mother and the psychological damage that will occur. Whilst there is a risk of there being emotional and psychological damage to the child if there is a no contact order I accept the family consultant’s view that the treatment of such damage is more straight forward than the management of the difficulties that will arise for the child if she continues to spend time with the mother. This is particularly so if the child is loved and supported. I am satisfied she will be. The evidence thus establishes that the child is likely to better off emotionally, in the long term, if a no contact order is made.

The second factor that persuades me to this view is twofold – there is certain to be further litigation if there are orders by which the child spend time with the mother and there are certain to be continued difficulties about changeovers, regardless of what orders are made and whatever steps are taken to try to prevent them.
Thirdly, the orders for time proposed by both the ICL and the father involved there be automatic suspensions of time if orders were contravened in specified ways. I have no doubt that sooner rather than later it would be asserted by the father that those triggers had taken place and I am equally certain that that would be vehemently denied by the mother. Even if there was not such a denial, I am certain that those orders would be triggered leading to significant periods of time when there would be no contact between the child and the mother. Such an off and on relationship would be most undesirable.
Accordingly, it is in the child’s best interests to make an order that there be no contact between the child and the mother. In order to give effect to this finding, given the mother’s history of approaching the school and non-compliance generally, the injunction restraining the mother approaching the child’s school will be maintained. There will be a specific order restraining the mother from being present when the child is spending time with her sisters. The mother will also be restrained from contacting the child other than in accordance with these orders.
It is appropriate to ameliorate the effects of that order by making orders for the exchange of gifts, cards and photos on important occasions. The father will be required regularly to provide photos of the child to the mother and to give her reports on the child’s progress. The father will be entitled to remove any unsuitable material before it is given to the child.
The child is currently being seen by a counsellor and this will continue. It is appropriate for orders to be made that copies of the family consultant’s reports and this Judgment be made available to that counsellor to deal with the issues that are undoubtedly going to flow from these orders.
One of the factors I have taken into account is the fact that Mr P has said he will facilitate the child spending time with her sisters. He is not a party to the proceedings and orders cannot be made that will bind him. There are difficulties in his relationship with the mother and it cannot be assumed that for any particular time in the future they will remain living together and that he will have sufficient control over the sisters to be able to facilitate them spending time with the child. He works shift work.
There are thus many practical difficulties that face the child spending time with her sisters. It is very important that, to the extent that he can do so, Mr P facilitate the child spending time with her sisters as much as he possibly can. Not only will that greatly be in the child’s interest but also in the interests of her sisters. Orders will be made providing Mr P with a copy of this judgment and a copy of the orders.
Final orders to be considered are the issue of overseas travel. Both parties wish to travel overseas with the child. That now is not possible for the mother.
The father wishes to take the child overseas at some unspecified time. He seeks orders permitting him to obtain passports for the child and travel overseas with her.
Whilst he will have sole parental responsibility for child in the circumstances of this case it is not appropriate to make such an order. What is important is stability in the child’s life.
Also whilst there is no evidence that the father is likely to retain the child outside Australia given the orders that will be made in this case the mother is entitled to feel secure in the knowledge that the child remains in Australia. Accordingly, an order will be made restricting both parties from removing the child from Australia and shall be placed on the Airport Watch List.
Accordingly, I make the orders set out at the commencement of my reasons.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 June 2014.

Associate:

Date: 27 June 2014

[2014] FamCA 454

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