MCPHERSON & AGIES

[2010] FamCA 1268

FAMILY COURT OF AUSTRALIA

MCPHERSON & AGIES [2010] FamCA 1268

FAMILY LAW – CHILDREN - Best interests – child to live with the father - sole parental responsibility. Child to spend time with mother during day times only.

Family Law Act 1975 (Cth)

Bennett v Bennett (2001) FLC 93-088

APPLICANT: Ms McPherson

RESPONDENT: Mr Agies

FILE NUMBER: MLC 397 of 2008

DATE DELIVERED: 24 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 24 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Henwood

SOLICiTOR FOR THE RESPONDENT: Randles Cooper & Co Pty Ltd

COUNSEL FOR THE INDEPEDNANT             

CHILDREN’S LAWYER:  Mr Eidelson

SOLICITOR FOR THE INDEPEDNANT

CHILDREN’S LAWYER:  Goddard Elliott

IT IS ORDERED THAT

1. The father have the sole parental responsibility for making all decisions with respect to the child B born … 2004.

2. The child live with the father.

3. The mother spend time and communicate with the child as follows:

   a.during school term between 10:00am and 5:00pm on each alternate Saturday commencing on the second Saturday of each term;

   b.during the first and third term and December/January school holidays between 10:00am and 5:00pm on each Saturday PROVIDED HOWEVER that the first period of contact for any such school holiday occur on the second Saturday after time spent pursuant to paragraph (a) hereof;

   c.from 10:00am and 5:00pm on Christmas day in each year;

   d.on the child’s, the mother’s and the child C’s birthdays as follows:

   i.if on a school day from 4:00pm until 7:00pm;

   ii.if on a weekend from 10:00am until 2:00pm; and

   iii.on Mother’s Day from 10:00am until 5:00pm; and

   e.as otherwise may be agreed in writing between the parties.

4. All changeovers occur at the KFC D Street, Suburb E.

5. The father inform the mother without delay of any medical health issue concerning the child which requires hospitalisation.

6. The father authorise the child’s school to provide to the mother at her cost, if any, copies of any printed information they produce concerning the child’s social and academic progress including school reports.

7. The mother be restrained from taking the child to any medical professional including any psychologist, counsellor or like person for the purpose of assessment or treatment PROVIDED HOWEVER that she be authorised to take the child to a general medical practitioner or hospital emergency department in the event of a physical emergency of the child.

8. Each of the mother and the father be and is each hereby restrained by himself or herself, his or her servants and agents from discussing, with the child or in her presence or hearing:

   a.any issue directly or indirectly relating to these proceedings; and

   b.any criticism of the other parent.

9. All applications be otherwise dismissed.

10.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.

11.General liberty be reserved to both parties to apply.

IT IS CERTIFIED

12.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 397 of 2008

Ms McPherson

Applicant

And

Mr Agies

Respondent

REASONS FOR JUDGMENT

1. B was born in 2004.  She will be six years of age in a few weeks’ time.  Her parents, Mr Agies, who was born in 1958 and is nearly 52 years of age, and her mother, Ms McPherson, who was born in 1972 and is 38 years of age, are in dispute about various matters concerning the child’s best interests and, in particular, with which parent she should live and the circumstances in which she should see the other parent.

2. These proceedings have been relatively unusual in that the details of the factual matrix are relatively small insofar as they are relevant.  There is no question that the parents are in profound dispute with regard to their daughter and are unable to agree on virtually any fact concerning her interests.  As I will discuss, both parties are to be criticised, both for the way in which they have individually parented the child and for the way they have allowed the dispute between themselves, which is at the highest end of dysfunctional behaviour, to impact on their daughter.  These proceedings have been brought about by those conflicts and, regrettably, negative behaviour has led me to find negatively against them.

3. I do not think that either of them has been deliberately misrepresenting of the facts, but rather that the conflict between them has led them to each have his or her own view of those facts.  This case is also about insight into their behaviour and perception of the other party’s needs and behaviour.  Again, both parties have been lacking in those regards to a high degree.

4. To the extent that the background is relevant, Mr Agies has a child by a previous relationship, Ms F, who was born in 1986 and is presently aged 24 years.  I am informed by the Independent Children’s Lawyer that subpoenaed material from the Department of Human Services, which has not been tendered in these proceedings, indicate notifications by Ms F against her father with regard to sexual assault in approximately 1992 and in April 1994.  As a result, the father was presented for trial in the County Court of Victoria in approximately November 1995 on charges of sexual assault and incest and was acquitted by the jury.  He is, therefore, innocent of those charges, and although they were referred to briefly by the mother in her cross-examination, they have not been explored and are not submitted to be relevant for present purposes.

5. Tragically, the mother had a child by a previous relationship who passed away in approximately 1996.  She has a further child, C, who was born in 1998 and is therefore aged nearly 12 years.  C has lived with her for the whole of his life.  Regrettably, he was diagnosed with mild intellectual disability and has certain special needs, which are not relevant in their detail for present purposes.

6. Ms McPherson and Mr Agies commenced a relationship in May 2001 and started living together in January 2003.  As I have noted, the child was born in 2004.  From the same source on behalf of the Independent Children’s Lawyer, there is the suggestion that the Department of Human Services of the State of Victoria received a report with regard to the father’s behaviour to the mother during her pregnancy with the child.  Again, for understandable reasons, which I will shortly explain, those matters have not been explored before me.

7. It is alleged that the relationship between the parties was, for its greater part, dysfunctional, and they appear to have separated in approximately October or November of 2004.  Proceedings were commenced in this Court with regard to matters relating to the child’s best interests by the father in November 2004.  There were numerous applications before the Court.  It would appear, at least from the submission on behalf of the Independent Children’s Lawyer, that the greater number of those applications were made by the mother.  Again, it is unnecessary for me to detail those applications or their disposition.

8. Of fundamental importance is the fact that, on 25 June 2007, the parties consented to orders made by Guest J pursuant to which they equally shared the child’s parental responsibility.  the child was ordered to live with her mother and to spend time with the father for substantial periods during school term, as well as for holidays and special occasions.  Changeovers were provided for, as was the question of schooling. 

9. In December 2007, a report was made to the Department of Human Services that the mother was not complying with contact orders.  A week or so after that report, a neuropsychology report on the mother was prepared by Mr G.  DHS continued to be involved by way of home visits to both the mother and the father, and there was at least one other notification to the Department.

10. These proceedings were commenced by the mother, by way of initiating application for final orders, which was filed on 13 May 2008.  On 1 July 2008, the father filed a response.  The mother’s application in respect of the child sought sole parental responsibility and alternate weekend time between Friday evening and Sunday evening to be spent by the child with her father.  Various other restraints not presently relevant were sought.  In his response, the father sought that the mother’s application be dismissed and that she provide make-up time to him as, on his allegation, the child had not spent time with her father for approximately six weeks as at the time of filing the response.  An Independent Children’s Lawyer was subsequently appointed, and the mother sought the involvement of a psychiatrist to examine the father.  I should add, at this point, that both parties were ultimately assessed by that psychiatrist, Dr H, but because of restrictions placed on the evidence by me, they were not put into evidence in the proceedings.

11. Of extreme importance are the orders made by Senior Registrar FitzGibbon on 1 December 2008.  On the oral application of counsel for the Independent Children’s Lawyer, it was sought that the child’s primary residence be changed from her mother to her father.  The Senior Registrar acceded to that application.  He provided that the child live with Mr Agies and spend time with Ms McPherson on each alternate weekend from 5 pm on Friday to 5 pm on Sunday and from 5 pm Thursday to 5 pm Friday in the intervening week.  A psychologist, Ms I, to whom I will refer in due course, was in the process of therapy with the child, and the Senior Registrar ordered that on the conclusion of the twelfth session with that psychologist, the Independent Children’s Lawyer seek a report with regard to her observations and comments about the child with each of her parents.

12. In February 2009, a notification was made to the Department of Human Services that the child was being exposed to verbal abuse, foul language, criticism and screaming by her mother, Ms McPherson.  It was alleged that Ms McPherson yelled at the child at night-time and that the child became distressed.  It was alleged that the verbal abuse had not been directed to C, who obviously was also present in the house at these times.  It was alleged that Ms McPherson effectively changes personality in front of professional workers but that her abusive behaviour of the child continued in the absence of those workers.  The Department of Human Services concluded that the allegations had not been substantiated and because the child was then living in the primary care of her father and the matter was before this Court, no intervention was warranted in the Children’s Court.  However, within two months, the father suspended the mother’s time with the child which had previously been ordered by Senior Registrar FitzGibbon referred to above. 

13. On 4 May 2009, the father filed an application in a case seeking the suspension of those orders and also seeking that Ms McPherson’s time with the child be supervised.  On the same day, Ms McPherson filed an application in a case seeking a recovery order, and a variation of Senior Registrar FitzGibbon’s order, by an order that the child live with her.  On 15 May 2009, Senior Registrar FitzGibbon dismissed both of those applications and ordered that the operation of the orders that he had made on 1 December 2008 resume.  In June and July and twice in August 2009, the mother filed applications which were effectively alleging contravention and seeking make-up time. 

14. On 17 August 2009, Registrar Kaur ordered that all interim applications be dismissed and the matter be set down before me in my docket and also ordered the preparation of a family report.  On 9 September 2009, the mother filed an amended initiating application seeking orders that she have make-up time with the child, that she have sole parental responsibility, that the child live with her and spend time with the father on alternate weekends from Friday evening to Sunday evening.  It is that last amended initiating application which is the initiating process before me.

15. The first of the two reports by the family consultant was released on 1 October 2009.  On 9 November 2009, these proceedings came before me for the first time.  Apart from procedural orders listing it for trial and ordering the usual procedural directions, the main issue before me was the question of the school at which the child was to commence at the beginning of this school year.  The choices were between a state primary school on the part of the father and a Catholic primary school on behalf of the mother.  As is common practice in these matters, rather than choose the school at which the child should attend, I provided that the primary parent, that is the father, be empowered to make that choice.

16. There was also an issue between the parties as to whether the child should attend for another year of kindergarten, as she was last year, or commence school this year.  I also ordered that the father be authorised to make that decision.  The father chose the Suburb F Primary School and also chose that she should go to that school rather than a second year of kindergarten in the school year 2010.  It is now common ground in these proceedings that that was the correct decision to make in the child’s best interests and, as I will note in due course, she appears to be thriving at the school.

17. Various affidavits, both by the parties and by expert witnesses, were filed and in particular, an updated family report was filed on 19 March of this year.  On 23 March of this year, the father filed an amended response seeking orders for equal shared parental responsibility, for the child to live with him and for her to spend time with the mother on one day of every third or fourth weekend.  That application, and particularly the issue of time to be spent by the mother with the child, directly reflected the recommendations of the family consultant.

18. I do not propose going through the facts of this matter in great detail.  I am satisfied on all the evidence that the child is, as far as her education is concerned, going very well, if not thriving, at Suburb F Primary School.  That is a matter of concession by the mother, for which I congratulate her.  I am also satisfied that fears which the mother has previously expressed with regard to the child’s health have not come to fruition and her health is normal.  I am also satisfied that in terms of her physical and material care, the father is parenting the child very well indeed. 

19. Regrettably, I am satisfied about a number of negative matters with regard to the mother.  The school has expressed, and I accept, that the mother has not behaved towards the child insofar as her schooling is concerned in the child’s best interests.  The mother has sought the assessment of the child in various ways and has been quite insistent, and inappropriately so, with the school in that regard.  She has taken the child to medical examinations unnecessarily and, worst of all, she has been constantly extremely critical of her father to the child.  That is not to say that the father has performed in an exemplary way.

20. I have previously complimented the father for his parenting with regard to physical and material matters.  That is particularly so, given that he has physical disabilities as a result of a car accident a year or two ago, walks with the aid of a stick, and has difficulty in moving around.  I will detail in due course some more matters in this regard, but the criticisms that I have made of the mother with regard to criticisms of the father are also to be made against him in respect of criticisms of the mother.  I am not satisfied that either party has been a good parent towards the child psychologically and emotionally, but in that regard more so the mother than the father.

21. The essential positions of the parties in these proceedings are first on the part of the mother, who is the original applicant. She seeks that the child live in her primary care and spend each alternate weekend with the father. The father adopts the position of the family consultant, that the child live in his primary care and see her mother and spend time with her on every third weekend for one day between approximately 10 am and 5 pm but not overnight. The father makes no proposal with respect to school holiday time with the mother. The Independent Children’s Lawyer recommends that the father have the sole parental responsibility for the child, that she live with the father and see and spend time with the mother between 10 and 5 pm on each alternate Saturday rather than every third Saturday, as put by the father, together with certain school holiday time, to which I will refer. In particular, the Independent Children’s Lawyer seeks various restraints on the parties with regard to criticism and the like and also seeks an order under section 118 of the Family Law Act 1975, to which I will refer as the Act, restraining the mother from bringing proceedings without an ex parte application for leave first had and obtained. 

22. I now turn to the legislation.  The relevant legislative provisions are included within Part VII of the Act.  These proceedings are about the child and that is what the Act says.  the child’s best interests are the paramount consideration.  Paramount does not mean the only consideration, but it means the most important.  This matter is one in which questions of fairness to each individual party have been argued perhaps more than in most cases.  The interests of the parties are second to the interests of the child.  The interests of the parties are to be regarded as being subjected to the best interests of the child, and as unfortunate as it may be sometimes, and I suspect in this matter, those interests sometimes demand a result which a party may see as very unfair.

23. Having referred to the best interests of the child as the paramount consideration, section 60B of the Act contains an object and principles, which I must have regard to as I consider this matter.  In considering the best interests of the child, I must ensure that she has the benefit of both of her parents and particularly the meaningful involvement in their lives by the parents, but to the maximum extent consistent with her best interests.  I must protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, I must ensure that she receives adequate and proper parenting, and I must ensure that the parents fulfil their duties and meet their responsibilities concerning her care, welfare and development.

24. Children have a right to know and be cared for by both parents.  They have a right to spend time on a regular basis and communicate on a regular basis with both their parents and any other significant person, and parents have a duty and should share duties and responsibilities concerning the child’s care, welfare and development.  Parents are asked by the Parliament to agree about their children’s future parenting.  I know that is not going to happen here. 

25. There are a number of matters which I have to consider in determining the child’s best interests.  First is what are called the primary considerations, which are the benefit to the child of having a meaningful relationship with both the parents and the need to protect her from physical or psychological harm.  As I will shortly state, the protection of the child against psychological harm is one of the most important issues here.

1. There are then questions of additional considerations, views expressed by the child.  Each of the parties says that the child wants to be with them.  I think they are probably both right, but the child is not quite six years of age, and I must regard those wishes, particularly those of a very young child in a highly conflicted situation, with some considerable caution.  I do not regard those wishes as being particularly formative in my thinking. 

2. I am required to consider the nature of the relationship which the child has with each of her parents.  In many respects, the child has a good relationship with each of her parents.  However, as I will demonstrate shortly, the expert evidence persuades me that there are significant flaws in the relationship between the child and her mother, and they are flaws which, in my view, are fundamental to this decision.

3. I am required to consider 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.  Both parties are to be criticised.  I am profoundly concerned that neither party is able to put aside their respective antagonisms and negativity towards the other one to promote the relationship.  One of the most difficult aspects about this case is the balancing of the conflict between the parents against the need to maintain the relationship between the child and each of the parents, and both parties are to be criticised for their behaviour towards the child. 

4. I am required to consider the consequence of change of circumstances.  the child is going well and there are dangers in the mother’s household.  Changing what is called the status quo in those circumstances is a very risky proposition which I would be loath to undertake.

5. I regret that I now must turn to matters which are particularly going to cause pain to Ms McPherson.  One matter which I have not yet referred to, but which is extremely important in these proceedings, is the fact that the mother suffers from acquired brain injury.  She is assessed as being of average intelligence and my observation of her is in accordance with that.  Her affect is emotional, concerned and deeply committed.  Likewise, the father is undoubtedly deeply committed and concerned.  My observation of him in the witness box caused me concern as his affect seemed to be not consistent with the matters on which he was being challenged.  However, I am persuaded that that may well be part of his being at the end of his tether with regard to these proceedings, and I therefore am prepared to moderate my views with regard to him.

6. On 30 October 2009, Ms I, to whom I have already referred, swore an affidavit which has been evidenced before me.  Ms I gave evidence in these proceedings and was cross-examined.  I was impressed by her thoroughness, her professionalism and her ability.  She has treated the child for a significant period of time and has written a detailed report, all of which I accept.  It is sufficient for me to refer to parts of her summary and recommendations.  At page 10 she wrote:

   Other recommendations that need to be considered from these sessions and additional information gained as part of the work with the child and her parents include:

   (i)  support for each parent in not exposing the child to their conflict;

   (ii)  minimising conflict;

   (iii)  encouraging her to have appropriate interactions with the other parent for her health.

   I agree with that recommendation and it is in accordance with my observations of both of the parties and the totality of the evidence before me.

7. Ms I wrote at paragraph 6:

   DHS material needs to be considered to form a comprehensive report rather than rely primarily on material provided by the child’s parents.  This relates to any need for further assessment of [Ms McPherson’s] possible Munchausen by Proxy symptoms if she is to care for the child without monitoring in the future.  It also needs to consider any history of [Mr Agies] in caring for children that may be needed to further assist his parenting of the child.

8. Both parents are in different ways, but nevertheless, criticised by Ms I.  Again, I agree with those criticisms, which are consistent with my observations.

9. One of the most important areas of evidence has been that of the family consultant, Ms J, who filed reports, as I have noted, in October 2009 and March 2010.  I have read those reports.  Ms J was cross-examined by telephone from overseas and I was most impressed with her evidence.  While I do not entirely agree with her conclusions and do not propose accepting her recommendations in their entirety, the thrust of her evidence is clear and confirms the fundamental propositions which I have previously referred to.

10. One of the issues to which I have not yet referred is the fact that the child and C are siblings.  I accept the evidence of Ms J, by way of criticism of Mr Agies, that he has not prioritised the relationship between the child and C.  I accept that there are difficulties in doing that, but I do not have any evidence to suggest concrete examples of his promoting that relationship.  It is one of the many things he needs to consider.

11. Ms J’s report dated 19 March 2010 notes that:

    …27. The assessment of the sibling relationship indicates that the child shares          a strong bond with [C] and she views him both as a source of enjoyment and likely as a consistent and ‘safe’ person within her life. She was observed to seek [C] out throughout the day however there was also significant difficulty in joining the siblings together in             their activities and play. It seems likely that this ‘distance’ is a result of the inherent limitation imposed by not only their six year age difference but also as a result of restrictions around reciprocal play and emotional expression characteristic of [C’s] intellectual disability, rather than as a result of the now more limited time the children spend together. The observed interactions between the child and [C] indicate the need for this relationship to continue and be fostered. Sibling relationships are the most enduring relationships of an individual’s life and should therefore be given significant weight when deciding parenting arrangements. However there are other factors at play here that impact on the Court being able to prioritise this relationship. Consequently, the consideration of the sibling relationship does not lead the writer to conclude there is a need for the child’s time with her mother to be increased.

    28. While [Ms McPherson] maintains that [the child] wishes to live with herself and [C], she views this from [C’s] perspective, highlighting [C’s] distress at the absence of his sister in his life. The grief that [C] is experiencing is acknowledged however the primary concern needs to remain the wellbeing of the child. [Ms McPherson] will need to work toward being able to provide [C] with an appropriate explanation for the parenting arrangements for the child that will result in him being able to process this in a way that provides an age and developmentally appropriate understanding and causes him the least distress.

    29. There are concerns regarding the capacity of both parents to provide an emotionally safe environment for [the child] at present. This concern exists primarily within the context of the current co-parenting relationship/dynamic. The writer has been unable to identify that either [Ms McPherson] or [Mr Agies] have any significant level of insight into the potential impact of their individual and joint behaviour may have on [the child]. Nor can the writer identify any capacity of the parents for effecting change in the future. Consequently, [the child] will continue to be exposed to the emotionally damaging behaviours of her parents.

    30. [Mr Agies] acknowledges the emotional detrimental environment within which [the child] is living however he placed blame for this squarely at the feet of [Ms McPherson]. He has difficulty accepting feedback regarding his own involvement of [the child] in his negative views of [Ms McPherson] and lacks the resources to provide her with any alternate view of her mother or explanation for his own frustration. Consequently, he cannot understand the potentially difficult position he places [the child] in. However, [Mr Agies’] feelings towards [Ms McPherson] are also understandable within the context of the lengthy and intrusive litigation process and his perception of her persistence with litigation as destructive to himself and [the child]. [Mr Agies] would benefit from receiving practical support in how to promote [the child’s] relationship with her mother, a task that he will likely find difficult. Whilst this may occur naturally outside of the litigation process and with less “interference” by [Ms McPherson], additional support will provide him with appropriate strategies to employ in this regard.

    …33. [Ms McPherson] has repeatedly been told by numerous professionals that the acrimony between herself and [Mr Agies] and her litigious approach regarding the parenting arrangements are the primary cause for concern regarding [the child’s] wellbeing, however she has been unable to temper her behaviour accordingly. Although [Ms McPherson] presented well during the interview with the writer (relative to her presentation when last assessed but more specifically in comparison to her reported presentation with other professionals), there is nothing to suggest that her behaviour, outside the constraints of the Court setting, have altered. The Court may need to give thought to considering [Ms McPherson] a vexatious litigant.

    …35.The current arrangements result in [the child] being subjected to emotional abuse by her parents; she is photographed, questioned, being given negative messages about the other parent and taken to medical practitioners when she attends or returns from spending time with her mother. [The child] has been assessed by numerous professionals, not to mention four family report assessments in her five years. [The child] has been at school for less than two months and already the school has become aware of and involved with the parental dispute and are having to ‘manage’ [Ms McPherson’s] behaviour so that it does not impact on [the child’s] education and school experience.

    36. From all accounts [Mr Agies] appears to provide [the child] with a safe and happy environment in which, overall, she is thriving. However, [Mr Agies’] ability to withstand the ongoing dispute with [Ms McPherson] appears to be wavering, evidenced by the increasing difficulty he has in protecting [the child] from his own framework of [Ms McPherson]. Consequently, his ability to perform his role as primary carer is being undermined. [Ms McPherson’s] behaviour continues to impede [Mr Agies’] ability to fulfil his role as primary caregiver and results in his own behaviour being less than appropriate. It is hoped that in the absence of litigation (or threat of) and in the absence of [Ms McPherson’s] impeding behaviour, [Mr Agies] may be better placed to more fully meet [the child’s] emotional needs.

    37. In the absence of any indicator that [Ms McPherson] will be able to          effect the required changes, the Court may need to reconsider the   appropriateness of the current parenting arrangements. The writer concludes that to reduce the risk to [the child], the time she spends with her mother should occur less frequently than is currently ordered. Whilst supervision of [the child’s] time with her mother would ensure she is not exposed to her parent’s current behaviours, this would result in a significant reduction in time and restrict opportunities for [the child] to be parented by her mother. It may be more appropriate at this time to consider [the child] spending day time only with her mother and that this could occur for one full weekend day each three to four weeks. This would allow the child the opportunity to maintain her relationship with her mother and brother but it is hoped reduce her exposure to the identified risk factors.

12. Ms J continues with her recommendations that the child live with her father, that he retain responsibility for making decisions and that she spend time with her mother for one weekend day every three or four weeks.  She refers to the questions of changeover, participating in parenting orders programs and that Ms McPherson continue to engage in psychological counselling.

13. Let me condense what I see as being the areas within which this matter needs to be considered.  I accept all of the evidence that the child living in the primary care of the mother is not a realistic alternative.  Regrettably, the mother’s own actions, which I accept readily are genuinely and sincerely based and born out of her disability rather than through any deliberate abuse of the child by her, are not in the child’s best interests.  However, it gives me no pleasure to say that I regard a lot of Ms McPherson’s actions towards the child as being emotionally and psychologically abusive of the child, and to my mind that is the bottom line of this matter.  I sincerely hope that somehow or other she will find recovery and be able to conduct herself in a better and more positive way towards the child to enable her to have more of a relationship with her than she is going to have as a result of these orders.

14. Likewise, while I am affirming Mr Agies’ primary care of the child, it is not that easy.  It is not a matter of just walking away and saying, “I’ve won,” and that’s it, because to the extent that Mr Agies has succeeded in the application that he is seeking to a significant extent, it is by default.  It is because he is less worse than is the mother, and it is because of the degree of dysfunction in the relationship between mother and father, the need of the Court in the child’s best interests to support the role of the primary parent and the proposition that there is only one realistic primary parent arising out of these proceedings.  Accordingly, he will be the primary parent and, given the degree of conflict between the parties, he will also have sole parental responsibility.

15. I have not said anything about the structure of the Act and I should do so.  There is a presumption with respect to shared parental responsibility in the legislation.  That is clearly rebutted by the emotional and psychological abuse to which I have referred and the dysfunctional relationship between the parties.  In those circumstances, it is also clearly completely against the child’s best interests that the parties should share equal time or even substantial and significant time with the child. 

16. The real balance here flows from Ms J’s report.  On the one hand, in order to reduce the conflict in which the child has been involved, it is necessary to reduce the time that she spends with her mother.  On the other hand, a reduction by too much in that time runs the significant risk of placing Mr Agies in a position of undue power with respect to the child, thereby running the very great risk of his destroying the relationship between mother and daughter.  In my view, the recommendation of Ms J for every third to fourth Saturday goes too far towards the latter, that is, empowering Mr Agies, but the proposal, for example, as to the present status quo of every second weekend is unrealistic.  I accept Ms J’s recommendation that it is desirable to restrict the time to day-time and to relatively short periods to enable Ms McPherson to concentrate on the good things about parenting and not become swallowed up by the need to be critical of Mr Agies.  I accordingly accept that a general framework of 10 am to 5 pm is desirable, and I have decided that that should be on every second Saturday in accordance with the ICLs recommendation.  There will also be some holiday time, which I will detail shortly in the orders which I will make.

17. The one other matter to which I should refer is the application under section 118 with regard to restraining further applications. Section 118 of the Act empowers me to:

    ...at any stage of proceedings under this Act, if it is satisfied that proceedings are frivolous or vexatious:

    (a)  dismiss the proceedings;

    (b)  make such order as to costs as the Court considers just; and

    (c)  if the Court considers appropriate, on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of the Court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order

    An order made by a Court under paragraph (c) has effect notwithstanding any other provision of this Act.

    That is subsection (1).

18. It is a necessary precondition to the operation of the section that it be established that these proceedings are frivolous or vexatious.  I also refer to the          decision of the Full Court in Bennett v Bennett (2001) FLC 93-088 with regard to the unavailability of section 68B or any other provision to achieve the same purpose given the particularity of section 118. In the circumstances, I am not satisfied that these proceedings are frivolous or vexatious, particularly given that both parties are agreed that the final orders made by Guest J to which I have referred have to be varied in the best interests of the child. In those circumstances, I reject that application, but I would point out, without seeking to influence or bind any future judicial officer who might consider this matter, that further proceedings might be regarded as being in a different category.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 24 September 2010.

Associate:  Shantelle Vercoe

Date:  22 March 2011