Meeks and Royce

FAMILY COURT OF AUSTRALIA

MEEKS & ROYCE

[2017] FamCA 259

FAMILY LAW – CHILDREN – With whom the child should live – Where previous consent orders provided for the child to live with the father and spend time with the mother – Where the father is aligning the child against the mother – Where the Family Consultant concludes the child will never be emotionally free to have a relationship with both parents under the current regime – Where the child’s most important relationships are with each of his parents – Where the father’s past decision to suspend time between the mother and child, breaching orders, shows an insensitivity to the needs of the child – Decided that due to the child’s age and the psychological pressure the child is under the child’s views should not be determinative of any issue – Decided the mother will more likely protect and promote the relationship between the father and child – Ordered the child live with the mother and spend no time with the father for six weeks

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:

Ms Meeks

RESPONDENT:

Mr Royce

INDEPENDENT CHILDREN’S LAWYER:

Barbara Garrick & Associates

FILE NUMBER:

(P)NCC

1891

2013

DATE DELIVERED:

28 April 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

11, 14 – 17 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Boyd

SOLICITOR FOR THE APPLICANT:

Kernick Law

COUNSEL FOR THE RESPONDENT:

Mr Davies

SOLICITOR FOR THE RESPONDENT:

Brazel Meeks Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Garrick & Associates

Orders

That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to B born … 2008 (“the child”) are discharged.

Residence

That the child live with the mother commencing forthwith.

Parental responsibility

That the mother have sole parental responsibility for the child.
That the mother shall keep the father advised of:
(a)       The school in which the child is enrolled;
(b)       A current residential address and contact telephone number for the child;
(c)       Any medical emergency or serious accident/illness involving the child;
(d)       Any specialist medical advice and proposed surgery for the child.
The mother shall include the father’s name and contact details in the appropriate section of the enrolment application for the school which the child is enrolled in by her.
Within 21 days the mother sign any consent required by the school to enable the child’s school(s) to provide to the father on a regular basis and at his expense (if any) copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the child.

Time with the father

The child shall spend time with the father as follows:
(a)On one day of each alternate weekend, failing agreement otherwise on Saturdays, commencing 10 June 2017 for six occasions;
(b)Thereafter, commencing 2 September 2017 each alternate weekend from Saturday 9.00 am to Sunday 5.00 pm;
(c)Thereafter commencing in Term One 2018 until the conclusion of primary school, each alternate weekend from 6.00 pm Friday to 5.00 pm Sunday.

From the commencement of the child at High School

(d) During school terms:
(i)On three weekends per term as agreed between the parties in consultation with the child and failing agreement on the first, fourth and seventh weekend of term from 5.00 pm Friday to 6.00 pm Sunday.

(e) For school holiday periods:
(i)For one week of the holidays following Terms One and Three and for the whole of the Term Two holiday period from 10.00 am on the first Saturday to 6.00 pm on the last Saturday of the period;
(ii)For half of the Christmas holiday period commencing in even numbered years (to include Christmas Day) from 10.00 am on the first day after the last school day and concluding at 6.00 pm on the midpoint day and in holiday periods commencing in odd numbered years from 10.00 am on the midpoint day to 6.00 pm on the last Sunday of the holiday period.

Upon commencement of the child’s time with the father as provided in Orders 7(b-e), the father be at liberty to attend all functions, parent and teacher nights and other activities including sporting activities to which the parents are invited.

Communication

The father may telephone the child and the mother shall allow the child to take the call and have privacy to talk with the father:
(a) On Christmas Day each year between 5.00 pm and 5.30 pm;
(b)Each Tuesday between 5.00 pm and 5.30 pm commencing Tuesday 6 June 2017; and
(c) On the child’s birthday between 5.00 pm and 5.30 pm.
The child’s time with the father is suspended on the weekend which includes Mother’s Day.

Changeovers

The mother deliver the child to the father at McDonald’s at C Town at the commencement of the time the child is scheduled to spend with the father in accordance with these Orders and the father return the child to the mother at the same place at the conclusion of that time.
For implementing these arrangements each party shall be at liberty to permit another adult well known to the child to collect and/or deliver the child.
Within 14 days the mother shall contact a suitably qualified Medicare registered psychologist to make an appointment for the child to attend for therapeutic counselling in order to:
(a) Manage the change of households for the child; and
(b)Assist the child to develop trust and confidence in what he is told by each of his parents.
In that regard the mother shall provide the contact details for the father to the psychologist to enable input from the father as directed by the psychologist, the mother has leave to provide the following documents to the psychologist:
(a) These Orders and Reasons for Judgment;
(b) Memorandum and Reports of:
(i)Ms D dated 16 September 2014;
(ii)Ms E dated 7 March 2015; and
(iii)Ms E (Addendum Report) dated 6 July 2015.
Each party advise the other by email or text message of any change of residential address, landline telephone number, mobile telephone number, and email address within 24 hours of such change.

Restraints

The mother is restrained from permitting the child to come into contact with:
(a) Mr F;
(b) Mr G.
Each parent be restrained and is hereby restrained from denigrating the other parent to the child or in the presence or hearing of the child and shall remove the child from the presence of third parties doing so.

Release of documents pursuant to s 121 Family Law Act

In the event that the father takes up the recommendation of the Family Consultant to obtain advice and therapeutic assistance from a suitable, qualified Medicare registered psychologist, then the father may provide to that psychologist:
(a) A copy of these Orders and Reasons for Judgment;
(b) A copy of the following Court Reports:
(i)Child Inclusive Conference Memorandum dated 16 September 2014;
(ii)Family Report dated 7 March 2015; and
(iii)Addendum to Family Report dated 6 July 2015.

Independent Children’s Lawyer

The Independent Children’s Lawyer shall participate in the appointment with the child and the Family Consultant Ms T for the purpose of these Orders being explained and for any questions from the child to be answered.
The appointment of the Independent Children’s Lawyer is extended for a period of three calendar months from the date of these Orders.

NOTATION

(A)The Family Consultant has recommended that the father attend for the benefit of himself and the child on a suitably qualified Medicare registered psychologist to obtain advice and assistance on:
1.What has been described by the Family Consultant as aligning behaviour by the father; and
2.His attitude to the importance of the child’s relationship with the mother.

(B)In the event that the father takes up that recommendation, leave has been granted in these Orders for the provision to the psychologist of relevant Court documents.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P) NCC 1891 of 2013

Ms Meeks

Applicant

And

Mr Royce

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in respect of one child (“the child”), a boy now aged nine years.
The applicant, Ms Meeks, is the mother of the child.
The respondent, Mr Royce, is the father of the child.
The mother is seeking to overturn final parenting orders made by consent in December 2013 (as varied) which provide for the child to live with his father and spend time with the mother. The mother contends that her relationship with the child has broken down and can only be restored by a change of residence.
The father resists a change of residence. He says the child has become fearful of spending time with the mother but that he nevertheless fully supports spending time occurring.
The reports of the Family Consultant raise for consideration whether the father has aligned the child to reject the mother.

Short History of Relevant Events

The parties met at school when the mother was about 13 and the father was 16. The mother moved away to Queensland with her own mother but when she returned to NSW in mid-2004 the parties formed a relationship. By then the mother was 14 and the father almost 18. A sexual relationship between them began when the father turned 18 years.
Over the following approximately three years the parties maintained a relationship although not in stable circumstances for the mother. She moved around between various relatives including her grandparents and her step-father Mr H [her brother’s father] and his current wife Ms E. The mother lived for a period of time in a caravan on her step-father’s property where the father would come and stay at weekends.
The mother says, and the father denies, that there was a pregnancy in 2005 which ended in miscarriage. Nothing in this case turns on that dispute between the parties.
In April 2007 the mother discovered she was pregnant and in June of that year the parties separated.
The mother’s employment was terminated as a consequence of her pregnancy and in October/November 2007 the father moved out of his parents’ home and into a property which his parents were entitled to occupy rent free in J Town, another township on the Central Coast. The parties were not maintaining a personal relationship but the father was content for the mother to live in the house with him at that time.
In 2008 the subject child was born and the mother turned 18 in the following month. To their credit, both parties were engaged by and interested in the child and maintaining relationships for him with each of his parents.
The father asked the mother to move out of the J Town property which she did. She moved in with friends and the father would spend time with the child whenever the mother was not working. The mother then began a second job and the child spent additional time with the father during those working hours. It was a form of shared care.
In September 2010 when the child was about two and a half years old the father was seriously injured in a car accident. He has been in receipt of Workers Compensation for the six years since this event. He was wheelchair bound for the first twelve months and returned to live with and be supported by his parents.
The mother ensured that the child was taken to visit the father in hospital and also taken to visit him in his parents’ home.
In November 2011 the mother and child again began living in the property at J Town which the father’s family were entitled to occupy. They did so as friends and parents.
In December 2011 the mother began her current relationship with Mr K. This development caused considerable friction between the parties. The father does not approve of the mother being involved with Mr K; he takes exception to the fact that Mr K has a child of a prior relationship with Ms E, L, who is now 13. That child was born to Ms E when she was 14 years of age or younger. Mr K and Ms E maintained their relationship and lived together with the child for eight years until their separation in 2012. There is evidence to suggest that they maintain an amicable relationship as parents to date. That evidence is of L wishing to attend High School in Melbourne and live with her mother there and the parties having agreed on that course.
From January 2012 the amicable relationship between the parties fell away.
The father told the Family Consultant who prepared the Memorandum in September 2014 that the mother began to threaten that she would take the child away. The mother told the Family Consultant that conflict arose because of her new relationship. There is probably some truth in both statements to the Family Consultant.[1] The child continued to live with the father in the paternal home. The child told the Family Consultant on that same occasion in September 2014 that he knew he was talking to her [the Family Consultant] that day “because my Mummy is rude and wants to take me away from my Daddy”. He was then asked why he thought that and he replied that his Daddy had told him.[2]
[1] Child Inclusive Conference Memorandum to Court dated 16/09/2014, page 3
[2] Child Inclusive Conference Memorandum to Court dated 16/09/2014, page 4
In January 2013 the mother gave birth to the first child of her relationship with Mr K. That child, a boy, is now four years old.
In March of that year the father began his new relationship with Ms M which is current, although there was a substantial period of separation.
In April 2013 the mother reports that the father told her that she was not allowed to see the subject child until they had a “court agreement”. By that time the mother’s time with the child had reduced to two afternoons per week at a café and for variable periods of times on Saturday, again at the same café or at a nearby oval. The father was unwilling to have the mother transport the child in her car.
The child is reported to have told his mother that the winter clothes she bought him at this time had been thrown in the bin by his father “everything you buy me goes in the bin.”[3]
[3] Affidavit of the mother filed 14/10/2016, par 56
The mother made a strong protest against the father’s objection to her picking the child up in her car, citing the fact that it was difficult with the child and her three month old baby in a park. After conflict flared in that setting, the father did not allow the child to spend time with the mother until December 2013. She was able to speak to him on the telephone and rang most days.[4]
[4] Child Inclusive Conference Memorandum to Court dated 16/09/2014
On 31 October 2013 the father filed an Application for Consent Orders and on 2 December 2013 those orders were made by consent. They were comprehensive orders. The mother’s evidence is that she felt backed into a corner on the subject; that the father had advised her that if she did not sign the orders, she would not see the child at Christmas, next Mother’s Day, for his birthday or at all; and accordingly she signed, “I deeply, deeply regret ever signing the orders.”[5]
[5] Affidavit of the mother filed 14/10/2016, par 59
Nevertheless, I am satisfied that at the time the mother believed that she would see the child according to the orders and although her preference was to have the child with her, she made a decision to accommodate the child living with his father.
In fact she did not see the child at the immediately following Christmas and the orders were not strictly implemented. With the passage of time and because of the uneven compliance with the orders, it may be that the mother looking back, regrets signing the orders because they did not represent a resolution of conflict and a clear path for the child to maintain relationships.
On 14 January 2014 only a few weeks after the consent orders were signed the father says there was a verbal argument between himself and the maternal aunt. The father then made unilateral decision to cease all contact for the child with the mother.
The parties agree that when the mother attended at school on the child’s first day of Year 1 the father re-entered the school grounds and took the child home for the day. The Family Consultant noted that when she suggested to the father that the Court may order that the mother have some time with the child, the father reported that he would breach the orders and risk going to gaol as he was not in any circumstances going to facilitate the child having time with the mother. The father now denies that he said those words but I have no reason to doubt the faithful recording of the Family Consultant.
The father gave as his explanation his belief that the mother would take the child and disappear and he did not believe he would ever find her or the child again. There is no evidence of the mother saying or attempting to do such a thing.
On 17 January 2014 the father had sent the mother a text, “No more time.”
On 1 July 2014 the mother filed an Initiating Application in the Federal Circuit Court seeking orders for residence, sole parental responsibility and time between the child and the father at her discretion.
In August 2014 an order was made for the parties to attend a Child Inclusive Conference and for an Independent Children’s Lawyer (“ICL”) to be appointed. On that August date the Court noted on the orders:
a)The father maintains the mother’s partner [Mr K] born … 1984 has convictions for what are termed child related offences.
On 8 September 2014 the father filed a Response seeking sole parental responsibility for the child and time with the mother supervised for two hours a week after the child had been deemed suitable to spend time with the mother by his paediatrician and treating psychologist and psychiatrist.
During the father’s interview for a Child Inclusive Conference in 2014 he reported to the Family Consultant that once he had made the decision to cease all contact he gave the mother notice and he directed his solicitor to formally advise the mother. He stated that he approached the school and informed them that the mother was not to have any access to the school or the child. He stated his belief that he was in line with the Court orders as he had sole parental responsibility.
In September 2014 the Family Consultant recommended that time between the child and the mother resume. She also recommended that there be supervised time for a short period to ease the child’s anxiety given the strong views that he had expressed to her. Those strong views included statements by the then six year old subject child such as, “No, I’m not allowed to see her until I’m older and can look after myself” and “If I went with her I would never get to see my Dad again, that’s what she’s trying to do, stop me from seeing my Dad ever again” and in response to a question about spending time with Mum and Dad if they were not fighting, “No, that won’t happen, she won’t understand. Me Mum won’t listen to anyone, she never does. She thinks she can tell lies and people will take me away from me Dad and I won’t see him anymore.”
The child also referred to his half-brother, then 19 months old, as “gross” and that his mother was not part of his family.

On 30 October 2014 the matter came back before the Federal Circuit Court. Further orders were made. Both parties were prevented by injunction from discussing proceedings with the child other than relating to the child having to attend upon interviews or meetings with the ICL.
There was a restraint on the parents from discussing the orders with the child and an order for supervised time at a contact centre on the Central Coast for the time between the child and the mother. A Family Report was ordered.
On 9 March 2015 the Family Report was released. It recommended that the parties have shared parental responsibility for decisions regarding the child and if the Court found that the child was not at risk of psychological harm in the father’s care, and also that the father was able and willing to genuinely encourage, support and facilitate the child’s relationship with the mother, it was recommended that the child continue to live with the father. Time with the mother was, depending on findings about risk in the mother’s household, recommended to be either five nights a fortnight, school holidays and other special times or ongoing supervised time.
The final recommendation was that if the Court found that the child was not at risk in the mother’s care and that the father was unwilling or unable to resile from aligning the child to reject the mother, it was recommended that the child live with the mother and spend time with the father, supervised by a contact centre until the father successfully addressed his assessed aligning views and behaviours in therapy. Thereafter, five nights a fortnight, half school holidays and other special times.
On 25 March 2015 further orders were made in the Federal Circuit Court this time by consent. Provision was made for the child to spend time with the mother for four hours each Saturday and thereafter for six hours each Saturday and for telephone contact twice a week.
There was a reference in the orders to the mother ensuring that the child had his own bedroom but there was no relevant order for overnight time.
On 30 April 2015 the mother filed an Amended Initiating Application similar to the original application but including provision for supervised time until therapeutic counselling had been undertaken by the father.
On the same day the mother filed a Notice of Risk alleging that the father had alienated the child from the mother. The mother also raised risks in the father’s household from the paternal grandfather who was said to have a history of mental illness and drug use and cultivation in the paternal home.
On the same day a Contravention Application was filed by the mother in relation to telephone communication and disclosure of Court documents by the father to the child. That application was subsequently withdrawn. The withdrawal of the application took place on 1 June 2015 when another set of interim consent orders was made in the Federal Circuit Court. Those orders provided for a continuation of the order that the child spend six hours each Saturday with his mother and changeovers at a nominated service station.
On 30 June 2015 the parties attended updating Family Report interviews and on 8 July 2015 a report identified as an Addendum to the Family Report (“the Addendum Report”) was released.
The recommendation in the Addendum Report was that whichever party the child lived with should have sole parental responsibility. The recommendations for residence had shifted in view of the Family Consultant’s observations of the child not being free to express love and affection for all the significant people in his life. The Family Consultant also expressed the view that the child’s expressed view that he should live with the father and spend no time with the mother should not be given significant weight “as his views are assessed as being those of an aligned child.”[6]
[6] Addendum to Family Report dated 6/07/2015, par 66
The recommendations were framed as follows:
If the Court finds the father is genuinely able to support, facilitate and encourage the child’s relationships with the mother and members of her family and that whilst living with the father the child will feel free to have love and affection for the mother and members of her family, it is recommended that the child live with the father and spend five nights per fortnight, half school holidays and other special times with the mother. It was recommended that there be no restrictions in place in regard to the child’s relationship with the mother’s partner.
In the event the Court found the father was not able to support, facilitate and encourage the child’s relationships, it was recommended that the child live with the mother and spend limited time until therapeutic work had been undertaken by the father. Thereafter, a restoration to substantial and significant time.
The Addendum Report reflected the capacity of the child, although described by the mother as standoffish at first, to restore his relationship with his mother and to engage happily with her partner and other children in the household.
The Family Consultant noted a relaxed and happy interaction between the subject child and the mother’s partner, “[The child] was seen to joke with and tease Mr [K] in a relaxed and familiar fashion while challenging Mr [K] to games of noughts and crosses.”[7]
[7] Addendum to Family Report dated 6/07/2015, par 8
On 31 July 2015 the mother gave birth to the second child of the relationship between herself and Mr K.
On 8 October 2015 the matter came back before the Federal Circuit Court. On that day, the matter was transferred to this Court and the father was granted leave to provide copies of the Family Reports to Interrelate for the purposes of engaging in therapy and counselling. The ICL was also granted leave to provide copies of the Family Reports to the child’s psychologist.
On 20 October 2015 orders were made in this Court for the matter to be conducted as a Less Adversarial Trial. The matter first came before me on 23 June 2016 when hearing dates were allocated. At that time, significantly the father indicated that he would be relying on witnesses in addition to himself and his partner, being his psychologist and his psychiatrist Dr N.
On 6 June 2016 the father filed an Amended Response continuing to seek sole parental responsibility and residence but proposing that the child spend time with the mother each alternate week from after school Thursday until 6.00 pm Saturday and certain special occasions. There was no provision for school holiday time. This was on condition that the child would have his own bedroom in the mother’s home. The father also proposed that the mother ensure that the child not be left alone with her partner or her partner’s father.
In July 2016 after a period of separation, the father reconciled with his partner Ms M.
The matter commenced on 11 November 2016 and concluded in the five days allocated.

Issues

Has the child been aligned with the father to reject the mother?
Will each parent support a relationship for the child with the other parent?
Is there a risk to the child of harm of any kind in the household of each parent?

Evidence

The documents relied on in respect of the application were as follows:
The Mother
(a)Amended Initiating Application filed 30/04/2015;
(b)Affidavit of the mother Ms Meeks filed 14/10/2016;
(c)Affidavit of Mr K filed 17/10/2016;
The [Respondent]
(d)Amended Response filed 06/06/2016;
(e)Affidavit of the father Mr Royce filed 19/10/2016;
(f)Affidavit of Ms M filed 18/10/2016;
(g)Affidavit of Ms E filed 27/10/2016;
(h)Affidavit of Ms I filed 18/10/2016;
Reports
(a)Child Inclusive Conference Memorandum to Court dated 16/09/2014.
(b)Family Report dated 07/03/2015;
(c)Addendum to Family Report dated 06/07/2015;

Oral Evidence

The Mother - Ms Meeks

The mother is aged 27 and now has four children. The mother was expecting to give birth to the third child of her relationship with Mr K in March 2017. I have assumed that the child has been born
The household of the mother consists of five people; herself, Mr K her partner of five years aged 32, the three children of their relationship, O a boy aged four, P a girl almost two, the new baby and from time to time L the now 13 year old daughter of Mr K.
Not long before this hearing the mother moved to Q Town, a rural town in the upper Hunter region of New South Wales. She had previously lived about 20 kilometres from the father on the Central Coast.
Mr K has been an intermittent member of the new household, consistent with his ongoing employment on the Central Coast. He was looking for an equivalent position in the new township but was yet to find one when the matter was heard.
The oral evidence of the mother was that one of her reasons for moving the family to Q Town was so the child could “start a fresh and not be looking over his shoulder when he spends time with me.”
The mother was extensively cross-examined on behalf of the father about the ability for the child to continue his interest in sport. Although the mother insisted that she would be able to maintain the child’s involvement in sport at the present level with practice more than once through the week and regular attendance in competitions, it would certainly be a challenge. The mother was asked whether she doubted his interest as genuine and perhaps she thought he expressed interest because his father wanted him to be interested. The mother agreed “that’s exactly what I think”. It is likely the mother will review with the child extra-curricular activities and I conclude, if she was satisfied that the child really was highly motivated to continue in sport, she would find a way to do it.
The evidence of the mother revealed a considerable patience and sensitivity in dealing with the child’s visits. For instance, she agreed that he had never spent an overnight period with her but that the child had asked “Why can’t I just stay over?” I accept her evidence that she had simply said to him, “At the moment you are not allowed to do that darling” and that she had kept it simple that way despite numerous requests.
The mother was a straight forward witness and made appropriate concessions. She agreed that she bore part of the blame for an angry verbal dispute on the child’s fourth birthday in the home of the paternal family. She conceded that the father had lent her money from time to time.
The mother was taken through diagnoses for the child of Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”). The mother conceded that she had doubted those diagnoses, “At the beginning I doubted excess energy unexpelled.” She denied that he had been an aggressive child since age two rather she thought he had outbursts as a two year old, not aggressively and especially directed at his cousins. She expressed her concerns that in her view the child’s communication skills and vocabulary were poor, that he was easily distracted, impulsive and could be oppositional.
The mother had been provided with a diet sheet for the child in July 2015 and she was cross-examined on the basis on non-compliance. There was one occasion where the child was waiting and thirsty. The mother offered him water and he said “No”. She asked him what his father let him drink and the child answered “ginger beer” so she brought him that. When the paternal grandmother arrived for the changeover and raised that topic, the mother instructed the child “Just don’t open it until Dad says so.” It is an incident typical of many, many incidents where the child was the message bearer between the parents that must have increased his anxiety levels over the years.
I came to the conclusion that the mother has now achieved a stable relationship with Mr K and their decision to move to Q Town was a considered one which allowed them to find good accommodation but imposed a burden on the mother to the extent that she was there with the children alone for the working week.
I conclude that the mother has a great deal to offer the subject child; she has a more sensitive attunement to him and a willingness to let petty matters go.

The Mother’s Partner –Mr K

The mother’s partner is 32. He has stable employment which he would continue in but for the decision to move away from the Central Coast to Q Town. His stated reasons for the move were a fresh start; that he wanted to put a little bit of distance between himself and his father. However he was committed to remaining in his current employment until he could find work of equivalent value.
Mr K was asked about his daughter L. Although the child had remained living with her father when her parents separated in 2012, Mr K was open to her wish to go to live with her mother in Melbourne for her High School years. Her mother has married and has three younger children.
Mr K was extensively cross-examined about his relationship with L’s mother, she having been a child when L was conceived. Whilst Mr K readily agreed that it was hardly ideal for a child to become pregnant to a late teenager many years older than her. He was not charged and the two of them continued to live together and raise their child until the mother was 20 when they separated and each found new partners. When he was asked about it, the father saw no parallel between his own situation with the mother but the overall picture that was painted by the evidence in this case was of very young people entering sexual relationships as a result of a lack of supervision, support and appropriate education and information.
There had been a close relationship between Mr K and members of the Royce family, indeed, the father and Mr K had been friends growing up. He had met the mother as a young teenager at the skate park and saw the subject child as a newborn. There is a long history of connection between the two parties and Mr K and the inter-connected extended families.
Mr K spoke in a genuine and positive way about the subject child, “He’s a great kid, very creative, when he goes fishing he doesn’t use a line, he tries other methods.” He thought that the child was confused and worried about coming to see his mother, “When he goes to cuddle his Mum he hangs back, he is scared to show affection. When he leaves he is good. When he arrives he is quiet.” He thought there were difficult moments for the child with the two younger children born of the relationship between the mother and Mr K, “He has his moments, he is protective of [P], he watches out for them.”
Mr K expressed his willingness to be involved in changeovers subject to his work obligations.
Overall, and particularly in respect of the observations of the Family Consultant between Mr K and the child, I consider that he has the capacity to assist the child growing up. For instance, he reported to the Family Consultant[8] “[The child] really wants to open up, relax and have fun, but he can’t. Sometimes I look at him and it looks like he feels like someone is watching him.” Mr K also said “I know his Dad is a good bloke but he just needs to let the child be the child”.
[8] Addendum to Family Report dated 6/07/2015, par 44
The child was heard to refer to Mr K affectionately as “…” during observed play for the Family Report, smiled widely, said goodbye to Mr K reminding him he would see him the following Saturday.

The Father - Mr Royce

The household of the father consists of himself, his partner of three years Ms M aged 28, and the subject child. Ms M and the father were expecting their first child early in 2017. I assume that the child has now been born.
The father is not in paid employment. He receives Workers Compensation for injuries sustained in a car accident in 2010. He suffers chronic pain and Post Traumatic Stress Disorder (“PTSD”). He sees a psychologist every fortnight and a psychiatrist every three months.
The father appeared stressed and angry at times during the course of his cross-examination. He agreed that he had many criticisms of the reports by the Family Consultant, not going so far as to say she had made things up, “She’s twisted things.”
The father denied that the child was nervous of showing affection to his mother; it fitted with the Family Consultant’s version of events. Of course the father had not been privy to what the Family Consultant saw which was the mother offering to hug and cuddle the child before leaving the room so that he would not have to do so in front of the father.
The father denied that he wanted to limit the time between the child and his mother and agreed that it was important for parents to co-operate to help a child grow up. Such a positive view is not consistent with the tone that the father took in his correspondence with the mother in the communication book. There is a tone exasperated righteousness in the father’s note about diet[9] which suggests that at least at times he thought the mother was barely capable of providing basic care for the child.
[9] Exhibit 8
The father was asked if the child had asked him why the child was not seeing his mother; the father agreed that he had. He also agreed with the proposition that the child might have been worried that it was something he had done which had caused his mother to abandon him [although this was not at all the case]. The father confirmed that the child had said a few times “Is it my fault Mummy left?”

Injuries

The father has had a difficult time with his physical health since the accident in 2010. He has had surgery including a knee replacement and continues to use a stick for support when walking. He spoke of experiencing chronic pain every day for which he took Panadeine Forte and of suffering PTSD triggered by flashbacks of the accident. He agreed that he took drugs for the PTSD including anti-depressants. There is no evidence about the diagnosis which gave rise to any of the drugs referred to, the side effects of taking them or the implications for future health.
The father was asked about the child starting school and agreed that he did not tell the mother which school the child was enrolled at nor did he subsequently tell her about a change of school. The change of school he explained was because “the mother had turned up on the first day” and “was quite abrupt with myself”. The father took the child home and enrolled him at a different school.
When asked why the father did not include the mother’s details in the enrolment form for his current school the father said, and it may well be the case that he believed there was no need to at that time. I take this to be a reference to the legal position he having sole parental responsibility however it does not reflect well on the father that he was so intense on excluding the mother from involvement in the child’s school.
The father was asked about the period of 12 months when the child did not see his mother at all and whether or not the father thought that was a tragedy for the child. His answer “There’s a lot of tragedy” was defensive and when pressed his answer was “Yes.”
The father readily conceded that at times when orders had been in place for the child to spend time with his mother, he had not complied. He was unwilling to engage with this proposition that the child had begged to go outside and play with the mother’s partner, chasing and whatever other game Mr K was playing with the younger children and that he had promised “I won’t tell Dad.” The father was however prepared to concede, that if that had happened, compelling a child to keep secrets was not good.
The father’s evidence was that the child’s behaviour had improved after he had stopped seeing his mother, “Yes, it became less bad.”
The father was taken to a letter from the school counsellor to the principal at R School dated 28 May 2014. The school counsellor noted that the child spoke about feeling anxious and worried his mother would act on her threats to steal him and repeatedly referred to her as a very nasty person. The child’s father reports that “he is very clingy and hypervigilant at knowing where he is at all times.”[10] The letter goes on to note that a mental health care plan for the child to access therapeutic counselling and support was highly recommended. That letter contained references to explosive defiant behaviour by the child towards the class teacher who had described him as acting impulsively and unable to keep his hands and feet to himself, causing him to hurt other children. On occasions he was noted to take it upon himself to discipline other children for their behaviour which [unsurprisingly] socially isolated him from his peers. It appears that school has not been a refuge for this child in the way that it sometimes is.
[10] Exhibit 12, page 1

The father at times appeared quite dour, ungenerous and unempathetic. For instance his response to whether or not the mother should know about the child’s progress at school was a grudging one, “I suppose so, yes.” When asked whether the mother should have been told that the child went to hospital with an undisplaced toe fracture, “No, I didn’t think about it to be honest.” When asked whether the child missed seeing his mother the father said, “I would say so” and whether he asked about seeing his mother he said, “No”.
There was certainly no evidence which indicated that the father was capable of allowing the child to express his feelings without consequences.
Finally, in relation to the rule that the child was not to bring anything home after his time out with his mother, the father was asked,
Question:     Well why can’t he bring things home?
Answer:         Just toys and junk brought on the day.
Question:      The child might value it as a gift from his mother?
The father conceded that the child should be able to at least ask.
Quite a bleak picture was painted of the child knowing not to talk about the mother and to not raise his feelings about the mother with his father.
The father was unable to explain why the child had said to a Family Consultant in 2014[11] that “Dad said to me you are going to get me in a room with Mum and see how scared I am”. I infer that at the very least the father explained to the child that he would be put in contact with the mother and his reaction would be assessed by a Family Consultant.
[11] Child Inclusive Conference Memorandum to Court dated 16/09/2014
It was apparent that the father was still processing the information that the mother had made the decision and acted on it to move away from the Central Coast, thus when he was taken to what time he would want with the child if the Court made an order that he lived with the mother, the father said this, “Everything seems different. It seems a bit deliberate, the move just before the case. I haven’t had time to process it”.
During cross-examination when the father said such things as, “Can you say that again”, “Can you read that again”, or variations on that theme, again there was a frustration in not having any medical evidence as to the father’s current physical and mental health and psychological function.
Counsel for the ICL asked the father whether the child’s negative statements to the school counsellor referred to earlier in these reasons might reflect the father’s negative attitude to the mother, his response was instructive, “I don’t have an attitude to the mother, we don’t speak, we don’t communicate, we lead completely different lives.” I conclude in that moment the father believed that the absence of contact meant that there was no relationship rather than that there was a relationship but a very poor one.
In relation to his psychological health the father was taken to documents produced in response to a subpoena to Dr S his psychiatrist, where the father had reported on 24 October 2012 that “he felt angry at times”, “punches holes in walls at his house.” The father’s initial response was not to accept that that is what the document said. He then read the document, his skin flushing at quite a deep dark red, and then conceded that that is what had been written there although he went on to say that he believed it had not been written down correctly, “I told him I went down to the paddocks.” I accept that the contemporaneous note of the psychiatrist can reliably be accepted by the Court.
The father was taken to the fact that the documents revealed a closed head injury for him with associated memory loss as well as a fracture of his right femur, ankle, foot bones and right patella.
The father may well be labouring under difficulties into which he does not have complete insight. The implications for the child are serious. One example is the father conceding that the child had often said that he thought his mother would steal him. The question that was then put, “Did you reassure him [that she would not]?” the father’s answer was that he was not sure how to deal with the child’s complaints so he took him to a counsellor. On the balance of probabilities, it seems the father allows the child to make statements of a testing nature to see if the father confirms the truth or otherwise but the father does not respond either way.
When the father was taken to the child’s statements arising from the observation between himself and the mother where the child was very obviously happy to be in her company, he said to the Family Consultant about the mother, “She’s changed.” The father denied the possibility of the child saying it, “No, I don’t believe that, he didn’t say it”.
I conclude that the father finds his own life quite understandably difficult as a result of pain, ongoing treatment including surgery, reliance on pain killing drugs and restrictions on his activity. His focus is on the child but his ability to meet his needs is at least emotionally impaired.
During the course of the father’s evidence, the issue of advice from his former solicitor to cease time between the child and his mother despite operative orders, was tested. There was no correspondence put into evidence relating to the alleged advice from the solicitor. I am reluctant to accept without clear evidence that a solicitor would advise a client that that client could tell the mother and the child’s school that time was ceasing and there was nothing more to be done. That is the finding I make and there is no evidence, clear or otherwise, to confirm that a solicitor gave such advice.

Ms E - current wife of mother’s step-father (step-father of mother’s step-brother)

Ms E has known the mother since she was a young teenager without obvious support. She has assisted her in the past, she feels immensely critical of her now and appears to be involved in tribal conflict between the interconnected families.

Ms M - the father’s partner

Ms M had separated from the father for a period of about two years. They reconciled in mid-2016 and a child was due to be born in early 2017.
My impression of Ms M is that she has tried not to become involved in the conflict between her partner, the father in these proceedings and the mother. She was unable to recall what the father had said at times when the child made the statement “What if Mum takes me?” When asked whether she had thought of reassuring the child herself, her answer was “I don’t think I would have said anything, I don’t like to get involved.” When asked whether there had been a discussion between herself and the father about the child not seeing his mother for a long period of time, almost a year,[12] the witness was unable to remember.
[12] From January 2014 to March 2015
In relation to the child asking the question “Why does Mum hate me so much?” Ms M was asked whether she had reassured him that his mother did want to see him but she and the father had decided not at this time or words to that effect. Ms M was vehement, “Never, not my place to say anything like that.”
Whilst it is understandable that Ms M would want to keep her distance from conflict between the two parents it seems unlikely that she would be an independent source of information or comfort to the child.
In her affidavit[13] she had made the statement “We” referring to herself and the father had decided it would be best to move the child’s school. She was asked in cross-examination whether she had discussed with the father, telling the mother of the decision. She appeared to be genuinely puzzled and said “No, we didn’t discuss that, that topic did not come up at all. No.” Likewise, she was clear to say that there had been no discussion about omitting any of the mother’s details from the enrolment application.
[13] Affidavit of Ms M filed 18/10/2016, par 37
Ms M had not said anything to the child about Mother’s Day, nor asked whether he wanted to make the mother a card, her response “At the time he wasn’t seeing his mother so I didn’t want to upset him.”
It seems unlikely that Ms M would be unkind to the child but she is not emotionally available to him about his thoughts and feelings and it is likely that this will continue in circumstances where she has now had her own first child and the likelihood is, she will be less available to him.

Ms I – the paternal grandmother

The paternal grandmother has provided unfailing support to the father and also the subject child.
After the accident in September 2010 the father was dependent on his mother and was in a wheelchair for three or four months, then crutches.
The paternal grandmother conceded that the mother had bought the child round to visit the father in the 12 months that he lived with his parents after the accident and was always willing to do so. She was defensive of her son in this way: The proposition was put to her that the child went for a period of about 14 months where he did not see his mother and that that probably felt like a lifetime to the child, her answer, “To some children maybe, he [the child] did not talk about his mother. He was not fretting for his mother.” She went on to say that she believes the child feels abandoned by his mother but in a different context where she had felt surprised that the mother had signed consent orders for the child to live with his father.
I accept the paternal grandmother’s evidence that she treated the mother “like one of my own” at the stage of her life where she was a very young mother without support. My impression is that she gives priority to her family, her son, her grandson and that she was loyally doing so during the course of her evidence whilst understanding that the subject child has suffered from the falling out between his parents.

Ms T - the Family Consultant

The ultimate conclusion of the Family Consultant was that the subject child is “not alienated yet but he is strongly aligned”. She expressed the view that “The father was a concrete thinker who lacked empathy. He has trouble imagining what it is like to be the child. He does not understand that the child has independent feelings and emotions separate to his own”. She was clear to say “The child will never be emotionally free to have a relationship with both of his parents if he continues under the current regime”.
The Family Consultant was challenged about the conduct of the interview with the father and she was advised that the father had throughout the interview felt that he was being attacked and judged about his injuries.
The Family Consultant explained that she asked him about restrictions as a result of his injuries. She considered that the father had a lot of difficulty excepting challenges [by her], he did “Raise his voice several times, I did ask him to stop shouting.”
The proposition was put that the Family Consultant had said to the father, “You’re an egotistical man. You are not fit to be a parent”. I accept the evidence of Ms T which was that such a statement was blatantly untrue, that she did challenge the father to stop, in the words of the Family Consultant, “He would start a diatribe. I would stop him.”
It became clear that the father had felt confronted and judged in the interview process. What did not happen was that the father realised that he needed to bring adequate evidence on the very topics he had been asked about, that is any restrictions on his capacity as a result of his injuries.
The Family Consultant noted that in the event there had been consequences of the father’s head injury, it might be unrealistic to expect change through therapy if there is an organic cause. I am not in a position to know if there is any organic damage, brain damage or otherwise in this case.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

I accept the proposition that these parents are unable to share parental responsibility and that whoever the child lives with should make the long term decisions, unimpeded by conflict.

Primary Considerations

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

This is an important consideration.
Although the child has become increasingly anxious and aligned against his mother, observations reveal, unsurprisingly, that he loves her, enjoys being with her, and has an easy and fun filled relationship with her partner.
The child also loves his father, enjoys activities such as sport with him and has lived mainly with him for most of his childhood.
Neither parent should be excluded from the life of this child; his relationships with each of them are still the most important in his life and will remain so for many years to come.
If each parent chose to be respectful of that fact the benefit to the child of not having to choose between them would be obvious in the probable reduction of his anxiety.

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

There has been emotional abuse of the child but the harm is not such that orders should be made to exclude a parent in order to keep him safe.

Additional Considerations

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

On 16 September 2014 the child was observed by a Family Consultant.
The Family Consultant noted that “[The child] had a strong opinion of the issue [family conflict] that was somewhat unusual for a child his age”. The child was six years and eight months old.
He is reported as having “stated multiple times in a confident and assertive voice, that he did not want to have any time with his mum because she would take him away and he would never see his Dad again.”[14]
[14]Child Inclusive Conference Memorandum to Court dated 16/09/2014, page 2
He was questioned in various ways about spending time with the mother; what would separate time with his mum be like, what would time be like if mum and dad were not fighting.
The child was resolute in his opposition, the Family Consultant noting that it was “very difficult to encourage the child to discuss any other topic as he continually returned to the statement that he did not want to see his mum because she would take him from his dad.” The child stated that his mother “is not really part of the family”.
At date of interviews the child had not seen his mother at all for eight months.
Five months later, on 12 February 2015, the child was observed by a different Family Consultant. He had just turned seven which marked one full year of not seeing his mother. (An order made in the Federal Circuit Court for the supervised time in a centre had not become operational).
The child was assessed as follows:[15]
[The child] appeared to present developmentally within normal parameters, however he presented as a serious child who is assessed as aligned to the father and completely rejecting of the mother, until placed in the mother’s company out of sight of the father
[15] Family Report dated 7/03/2015, par 71
The child is reported to have described the mother in completely negative terms. He spoke of the father in “glowing terms and could not think of one negative attribute.” The child reported being fearful of the mother.
The observations of the child with his mother reveal a rapid and comprehensive transformation from a tense, apprehensive child, reluctant to approach his mother to a child observed to kiss and cuddle the mother more than once happy (giving his permission) to have his photo taken and sitting on his mother’s knee.
He was smiling and laughing throughout the second half of the observation.
For the first half of the session the child released a stream of criticisms of the mother and insulting remarks about her.
Then the mother entered the room he immediately told her “I just want to be with my dad”.
Within minutes, reassured by the mother’s interest in what he was saying, the child was accepting of a proposal that he play with the mother’s older child for some time.
Soon he progressed to smiles, laughter, leaning against his mother and accepting having his back stroked.
When asked if he was still feeling scared of the mother the child replied “Well no, I don’ know, she’s changed”.
When the Family Consultant asked the child what she should “tell the judge” about his wishes regarding recommencing time he said “Well I’d like to start seeing Mum again”.
He went on to discuss with the Family Consultant that if he could have his own room he would like to have overnight visits, after some daytime visits.
He agreed six daytime visits would be enough before starting overnights, “Yes I’d like that.”[16]
[16] Family Report dated 7/03/2015, par 90
Optimistically the child predicted the father would “be a bit disappointed but he’ll give it a go.”[17]
[17] Family Report dated 7/03/2015, par 91
That the child could so quickly reconnect, after one year, with his love for his mother, enjoy her company and hope for more is a significant factor which I take into account.
On 30 June 2015 the child was observed again for the purpose of an Addendum to the Family Report.
By then orders had been in place for the three months to enable the child to spend time with his mother. This was taking place each Saturday for six hours. No overnight time.
Despite some difficulties, the child reported enjoying his time with his mother. However the observation suggests that he was unwilling to show affection for the mother or any member of her family in front of the father.
[21]When [the child] first arrived at the centre with the father and his partner, the mother and her family were in the childcare room. When this writer suggested [the child] go and say hello to them he immediately dropped his head and shook his head in the negative. When this writer encouraged him, reminding him that he saw them each Saturday, [the child] immediately looked anxiously at the father who then gave the child permission to do so. Out of sight of the father, [the child] quickly engaged with the mother [her partner and the two children of their household].
[22] When it was time for [the child] to say goodbye to the mother in the childcare room and the mother asked for a kiss goodbye, [the child] nervously looked through the open door into the waiting room. The mother then stepped back further into the childcare room and said “we can do it in here before you go out there” and [the child] immediately kissed and cuddled her before exiting the room to find the father and his partner to leave with them.[18]
[18] Addendum to Family Report dated 6/07/2015, par 21

In direct conversation with the child, the Family Consultant reports that the child was again negative about his mother. His mother has told him when he has asked her why she had not spent time with him for such a long time that “his father had not thought this was a very good idea.”[19]
[19] Addendum to Family Report dated 6/07/2015, par 13
The child told the Family Consultant that this was a mean thing for the mother to say.
The Family consultant explained to the child that
The father had refused to allow [the child] to spend time with the mother because the father thought [the child] may not be safe in her care.
This explanation was accurate as to who made the decision to cut off time between the child and the mother and was kind on the topic of the father’s motivations. The Family Consultant reports that the child “did not seem happy with this explanation.”
It could hardly be otherwise. The child has been exposed in the father’s home and by the family to at best hostile silence on the subject of the mother, at worst direct demeaning criticism.
If the child accepted that the father had stopped him seeing his mother and that the mother never stopped wanting to see him, then all his beliefs about his father would be under challenge.
The child grudgingly acknowledged a range of enjoyable activities in the mother’s company but denied enjoyment.
He was defensive when the Family Consultant said that she’d been told he “often cuddles and laughs with the mother.” In response “I only do that sometimes”. He returned to making resentful statements:[20]
·I hate going up there.
·Mum’s always being nasty to me.
·I just want to live with my Dad.
·[Mum] keeps writing lies in the communication book.
[20] Addendum to Family Report dated 6/07/2015, par 54
When moved to the formal observation with the mother, the child initially told the mother he did not want to spend time with her anymore. He appeared upset. With some affection and distraction his mood “immediately lifted.”[21]
[21]Addendum to Family Report dated 6/07/2015, par 56
The Family Consultant later asked the child if he was sure he didn’t want to see the mother again. The child said he “thought he had changed his mind”.
The image of the child being slowly torn in half comes to mind.
The Family Consultant had, in the first respect, described the child as aligned with his father.
The second observation session gave further weight, in her own view, to that assessment.
I have no difficulty accepting that the child is continuing to experience psychological stress caused by having love and affection for both his parents.
The warning note from the Family Consultant is that unless something changes that stress will continue.
The child is now nine years old.
I am satisfied that he loves both his parents and wanted them both to be a part of his life, but cannot reconcile what his father says about his mother with his own experience of her.
In such complex circumstances I consider that the child’s stated views about where he wants to live and how much time he wants to spend with his mother should be given some weight.
Given his age and the psychological pressure he is under his views should not be determinative of any issue.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

The child has his most important relationships with each of his parents. His relationship with his paternal grandmother with whom he has lived for probably as long as he can remember is also very significant.
The child has a good enough relationship with the father’s partner and a potentially enriching relationship with his mother’s partner.
There are now four young children who are his half siblings; one in his father’s household and three in his mother’s household.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

The father has made decisions, in particular to suspend time between the child and the mother for more than a year when there were orders in place which reflect a willingness to be non-compliant with orders, an insensitivity to the needs of a very young child and a rigidity of thinking.
The father changed the child’s school without reference to the mother and excluded the possibility of her information being made available to the school. The reason for the change of school was that the mother had attended at the previous school when the father believed that she should not.
The parties have gone from co-operative care of the child to bitter exclusion and alignment of the child against the mother.
The father increasingly made decisions on the basis that in his view the mother should not play a role in the life of the child, mostly, but not entirely, because of her choice of new partner, and simply acted on that belief.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The mother was not challenged on her evidence that she paid $14 per fortnight Child Support and $50 per week during periods when she was working.
The father has the capacity to provide for the child financially through Workers Compensation payments and perhaps eventually from income if he is able to return to work. He himself is supported indirectly by his extended family by accommodation.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

A change from living with his father to his mother is likely to have a significant effect on the child. A positive effect in that he will be gratified by being in close contact with his mother and enjoying the freedom of relationship with her, his step-father and the other children.
There is also likely to be a negative effect. His own statements regularly repeated over time that his greatest fear is that the mother will steal him, will likely find him panicking about having been removed into his mother’s care. He will require a careful explanation of the change that has been made and the ability that he will have, to go on seeing his father, although no longer living with him.

The practical difficulty and expense of a child spending time with and communicating with a parent

The two households are now 160 kilometres apart, about one and three quarter hours by car.
Both parties and their partners drive and are willing to participate in changeovers.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The father

The father has revealed a deficiency in his capacity to meet the child’s emotional needs; to let him enjoy loving relationships with his mother and the members of her family. The father may have simply accepted the child’s negative statements about the mother and others as his true feelings without mature reflection by the father on the emotional pressure the child came under to please him and the paternal family.
This is inconsistent with his past ability to promote shared care when the child was an infant.
The father may be hanging on to the child to meet his own emotional needs. This is inconsistent with the father having formed a stable relationship and brought another child into the world with his current partner.
Another explanation is that the father is punishing the mother for her choice of partner by withholding the child from her. If so this would demonstrate startling immaturity, again inconsistent with his past conduct as a young father.
There may be other explanations.
In 2014 the mother made an observation to the Family Consultant reported as follows:
The father has always been a kind and considerate man and has never been as angry or aggressive as he currently is and she does not fully understand where all the animosity has come from. She queried if the father’s car accident may have had something to do with it.
There was no medical evidence before me about the state of the physical and mental health of the father.
It is uncontested that the father has not returned to paid employment since the accident in 2010 where he was injured.
There was no challenge to his assertion that he suffered PTSD and attended on a psychiatrist.
I am left without expert evidence on the impact on the father of his injuries and any losses or deficits he may have as a result.
This is a significant deficiency in the evidence which reduces an assessment of the father’s capacity to meet the child’s needs to reliance on past and present conduct as reported by himself and others.
I cannot come to a conclusion about it but there is a possibility that the father has done a disservice to himself and the child by not putting relevant medical and psychiatric evidence forward.

The Mother

The Family Consultant stated that absent factual findings by the Court about past conduct there were “no factors identified which may impinge on the mother’s ability to parent and which may impinge on the child’s wellbeing.”[22]
[22] Family Report dated 7/03/2015, par 38
The mother has in my view understood the need for the child to enjoy a relationship with both his parents despite their personal differences.
She consented to orders for the child to live with his father and did not resile from that commitment until she was genuinely concerned that the relationship between herself and the child could be lost. Her fears in that regard were supported by the two Family Consultants who observed the family.
The mother has understood the pressures operating on the child. The way she went about reassuring him that it was alright for him, when in her presence, to express physical affection for his father’s partner is one example of many.[23]

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

[23] Affidavit of the mother filed 14/10/2016, par 118

The child is a nine year old boy. He has described himself as anxious. There is now a new baby in both households as well as two pre-schoolers in his mother’s household.
His loyalty to his father and the father’s failure to reassure him of his mother’s intentions has driven him to be critical and rejecting of the mother he loves.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The mother has taken a responsible attitude to the child, working to support herself and the child in the early years of his life, relying on the father’s assistance to care for him.
When the father was injured in 2010 the mother arranged for the child to maintain his relationship with the father bringing him to the hospital to visit and to the home of the paternal grandparents.
When the mother began her new relationship she struggled with the father’s opposition to it and now regrets entering into consent orders although I am satisfied that at the time she thought that the parties would be able find a way to continue to share care of the child.
The father in the early years of the child’s life was content and pleased to share the care of the child with the mother and they went about it in an amicable and effective way.
The father’s reaction to the mother’s new relationship and to conflict was to shut down, even going so far as to exclude the mother from the child’s life entirely for more than a year despite having put consent orders in place. If the father’s only concern had been that the mother might abscond with the child or make it difficult for him to spend time with the child if he allowed the child to spend time with her, the orders should have reassured him. Far from that, he ignored them himself and cut the mother off. It was an irresponsible act.
The father concedes that the child worried that something he had done had caused his mother to abandon him during that time.

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

The ICL urged the Court, in the event of a change of residence, to implement by order the recommendations by the Family Consultant for the father to have at least six sessions of therapeutic counselling before time commenced between himself and the child.
I have not taken that course. Not because I consider that the father would not benefit from professional assistance in analysing his role in the deterioration of the relationship between the child and the mother. Quite the reverse. I have no reason to doubt the professional analysis by the Family Consultant that underlies the recommendation. Rather it is because the recommendation was made in July 2015 and the father has not acted on it, presumably because he saw no need to do so.
Accordingly an order compelling him to undertake such work creates an obstacle for the father to overcome, with no certainty of the therapeutic work on offer being productive. There is a risk that the father would pay lip service to compliance with no benefit to himself and relevantly the child.
The more realistic course in my view is to order that after a reasonably brief period of no contact, there should be daytime contact on one day of alternate weekends, progressing to whole alternate weekends. Holiday time to commence when the child is at High School.
In the circumstances there is a balance between the benefit to the child of seeing and spending time with the father and the risk of being exposed to his father’s obstructive attitude to the child’s need for an unfettered relationship with his mother.
However a period of six weeks with no contact will be provided to enable the child to make the transition to his mother’s home with the least possible distraction and interference.
It will be a matter for the father whether he takes that opportunity to follow the recommended course of professional consultation.
There is a risk that the matter will come back to Court if the father defies the orders and retains the child after contact.
The greater risk is ordering therapeutic work for the father with an inherent inference that compliant attendance on a therapist has been effective such that five day blocks and half school holidays are immediately appropriate.

Any other fact or circumstance that the court thinks is relevant

The Court has taken into account that there was a child being born into each household early in 2017 at approximately the same time. The subject child in my view was entitled to stability of arrangements whilst each household welcomed a new child and adjusted accordingly.

Conclusion

Having the evidence of the father’s conduct from the time consent orders were made, it is apparent that the father has had a black and white approach to the care of the child, has excluded the mother from the child’s life without understanding the hurt he was inflicting on the child he loves.
I am satisfied that the mother is more likely to protect and promote the relationship between the child and the father than the father has been willing to do for her for the child.
Accordingly, although it will be disruptive, at least initially, the orders provide for a change of residence to the mother and for her to have sole parental responsibility. The reason being that the parents are unable to communicate effectively.
There is provision for the child to spend time with his father after a break to enable adjustment to a new home, a new school in the Q Town area and to having three preschool aged children as part of his new family life.
The best outcome would be that the father took up the recommendation to seek therapeutic help to understand how his exercise of parental responsibility has had some adverse impact on the child. However that is his choice.
The issue will be compliance by him with orders. Were the father to retain the child no doubt there would be an Application for Contravention. If established, a variation of the orders to protect the child would almost inevitably flow. However if the father does comply with the preliminary daytime orders then there is progression to weekend time and from the time the child starts High School, blocks of holiday time.
It will be open to the parties to vary the orders by agreement if there is an improvement in their relationship. This is more likely to happen if the father develops, by whatever means, some insight into the child’s needs which are independent of his own
Orders are made accordingly.

I certify that the preceding two hundred and thirty six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 April 2017

Associate:

Date: 27 April 2017

[2017] FamCA 259

28 April 2017

Key Legal Topics

Areas of Law

Family Law