MELROSE & MELROSE

FAMILY COURT OF AUSTRALIA

MELROSE & MELROSE

[2010] FamCA 398

FAMILY LAW – CHILDREN – with whom a child lives and spends time – best interests – views of the child – whether the wife has encouraged the child to have a relationship with the husband – whether the husband is bona fides in wanting to spend time with the child – where the wife has concerns regarding the husband’s capacity to physically care for the child – where the husband has an inflexible attitude and a lack of insight into the child’s needs – child to live with the wife and spend such time with the husband as she wishes – husband to undergo counselling or therapy

FAMILY LAW – CHILDREN – parental responsibility – where no orders are sought for parental responsibility – “default” position in s 61C to continue

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

McCall and Clark (2009) FLC 93-405

APPLICANT:

Mr Melrose

RESPONDENT:

Ms Melrose

INDEPENDENT CHILDREN’S LAWYER:

Stuart Hammond

FILE NUMBER:

CRC

293

2007

DATE DELIVERED:

21 May 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Newcastle

JUDGMENT OF:

Strickland J

HEARING DATE:

2 & 3 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Coastal Law

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Lyons Barrett Kennedy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

Orders

That all previous orders made in relation to the child G born on … October 1995 be discharged.
That the said child live with the wife.
That the said child spend such time with the husband as the said child wishes, and upon her instigation.
That the husband be at liberty to telephone the said child on her mobile telephone between 6:30pm and 7:30pm on each Wednesday.
That forthwith the husband:
(a)undertake supportive counselling or therapy to assist him to address the issues that have prevented the continuation of an ongoing relationship with the said child; and
(b)complete a group program to assist him with his role as a co-parent of a teenager.
That for the purposes of the counselling or therapy referred to in paragraph (5)(a) above, the husband provide the counsellor or the therapist with a copy of the reasons for judgment of Strickland J delivered on 21 May 2010.
That the wife arrange with the said child’s school for the school to send to the husband copies of all school reports, notices, and newsletters, at the cost entirely of the husband.
That the wife do authorise the said child’s medical practitioner and the said child’s school teacher to discuss with the husband upon his request the said child’s health and education, and for that purpose the wife do keep the husband informed of the names, addresses and telephone numbers of those medical practitioners and school teachers.
That the wife do inform the husband as soon as practicable in the event that the said child suffers a medical emergency and in particular if the said child requires hospitalisation.
That the wife do keep the husband informed of any extra curricular activities that the said child engages in from time to time.
That all applications be dismissed and removed from the active pending cases list.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: CRC 293 of 2007

MR MELROSE

Applicant

And

MS MELROSE

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for parenting orders with respect to the child G born in October 1995 and now aged 14 years.
Final parenting orders were previously made by consent on 3 March 2005 providing for the child to spend time with the husband.
On 10 January 2007 the husband filed an Application seeking the following orders:
“1.    The Orders made on 3 March 2005 in the Family Court of Australia at Newcastle be set aside.
2.    The child, [G], born […] October 1995 live with the mother.
3.    The child spend time with the father as follows:
(a)For the 2007 year, for the whole of the Term 3 school holiday period commencing midday on the first Saturday and concluding at midday on the final Sunday.
(b)For the 2008 year and thereafter as follows:
(i)for the whole of the Term 1 and Term 3 school holiday periods commencing at midday on the first Saturday and concluding at midday on the final Sunday;
(ii)for the first half of the Term 2 and Term 4 school holiday periods in even numbered years commencing at midday on the first Saturday and concluding at midday on the day being the mid-point of such school holiday period;
(iii)for the second half of the Term 2 and Term 4 school holiday periods in odd numbered years commencing at midday on the day being the mid-point of such school holidays until midday on the Sunday immediately preceding the commencement of the school term;
(iv)on the fifth weekend of each school term from 9.00 am Saturday until 3.00 pm Sunday.
4.    The time spent with the father as provided for in the Orders above is to be implemented by the mother delivering the child to the father’s residence at the commencement of the time and collecting the child from the father’s residence at the conclusion of the time.
5.    The father may telephone the child between the hours of 5.00 pm and 8.00 pm on any day.
6.    That the mother authorise the medical practitioner who, from to [sic] time, attends to the child and the school teacher and principal of the school which the child attends from time to time to discuss with the father the child’s health, welfare and education.
7.    That each of the father and mother inform the other of any change of address or telephone number or change of the child’s school or medical practitioner within seven (7) days of such change.”
At trial the husband still pursued these orders, obviously though updated in view of the timing of commencement, and subject to an introductory period given that there has been no face to face contact since 28 April 2007. In this regard the husband proposed that the child spend time with him at his home over a series of weekends initially from 9:00am to 5:00pm on the Saturday and from 9:00am to 3:00pm on the Sunday, and gradually extending to the entire weekend including overnight, and then continue with paragraph 3(b) of the orders sought above. With communication by telephone, the husband proposed that that commence with him telephoning the child between 6:30pm and 7:30pm each Wednesday.
The wife filed a Response to the husband’s application on 30 January 2007. At the time of trial the wife sought the following orders:
“1.    That the application filed by the Husband 10 January, 2007 be dismissed.
2.    That all previous orders concerning [G] born […] October, 1995 are discharged.
3.    That [G] born […] October, 1995 live with the Mother.
4.    That [G] spend such time with her Father as [G] wishes.
5.    That the father pay the Mother’s costs of and incidental to this application.”
The Independent Children’s Lawyer proposed that all previous orders for the child to spend time with the husband be discharged and that the husband communicate weekly by telephone with the child. The Independent Children’s Lawyer also proposed that the wife ensure that the husband is sent copies of materials usually issued by a school to parents, and that the husband be advised of the child’s address and telephone number and of any major decisions, including medical decisions, made in relation to the child.
During the course of cross examination of the Family Consultant Mr C, he strongly recommended that the child have immediate “supportive therapeutic counselling” in an attempt to both overcome the impasse that had developed in relation to the child spending time with the husband, and to support the child generally. To their credit the parties accepted that recommendation and at the conclusion of the hearing at their request I made an order by consent providing for that counselling to take place.
I was hopeful that that counselling might lead to a resolution of this matter and particularly if the husband also took up the recommendation of Mr C that he “complete a group program to assist him with his role as a co-parent of a teenager”. However, since reserving my judgment and making the order referred to above, neither party has sought to bring the case back before me and I am none the wiser as to the current position. Thus I proceed to complete my judgment.

Factual background

The husband was born in 1952 and is now aged 57 years.
The wife was born in 1961 and is now aged 49 years.
The parties commenced their relationship in 1979 and commenced cohabitation in 1981 in H, regional New South Wales.
The parties married in 1982.
In 1990 the parties moved to K, on the New South Wales north coast.
In 1992 the husband “medically retired”. Also in 1992 the parties purchased a property known as “Y property” at Y, near H and the parties commenced to reside at the property. They retained the K property as a “holiday home”.
The parties’ daughter G was born in October 1995.
The parties finally separated on 7 February 2002. On 10 June 2003 the parties’ divorce was granted, becoming final on 11 July 2003.
Following separation the wife moved to a unit in H with the child. The child remained living with the wife and spent time with the husband, firstly at the Y property and later at K after the husband moved there.
On 10 April 2002 the husband moved to the parties’ holiday home at K. K is approximately 345 kilometres from H, or approximately four hours travelling time by car.
In December 2002 the wife commenced proceedings in the Family Court of Australia.
Thereafter various interim orders were made providing for the child to spend time with the husband on weekends and during school holidays. The child, however, became resistant to and distressed about spending time with her father, and in particular spending overnight time with him.
On 22 May 2003 Dr D, psychiatrist, provided a report with respect to the husband. The husband was diagnosed with an Adjustment Disorder with Depressed Mood. The husband commenced taking antidepressant medication in approximately 2002 but ceased this medication in 2005.
In approximately July 2004 G commenced attending upon a Psychologist, Ms M.
On 9 December 2004 a Family Report was provided by Mr N, psychologist.
On 3 March 2005 final parenting orders were made by consent by Mullane J. Those orders provided for the child to spend gradually increasing time with the husband, upon certain conditions, as follows:
“1.    That the child [G] born [October 1995] have contact with the Father as follows:
1.1On 12.3.05, 23.4.05 and 4.6.05 commencing at 9am and concluding at 5pm.
1.2On 13.3.05. 24.4.05 and 5.6.05 commencing at 9am and concluding at 3pm.
1.3On 16.7.05 commencing at 9am and concluding on 17.7.05 at 3pm.
1.4On 27.8.05 commencing at 9am and concluding on 28.8.05 at 3pm.
1.5On 1.10.05 commencing at 9am and concluding on 3.10.05 at 3pm.
1.6On 5.11.05 commencing at 9am and concluding on 6.11.05 at 3pm.
1.7On 26.12.05 commencing at midday and concluding on 2.1.06 at midday.
1.8On 21.1.06 commencing at midday and concluding on 28.1.06 at midday.
2.      For the 2006 year (other than as provided for in 1.6 to 1.8) and thereafter as follows:
2.1For the whole of the Term 1 and Term 3 school holiday periods commencing at midday on the first Saturday and concluding at midday on the final Sunday.
2.2For the first half of the Term 2 and Term 4 school holidays in even numbered years commencing at midday on the first Saturday and concluding on the day being the mid point of such school holidays.
2.3For the second of the Term 2 and Term 4 school holidays in odd numbered years from midday on the day being the mid point of such school holidays until midday on the Sunday immediately proceeding the re commencement of the school term.
2.4On the fifth weekend in each school term from 9am Saturday until 3pm Sunday.
3.      That the contact provided for in 1.1 to 1.6 and 2.4 be implemented by the Mother delivering the child to the Father’s residence at the commencement of contact and collecting the child from the Father’s residence at the conclusion of contact.
3.1That the contact provided for in 1.7, 1.8, 2.2 ,2.2 [sic] and 2.3 be implemented by the Mother delivering the child to the Father at the Service Station, [E] at the commencement of contact and by the Father returning the child to the Mother at the Service Station, [E] at the conclusion of contact.
4.      The implementation of the foregoing contact (other than the contact provided for in 1.1 and 1.2) shall be subject to the following:
4.1The Father attending upon and involving the professional services of a Psychologist with expertise in child and family therapy (the therapist) and for the se [sic] purposes the therapist shall be [Mr MC] or such other therapist as recommended by the Family Report writer to the intent that the therapist be involved to assist the parties and the child in relation to the implementation of overnight contact.
4.2That the implementation of overnight contact be at all times subject to the recommendation\s of the therapist as to the appropriateness of such contact commencing and its duration.
4.3That the implementation of the periods of block contact as provided for in 1.5, 1.7 and 1.8 be at all times subject to the recommendations of the therapist as to the appropriateness of such contact occurring and its duration.
5.      The Father and the Mother shall comply with all reasonable directions of the therapist in relation to the implementation of and the duration of any contact and shall do all acts and things as may be reasonably required by the therapist being (but not limited to) attending upon the therapist for any consultation causing the child to attend upon the therapist and adopting any plan or strategy as recommended by the therapist in relation to the preparation or introduction of the overnight and extended periods of contact.
5.1The Father and Mother each pay one half of the cost of the provision of the therapist’s services within seven days of receipt of invoice.
5.2That each of the Father and the Mother be at liberty to apply on seven days notice in relation to any matter arising from the implementation of orders 4 and 4.3 herein.
6.      Telephone contact to be initiated by the Father telephoning the child between 7.00pm and 7.30pm on each Wednesday.
7.      That other than in respect of the periods of contact provided for herein the child live with the Mother.
8.      That the Mother authorise the medical practitioner who from time to time attends to the child and the school teacher and principal of the school which the child attends from time to time to discuss with the Father the child’s health, welfare and education.
9.      That each of the Father and the Mother inform the other of any change of address or telephone number or change of the child’s school or medical practitioner within 7 days of such change.
10.    That each of the Father and Mother will immediately inform the other of any serious accident or illness suffered by the child while in that parent’s care.
Notation: That the Mother will cease any further consultations between the child and the psychologist [Ms M] in view of the fact that [G] will be seeing a different therapist.”
Final orders as to property settlement and spousal maintenance between the parties were also made by consent on 3 March 2005.
From March to July 2005, the child spent time with the husband pursuant to the orders of 3 March 2005.
The child attended upon Mr MC, Psychologist on two occasions as provided in the order of 3 March 2005, and on 15 July 2005 Mr MC provided a letter to the husband setting out his assessment of the child, elaborating on her views, recording her resistance to overnight time, and suggesting that the husband change his attitude and behaviour towards the child.
On 16 July 2005 the child spent time with the husband, but not overnight as ordered.
On 5 August 2005 the husband attended upon Mr MC.
On 26 August 2005 the husband again attended upon Mr MC, this time with the child G “in an attempt at a mediation session”. A further report regarding these sessions dated 2 September 2005 was provided to the husband and in which Mr MC advised the husband that because of his unwillingness to accept any other view of the situation than his own that he could no longer be involved in the case.
On 27 August 2005 the child asked to go home early from her time with the husband and was collected by her mother. Following this occasion the child did not spend any time with her father for approximately 15 months.
On 26 September 2006 the husband filed an application alleging that the wife contravened the orders of 3 March 2005.
On 27 October 2006 an interim order was made for the child to spend time with the husband on 11 November 2006 at H. The child spent time with the husband pursuant to this order.
On 23 November 2006 interim orders were made by consent for the child to spend time during the day with the husband on 16 December 2006 at K. The child spent time with the husband pursuant to this order.
On 10 January 2007 the husband commenced proceedings in the Federal Magistrates Court at Lismore seeking parenting orders.
On 30 January 2007 the wife filed a Response.
On 2 March 2007 interim orders were made by Donald FM providing for the child to live with the wife and spend time with the husband at K every sixth Saturday from 10:00am to 5:00pm and the following day, Sunday, from 9:00am to 3:00pm, commencing on 17 March 2007, and from 7 April 2007 the child was to spend time with the husband at H every sixth Saturday from 9:00am to 5:00pm and the following day Sunday from 9:00am to 5:00pm. The husband was also to have telephone contact with the child each Wednesday. The matter was transferred to the Family Court of Australia, Newcastle Registry. It was noted that the husband’s Contravention Application filed on 26 September 2006 was withdrawn.
The child spent time with the husband pursuant to these orders in March and April 2007. However that soon ceased and the child has not spent time with her father since 28 April 2007.
On 10 August 2007 the husband filed an “Application-Contravention” in the Federal Magistrates Court in which he alleged that on 23 and 24 June 2007 and 14 and 15 July 2007 the wife contravened the orders of 2 March 2007 providing for the husband to spend time with the child every sixth Saturday from 10:00am to 5:00pm and the following day (Sunday) from 9:00am to 3:00pm.
On 21 November 2007 the husband’s contravention application was heard by Scarlett FM. On 22 November 2007 Scarlett FM delivered his reasons for judgment and dismissed the husband’s application. His Honour was satisfied that “on each occasion the respondent mother believed on reasonable grounds that not allowing the child and the husband to spend time together was necessary to protect the emotional or psychological health of the child.”
On 31 January 2008 a first day of a less adversarial trial pursuant to Division 12A of Part VII of the Family Law Act 1975 (Cth) was held before Mullane J. His Honour made orders, inter alia, appointing an Independent Children’s Lawyer to represent the child and for the preparation of a “welfare report” by a Family Consultant. The husband was given permission to file an updated report of Dr D with respect to his mental health. Pending further order, both parties were restrained from discussing the proceedings with and from criticising or making derogatory statements about the other parent to, or in the presence of, the child or allowing any other person to do so.

On 22 May 2008 Mr C, Family Consultant, provided a Family Report. Mr C made the following recommendations:
“41. It is recommended that the parties have equal joint shared [sic] parental responsibility for long term decisions regarding [G].
42.   It is recommended that both parents concentrate on what they can do themselves to improve the co-operation and effective co-parenting into the future. Unless [G] has the benefit of both of her parents working together for her long term best interests, she is unlikely to do as well as she might otherwise.
43.   It is recommended that [G] continue to live predominantly with the mother.
44.   It is recommended that [G] have at least fortnightly telephone and other non face to face communication with her father and that this communication not involve [G] being exposed to any adult conflict either past or present.
45.   It is recommended that [G] spend time with her father in [H] at least once every three months.
46.   It is recommended that [G] spend time with her father on at least three occasions each year at [K] (ideally during school holidays).
47.   It is recommended that the father seek supportive counselling to assist him to repair and improve the relationship he has with [G]. This might be arranged with a psychologist through a referral by a general practitioner or alternatively through a community agency such as the [A] Neighbourhood Centre …
48.   It is recommended that the father complete a group program to assist him with his role as a co-parent of a teenager … Not only will this type of program provide practical assistance for the father, his participation is likely to be viewed by [G] as extremely positive.
49.   Further investigation of the father’s current psychological functioning may be required following the father’s next appointment with Dr [D].”
On 21 July 2008 Dr D provided an updated assessment with respect to the husband’s mental health, following two interviews with the husband. Dr D made the following diagnosis:
“The Adjustment Disorder with Depressed Mood I diagnosed in 2003 is no longer present. I do not identify any other mental disorder, including alcohol-related problems such as Alcohol Abuse or Disorder.
[The husband] has currently considerable medical problems. His neck and knees give him pain for most of the time and restrict his activities. He also has stomach to oesophagus reflux (gastroesophageal reflux) and related ulceration of the oesophagus and a reported associated risk of cancer there.” [At pg 11]
Dr D concluded that the husband was not suffering from any depressive or other mental illness or from a personality disorder. Dr D was of the opinion that the husband “is fit and well enough to have unsupervised contact with his daughter, [G], and therefore the additional telephone contact.”
On 28 July 2008 Mullane J identified that the remaining issues for determination in this matter at that time were:
“1.1 The child's relationship with each parent;
1.2   The parent's relationship with each other;
1.3   The child's views regarding spending time with the Father;
1.4   The child's maturity and understanding;
1.5   The capacity of each parent to promote the child's relationship with the other parent;
1.6   The parenting capacity of each parent;
1.7   What actions the parents are likely to take, that will result in an improvement in the relationship between the child and Father to the extent that the child will spent/time [sic] overnight with the Father at [K] and benefit from doing so;
1.8 Any other significant matter pursuant to section 60CC of the Family Law Act 1975.”
On 25 September 2008 as a result of his impending retirement Mullane J made orders in chambers in effect referring this case to another judicial officer for final hearing.

The current circumstances of the parties

The wife

The wife resides with the child in a three bedroom home on five acres of land at H. The child has her own bedroom.
The wife is employed full time as a registered nurse. …. Her hours of work are generally 8:30am to 4:30pm Monday to Friday. She has her own motor vehicle.
The child G currently attends [X] High School. She commenced there in 2008 and at the time of the hearing she was in Year 8.
To repeat, the child has not had any face to face contact with the husband since 28 April 2007, except for a brief occasion at Court on 31 January 2008. Significantly too, the last time the husband saw the child in H was on 11 November 2006, and there has not been any telephone communication since just after Father’s Day in September 2008.

The husband

The husband resides alone in a one bedroom home at K. As stated previously, K is located approximately 345 kilometres from H. He has a bed available for the child in the living area.
The husband holds a driver’s licence but the motor vehicle he owns is not road worthy. In any event, the husband says he is unable to drive for more than an hour at a time due to an injury to his knee.
The husband “medically retired” in 1992. He does not work and is in receipt of a Disability Support Pension due to his knee injury and arthritis in his neck. As a result he only pays the minimum amount of child support.
The husband does not have a landline telephone connected at his home and relies on a mobile phone.

The issues in dispute

The issues here all relate to whether further orders should now be made providing for the child to spend time with the husband, and if it is what those orders should be.
The wife says that the child does not want to spend time with the husband and particularly at his home at K. She says that this is because of how the husband has treated the child, including his alleged inability to care for her and his lack of insight into her needs. She says that he has not made any attempt to understand the child and the impact of his behaviour on her, and he has refused to change his attitude in blaming her entirely for the fact that the child has formed the view that she does not want to see him, and telling the child that it is the wife’s fault.
The husband says that the child’s views are not her own, and they reflect the negative attitude that the wife has towards him. He says that the wife has influenced the child against him and she has failed to ensure that the child has a relationship with him.
There are issues about the cleanliness of the husband’s home and his hygiene which the child has raised, supported by the wife, but which the husband denies.
There are also issues raised by the child and the wife about whether the husband consumes alcohol and smokes cigarettes in the presence of the child, but again all denied by the husband.
Finally, the wife in effect queries the bona fides of the husband in seeking to spend time and communicate with the child. She says that he has not taken up options that have been available to him to travel to H to see the child, that he has not attempted to telephone her since 20 August 2008, that he has not sent her a card or present since her birthday in October 2007, that he has not sought to contact the school to ascertain her progress, and he has neither accepted the advice of the experts nor sought to improve his knowledge of parenting a child through courses that are available to him. In response the husband says that the wife has prevented him from speaking to the child on the telephone, that the wife has not encouraged the child to send cards to him or to contact him, and the wife has not sent him the child’s school reports. He denies that he can travel to H and that there are courses that he can attend.

The principles to be applied to the issues in dispute

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act. The objects of those provisions of the Family Law Act relating to children are:
(a)    to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)    to protect the children from physical or psychological harm; and
(c)    to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)    children have the right to know and be cared for by both parents; and
(b)    children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)    children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, the Court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of s 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The Court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the Court. (Section 61C)
Under the provisions of s 61DA(1) when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the Court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the Court does not make an order for the child to spend equal time with each of the parents the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The evidence

The husband was represented by Mr Hamilton. He relied on his affidavit filed on 18 August 2008 and his parenting questionnaire filed on 24 December 2007. He gave evidence and was cross examined.
The husband called two witnesses, namely Dr D, Psychiatrist, and a friend Mr U. Both of these witnesses filed affidavits, Dr D on 25 August 2008 to which was annexed his report dated 21 July 2008, and Mr U on 18 August 2008. They both gave evidence and were cross examined.
The wife was represented by Mr Duane. She relied on her affidavit filed on 8 September 2008 and her parenting questionnaire filed on 20 December 2007. She gave evidence and was cross examined.
Ms O’Rourke appeared as counsel for the Independent Children’s Lawyer. She relied on the two Family Reports prepared in this matter, the first by Mr N dated 9 December 2004 and the second by Mr C dated 22 May 2008. However, only Mr C gave evidence and was cross examined. For convenience he was in fact called as a witness by the Court.
Overall, the husband gave his evidence reasonably well, but there are two important areas where I do not accept what he says.
First, one of the issues in this case is the husband’s alleged inability to travel to H to see the child there. He says that his motor vehicle is unroadworthy and with his knee injury he cannot drive for more than one hour or so at a time. Now, I am not satisfied that the husband does not have the financial ability to repair his motor vehicle or to purchase a roadworthy motor vehicle. He is a single man who lives frugally and spends most of his time at his one bedroom home at K. In any event, there was a successful occasion of contact on 11 November 2006 when the husband was driven to H by his friend from the organisation known as “Dads in Distress”, Mr U. However, that was the last occasion when contact took place at H, and the husband’s case is that that was because he had no transport. Indeed, he said in cross examination that he had asked Mr U if he could drive him to H again, but he refused. However, when Mr U gave his evidence he said that he could not recall being asked this by the husband. He said that if the husband asks he is prepared to drive to H “on an infrequent basis”. In fact, he drove the husband to Newcastle for the purposes of the hearing.
This evidence casts serious doubt on the bona fides of the husband in seeking to spend time with the child. Otherwise he would have done everything he could to take up that part of the ongoing order that provides for time to be spent in H.
Secondly, the position of the experts in this case has been that the husband needs to change his attitude and understand and appreciate the needs of the child. In that context recommendations have been made for the husband to attend courses to provide that understanding. The husband though says that there are no appropriate courses that he is able to attend. However, Mr U said in cross examination that he has informed the husband of parenting courses that he might attend and specifically in Coffs Harbour. Thus again this evidence indicates a lack of bona fides on the part of the husband in this case, if he is not prepared to pull out stops to ensure that he is not only able to see the child but to understand and appreciate her needs. Instead, it seems that he has persisted in blaming everyone else but himself for the fact that the child has not spent any time with him for a number of years.
Mr U was a helpful witness. He of course facilitated the husband having contact with the child in H on 11 November 2006, and he took pictures and videoed part of what occurred on that day. He also spent time on 12 December 2006 at the husband’s home when the child was there for contact. Mr U had his 8 year old daughter and her 7 year old friend with him. There is no issue taken with Mr U’s evidence.
Dr D gave his evidence well, although his report of 21 July 2008 was somewhat difficult to follow. One reason for that is perhaps he went beyond his brief to provide an updated psychiatric assessment of the husband and he looked to comment on the Family Reports, the affidavits of the parties, and the reports and letters annexed to them. He clearly has no expertise to do so, and I attach no weight to his evidence on these topics. The value of his evidence though was his updated assessment of the husband, and although the wife’s counsel challenged this in cross examination, I accept that the husband no longer has any mental disorder.
The wife presented as a candid and credible witness, but there were areas of her evidence where I find that she exaggerated and also where I do not accept what she says. She was also vague at times responding that she did not know the answer or she could not remember. Subsequently she explained that this was because she had chosen not to refresh her memory by re-reading the affidavits.
In paragraph 6.1 of her affidavit of evidence in chief she deposed that she “performed all domestic duties for both [G] and the Applicant”, and she was invariably reluctant to give the husband any credit for caring for the child. However, she worked on Tuesday nights and on some weekends, and it was clearly the case that she left the child with the husband to look after at these times. Indeed, it is apparent that she relied on the husband to look after the child whenever she was unable to for any reason.
The wife was also critical of the amount of alcohol that the husband consumed when they were together, alleging that “he drank 24 stubbies every day”. When challenged though she reluctantly conceded that that was not every day.
On the same topic, despite expressing concerns at the husband’s alcohol consumption, the evidence is quite clear that the wife left the child with the husband at times when on her case he would have been drinking excessively. Accordingly, I consider that she was exaggerating in her evidence as to the husband’s alcohol consumption.

A significant issue in this case is the claim by the husband that the wife has not encouraged the child to have a relationship with him. The wife denies this but the evidence indicates that as time went by that has not always been the case. She left it up to the child whether she attended on contact or whether she sent a card or communicated with the husband in some way. That is not to say that she did not have concerns about the husband’s attitude and behaviour and the distress that the husband caused the child. Indeed, it is apparent that the wife became so fed up with the husband’s attitude and lack of insight that on occasions she did not necessarily do all that she could to ensure that the orders were complied with. She simply did not have the energy to continually challenge the child and devote time to resurrecting the relationship between the child and the husband. Equally though there were two occasions when she physically put the child in her motor vehicle kicking and screaming in an attempt to ensure that she went on contact. I will say more about the wife’s approach in relation to these issues later in these reasons.
The report of Mr N, although relied on by the Independent Children’s Lawyer is obviously somewhat outdated. It also preceded the final orders of 3 March 2005, but presumably played a part in the parties reaching those consent orders. It is useful to record the conclusion of Mr N as follows:
“3.0 Conclusion and Options:
3.1The ability of the parents to act clearly in [G’s] best interests are somewhat clouded by tensions and mistrust arising from the years of marriage. [The mother] appears to have some anxieties about [the father’s] ability to provide a caring and safe environment for [G]. At the same time she has tried to meet her responsibilities in trying to encourage [G] to attend contact. This has placed her in a significant dilemma where she is unsure what is the most appropriate way for her to act. [The father] for his part seems to bear ongoing resentment to his wife for the marriage break-up and consequently mistrusts her over her facilitation of contact visits.
3.2[G] does appear to experience separation anxiety on leaving her mother to go with her father. This seems to be exacerbated in the [H] context by the paucity in the contact activities and the embarrassment she feels with her father in social settings. Apparently she feels more comfortable with the [K] visits. In my opinion those visits provide enjoyable activities with her father and contact with her friend next door. She does not experience those uncomfortable social settings she experiences in the [H] contact visits.
3.3[G] is in an apparently productive counselling relationship with [Ms M]. If the Court sees it as appropriate to work towards [G] having overnight contact visits with her father then this counselling is an [sic] suitable avenue for preparing [G] for those visits. [The mother] would benefit from some counselling and could be assisted to address her uncertainties in the matter. It is my opinion that [the father] would benefit from some counselling to address issues of his understanding of [G’s] needs and his ability to respond to those. I have suggested that might best occur in a group programme such as “Hey Dad” for separated fathers. These issues might also be addressed in an individual setting although my preference is for the group setting. Such a programme will be available in 2005 although at this time dates have not been set. I have not been able to source a programme on the Far North Coast at this time.”
It is interesting to note that at that time the contact in H was more problematic than the contact at K, the child preferring the latter. That of course has changed now.
It is also instructive to reflect on the comments by Mr N as to the need for the husband to have counselling “to address issues of his understanding of [G’s] needs and his ability to respond to those.” That has certainly been a consistent theme in this case with the husband refusing to acknowledge that that is a problem.
Mr C is the expert who has had the most recent contact with the parties and the child. His report and his oral evidence have been of great assistance to me in this case.
His evaluation from his report is as follows:
“Evaluation:
35.    A limit to this report is that the father has not yet taken the opportunity to file an affidavit by Dr [D] reporting on a further up to date assessment of the father’s mental health (as allowed for in Order 7 of the Court Orders dated 31 January 2008. The father advised that he saw Dr [D] once in 2003 and that he has a second appointment with him ‘in a few weeks’.
36.    It is of concern that [G] has such polarised concrete thinking and is so ‘black and white’ when it comes to her father. [G] does not appear able to accept that while she clearly has many serious concerns about her relationship with her father, they have over the years, been able to enjoy many very positive occasions together and that there are some positive aspects to her relationship with her father.
37.    It is a concern that the father has failed to avail himself of any counselling that could assist him to improve his relationship with [G]. Whileever [sic] the father maintains his absolute belief that each and every concern raised by [G] is totally without any substance and is merely [G] expressing the irrational beliefs of the mother, there is very little chance of the relationship between [G] and the father improving.
38.    It is a concern that there have been long periods of time without any communication whatsoever between [G] and the father. Whatever future arrangements are in place, those arrangements need to be adhered to so that communication is regular and consistent.
39.    It is a concern that the relationship between the parents has deteriorated even further. There appears to be virtually no effective co-parenting with each parent blaming the other for all of the problems.
40.    It is a concern that the mother has allowed [G] to believe that now that [G] is aged 12 years, [G] has the legal right to make up her own mind about when and if she spends time and communicated with the father.”
There are then his recommendations which I have set out in paragraph 42 above.
In his oral evidence Mr C indicated that the report and diagnosis by Dr D made no difference to his recommendations. Importantly though he explained that his recommendation that the child spend time with the husband in both H and at K was what should happen in this case, but if there is no change to the attitude of the husband it would not be in the child’s best interests to put such orders in place.
To try and implement orders without a change to the husband’s attitude would inevitably result in distress to the child and her refusal to attend. He reiterated that the child is clear and firm in her views and the husband has no insight into how to change those views.

Section 60CC of the Family Law Act 1975

I now turn to the factors that I must take into account in determining what is in the best interests of the child G.

The primary considerations

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

There is no doubt that in this case the child would benefit from having a meaningful relationship with both of her parents. At the time of the hearing the child had a close and loving relationship with her mother, and it could easily be described as “meaningful”. However, the child’s relationship with the husband is poor, and bordering on non-existent. It certainly could not be described as “meaningful”.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in s 60B. One object is to ensure that the best interests of the children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;” (Section 60B(1)(a))
Then there are the principles underlying the objects and one such principle is that except where it is or would be contrary to a child’s best interests:
“(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” (Section 60B(2)(b))
It has been said that the objects and principles in s 60B guide the interpretation of s 60CC and for that matter s 60CA. Now that may be the case, but the best interests of the child are still the paramount consideration and that is quite apparent from the wording, for example, of s 60B(1)(a) and s 60B(2)(b).
Section 60CC(2)(a) clearly operates at the level of general principle, and is a reminder to the court of the importance of the benefits to a child of having a meaningful relationship with each parent. It requires the court to take those benefits into account but leaves the additional considerations in s 60CC to determine whether those benefits can be achieved in each individual case consistent with the best interests of the child involved.
That accords in my view with what the Full Court said on this topic in the recent case of McCall and Clark (2009) FLC 93-405, namely:
“118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)    one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)    a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)    the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
…
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”
In this case, given the history and the orders that have been made along the way, the difficulty is whether orders can now be crafted to ensure that the child has a “meaningful relationship” with the husband. The child herself has rejected spending time with the husband, and the husband has not been able to change his attitude such that there can be at least a basis for their relationship to be resurrected. The other element of course is the willingness of the wife to encourage a relationship between the child and the husband. Frankly, on the evidence before the Court there is real doubt that there can be a relationship between them which is beneficial to the child.

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

In this case the wife makes the very general allegation that “[d]uring the marriage [her] relationship with the [husband] was characterised by emotional and verbal abuse… by social isolation from [her] friends and family and manipulation and controlling behaviour on the [husband’s] part, both socially and financially”. However, apart from the lack of specificity, which prevents me from attaching much, if any, weight to this allegation, there is no suggestion that this behaviour has been directed at the child.
There are though allegations against the husband of lack of care, exposure to lack of cleanliness and poor hygiene, and lack of insight in so far as the child’s needs are concerned, as well as inappropriate comments being made, and clearly the child needs to be protected from these things.
The wife also makes allegations that the husband drinks alcohol to excess and smokes cigarettes in front of the child, but the evidence does not support these allegations.
Finally, there is of course, the circumstance of the child being exposed to conflict between her parents since 2002. She certainly needs protection from the harm that such exposure can cause. The responsibility for this though must lie with the parents themselves. They each have to recognise the harmful effects on the child of conflict and do everything they can to cease that conflict. However, as I will refer to later in these reasons, amongst the many things that the husband fails to appreciate and understand, this is yet another example.

Additional considerations

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

This factor looms large in this case. The child has a firm view that she does not want to spend time with the husband. She impressed Mr N (at the age of 9 years) as a “very articulate forthright and pleasant young lady” who “spoke confidently and seemed to express her views openly and honestly”, and Mr C (at the age of approximately 12½ years) as a “relaxed and confident child who spoke freely about herself and her relationship with each parent”.
At the time of the hearing the child was aged 13½ years and I accept that she is a mature, intelligent, articulate teenager whose views should be given great weight.
I also accept the evidence of the wife as to the level of distress exhibited by the child at the prospect of spending time with her father.
I am concerned though with comments such as those made by Mr C in paragraph 36 of his report and which I have quoted in paragraph 89 above. There is also the submission of counsel for the Independent Children’s Lawyer that “whilst [G] has the maturity and level of understanding to express views regarding the issues between her parents, exposure over a long period of time to her parents’ disputes and to their antipathy towards each other has resulted in [G] expressing distorted and exaggerated views particularly regarding her father and his perceived faults.”
It is also unfortunate to say the least that, as reported by Mr C, “the mother has allowed [G] to believe that now that [G] is aged 12 years, [G] has the legal right to make up her own mind about when and if she spends time and communicated with the father.” However, I do not attribute anything sinister on the part of the wife in promoting that view.
The picture that seems to emerge is one where the child clearly has issues with the husband, his comments and his behaviour, but it is difficult to accept that there is not an element of siding with her mother that is also fuelling her refusal to spend time with the husband.
The husband’s case of course is that the wife is to blame and she has influenced the child against him. However, I do not accept that the wife has deliberately influenced the child against the husband. What I do accept though is that there has been indirect and unconscious influence as a result of the child picking up on the negative feelings that the wife has towards the husband.
The child is clearly aligned with the wife, but given that she lives with her and that there has been limited time with the husband that is not surprising. In this regard though Mr C in cross examination opined that the wife has not alienated the child against the husband. His view is that the child would like an ongoing relationship with the husband, but the husband’s attitude, comments and behaviour are preventing that and diverting the child’s memory of the positive aspects of her relationship with him and the enjoyable times such as the occasion of contact on 11 November 2006 which was captured on DVD (see Exhibit 1).
This places the remedy, if it is not too late, fairly and squarely in the hands of the husband, but he has not shown any inclination to accept the views of the experts and act accordingly.

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

(i) each of the child’s parents;
(ii) other persons (including any grandparent or other relative of the child);

I have addressed some aspects of this topic when considering s 60CC(2)(a) above, and I refer to what I said in paragraphs 94 to 100.
I confirm that the child has a close and loving relationship with the wife, but otherwise with the husband.
The wife’s evidence, which I accept, is that she spends a lot of time with the child and the child very much confides in her about what is happening in her life.
The wife also described the child’s relationship with the husband as “awkward and stilted”. She says, and again I accept, that the child has been adversely affected by the husband’s attitude, his comments and his behaviour. A prime example of his insensitive comments is the letter that he wrote to the child on 1 July 2006 and which is Annexure “A” to the wife’s affidavit of evidence in chief. It is also instructive to read the child’s reply contained in Annexure “B” to the same affidavit. That letter demonstrates the hurt that the child feels at what the husband does and says.
The sad circumstance of course is that the relationship between the child and the husband was not always like it is now. I accept his evidence that prior to separation the husband had a good relationship with the child, and that that was the case is borne out by the ease with which the child has demonstrated on occasions of contact like in H on 11 November 2006 that she is able to enjoy her time with her father. To repeat, that was captured on the DVD taken on that day by the husband’s friend Mr U. However, there is clearly more to it than that, and as Mr C opines, any relationship that existed then would have deteriorated with their being no further contact since around that time.
As to the child’s relationship with other relatives, there was almost no evidence presented on that topic. All that I have is firstly the wife’s claim in her affidavit that despite the husband not having any relationship with his parents or his sister, the wife has ensured that the child maintains a “warm and affectionate relationship” with these relatives. Secondly, in Mr C’s report it is recorded that the wife is in close contact with her mother, her brother and her sister, and thus I assume that the child has an ongoing relationship with them. This evidence was not challenged by the husband and thus I accept it.

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

This is also an important consideration in this case, although, because of the particular circumstances here the focus of this factor is on the wife rather than the husband. Again, I have already said something about this issue when discussing s 60CC(2)(a) above, and I will not repeat that, but suffice to say I have some concerns about the willingness and ability of the wife to facilitate and encourage a close and continuing relationship between the child and the husband.
The wife professes to want the child and the husband to enjoy a good relationship, and I can accept that, but it seems that she has been prepared to adopt and run with the views expressed by the child about not wanting to spend time with the husband and her reasons for that, although they have not always been convincing, and as counsel for the Independent Children’s Lawyer says, the child’s reaction has sometimes been disproportionate to what the husband has said or done.
It is also apparent that the antipathy and conflict between the parties has impacted on the outcome as well.
There are a number of subtle indications of the wife’s attitude. For example, she has not ensured that the husband has received copies of the child’s school reports, she has not kept him informed of any health problems that the child has had, she has not kept him informed of what has been happening in the child’s life, and I find that she has not done all she could to ensure that the child speaks to the husband on the telephone. The wife also plays down the objectively positive views of enjoyable occasions of contact such as occurred on 11 November 2006 in H.
However, it would be wrong to be too critical of the wife in this regard. It is clear that at times she has tried to maintain a relationship between the husband and the child. For example, after the separation the wife took the child to see the husband every Sunday, and later she was the one who would drive the child from H to K and meet the cost of travel and accommodation. She took the child out of school to spend time with the husband and she took annual leave to be able to transport the child to K. She also arranged for the child to have counselling “so that she could have a forum to express her views and wishes independently”, and as referred to above, she ensured that the child enjoyed an ongoing relationship with the husband’s parents and his sister. She says that she “corrects” the child when she makes disparaging remarks about the husband, and she denies that she has “ever denigrated” the husband to the child. She says that she has “encouraged the child to look forward to spending time with the husband”. Further, in the face of opposition from the child, on two occasions she physically put the child in the car “kicking and screaming” in order to take her to contact.
It seems to me that the wife has simply had enough. She has attempted to encourage a relationship between the child and the husband, but the husband has refused to play his part. He will not change his attitude and he will not accept the advice of the experts. Accordingly, as the wife’s counsel put to me in his final submission, and which I readily accept, that the wife is no longer able to devote the necessary energy and time to ensure that the relationship is resurrected without the husband changing his position.

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

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

The issue here is the likely effect on the child of putting in place yet another set of orders providing for the child to spend time with the husband.
The Independent Children’s Lawyer submitted that that outcome is likely to cause the child harm, although there is no expert evidence to support that proposition, and the most Mr C said was that the child’s distress would continue. However, the evidence does satisfy me that it would be pointless to make a new set of orders providing more of the same. The problem is the continuing lack of insight of the husband and his failure to appreciate and understand the needs of the child. Mr C said in cross examination that unless there is a change in this regard then he could not see orders for contact working. Thus, it really is up to the husband and how much he is prepared to do to re-establish a relationship with the child. The difficult exercise in this case though is to frame an order which avoids the stress and possible harm to the child yet does not close the door on the relationship.

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

All other things being equal this would be a significant factor here. There are very real practical difficulties in the child spending regular and frequent time with the husband. The husband says that he cannot get to H where the child lives because his motor vehicle is unroadworthy, and in any event he cannot drive for more than one hour at a time. He also says that he does not have any one who can drive him there. Now, as I have already found, I do not accept that the husband does not have the resources to either repair his motor vehicle or purchase another one. He has also not told the truth about not having any one to drive him. Mr U is quite prepared to do so occasionally. Thus, there really should be no impediment on this score to the husband spending time with the child in H, if the child was prepared to.
As for K, the wife has always been the one to take the child there for contact, but the child has flatly refused to spend time with the husband there for a number of reasons already referred to.
Then there is the problem with the husband’s telephone. His case is that he cannot connect a landline at his home and that caused obvious difficulties with communication. Then the husband obtained a mobile phone, but it appears that the coverage is not great. In an event, the husband now has the mobile telephone number of the child and he has been invited to use it. Thus at least that provides a line of communication between the husband and the child.

(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to meet the needs of the child, including emotional and intellectual needs;

The wife makes the general allegation that the husband cannot adequately care physically for the child. She says that he did almost nothing for the child before separation, and since separation there have been issues such as lack of cleanliness and poor hygiene at the husband’s home in K, and his failure to appreciate the physical needs of the child given that she has commenced puberty.
I have already found that the wife exaggerated her evidence in relation to what the husband did or did not do before separation, and after separation and more recently the complaint about the husband’s lack of care has very much come from the child herself. I accept that the child has raised legitimate complaints given, for example, the wife herself has previously observed the appalling state of the husband’s facilities, but there is a concern that they are in fact not so bad that they should evoke the reaction that they have.
However, for my part, on the evidence, that concern does not flow into the area of the child’s emotional needs. I find that the husband has been and continues to be completely inadequate in addressing these needs, and as counsel for the Independent Children’s Lawyer submitted, primarily due to his “entrenched and inflexible views”, his continual “rejection” of the child’s concerns, his “inability to see his relationship with [G] being other than the way he wants it”, and his failure “to obtain counselling support and guidance to assist him” to understand her needs.
With the child’s intellectual needs, neither party has raised any issue concerning the capacity of the other of them to meet the needs of the child in this regard.

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

Given that the husband’s case is very much about the child’s views and whether they should be accepted, it is relevant to refer to the evidence of her maturity and her characteristics. I can do no better than set out the wife’s evidence in this regard which I accept and which provides the Court with comfort in accepting her views. The wife said this in her affidavit:
“9     THE CHILD’S MATURITY AND UNDERSTANDING:
9.1    [G] is now in Year 7 at [X] High School. She studies English, science, maths, woodwork, music and personal development and health education.
9.2    She studies speech and drama as an extra curricular activity and plays hockey for her school.
9.3    [G] does her homework each night and on weekends with little persuasion from me. She is self motivated and conscientious. Her academic performances are at the expected level or above.
9.4    [G] is intelligent and articulate. She is curious, inquisitive and determined – for example, she will pursue an issue or a question until she is satisfied that she either has the answer she wants or that I have exhausted as much of the information on that particular topic as I can.
9.5    [G] is well balanced and even tempered. She has a joyous disposition which results in her having a wide circle of friends, of all ages, both at school and outside school. She regularly has friends to visit and sleep over. She enjoys the company of adults and the intellectual stimulation that comes from conversing with them.
9.6    [G’s] friends’ parents regularly remark to me that “[G] is so much more mature” than their own child.”

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

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this part would have on that right;

This is not a relevant factor here.

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

In considering the relevant factors arising under s 60CC to this point I have recorded facts and circumstances which also arise under this heading, but I highlight the following:

The wife

The major concern with the wife’s attitude is whether she is any longer committed to ensuring the child and the husband have a meaningful relationship. Certainly she has in the past gone out of her way to promote and encourage the relationship, but when the husband refuses to change his attitude and that has led to frustration and distress on the part of the child, the wife clearly has not been prepared to devote the time and energy to that exercise. For example, she could not bring herself to let the husband know that she would not be bringing the child for contact, and she has not tried to contact him to work through the issues. Of course there was a practical problem with the husband not having a landline connection, but that cannot provide the whole answer. I would hope that all that might now change. For example, with an order in place that relieves the pressures on the child, and on the wife for that matter, the wife’s enthusiasm should return.

The husband

The major concerns with the husband are his entrenched and inflexible attitude, his lack of insight into the child’s needs and his refusal to take advice. His behaviour and his comments, including his denigration of the wife to the child leave a lot to be desired, and the impact on the child is evidenced by her refusal to spend time with him. The interchanges between the child and the husband are exemplified by the letter written by the husband to the child on 1 July 2006 and the child’s response, being Annexures “A” and “B” respectively to the wife’s affidavit of evidence in chief.
Although it is somewhat dated, I also refer to a letter from Mr MC, Psychologist, to the husband in relation to the mediation session held on 26 August 2008, and which is Annexure “A” to the husband’s own affidavit of evidence in chief. This more than any other piece of evidence demonstrates the issues with the husband’s attitude and the child’s reaction that have led to the current impasse. It is not a once off or an overnight circumstance. It has been ongoing, and until and unless the husband changes his attitude there can be no expectation of any positive interaction between the child and the husband into the future, regardless of what orders this Court makes.
It is also instructive to record the husband’s response in cross examination to the question of why he had not taken up the recommendations made for example by Mr N as long ago as 1 December 2004 that he “needs to receive some assistance and guidance so that he might learn some new and appropriate ways of identifying and responding to [G’s] needs”. The husband said that he did nothing because the wife failed to comply with the order for contact and the child was not brought to see him!
A good deal was said in evidence about the wife not doing all that she could to ensure that the child sent birthday and Christmas cards to the husband, but the husband’s evidence was that he had not sent a card to the child since October 2007. His reason for this was that there was no guarantee that the child would get it.
Then, on a similar note, there is the husband’s failure, as I have found, to do everything he could to travel to H to spend time with the child particularly given that the last occasion that that occurred, namely on 11 November 2006, was a successful exercise. This raised for me a concern about the bona fides of the husband, and this concern is highlighted by the failure of the husband to pursue parenting type courses which were available to him.
The husband also complains that the wife has not sent any school reports, but he conceded that he has not contacted the school to see if he can get reports sent to him direct, nor even to just enquire of the child’s progress.
Perhaps the high point (or rather the low point) of the husband’s lack of insight is his response in cross examination to a question about the impact on the child of the parental conflict to which she has been exposed since 2002. He said that he “would not have a clue” if this will effect the child into her adult life!

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

There was nothing further that I can say on this topic beyond what I set out in paragraphs 101 to 104 above.

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

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

This is not a relevant factor here.

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

It is always preferable to make such an order, and importantly here the concern is that if a new set of orders are put in place providing for the child to spend time with the husband, there will inevitably be further litigation in the form of applications alleging contraventions.

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

There are no further issues to be considered here.

Section 60CC(4)

As referred to above, pursuant to s 60CC(4) of the Act the Court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibility as a parent. I considered this important issue when addressing s 60CC(3)(c) and (i) of the Act, but in relation to some specific matters I make the following comments:
150.1It is not apparent from the evidence to what extent if any the wife has facilitated the husband participating in making decisions about major long term issues in relation to the child, and nor to what extent if any the husband has taken up any such opportunities. Thus I cannot take this any further.
150.2There are of course real issues between the parties about the wife facilitating the child spending time and communicating with the husband, as well as the extent to which the husband has taken up opportunities to do so. I need not say anything more about this.
150.3The wife has clearly been the one who has borne the brunt of providing financial support for the child. The husband has only paid the minimal amount of child support required given he is in receipt of a Disability Support Pension.

Parental responsibility

As far as I can see from the file there has not been any order made for parental responsibility, and thus the “default” position provided for in s 61C of the Act would apply.
Neither party has sought to change that given that there is no order sought for parental responsibility.
However, regardless of what each of the parties want, pursuant to s 61DA of the Act, when making a parenting order, the Court is required to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility of that child.
The presumption does not apply in certain circumstances, but none of those circumstances exist here (sub-s 61DA(2)).
The presumption of course is only that, and it can be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child. Neither counsel for the parties addressed this issue, but the counsel for the Independent Children’s Lawyer submitted that it would not “reflect reality” if there was equal shared parental responsibility. I take Ms O’Rourke to be saying here that it would not be in the child’s best interests to make such an order, and I would agree with that submission.
In the circumstances that now apply it is simply not possible for the parties to share parental responsibility and make decisions jointly about major long term issues in relation to the child. They cannot communicate sensibly about day to day issues and to expect them to consult and attempt to reach a joint decision, to use the words of Ms O’Rourke, does not “reflect reality”.
I note for completeness that Mr C recommended that there be equal shared responsibility, but as with his other recommendations, that was what should happen rather than what can happen. In any event, Mr C did not elaborate on this recommendation either in his report or in his oral evidence, and I propose to leave the status quo in place.

Conclusion

Having regard to the evidence, the submissions of counsel for the parties and the Independent Children’s Lawyer, and the objects and principles set out in s 60B of the Act, I find that it is in the best interests of the child for all previous orders to be discharged, that the child live with the wife and spend such time with the husband as the child wishes, that the husband communicate weekly by mobile telephone with the child, that the wife ensure that the husband receives copies of the child’s school reports, that she keep him informed of the child’s extra-curricular activities, that she authorise the child’s medical practitioner and school teacher to discuss the child’s health and education with the husband, that she inform him of any medical emergencies involving the child, and that the husband undergo counselling/therapy to assist him to understand and appreciate the needs of his teenage daughter and attend group programs to guide him as to how to co-parent her, and the counsellor/therapist be provided with a copy of these reasons for judgment.

I am not satisfied that simply introducing a new set of orders providing once again for the child to spend specified times with the husband, even with a staged introduction, is in the child’s best interests.
There is no doubt that the child needs her father in her life, but given what has happened, given the entrenched and inflexible attitude of the husband, and given the child’s age and maturity, it should now be primarily on her terms.
However, it is apparent that even then nothing will change until and unless the husband changes his attitude and puts the interests of the child ahead of his own. That is the key to a successful outcome, and in the meantime the child should be spared the frustration and distress that she has experienced in the past in having to spend time with her father in circumstances where he has no insight and is simply unresponsive to her physical and emotional needs.
On the other hand, the wife should be responsible for keeping the husband fully informed of what is happening in the child’s life, and when the child decides it is time to re-engage with her father, she should rekindle her desire to see that there is an ongoing meaningful relationship between them.

I certify that the preceding 162 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 May 2010.

Associate

[2010] FamCA 398

21 May 2010

Key Legal Topics

Areas of Law

Family Law