Merrett and Bass

[2013] FMCAfam 263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MERRETT & BASS [2013] FMCAfam 263

FAMILY LAW – Contested parenting proposals – Mother’s emotional abuse directed towards the 14 year old child – child’s sadness and hopelessness overwhelming due to ongoing conflict between his parents and particularly pressure from mother in particular – child talks of his own suicide to end pressure – child in fear of his mother – child to live with his father and spend no time with the mother – mother chooses not to attend hearing.

Family Law Act 1975, ss.60B, 60 CC, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

Mazorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4

Applicant: MR MERRETT

Respondent: MS BASS

File Number: CSC 664 of 2011

Judgment of: Willis FM

Hearing date: 25 February 2013

Date of Last Submission: 25 February 2013

Delivered at: Cairns

Delivered on: 28 March 2013

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: No appearance

Counsel for the Independent Children’s Lawyer Ms Wilson

Independent Children’s Lawyer: Terry Newman

ORDERS

Parental Responsibility

1. The father is to have sole parental responsibility for decisions relating to major long term and day to day care, welfare and development of the child [X] born [in] 1998 (“the child”).

2. The father’s sole parental responsibility includes decisions relating the child’s education.  The father is permitted to do all acts and things to enable the child to enrol and attend at [G] School, [I]. 

3. The child live with the father. 

4. The father is permitted to relocate the child’s residence to [K]. 

5. Notwithstanding any other Order herein, the Father is to encourage and facilitate any opportunity for the child to spend time with his brother [Y], on terms and at places and times as determined by the father NOTING that the father has indicated to the Court that he will encourage this association.

Time with the Mother

1. The mother is to spend no time with the child. 

2. NOTING that the Court has determined that it is not in the best interests of the child to spend physical time with the mother whether on weekends, holidays or special days, or for the mother to have telephone contact with the child, the mother and her agents are restrained from contacting the child (directly or indirectly by any means including telephone contact) other than through cards and letters as provided for in Order 8 herein. 

3. The mother is permitted to forward cards, gifts and letters and they are to be provided to [X] on the condition that the father is permitted to open them to ensure that they are suitable.  The father is permitted to open all communications between the mother and child in order to determine if they are appropriate communications and to ensure that such communications are free from threats, free from the mother’s future proposals involving the child and free from emotional blackmail.

Restraints

1. The mother is restrained from taking the child to any counsellor, doctor, psychologist, psychiatrist, mental health worker, the Police or the Department of Child Safety, attending the child’s school or having the child contact Kids Helpline or any other agency directed at assisting children.

2. The mother is restrained from removing the child from the care of father or any person, school, place or institution in which the father places the child in the care of.

3. The mother is restrained from making any decisions in relation to the child’s schooling, medical matters, religious matters and any decisions regarding long term issues or day to day care issues. 

4. The Father is at liberty to provide a copy of this Order (or the Judgment) to the School, child’s medical practitioner, child’s counsellor and other persons involved in the care of the child or the Police or Department of Child Safety.

NOTICE

1. The Court notes that the mother has made threats to the father that she will take matters into her own hands involving making reports to the police, other authorities and Cabinet Ministers regarding the father’s parenting.  This Court has determined that the mother has engaged in conduct which is detrimental to the well being of the child [X] and that it is against the best interests of [X] to spend time with his mother. The mother chose not to attend Court to prosecute any of her myriad of complaints against the father, such as misappropriating her property entitlements, consuming drugs and committing acts of domestic violence. The police and other authorities are put on notice that the mother has indicated to the father that she will continue with her vendetta against the father through means other than engaging in litigation through this Court. 

2. The Independent Children’s Lawyer, in company with Ms E, is to explain the outcome of these proceedings to the child. 

Miscellaneous

1. The Independent Children’s Lawyer is discharged. 

2. All outstanding applications be removed from the pending cases list. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC 664 of 2011

MR MERRETT

Applicant

And

MS BASS

Respondent

REASONS FOR JUDGMENT

1. The child in this matter is [X] born [in] 1998. At only 14 and a half years old [X] is exhausted and severely emotionally affected by his parents high level of conflict. More recently, [X] is significantly affected by spending time with his mother as his mother is unrepentant in her quest to defame, degrade and demean the father. [X] has considered killing himself as a means to end the conflict and the pressure from his mother.  Dr K has described the mother as having a rage towards the father and it is the Court’s observation that the mother’s rage has not subsided since the parties separated finally on 13 February 2009, some 4 years ago. 

2. The most recent evidence before the Court at the time of trial is that the mother (who chose not to attend the final trial) is increasing her campaign with threats being made even whilst the trial was in progress.  The mother threatened she would be suing the father for, “liable” and taking him to the Supreme Court where she hopes to have him dealt with for all manner of misdemeanours.  This threat was made by the mother to the father during the morning period that the final trial was in progress by leaving the message on the father’s phone. 

3. The mother chose not to attend the hearing.  It is clear to the Court that the mother’s non-appearance was deliberate and orchestrated.  During the progress of the trial, she left various messages on the father’s phone.  The recordings were played by the father to the Court.  The mother’s rage is encapsulated on these recordings, along with others offered in the father’s evidence.  The mother whilst failing to come to Court, left hostile abusive phone messages which included statements that the father had now taken [X] from her.

4. Whilst not attending Court herself, the mother organised for a friend of hers to attend court on the first morning of trial and whilst the matter was being dealt with that person stood up from the gallery of the court saying that she wanted to be heard and that she had material that the mother had requested she hand in to the court for the Courts consideration. I directed that person to hand anything to the ICL. That material was tendered by the ICL and the Court has read the material.

Background

1. In this matter, I intend to draw on and repeat much of the expert evidence. I have found that evidence to be most helpful and generally I agree with the observations of Ms E the report writer, as her views accord with the Court’s views and the other evidence

2. [X] is the only child of the mother and father. The parties commenced their cohabitation in March 1997. The father is a [occupation omitted] and the mother was a [occupation omitted].  The father has suffered a back injury in recent years and lives in [K] in his own home. The mother has run a business of [omitted]. The mother is also in the process of setting up an online business of [omitted]. The mother has a child [Y] from a previous relationship. [Y] is now in his early 20’s and lives in Brisbane some 2000 kilometres from Cairns. [X] very much enjoys what time he can spend with [Y], which is now quite infrequent. During the course of this litigation, the mother has had plans to relocate to the Gold Coast which deeply distressed [X], as he did not want to go. The mother’s plans seems to alter from time to time. It seems from her latest material, that if [X] is not to live with her, she plans to leave the area.  

3. The relationship between the mother and father is toxic. 

[X]

1. [X] is a child with special needs as identified in the material.  At 14, his reading and writing skills are not even sufficient to allow him to read or compose text messages. [X] has social and intellectual disabilities and physical disabilities.  [X] has been caught in the cross fire of the deteriorating relationship between the mother and Father.  [X] has tried to love each parent, however, during the course of this ongoing conflict between his parents, [X] expressed a wish that he were dead as this was the only way he thinks his parents will stop fighting.  [X] is 14 and he has expressed strong views about wishing to live with his father.  The mother has attempted to alter those expressed views, overtly and covertly.   

2. The Independent Children’s Lawyer (ICL) prepared a chronology of events in this matter and I adopt the facts set out in that helpful chronology. 

3. [X] was born [in] 1998 amidst a medical crisis for the mother, the details of which are often repeated by the mother.  At the time of [X]’s birth the mother had been placed in a coma due to a serious medical condition.  The mother describes that she was very sick with the flu at 25 weeks pregnant and taken to hospital and within 24 hours of admission she was placed in a drug-induced coma as both her lungs had collapsed with pneumonia. 

4. [X] was delivered by Caesarean section at 28 weeks.  The mother says that she was taken out of her coma a few weeks later.  Unfortunately [X] has had various medical problems since that time and likewise so has the mother.  [X] has been assessed in relation to his intellectual functioning in June 2008 when he was around nine and a half years old.  [X]’s overall level of cognitive functioning as estimated in the WISC-IV full scale testing is in the borderline range.  The reports notes that his perceptual reasoning skills are slightly less developed than his verbal comprehension skills, but the difference was not significant.  His working memory score was in the extremely low range and is lower compared to his performance on other scales.  His performance on the working memory subtests appeared to be affected by his difficulty at maintaining attention and concentration. During the subtests [X] was noted to frequently be off task, he was distractible and requested information to be repeated. 

5. The recommendations contained in the reports in evidence included individual therapy for [X] to address his separation anxiety as well as support for [X]’s parents to develop strategies to manage his behaviour at home. 

6. There is a further recommendation for a review by a paediatrician to address treatment options for his ADHD and ongoing learning support at school to address his learning, behavioural, social and emotional issues.  The report notes it was important that a very consistent behavioural approach be used to manage [X]’s behaviour in the classroom.  This would need to involve rewards and consequences that are immediate and brief.  Recommendations were made for a plan to be instituted to enable [X] to work in the classroom by breaking up his work into 10 minute sections and allowing him to have a short break from the work every 10 minutes and other issues including having consistent classroom routines and ensuring [X] is given eye contact when being given an instruction.

7. In October 2008 [X] was removed from the category of having speech language impairment on the basis that [X] no longer satisfied the requirements for that program. At the time [X] was assessed the mother gave a history of having a traumatic delivery whilst the mother was in a coma and that [X] had breathing difficulties and required incubation.  [X] had jaundice, heart abnormalities, feeding difficulties and hernias.  [X] was hospitalised for several months following his birth. The mother was also hospitalised due to her own physical issues.

8. The mother’s description of [X] in the reports is that he is quite difficult to manage at home, non-compliant and oppositional. The mother said [X] has a great deal of difficulty separating from either of his parents and that attending school was difficult and that he had quite a lot of days off each year.  At the time [X] was involved in grade 4 at [S] school and he had been receiving ongoing learning support. He was behind his peers in all academic areas and his attention and concentration at school was quite poor.

9. In 2011 [X] was identified as being a student with a disability in the category of a social emotional disorder on 10 March 2009 and in a letter in October 2011 his status in the Educational Adjustment Program (EAP) which is a formal educational process that is used to identify the individual support needs of students with disabilities within the Catholic education system, [X] underwent a review in relation to his status as a child identified to participate in the EAP and the conclusion was that:

   [X] continues to be recognised as a student with disability within our diocese and is therefore eligible to receive additional resourcing.[1]

   [1] Exhibit ICL 5, tab 18. 

10. The chairperson of the Cairns diocese EAP Moderation Committee notes that as part of the Educational Adjustment Program parents will continue to be involved in individual education plan which are twice yearly meetings to discuss and plan for [X]’s most important needs. 

11. At the time of trial in 2013 the father informed the court that [X] had great difficulties reading and writing. [X] has been attending [S] school for his primary education and since high school he has been attending [M] School, starting grade 8 in 2012. 

12. It is clear to me that the primary and high school which [X] has attended thus far have put significant energy and resources into trying to ensure that [X] receives all the educational and emotional support possible.  Similarly, the school has given consideration to what is required to be put in place to ensure that if [X] is permitted to change schools in order to live with his Father at [M], his educational supports are transferred with him and that his transition would be as smooth as possible.  This includes an exchange of information from his current support teachers to the proposed support teachers.

Family reports – including the child’s views

1. Ms E is a most experienced family report writer who has worked with the Court for over 20 years, having recently moved into private practice. Two family reports have been prepared in this matter by

   
   

   Ms E. The first report dated 3 October 2012 provides a comprehensive assessment of the family dynamics and interrelationships.

2. In preparation for that report Ms E interviewed [X]’s [M] School teachers, Ms P, Ms J, the school principal, and Mr C, a student counsellor of some 21 years. Ms P has been a teacher and [X]’s learning support teacher and she has been teaching for 30 years. The report notes that Ms P and Mr C have worked closely with [X] this year to develop his educational capabilities. [X] was described by his teachers as a friendly candid young person who has a physical disability as well as social and emotional problems.  The report notes:

   Having difficulty remembering as well as difficulty focusing on tasks, he also has a short attention span and is easily distracted.  He does not cope well with change.

3. The report continues:

   Also as a result of ongoing environment stress at home, [X] has developed serious adjustment problems which are currently being addressed by a team intervention with Ms P coordinating a learning plan and supported by Mr C, a psychologist and school counsellor.  With individual support, [X]’s level of adjustment appears to have improved this year.

4. [X] was described as arriving at the school having come from [S] School in a frustrated and angry state and prone to physical outbursts.  [X]’s behaviour had improved in 2012 and he had not exhibited any signs of violence during the year, in fact, the contrary was the position and he had developed a strong friendship network and was coping well.  The report states that:

   With special support he is making good progress towards the goal of developing his learning capacity.  He began high school this year illiterate and now he is developing rudimentary reading and writing skills.  He is a willing student who is progressing well.

5. Special plans were put in place for support when [X] presented at school stressed and pre-occupied with his problems from home. The school are aware that [X] also has a counsellor Ms C who deals with [X]’s personal problems and issues. At that time the teachers reported that [X] comes to school tired and unsettled after he is exposed to parental conflict.  He was particularly bothered about the possibility of relocating to the Gold Coast with his mother at the time the report was prepared and the interviews were conducted.  Ms P stated that [X] does not want to go and continues to worry about this possibility.  [X] had raised the issue repeatedly at school.  She said he comes to school at times upset about this.

6. The teachers reported that [X] talks positively about his father who visits the school to discuss [X]’s progress approximately once a month and the school noted that the father was always interested and appropriate “and there is nothing unusual [X]’s presentation in relation to his father.”  The teachers also reported that [X] “wants to be a [occupation omitted] and work with his father after he finishes school.”  The teachers report that the mother had been to visit the school infrequently and Ms P stated she had met the mother several times this year.  The mother had expressed appropriate comments about [X]’s welfare and there is nothing to report about the child’s relationship with the mother at that time.

7. The teachers believed that with a stable consistent environment [X] was capable of achieving at school. [X] was proud of his current achievements, in particular, his reading and writing skills. From an educational standpoint the teachers believe that [X], who does not sustain change easily, will do best in a calm and stable living circumstances attending school in his known and familiar environment of [M] School.

8. The reports of [X]’s difficulties and personal issues arising and affecting his schooling and education go back to earlier years when [X] was attending [S] School. 

9. [X] has been living with his mother since the separation of the parties in 2009 and at this time according to the school records whilst [X] attended [S] school his teachers had reason to be most alarmed at what was happening in [X]’s private home life. 

10. There are reports made by the school to the statutory authorities about concerns in regard to [X]’s presentations at school, matters he was discussing at school and likely emotional abuse from both his parents or his mother. 

11. In December 2011 a report was noted of possible harm being caused to [X]. The school prepared a “CES” reporting student harm documentation file with incidents occurring on 29 November 2011.  The suspected harm or risk of harm is noted as:

    [X] arrived at school this morning very upset and crying.  He was in the office and the secretary rang to come to the office and see him.  When I arrived at the office he was upset with his mother.  I said I would take [X] to my room for a while.  His mother said he was upset about leaving [S] School.  [X] sat in my room until 10 am and talked.  [X] was upset about his mother’s behaviour at the year 7 graduation last night when just before they were leaving she said to his father, “See you in Court.”  During the course of the conversation he said to me that he felt that it would better if he were dead and that he wanted to kill himself.  He said that he was the cause of his parents’ fights and that if he were dead they would not fight.  He said the only things he lived for were his dog and his older brother who he doesn’t see very much now as he lives away.  He repeated that he felt like killing himself.  [X] also said he was afraid of his mother, he said she was nice to him when other people were around, but when they were alone she will get angry and yell at him.  He made me promise not to tell anyone about our conversation because if his mother found out she would get really angry with him.[2]

    [2] Exhibit ICL 5, tab 19. 

1. It is also noted on the form that [X] was living with his mother at present, however, they were going to Court today regarding custody and property issues.

   [X]’s mother was very upset (during a phone conversation with me) about [X]’s father attending the graduation dinner and was talking about feeling like slitting her wrists yesterday.  This conversation took place when I spoke to her about an arrangement for [X] to sit with each parent at different times through the night and at different tables.

2. When [X] was interviewed for the first family report [X]’s own version of the graduation night was included at paragraph 53.  When describing incidents which [X] considered to be conflicted [X] explained that at his graduation:

   I asked them not to make a scene (but mum made a big scene).  They were at different tables.  It was the Principal’s idea to do that.  It was just ending when she went up to dad and made a fool out of herself.  But I don’t want to get into trouble from mum for telling.

3. The CES reporting student harm documentation notes also that:

   The school has previously made reports to Child Safety Services about the environment in which [X] was living and that school also tried to get him into “Act for Kids”, but he was too old.  [X]’s security is at school.  The school noted that it would continue to monitor and support [X] and that, “However he will be leaving the school at the end of the week.  He will be attending a secondary college in 2012.  Comprehensive handover to occur with the new school”.

4. The report also notes a further incident on 2 December 2011, which was the second report within a week.  That report noted that the:

   Family separation in process with pending Court appearances.  And that there were concerns for the mother’s emotional wellbeing.  That the referrals provided to parents for family support and counselling appears not to have been acted on by either parent.  The school would continue to monitor and support [X].

Suicide threats by the child – 2011/12

1. The school details in that second report are of emotional harm and suicidal talk:

   [X], 1 December 2011 – feelings of deep sadness and hopelessness expressed.

2. The person against whom the allegations are made are noted as the mother with an unknown address and a phone number.  The entry, which appears to be on 1 December 2011 reads:

   [X] is having a difficult time with the ongoing conflict between his separated parents.  A recent Court case for property settlement with the parents has escalated this problem.  During a counselling session this week, [X] has talked about killing himself “to escape from it all.”  [X] has expressed feelings of sadness and hopelessness and has shared information about worry for his mum’s worries – “My mum wants to jump off a cliff.”

   The school holidays have commenced and my priority concern is for [X] to have access to counselling for the next seven weeks – to be able to express his feelings, and deal with family changes.  [X]’s mother, [Ms Bass], attended a recent counsellor/parent meeting and I observed her to be anxious and agitated, where she expressed concerns about whether she is, “Okay to take care of [X].”  (Re money worries).  There is a history of domestic violence for this family – many referrals for family support and counselling have been given to both parents – but to no avail.

3. The counselling notes were attached to that memorandum and can be seen as a diagram attached to annexure 22, the ICL tender bundle.  It is apparent that during the counselling session a “worry box” has been drawn and in the box are [X]’s worries.  The worry box reads as follows:

   ·   My mum yelling (worse with Court) – 29.11.

   ·   Not being able to read and write.

   ·   [Y] not talking to us (older brother).  Mum and [Y] had a big argument.

4. Solutions were suggested to each of the worries, including “Share my worries with Dad” and above which is written “Not Mum.”  Second, “Ms [omitted]”, three, “teachers”. Observations of “My Mum’s worries”, as seen by [X], are noted as:

   Trying to get her money in Court.

   And also:

   I want to jump off a cliff.

   “My Dad’s worries” are noted as:

   Trying to get me to live with him, Dad.

5. As a present concern, reading and writing is noted and that [X] feels sad about that:

   Parents’ conflict and killing myself.

6. A past concern is noted as:

   My mum trying to steak (knife) my dad.

7. The steak (knife) incident will be referred to elsewhere in these reasons, but it is sufficient to note at this point that [X] has observed his mother chasing after the father with a knife, the father running for protection into the bathroom and closing the door at which point the mother continued to stab the door and/or frame. 

Family Report Writer’s interactions with the child

1. The evidence of [X] suffering emotionally, to the point of wishing he were dead, is seen in his interactions with the report writer, Ms E.  In what I regard as a very comprehensive and sensitive report, Ms E observes during her interview with [X] that he initially attended with his mother and then, after lunch with his father.  He was interviewed a second time.  Ms E noted that:

   [X] appears to be under a lot of pressure.  He spoke rapidly and his thoughts tumbled out of him without thinking.

2. The report continues:

   He consistently looks anxious, nervous and distracted.  Immature, awkward and emotionally distressed, he did not relax at all during the interview.  I gained the impression he was under huge pressure.  On the first presentation [X] became upset and tearful many times as he discussed his mother, he stated he wanted to live with his father repeatedly.  Returning from lunch with his father he was more settled and then his comments changed, returning he said he now wanted to live with his mother until he finishes school and then live with his father.  At the first interview (before seeing his father), [X] appeared stressed as soon as he entered the room.

3. [X] told Ms E:

   He knew why he had come and he immediately raised the issue of relocation with his mother and that he did not want to move to the Gold Coast, although he knew his mother did.  He said he wanted to remain in Cairns, he wanted to continue to see his father.  At this point [X] spontaneously stated he wanted to live with his father and he became quite upset and began worrying, “That what he was saying might upset his mother.”  He said, “Mum drives me crazy.”  And it soon became evident that [X] and his mother had been arguing that morning, although it was not clear what the argument was about.  He said if his mother knew what he was saying (about wanting to live with his father) she would be very angry with him.[3]

   He stated that, “She will be angry and yell at me.”  And even though the writer assured him repeatedly that he did not have to say anything and that the discussions were non confidential and would be given to the Judge, [X] disregarded this advice and continued to talk.  He said he wanted to stay and keep talking to me.  Although very distressed and fearful about his present situation, he continued to speak openly about his frustrations and concerns for both parents.

   [3] Family Report of Ms E, paragraph 43. 

4. In what is an insightful observation, [X] told Ms E:

   He loved both his parents, but they could not be friends as they did not like each other.  He said he does not trust his mother and does not tell her his true feelings about his father because she will be angry with him.  He repeated that if he says anything positive about his father or negative about her, she will be angry.  Alternatively, he said he trusts his father and can talk to him about anything, including any problems he might have.  He said he would not speak to his mother openly about any problems as he does not trust her.

   When discussing his father [X] cheered up, having said that he wanted to be a [occupation omitted] just like his father.  He said, “I love him a lot”, meaning his father, “I want to live with him, but if I say to Mum I want to live with him, she gets angry.  You know, it’s hard to love both of them and keep both of them happy.”  He went on to say, “I have had alopecia… it’s tiny pieces of hair falling out of your head because of the stress.  I have had that twice in my life and I don’t want to have it again.”

   When asked how he coped with his mother’s anger he said, “I shut my mouth (because if I say I love Dad, she gets angry).  It’s really hard.”  Later in the interview on another occasion during the interview said, “I don’t want to leave Mum.”  He said he is aware that his parents are trying to find a compromise about his visits and he’s trying to fit in with them.  “I want to live with Mum and visit my dad, but my mum wants me to go to [activity omitted] every Friday, but Dad can’t drive up.  It kills him to sit, it hurts his back and he can’t do stuff with me, but I know it will get better.”

   He went on to say he used to catch the bus to [K], “But Mum stopped it.  I’m stuck in the middle between them.  I enjoy [activity omitted], but (it’s too hard for Dad).”

5. The report continues that:

   [X] had memories of his parents’ arguments and violence.  He said, “When I was younger, I remember how Mum used to call him a dog and Mum used to threaten to hit me, but it’s not that bad now.  She used to tell Dad to hit me but not now.”  However later after lunching with his father he also said, “Dad just reminded me that Mum used to throw ashtrays and Dad punched her once when he tried to protect himself in Bali, but Dad’s better now, Mum needs psychological help.”

   [X] could also remember his mother going crazy and having a knife, “stabbing the door repeatedly when they lived in [K]”.   [X] said he felt scared, but added, “She yells at me and I know she would never stab me.  For some reason she hates Dad and Dad hates Mum.”

6. [X] spontaneously became upset as he remembered to Ms E that:

   “She says she’s going to drive herself off a cliff and her inside it.  She used to say it every day, but not so much now.  She says it when she’s angry.  I used to get scared, but she’s not going to drive off a cliff and leave me alone.  I think it’s an empty threat now.”  [X] continued that he loved his mother, but he is intimidated by her, “If she gets really mad, she hits me, but not a lot now, sometimes now, but it doesn’t hurt, but I feel hurt (by what she says).  I stick up for myself at school, but not around Mum.  I don’t say anything around Mum because she twists my words around.”

   He then became quite distressed and asked, “Can you get rid of all that stuff, the bad stuff I said about Mum?  Because if she finds out she will yell at me, please take it out.”  After describing the incident at the graduation where he regarded his mother as starting an argument and making a fool of herself, [X] said, “For 13 years they had a fight every day and I have seen them throwing my money boxes, mops, brooms, chairs, heaps of kitchenware and (everything else too).  I remember I started screaming and I was really angry at my mum and I wanted to punch her myself.  My mum always started the fights and she told Dad to hit me, I remember.”

   Tragically as he discussed this, the report writer notes that [X], “Covered his face with his hood, lowered his eyes and began to cry.”  [X] said, “I cry and take anger out on a pillow.  I talk about that stuff and it makes me sad.  I have friends over and I feel happy.  I do [sports omitted] and I’m happy.  When I’m 18 I will leave home and see Dad.  He says I can live with him any time I want.  He lives on his own, but he wants to find a nice home.”  Although he also said things have improved since his parents separated, [X] stated he cannot forgive the bad things that have happened.

7. When the mother was interviewed for the first report, she presented as traumatised and stressed.[4]  At interview Ms E noted:

   She was rigid and not coping and that the mother talked about, “ending it all” if it were not for [X].  [X] said his mother shares her feelings with him about this.  And there is also reference to a phone call documented in school subpoenas from 29 November 2011

   [4] Family Report, Ms E paragraph 75.

8. The report notes that:

   The mother is preoccupied with her financial dilemmas and her victimisation by the father, that she’s in need of help and assistance as well.

9. Ms E considered:

   The mother does not appear to have the resources to cope with [X]’s needs at the present time and her threats to harm herself to [X], apparently ongoing for some time (according to [X]’s report), would seriously undermine [X]’s feelings of security.  Those same subpoenas also refer to [X] “being afraid and wanting to kill himself as well”.  This behaviour would explain in large part [X]’s ongoing anxious state of mind.  The family report noted that [X] had a strong secure attachment to his father, he loves him and identifies him as a safe person, someone he can turn to in times of trouble.  Where the child’s relationship with the father was observed to be warm, appropriate and loving, this was in contrast to [X]’s anxiety in relation to the mother.

Psychiatric Report – Dr K

1. The Court has been assisted by the report of Dr K, a very experienced psychiatrist.  He has concluded that neither of the parties have a significant continuing psychiatric disturbance, however, he acknowledged that the mother might benefit from some psychological assistance in helping her cope with her reaction to the overall situation.  In relation to the mother Dr K noted that he could imagine that there have been times after her illness where the mother was using various medications, perhaps, inappropriately some of the time but as far as he could see there was nothing to suggest she has any continuing problem with drug use at this stage.  He noted that the mother sees herself as something of an entrepreneur.  That she worked as a [omitted] for many years and had her own [omitted] business that she organised for some years.

2. He indicated that whilst this was not exactly mainstream employment it does not indicate a personality disorder or substance abuse and many people can integrate that into their life quite satisfactorily.  He noted that the mother seems to have an appropriate attitude toward [X] but that she does insist that he is frightened of the father and the father puts him up to live with him.  The report continues:

   When I say she does not have a formal psychiatric disorder it does not necessarily mean that she is behaving well in this context and she certainly does seem to be involving the child in her aggression, justified or otherwise, towards the father.

3. He concluded:

   She clearly has a lot of unresolved rage towards the father, justified or not, of course, I cannot say with any degree of confidence.

4. He noted the suggestion of Ms E that the mother might benefit from psychological support and counselling and stated that this may well help if it helped the mother come to terms with her current situation and the fact that the child is now living with the father.  Dr K also noted that the mother saw the father as the one with the aggression and that she was quite disqualifying of him and insisted that he had swindled her.  A reading of the mother’s material will see that the theme of being swindled by the father is upper most in her mind and despite the fact that the parties have, it seems, resolved formally and legally their de facto property settlement the mother has not been content to let the matter conclude. I agree with and accept the observations of Dr K as they accord with my view of the evidence and my observations. 

Witnesses

The Father

1. The father is a quietly spoken man who has shown his unfailing commitment towards [X] in the face of a tirade of unsubstantiated allegations from the mother for years.  The mother has been aggressive, abusive and used her loaded and obscene language against the father both at the time of trial and in the past.  The father has in my view weathered the storm of abusive comments whilst steadfastly ensuring [X]’s emotional problems are placed before the Court and dealt with, despite all manner of threats by the mother.  I am not suggesting that the father is without fault or that he has not played some role in the past conflict between himself and the mother.  The father’s evidence of his time living with the mother gives me the impression that their household was anything but peaceful. The mother worked as a [omitted] and then conducted a business [omitted]. Their household included [Y], a child of another relationship of the mother. The household has seen Police involvement through physical fights in which the mother has attacked the father, along with [Y].  At times the father’s descriptions of their conflict and the mother’s dominant personality with which she over powered [Y] and [X] sounded like a scene from the wild west, with physical fights, the mother chasing the father with a steak knife in hand and the father being clobbered on the head by the mother with a kettle whilst on a family holiday. 

2. The father has shown a keen interest in ensuring that [X] can pursue his love of [omitted] and that he could attend [omitted] competitions and break up parties.  [X] says in his interviews that “Dad and I do stuff”. I have a strong impression that [X] and his father have much in common and a strong bond of love and affection. 

3. The father’s proposal is to continue to offer [X] a home with a peaceful environment, child focused and free from pressure. The father has played a significant role in [X]’s life post separation. [X] enjoys his time with his father, feels safe with his father and trusts his father. [X] says he can tell his father anything. [X] knows that his father would always permit him to see his much loved brother, [Y]. 

4. [X] told his teachers in 2011 that the only things that matter to him were his dog and his brother. In the weeks prior to the final trial, the mother (knowing that [X] has expressed a strong wish to live with his father) has threatened [X] that if he was to live with his father he would not see herself or his brother until he was 18. The mother has also made threats to the father that something might happen to his dog. 

5. The father has remained focused on [X]’s best interests in both [X]’s educational needs and his emotional needs. 

The mother

1. Stating that the mother hates the father is an understatement. The mother blames the father for a myriad of crimes ranging from larceny, fraud, slander, domestic violence, and even allowing the alleged sexual abuse of [Y] some years ago, by a male person (a friend of the mother’s own father) who was invited by the mother to live in their home for a period.  The Police records show the mother stopping her car on an occasion and assaulting a person walking down the street.  The mother says that this happened and that she assaulted the abuser, whereas the father allowed the abuser to stay on in the home.  The father denies this version of events of the mother who he says has now re-written history to blame him for the events. 

2. The father has in my view given plausible explanations for many of the events raised by the mother.  It seems to me that whatever wild history and lifestyle these two parents have had, there is much water under the bridge now.  The parties are older, [Y] has left home in Cairns and moved away. According to [X], [Y] has had some big arguments with his mother. 

3. The mother chose not to attend the trial, though she has attended at many Court events and interim urgent hearings. The mother has a forceful personality and the transcripts in evidence will show that she is not easily containable or controlled in a Courtroom setting, let alone outside the Courtroom. The mother has challenged the veracity of almost everything that [X] has told his counsellor or the Report Writer or the father. The mother sees the father as stealer of her money and property, an abuser of children, a violent father, and a drug lord amongst other things.

4. In the midst of her ongoing allegations and accusations against the father, the mother has not understood or paid any heed to the dire warnings of the child’s counsellor, the Family Report Writer, the father or the Court in regard to [X]’s most delicate emotional state. 

1. Prior to releasing the first Family Report containing the most sensitive details of [X]’s innermost fears, I spent considerable time explaining to the parents the importance of not discussing these intimate issues with [X]. The mother, whilst indicating she understood the seriousness of doing so, nonetheless once outside the Courtroom had [X] convinced he should ring his counsellor and say his views were all lies. The mother told the Court everything [X] told the Report Writer was also lies. The mother took [X] to a doctor just to have [X] tell the doctor he wanted to live with his mother, she took him to the Police to say the same thing and had him ring his own counsellor and say that he has been telling the counsellor lies when he said he wished he could live with his father.

2. The mother asserts, without foundation in my view, that the father told [X] he had to lie to the counsellor and Report writer.  I reject the mother’s contentions and assertions that [X]’s wishes as expressed in the first report and subsequently, that he wishes to live with his father, are made up and/or lies.

3. I am satisfied when reading all of the material that [X]’s explanation that his mother is nice to him when people are around, and nasty and abusive to him when they are together in private, is true. 

4. The mother’s efforts to distort the evidence in this matter of [X]’s views and violate his emotional vulnerabilities amount to psychological abuse of [X]. 

5. Similarly, the mother’s threats to [X] that if he wants to live with his father, he will not see his mother again until he is 16, amount to psychological abuse. That the mother has engaged in this conduct towards a child at all, let alone with physical, social and emotional disabilities is in my view profoundly disturbing. The mother’s frantic attempts to telephone [X] and persuade him to live with her just prior to the trial, even after an urgent interim hearing in which the mother had, contrary to all orders, held the child over and continued her psychological pressure to have him change his mind via emotional blackmail, (despite undertaking to the Court not to not to discuss the litigation) are testimony to the mother’s complete lack of insight into her destructive parenting style. The mother has shown herself to be unstoppable in pressing her distorted views of the father upon this child. The mother cannot contemplate that [X] might love his father and she will not allow [X] to express such views. This has been observed by [X] himself who explained his dilemma to the Report Writer.

6. In my view, no Court Order will ever stop this mother from her intended course of conduct in removing the father from [X]’s life and having [X] submit to living with her, on her terms. The mother has shown contempt for the concerns of the Court and the protective measures intended to give [X] some reprieve from the ongoing conflict which had [X] at the point of desperation.  I am satisfied that the mother is an unstoppable force quite intent on using her relationship with [X] for her own purposes including but not limited to ensuring that [X] has to chose one parent or the other and undermining [X]’s love for his family. 

7. Given the opportunity to air the allegations against the father and have her evidence tested, the mother chose not to come to Court.  Instead, she sent a personal messenger to hand up further documents largely repeating all the previous allegations.  The mother used the time that the matter was proceeding in Court to ring the father’s phone and leave a series of threats (as referred to elsewhere in these reasons) of further litigation.  The tone of the mother’s messages are menacing and threatening. 

8. I accept Dr K’s view that the mother maintains her rage against the father.  This rage prevents [X] from ever letting his mother know of his love for his father.  Ms E has given evidence of the dangers for [X] being placed in this situation by the mother. 

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).

2. In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”.  Her Honour stated:

   “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’ 

3. Section 61DA refers to a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption does not apply 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 abuse or family violence.  The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. When I determine the best interests of [X], I will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties’ proposals for care of [X] including the significance of the primary considerations in s.60CC (2) according to the legislative pathway. Reference will be made to parental responsibility and s.65DAA(5) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion.

5. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

6. Amendments were made to the Family Law Act 1975 incorporating the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. Those provisions which have been amended in regard to Family Violence apply to matters filed on or after the commencement date of 8 June 2012.  This matter was commenced on 26 October 2011 in the Federal Magistrates Court of Australia and therefore the new provisions in Schedule 1 do not apply.

7. I have had regard to the documents relied on behalf of each party (including the mother), their oral evidence, their respective case outlines, the exhibits and the closing submissions made on behalf of each.  

8. In these reasons, statements of fact constitute findings unless indicated otherwise.

Section 60CC Considerations

1. I now turn to discuss the additional considerations which are relevant to the competing applications sought by each of the parties.  I will then discuss the primary considerations.

S.60CC(3) The additional considerations are:

S.60CC(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

1. In this matter for the reasons referred to elsewhere in these reasons, primarily the pressure that [X] has been under, certainly, from the mother, the views expressed by him have to be explained and understood in a context of that pressure.  I have already referred to the various statements that [X] has made in his interview with Ms E in August 2012 and again in February 2013.  I am satisfied that [X] has been subjected to the most extreme form of emotional pressure from his mother.  [X] has admitted to Ms E that he has to lie and say he wants to live with his mother as it is the only way to deal with his mother’s continued pressure and it is the only way to stop her going “ballistic” as he calls it.

2. I note that [X]’s stated views have altered from time to time, however, that is explained in the evidence of Ms E.  In her second report Ms E states that [X]’s wishes are to be viewed in the context of who he is making them to and the pressure under which [X] has been placed by his mother.  It is a tragedy that [X] has been placed under the pressure he has been in this matter.  The Court has explained to each of the parents through the course of this litigation that the child’s wishes are one matter for consideration and that the court needs to consider all of the section 60CC factors.  This has been entirely lost on the mother who has been driven to have [X] tell experts that he wishes to live with his mother.

3. The child’s views in the first Family Report were so troubling that a recommendation was made that the Report be either not released or released only after warnings were given to the parents not to discuss the contents with the child.  The Court made special arrangements for the release of the Report and obtained undertakings from each of the parties that they would not discuss the contents of the Family Report with the child or this litigation, prior to releasing the Report. 

4. The parties were given time to consider their respective positions after reading the Family Report.  The matter was listed then for an interim hearing which occurred on 15 November 2012. 

5. The orders of 15 November 2012 were made following the release of the first family report and a contested in hearing.  Orders were made for the child to live with the father and spend part of the school holidays with the mother and thereafter each alternate weekend.  This Order was a reversal of the child’s living arrangements since separation and the basis of the reversal was explained in the ex tempore reasons I gave.  Primarily the affect of the conflict on [X], his strong views to live with his father and his utter despair and sadness which lead him to contemplate his own death.  Notwithstanding the lengthy reasons given about the Court’s alarm at [X]’s emotional well being including his contemplations of his own death, the mother withheld the child from the father after she had had the holiday period and set out having [X] change his views.  This was in the face of the mother (along with the father) giving the Court an undertaking not to discuss the litigation or the contents of the Family Report with [X]. After these warnings, it was necessary for the court, on 31 January 2013, to deal with an application by the father for a recovery order, given that the mother withheld [X] in her care contrary to Orders.

6. At that time the child was ordered to be returned to the father with the mother’s time with the child, (the remainder of the weekend time) to be suspended until further order.  The trial date was also moved forward from April 2013 until 25 February 2013 given the seriousness and urgency.  It is clear to me that the mother continued to place pressure on the child notwithstanding the undertakings that she made.  On her own admission she took the child to a doctor on 21 December 2012 during the period he was with her and the child is recorded as telling the doctor that he wanted to be able to come home and live with the mother.  The mother says in her affidavit:

   He does want to come home and live with me and he just wants things to be back the way they were.

7. The mother also then decided to contact the child’s personal counsellor and the mother says:

   [X] begged me to call Ms C.  He called himself and told Ms C he wanted to come home.

   And the mother then stated:

   [X] told me he refuses to go back there.

   The mother also then says at paragraph 18:

   I contacted FNQ Intake Child Services and spoke to a lady,

   
   

   Ms W.  She documented the fact that [X] was refusing to go back to the father’s. 

   The mother then says that:

   [X] then contacted the Kids Helpline in January 2013.

8. The mother says this was to inform the Kids Helpline that he wanted to live in her custody.  It is clear to me that this child has been under the most extreme emotional pressure from the mother, particularly as the trial date loomed.  It is also clear that throughout this time the mother has been unable to pull back her desire to overwhelm [X] with her views of the father and pressure [X] to tell others involved in the litigation that he needs to live with the mother. 

9. It is unfortunate, indeed, that the child’s personal counsellor has been drawn into these proceedings.  The child has been seeing Ms C from [C] Psychology for quite some time.  These proceedings have been continuing in parallel with the counselling, however the mother has intervened with that counselling on 9 January 2013[5] when the child was with the mother (bearing in mind that this conduct occurred after the mother had agreed to an undertaking not to discuss issues with the litigation with the child and knowing the concerns regarding [X]’s emotional status). Ms C’s office received a number of phone calls from the mother and [X] stating that [X] needed to talk with the counsellor about living with his mother.

   [5] Affidavit of Ms C filed 18 February 2013. 

10. Ms C states:

    When I returned the call [Ms Bass] answered and immediately put [X] on the phone.  [X] stated he wanted to live with his mother and that he had been lying to me.  I asked [X] if he was feeling stressed and he stated that he was.  I asked to speak with [Ms Bass] who, again, informed me that [X] had been lying to me and that he does not want to live with his father and that he is scared of his father.

11. The next consultation was on 30 January 2013 and [X] was brought to this appointment by his father.  I note in the earlier letter from Ms C, included in her affidavit, that the mother had told the counsellor that she was not going to bring [X] to his counselling as he would have to leave school early to do.  It clashed with a 3 o’clock appointment at school.

    Ms C stated:

    When [X] attended on 4 January his presentation was quite different to his previous presentations and [X] became most upset during this counselling session.  He had returned to his father’s care after a couple of weeks with his mother over the Christmas period.  [X]’s eye contact was poor and he was reluctant to engage in conversation.  He would not talk about anything and proceeded to answer each question with, no comment, and eventually stated he was feeling “stressed out” and that “he can’t handle it any more”.  He stated he wants to return to live with his mother so that things can return to normal and there is no more arguing.  [X] had said he would ideally like to live with his father, however, if he does this he would not be able to see his mother until he is 18.  [X] stated that he has been telling his mother that he wants to live with her because it makes it easier for him when he is with her.  He stated that he had been lying to his mother because he does not want her to “go off at him” or “go ballistic”.  He also stated that he has been lying to her because he wants to keep seeing her and he does not want to lose contact with her until he is 18 which he alleges is what she has told him will happen.  After disclosing this information [X] stated he was happy for me to report this to the independent children’s lawyer but only after he had visited his mother for another week as planned.

17 January 2013

1. [X] was then brought to the next appointment, again, by his father on 17 January 2013.  He had just spent another week with his mother reporting he had a good time with her because his brother was visiting from out of town.  He talked about going to the skate park with his brother and stated he enjoyed having him there.  He further stated he wanted to live with his mother and for everything to return to normal.  He also stated that his brother had told him if he lives with his mother then he will come to visit him more often.  [X] expressed concern that if he lives with his father he will not get to see his brother as often.  When asked if he thought his father would stop him from seeing his brother he stated:

   No, no way.  He wouldn’t do that.  I asked [X] if he ever felt scared of his father and he said, no, I have fun when I’m with dad.  I’m not scared of him.

2. Ms C reported that [X] had never stated to her that he is scared of his father in any of the sessions she had had with him since 2009:

   In the two sessions following the last court hearing, while he was in his father’s care, he presented as calm and relaxed and reported that he felt happy.  There was no evidence of anxiety and [X] was very clear in stating he wanted (please refer to my previous letter to you of 9 November 2012).  [X] is clearly very confused about the current living arrangements and his primary wish is for the conflict to stop about where he will live.  He certainly presents as stressed when discussing the living arrangements and conflict and he has repeatedly stated he wants everyone to be happy but he knows that no matter what the outcome someone is going to feel unhappy.

3. As can be seen, it was after [X] was with his mother from 9 January 2013 that the mother has contacted the counsellor in order to have [X] tell her on 30 January 2013 that he had lied about his previous requests to live with the father. 

4. On 30 January 2013 [X] was brought to the appointment by his father.  There had been some confusion around this as when [X] had remained wrongly in the care of his mother, she had phoned the counsellor stating that she would not be bringing him to the appointment as he would have to leave school early to do so.  This date was the same day that the Court had an urgent hearing on the matter being the father’s recovery order.  

5. After the urgent interim hearing in which [X] had been brought to the Court by the mother at the request of the Court and placed in the care of a Family Consultant for the duration of the Recovery Order hearing, the Court ordered [X] be returned to the father and go straight into his care. 

6. I have no doubt that this day and the days leading to it were most confusing for [X]. The mother created this situation by holding the child over contrary to Orders. [X] was taken there by his father (notwithstanding that the mother had phoned to say he would not be coming).

   [X] had appeared a bit overwhelmed by the events of the day as he said he had been speaking with other professionals and that was the family consultant in the Federal Magistrates Court.  This was a court ordered consultation on the basis that the mother had been ordered to deliver the child up to the registry whilst the recovery order had been heard.  On that day, unexpectedly, [X] appeared stressed and it was difficult to engage him in conversation.  The appointment was terminated early and a further appointment booked for the 7th.  On the 7th [X] was seen for around 30 minutes.  He was initially very reluctant to engage in conversation and was stressed and physically agitated.  As with the previous session he stated a number of times that he wants to live with his mother.  He stated, “I need to live with my mum.  Can’t you just tell the judge that?  Things won’t work out if I don’t live with her.”  [X] was reluctant to discuss the reasons for wanting to live with his mother.  He stated that he likes living with his father but that he would like things to return to normal and live with his mother again.  [X] was very distressed and at one point he started to shout and swear blaming both myself and the judge for what was happening.  He eventually ended the session by running out of the room crying.  The father was given suggestions and encouraged to work out ways to have [X] relax over the weekend and it was also suggested that he avoid conversations about court. 

1. Ms C concluded:

   In my opinion [X] now associates these therapy sessions with the court process and is reluctant to engage in the therapeutic process.  I have explained to [X] that my role is to support him through the process and to focus on strategies to help manage his stress.

2. I am satisfied that any view expressed by [X] to live with his mother is based upon various threats of the mother amounting to emotional blackmail. The mother has threatened [X] that he will not see her again, he will not see his brother again if he says he wishes to live with the father. [X] has stated that he does not believe that his father would ever stop him from seeing his brother. 

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. Ms E’s observations are that:

   [X] presented with a strong secure attachment to his father and, alternatively, having a deeply anxious attachment to his mother.

2. I am satisfied that [X]’s relationship with his mother is most unhealthy and problematic.  I am satisfied on the evidence and observations of Ms E that [X] is intimidated and overborne by his mother, and at times he is fearful of her.  As referred to in the second family report, [X] decided on a strategy of simply telling the mother whatever she wants to hear as a process of keeping the mother from overwhelming him with her interventions and tirades.  In the second family report Ms E notes that [X] was, during the interviews:

   Presented extremely distressed and fearful of his mother’s reactions when she found out what he was saying to the writer.  He said he was afraid of his mother many times.

3. This theme of [X] being frightened of his mother is as reported to his teachers back in 2011 when he said his mother was nice to him when others were around, but when others were not around she went ballistic and intimidated him.  At the time of the second interview in January 2013, [X] had been held over by the mother. It was after this circumstance in December that [X] spoke with Ms E. It is to be remembered that just prior to the first Family Report [X] reported having an argument with is mother just before the interviews at which he said he had serious issues about his mother.

4. At the time of the first Family Report, [X] had stated he was afraid of his mother and he was unable to tell her how much he loved his father because the mother would be angry with him. He said she had threatened to kill herself many times and [X] was aware, at that point, his mother wanted to leave Cairns and live in Sydney.  He said he did not want to go and he has always wanted to live with his father. 

5. At the time of the second Family Report interview after [X]’s living arrangements had been changed pursuant to interim Orders so that he lived with the father, [X]’s behaviour had improved after spending block time with his father.

6. This change for the better was up until [X] spent time with his mother over Christmas and with his older brother, [Y], who was visiting the mother from Sydney during that time. 

7. The mother threatened [X] that if he lives with the father he would not see her or his half brother until he was 18.  The mother’s relationship with the child is in my view a most unhealthy and manipulated relationship which the mother uses for her own purposes.  The father has given evidence, which I accept, that in commencing from the first post separation periods, each time he wanted to see the child, the mother made a request for money to be paid on account of some expense or other matter about which the mother determined that the father owed her money.  The father was permitted to see [X] if and when the money was paid. 

8. The constant narrative of the mother a seen in her material and interviews is to maintain a discourse about the father’s alleged “robbing of her estate” or “robbing me of my entitlement”.  The mother has an array of crimes she believes the father is guilty of, including holding him responsible for her failing to act to protect [Y] from sexual abuse by a third party. Dr K also noted that the mother has a preoccupation with the property matters and that she has a rage toward the father.  In the mother’s material before the Court, which I have had regard to, there is a constant theme of the father short changing the mother in the property settlement and of the mother’s threats to take him back to Court and threats to have him charged with offences.  The parties resolved their property settlement in the Supreme Court.  For the mother though, it is not resolved.  Even during the progress of the trial which the mother chose not to attend, she left telephone messages threatening to take him to the Supreme Court.  Their property matters are over.  I do not know how many times the mother thinks she can litigate about the same matters.  I am satisfied that the mother shows no sign of reaching any closure or resolution of the property other matters about which she harbours enormous resentment towards the father. 

9. In regard to the mother’s relationship with [X], I have a strong impression that [X] has been seen by the mother as a source of both financial security for the mother as seen in the previous reference to her wanting money from the father whenever he asked to see [X] in the years following separation. 

10. The mother has been claiming a carer’s pension in regard to what she says is caring for [X] and the father has informed the Court that [X] has an appalling history of non-attendance attending school during two of the years that he lived with the mother.  As seen in the material the records show that the mother used to let him have days off. 

11. [X] told his counsellor that, ideally, he would like to live with his father, however:

    If he does this he will not be able to see his mother until he is 18.

12. I am satisfied that the mother has made such threats to [X] and, similarly, that the mother has told him, as [X] has reported, that if he is to live with the father he would not be seeing his brother again.[6]  As recently as February 2013, [X] repeatedly stated he wanted to live with his mother because if he did not he would not be able to see his older brother again.  I am satisfied that the mother is abusive toward [X] in that he has reported that she hits him, has hit him frequently in the past that she has namely screamed, and berated him when others are not around and that she has made threats to him, which consist of emotional blackmail that she is going to jump off a cliff or end it all.

    [6] Affidavit of Ms C exhibits MC1. 

13. I accept also that the mother would, as [X] stated, wake him as he fell off to sleep to tell him that he should be living with her.  This conduct was described by Ms E as torture.[7]  [X] reported to Ms E:

    “She would come in when I was trying to fall asleep, she said she was going to slash her wrists.  That was about a while ago, about a year ago, she does it as a threat, she’s not going to do it”.

    At that time [X] said, in answer to whether or not he had thought about it himself, he said:

    “Yes, because my mum drives me mad.  But I’m not going to end my whole life, I would be sad if she did it, but it would be her choice”.

    [7] Second Family Report of Ms E, paragraph 18.

14. The second Family Report was completed at a time when Ms E noted that [X], for the first time, was starting to show some self-interest and not carry the burden of all of his mother’s concerns of killing herself or getting more money through the property settlement.

    “At this point [X] stated to the report writer how angry his mother will get with him and that, “If she continues to get angry, I won’t visit her anymore and I don’t want to see her if she is angry, I rather live with my dad.”  [X] then asked, again, “Will she hear what I said in Court?  Because she will be mad.”  He then stated that he wanted to get his things out of the mother’s house, being his scooter, skateboard, his laptop and stated, “I need to grab it out of there, she’s holding my stuff captive.”

15. It seems to me that [X] knows his mother very well.  I am satisfied that, as suggested by [X], she does have a knack of twisting his words around.  The mother has engaged in a campaign to have the child change his views.  That is also borne out in the child’s discussions with Ms E where he indicated that:

    “The only way to keep her happy is to lie to her.  No, I have not told my mother I have changed my mind and want to live with Dad.  The only way to keep her happy is to lie to her.  I have been lying to her for three years since they split up.  If I say I want to live with Dad she will go berserk on me…let me get my stuff before she goes T-Rex on me”.  [X] was concerned about his mother finding out about what he had told me and he was worried she would not give him his things, which was still at his mother’s.  “I am not happy about it, lying to Mum, I told my brother I want to live with my dad.”

    In discussions about [X] getting upset at his therapist’s office in January 2013, he said:

    “My Mum was telling me what to say and that I needed to choose a parent, so now I choose Dad.  He’s nicer to me and we do stuff together.  Mum gets me stressed, I would rather visit her, like when I was visiting my dad, every second weekend.  I want to do that or I will see her on school holidays because she will be on the Gold Coast…if she gets angry with me I won’t visit her anymore and I don’t want to see her if she’s angry, I would rather live with my Dad.  At that point [X] also said that although he likes living in Cairns, he wants to move to [K] with his dad where they have a home”.

    Ms E concluded that, in her opinion:

    “[X] will continue to say contradictory things according to where he is.  He told the writer this, therefore his comments do need to be regarded in context and there are significant factors which need to be considered which will assist in determining who is the most parent”.

16. At the time of the second interview most significantly, Ms E noted that [X]’s overall presentation was happier and calmer when he presented with his father than when he presented with his mother.  Consistently, all observations made of him when this variable is considered, indicate he is significantly better adjusted when he lives with his father.  The report continues:

    “Secondly, in discussion with independent professionals, [X] is able to openly acknowledge how much he loves both parents more readily as with his father.  [X] reports he is unable to express the sentiment openly when he is with his mother.  This is supported by the mother’s account when she states, “He is afraid of his father.”  However, [X] consistently contradicts this assertion when he is interviewed by independent professionals, [X] has never been afraid of his father, although he tells his mother he is”.

    The report also states significantly, at paragraph 36:

    “Lastly, [X] consistently describes serious emotional abuse from his mother.  He is afraid of her reactions and the pain it causes him.  He describes her telling him he will never see her or his brother until he is 18 if he lives with his father.  He describes her waking him up and threatening to, “slash her wrists”.  He reports she continues to yell at him.  These comments are deeply concerning”.

    The report notes that:

    “The mother is unable to self-regulate her yelling at [X] during a recent phone call and that that constitutes bullying and an unreasonable application of power in an attempt to force [X] to bend to her will”.

    Ms E described this conduct as:

    “Poor parenting and lending weight to the thesis that the mother is, “Brainwashing” [X] and may use other unacceptable strategies to get her way with [X].”

17. The phone calls being referred to by Ms E are during a period after the November 2012 interim hearing in which the Court suspended [X]’s time with the mother, other than holiday time.  This was for reasons explained in the interim decision including [X]’s wish to kill himself and the unending pressure and abuse he was under from the mother who showed no signs at all of acknowledging her own role in pressuring [X] with the tirade of abuse.  The mother’s response to that situation was to continue the unrelenting yelling and threats to the child on the phone.

18. Of this conduct Ms E said:

    “Given it was her inability to self-regulate which was a significant factor which contributed to the child being removed from the parent in the first instance it raises important questions about her commitment and her capacity to change her behaviours.  The mother has serious anger management issues which remain unaddressed and this has serious implications for [X]’s emotional wellbeing”.

19. The report continues:

    “Developmentally much younger than his age [X]’s emotional vulnerabilities are exploited when he is continually exposed to threats about never seeing his mother again as well as other of his mother’s behaviours and statements in my opinion.  Impressionable and unable to assert himself against his mother [X] needs to be protected from further exposure to her deeply problematic and abusive behaviour for her sake as much as his.  However, as described above [X] appears to have resolved some issues to do with the threatened loss of his mother.  He appears to have grieved for his mother and has come to accept that this as reality now”. 

20. Ms E’s recommendation was that [X] live with his father and the father be permitted to relocate to [K].  She notes that:

    “[X] objected to any relocation to Sydney with his mother.  I note that this is the second proposal of the mother to relocate.  The first being made in the end of 2012 and ’11 in which is seen in the school records at which the mother was threatening to locate to the Gold Coast”. 

21. The recommendation of Ms E referred to the mother’s continued inability to self-regulate, her sustained yelling, bullying and brainwashing of [X] her ongoing attempts to bully [X] and his disturbed presentation after he has visited the mother.  The father gave similar evidence from his own observations and experiences. [X]’s phone calls and time with his mother was to be monitored carefully and reviewed in the event he begins to decompensate again. The recommendation was also that further visits with the mother be conditional upon her attending anger management counselling and parenting classes to assist her to understand her role in creating stress for [X].  Initially, Ms E recommended that [X] live with the father and spend only time during the holidays with his mother. 

22. Ms E’s final observations were that [X] is a peaceful young person who craves a peaceful life.  He perceives his father offering a peaceful environment.  Ms E considered that the mother will drive [X] away from her if she continues to bully and place him under pressure. 

23. During the course of her oral evidence Ms E was asked to consider the father’s proposal for supervision.  The father’s proposal for supervision was based upon the mother’s previous and continuing conduct towards [X] and her continuing unrelenting tirade of abuse during phone calls both to him and to [X].  The father was most concerned and anxious at [X]’s ongoing presentation after spending time with his mother which included wetting his bed on two different occasions, something which has not occurred for some time, and which the father considered to be an obvious sign of [X]’s deep distress after having spent time with the mother.

24. Ms E was very concerned to hear that this was the result of the most recent time prior to the trial spent with the mother.  Ms E was also made aware of the child’s reactions to the mother’s phone calls which continued in the weeks prior to the trial which were so intrusive and upsetting as described by the father.  Ms E believed that the phone calls would leave [X] in a chronic state of anxiety. The recommendation by Ms E for the mother to undergo anger management as a panacea for her aggression and hostility was queried by the father given the mother’s overwhelming personality and the serious nature of the ongoing threats that had been made by her. 

25. Ms E conceded that this matter involved a child who has been under extreme pressure at least since 2011 but clearly earlier than that.  A child who has been suicidal and whose mother having heard and read the reports of what the child said about wishing he was dead has nonetheless continued with her tirade of abuse and pressure for the child to live with her and pressured the child to tell the counsellor that his previous stated desires were lies.  The mother threatened the child that he would not see her again or his half brother until [X] was 18, if he lived with the father. 

26. This ongoing and current sustained pressure when described to Ms E gave her far less confidence, in fact no confidence, that attending an anger management course was going to alter the mother’s deeply held feelings and hostilities towards the father.  Ms E was informed of the events of January 2013 with the mother having [X] speak to his own counsellor and say he had previously been lying about his wish to live with the father, the mother taking [X] to the doctor to tell him he wished to live with the mother, the mother telling the Court that [X] had admitted to lying to Ms E and that [X] had rung Kids Helpline when he was with the mother.  Ms E considered that it would not be appropriate to send the child for holidays to the mother given what had happened when [X] was with the mother in the January 2013 holidays. 

27. The ICL queried Ms E, as did the father, about supervision which was put forward as a proposal for a period of time so as the mother’s interactions with the child could be observed before then moving to a period of unsupervised time for some hours, if and when the mother was able to control herself in a supervised setting. 

28. Ms E supported supervision though conceded that at age 14 and a half and within the confines of the Cairns supervision centre that it was not really an age appropriate venue.  Ms E also had said that the mother’s prognosis was very poor and that she had no confidence at all that completing an anger management course would deter the mother from her vendetta against the father, or alter her conduct and interactions with [X]. As noted earlier in this judgment the mother chose not to attend the trial but nonetheless sent a friend to Court to hand up material for the mother. This material was given to the ICL and tendered. The material is about various issues about which she was concerned. The material is a rehash of all of the matters that the mother has ever raised.

29. Ms E noted in that material from the mother which is marked as exhibit ICL1 that the mother stated:

    “In response to a school report that makes claims I threatened to drive off a cliff I deny having ever said that or anything remotely similar.  Even through some difficult times in December 2011 after [Mr Merrett] had taken my entire estate and income when at times I felt like I could have a breakdown suicide never crossed my mind.  [X] has since expressed his confusion as to why he fabricated this story.  During this time I believe my son didn’t suffer emotionally as accused.  Ms C is on record that I never threatened suicide and never will.  I would not do that to my children.  My GP is willing to provide further documentation if required”.

30. Ms E stated that this assertion by the mother was entirely a falsehood and that the mother expressly stated to Ms E during the Family Report interviews that she had contemplated suicide. This behaviour is documented in the school records following interviews with the mother and [X]. I am satisfied that the mother continually rewrites history, particularly in this topic, to accord with her preferred version of event.  Ms E noted that the mother probably believes her own history or her narrative of events and it is therefore highly unlikely that she will respond to any courses, for instance, in relation to her long held anger towards the father.  Ms E also considered that the mother has been emotionally abusive towards [X] in threatening that she will walk away from the child.  Ms E does not believe that the mother can manage her own health.

1. The father had never been aware of this statement made by [X] to the teachers about being hit on the head.  The father denied that any such incident had ever occurred.  He said that after the 13 February 2009 incident (at which the police finally arrived and suggested to the father that he ought not stay at the house) that he left the house and had not seen [X] since that night. 

2. The father had not seen the subpoenaed records until they were shown to him by the Independent Children’s Lawyer and can offer no explanation as to why the child said that he was hit by his father, except that it is likely that the mother told him to say that. 

3. I accept that the father has not harmed [X] and that it was likely that the mother told [X] to make a report of being harmed by the father.  This disclosure was made by the child at a time of separation and given the mother’s propensity to tell [X] what to say, I consider it is more than likely that [X] was reporting an incident told to him by the mother. 

4. The father had attempted to take out a Domestic Violence Order against the mother when they separated, however police would not assist him to do so.  The mother had been threatening the father that he would never see the child again, that he would be “done over” by her bikie friends.  The mother had been to his parents’ home screaming, and the father got the assistance of the police to attend at his home to get his personal goods and some of his tools, though they were not all returned.  In April 2009, the father himself secured a Domestic Violence Order against the mother.

5. The relationship between these parents has completely broken down.  I am satisfied that the mother has been the perpetrator of family violence.   

S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person

1. As far as I can determine, there are no current Family Violence Orders. 

S.60CC(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

1. It is abundantly clear to me that this litigation needs to come to an end and that final orders need to be made about [X]’s living arrangements. I have regard to the s.69ZN in regard to the principles for conducting child-related proceedings. It was with these principles in mind that I moved the listing of this matter forward to give it some priority. This was done being mindful of the needs of the child and the impact that the conduct of the proceedings would have on the child.

2. In this matter I have contemplated the father’s initial proposal for supervised time. The difficulty is not only the age of [X] and the restrictive environment at the Cairns Contact Centre which is generally aimed at providing activities for younger children and consists of one small room, however the proposal for supervision is also fraught with other difficulties.

3. Inevitably, supervision would be for a period, and then that period would need to be reviewed. This is an invitation to re-visit the litigation which would itself place [X] under further pressure to make decisions about which parent he is to live with.

4. In this matter, it seems to me that the decision making needs to be taken out of [X]’s hands and a judicial determination made. Whilst being mindful of [X]’s true views, I consider that it will be a relief for [X] to be told that the arguing is over and that the Judge has decided your future living arrangements.

5. I do not consider that a permanent order for supervision is appropriate or workable in this matter, given [X]’s developmental issues, his age and also the fact that the mother has chosen to avoid attending the final hearing. I have no confidence that the mother would ever engage in a process such as supervision. The mother has made threats even at the time of trial, that if she doesn’t get the Orders she wants, she is moving. The mother has told [X] he has to choose between his parents. I consider it is time to end the possibility of the mother making future harmful threats to [X], by making final Orders and ending the litigation.

6. I am not confident however, that the mother will cease her accusations against the father or that she will regard this litigation as final. If she adopts the same practice that she has done in regard to her property matters, the mother will likely now add to the list of the father’s crimes, that he has taken her son.

7. The mother unfortunately shows no insight into the significant events that have been happening around her in regard to [X]’s emotional welfare, whilst she has been focusing on waging the war against the father.

S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. I have nothing to add under this heading.

60CC(2) The primary considerations are:

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

1. In this matter I am asked to make Orders that do not provide for [X] to have an ongoing relationship with his mother, but that promote his opportunity to have a meaningful relationship with his father.

2. This is a matter in which the child has been so affected by conflict and particularly affected by the conduct of his mother toward him in 2011 and 2012 and continuing in 2013 that the child has wished he was dead.  The child is not trusting of the mother and says that the mother twists around his words.  The child has determined that he has to lie to his mother in order to get any peace from his mother and to stop her applying pressure to him.

3. The child has been trembling and tearful in candidly saying what he wants to happen but being fearful of what will happen to him when the mother finds out.  The mother’s conduct has not abated during the process of this litigation.  The mother threatened to walk away from the child when interim orders were made that the child live with the father.  In the mother’s latest material she has made it very clear to the court that if orders are not made in her favour that she will walk away.  The mother states in her affidavit filed on 15 February, paragraph 69:

   I have finally realised that it is no use staying in Cairns if I do not have my son. 

4. The mother has chosen not to come to Court for her trial and instead has occupied her time on the day by leaving more foul mouthed threats to the father.  I am most troubled at the prospect of this child spending time with his mother as I am satisfied that the mother will exploit this vulnerable child, to further her own vengeance towards the father.  I am satisfied that the child has a healthy loving relationship with his father and that this relationship is a major strength for [X]. 

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

1. The parties have had a conflicted and physically violent relationship. 

2. [X] has been exposed to the parties’ physical fights, which have included severe acts of domestic violence by the mother chasing the father with a steak knife and smashing a kettle over the father’s head. 

3. Significantly, I consider that the mother has exposed [X] to psychological harm in her consistent pattern of attempting to overwhelm [X] with her derogatory views of the father, threatening that [X] will not see herself or his brother if he goes to live with his father and using various techniques to persuade [X] that he ought to be living with her.  The mother has also engaged in emotional blackmail tactics, in telling [X] that she will walk out of his life if he says he wishes to live with his father. 

4. The tactics engaged in by the mother are in my view extreme, and they amount to a psychological abuse of the child.  The Orders that are made in relation to [X]’s time spent with the mother will be significantly affected by this consideration. 

Presumption of equal shared parental responsibility

1. I am satisfied in this matter that the presumption of equal shared parental responsibility does not apply, given the level of domestic violence and the mother’s psychological abuse of the child. 

2. I am also satisfied that it is not in [X]’s best interest to have his conflicted parents attempting to make joint decisions about issues to do with his major, long term issues.  These parties have a complete inability to communicate with each other and their relationship is characterised by a profound mistrust of the father by the mother.

Evaluation

1. This matter is a very problematic and delicate matter.  [X] has been subjected to significant and ongoing distress through the conduct of his mother. He had years and years of parental conflict when his parents were together.  Regretfully, the conflict between the parties seems to have escalated in the last two or three years and seems to have followed on from the property matters not being resolved to the mother’s satisfaction.  This seems to be, despite the fact that she was represented by lawyers and agreed to consent orders in the Supreme Court.  She cannot understand or accept that the father has ended up with a house after the property settlement. 

2. There are other matters, though, that have affected the mother’s perception of the father in a most significant and overwhelming manner.  The mother is not able to desist from her ongoing and sustained insults against the father.  She holds him in contempt, in my view.  She is envious of the father having the support of his family, as she deposes to in her material.

3. It is clear to me on the material that post separation, the mother did use [X] as the basis for negotiation of further funds on various occasions in which the father sought to spend time with [X].  That she was prepared to do this illustrates to me that she has no genuine appreciation of [X]’s right to know and be cared for and have a relationship with his father.

4. The mother’s rage is patently clear in the father’s affidavit annexure[13], a CD containing vitriolic insults from the mother to the father. I have made reference to these elsewhere in these reasons.  These are the same kind of insults that the mother was making to the father back in 2011.

   [13] Father’s Affidavit, annexure 54. 

5. The court is most troubled with the mother’s attitude towards the child.  This includes her tendency to use the child as a tool for negotiation for funds, her total disrespect for the child’s relationship with the father, her total disrespect of the child’s wishes and her preparedness to manipulate and distort what the child has said.  The mother has been prepared to overpower the child and insist that he adopt her views to the point where the child realises that resistance is futile and the only answer to the mother’s pressure is to lie to her about what he really wants or his true feelings for his father. 

6. In my view, this has been happening for some years and [X], now at 14, has reached the end of his own tether in regard to this ongoing campaign by the mother.  It is not much to ask for a child to be able to tell one parent that they prefer to live with another parent.  It is not much to ask that a child wishes to say that he has an enjoyable time with the other parent. 

7. The mother is not a person to take no for an answer and this can be seen in her determination to use the opportunity of the child spending time with her during the Christmas 2012 holiday to have him change his previously expressed views to his father, to Ms E, the family consultant, and to his counsellor. The mother has also taken it upon herself to have the child present at a doctor to tell the doctor what his wishes were, to have the child ring Kids Helpline. There is no end to what the mother will do, in my view, to have this child submit to her views. It is to be remembered that the mother engaged in all of this conduct, having already given the Court an Undertaking that she would not discuss the litigation or the contents of the Family Report with the child.

8. The mother is not a person with whom this child has been able to negotiate or navigate any kind of method of communication that is tolerable for the child.  Ms E has warned of the dangers for the child to have to live in two realities and the possible long term outcome of the child suffering mental health illnesses in the future.

9. Whilst the mother engages in this campaign, she is not able to see the effect of her conduct on [X] or, for that matter, the father.  It is not often in this court that a child presents as suicidal.  In my view, there is no greater reason for a child to be placed in an environment where he is in a safe, secure and stable environment away from the pressures which cause him anxiety and distress.  That environment in this matter is for [X] to live with his father.

10. A child of 14, even a child with learning difficulties such as [X], ought not be in a position of wetting the bed because he is so anxious about what is to happen to his own living arrangements and having been placed under direct pressure to agree to what he does not wish for by the mother. 

11. I accept the submission of the Independent Children’s Lawyer that the mother represents an unacceptable risk for this child.  The mother has had the child in her care since separation and she has, in my view, been relentless about restricting the child’s time with the father unless he pays money, and placing conditions on the time that the child spends with the father.

12. The mother has been prepared to exploit her own child to obtain what she is after from the father, namely more money.  There is nothing about the mother’s material or her presentation to Ms E which gives me any confidence that the mother has any insight into the effect of her conduct upon [X] and the father.  I accept the submission of the father that any time with [X] would need to be supervised.  I accept the submission on the basis that even in the spotlight of a trial and litigation, the mother has failed to comply with her own undertaking given to the Court.

13. The mother has deliberately, in my view, used any opportunity with the child, whether it be by phone or in person, to coerce and place him under pressure to change his stated views.  The mother’s case about the child lying is inherently implausible.  The interim hearing in November 2012 was a seminal moment, in my view, in these proceedings.  For the first time the court made a decision for the child to be removed from the mother’s care and placed with the father, and for the child to spend alternate weekends with the mother.  The mother’s response to this was one of anger and defiance.

14. Ms E, who is hopeful that the mother would receive a shock from the changeover of the child’s residence from herself to the father, is hopeful that in the future the mother would realise the effect of her conduct.  At the same time Ms E had to concede that the mother’s prognosis was very poor and there was no sign at all in the interview with the mother that any insight had been developed.  The mother’s conduct since that time has caused Ms E to maintain the view that there is no sign of the mother showing any understanding of her conduct.  Ms E listened to the phone messages left for the father, during the trial and those phone calls cemented her view that it was likely to cause the child significantly more damage if the mother was to repeat the actions which she has done over December and January. 

15. The issue of supervision, therefore, looms large for consideration.  [X] is aged 14 and a half and will be 15 this year.  The Independent Children’s Lawyer submits that it is not appropriate for [X] to attend at a contact centre in a small room with much younger children in order to have supervised time with his mother.  As well, the Independent Children’s Lawyer Counsel submits that the mother is unlikely to engage in any further processes instigated by the court, that she has failed to attend her own hearing, she has failed to attend the drug tests and she has failed to comply with the undertakings.  It is submitted that the mother simply is not likely to engage in schedule of further court events to improve her conduct.  I accept the force of these submissions.

16. I had contemplated the notion of the mother having supervised time.  I am satisfied that if the mother was to spend any time with the child it is necessary for it to be supervised.  I have no confidence, however, that the mother would comply with the rules of supervision.  It is simply not in the mother’s character or conduct on the evidence I have before me to show any restraint, to show any understanding of her inability to control herself.  The mother has had significant outbursts and [X] has been intimidated when his mother is angry with him.  I do not accept that [X] has to endure this rage of the mother.  [X] clearly finds his engagement with his mother, as much as he would love her, as deeply distressing. 

17. Her invitation to attend at [X]’s graduation evening is an example of the mother’s inability to control herself.  As [X] said, “She insisted on causing a scene and making a fool of herself”.  In doing that, I am satisfied that the mother has no care or regard as to how [X] feels in this matter nor that his embarrassment or hurt are contemplated by the mother.

18. I would urge any other judicial officer in a future determination of this matter to listen to the taped recordings of the mother made as recently as February 2013 in order to gauge the level of the mother’s ongoing aggravation and rage towards the father. Rereading the material and the child’s experiences after hearing the mother’s vindictive attitude towards the father leaves me no doubt that the mother herself, whilst I am sure she loves [X], is not able to conduct herself in a manner that enables him to feel safe, to have peace in her care, to be able to enjoy his childhood and day to day life in her care. 

19. The mother’s communication with [X] has become toxic.  The mother uses [X] as a conduit to the father as she has done for years now. I doubt that the mother heard anything that the court had to say about its deep concerns for [X]’s wellbeing. This child is exhausted from the ongoing conflict. He has contemplated his own death. Sadly, I do not accept that the mother has really understood the gravity of this situation. 

20. In terms of having final orders for supervision of a 14 and a half year old, I am troubled in making such orders. The mother has very deliberately chosen not to appear at this trial, but continues to make threats to the father from the sideline that she will be taking him to court in other jurisdictions.   

21. Ms E considers that the mother needs some serious psychotherapy for a sustained period to be able to reframe some of her perceptions and change her attitude toward to the father.  I do not consider that it is in this child’s best interests to have ongoing litigation and I do not consider that making any further interim Orders waiting for the mother to undergo courses or psychotherapy is warranted or appropriate.  I am quite satisfied that [X] needs to have certainty and finality.  Making any orders for supervision, in my view, is simply to extend the litigation.  I am quite satisfied that this order would result in the mother returning to Court with another application rehashing issues about the father and that she would take any opportunity, whether it be by phone or in person, to place [X] under immeasurable and unsustainable pressure as she has done in the past.

22. This leaves the Court, therefore, with the option of the mother having no contact.  I can see in the mother’s material that she has stated that if she does not get the orders that she wants and the child is to live with the father, that she will leave the area.  These are the similar emotional blackmail threats that the mother has made to [X] in the past. 

23. What [X] is not aware of, at his age, is that the ongoing pressure from the mother is going to cause him severe detriment and, in Ms E’s view, will likely lead to a mental health disorder. 

1. I have to consider orders that will enable [X] to achieve his full potential in life and which will enable him to have a relationship with both parties, to the extent that it is in his best interests to do so.  I am not satisfied that it is in [X]’s best interests to have an ongoing relationship with his mother at this point in time, or any time in the foreseeable future. 

2. Given that [X] will be living with his father, I consider it appropriate that an Order be made for the father to have sole parental responsibility for [X].  Further, given that [X] will not be spending time with his mother, I consider it appropriate for the father to have an order for sole decision making in relation to [X]’s day to day issues. 

3. Ms E gave evidence that the remedy really lies with [X] and [X] maturing and [X] developing techniques to handle his mother.  Ms E has no confidence, and neither does the Court, that it is possible for the mother to change the way she conducts herself or change her abusive nature or her willingness to exploit [X] in order to get at the father.

4. It is a serious order indeed to preclude a parent from having a meaningful relationship with a child.  However, on the circumstances before me, with [X] having suffered as he has in the past with his severe levels of distress which are amplified each time he has an encounter with his mother, I find that the Court has no alternative other than to make an order that [X] live with the father and spend no time with the mother.

5. The mother has referred in her material to [X] being able to live with her when he is 16.  I make no such order.  I understand that [X] loves his mother, however their interaction is unhealthy and abusive for [X].

6. The mother had an opportunity after November 2012 when she was on notice with the significant evidence in the family report of [X]’s current emotional state, to change her behaviour. The mother has completely ignored that opportunity and instead set about trying to manipulate the situation so that [X] would be back in her care.  I am not prepared to make any orders for the child to spend time with the mother as I am satisfied it is against his best interests to do so.

7. I have some confidence that when [X] becomes much older, if he continues to gather strength and self confidence in living with his father, he will, with the assistance of his father, contact his mother if he genuinely wishes to do so.  The ICL contends that orders ought to be made for no contact and that this is done with some reluctance, but with great concern for [X]’s wellbeing. I intend to accede to the father’s request that [X] live with him and that he be permitted to relocate to [K]. I will order also that the mother be permitted to forward cards, gifts and letters and they are to be provided to [X] on the condition that the father is permitted to open them to ensure that they are suitable. Other than this contact, there will be no order for time to be spent between [X] and his mother. 

8. The Orders for no contact are made in the knowledge that if in the fullness of time the child expresses a genuine wish to contact his mother to the father (not to the mother, brother, Kids Helpline, a general practitioner, the Police or any agent of the mother) that the father would facilitate such contact. 

9. Given the mother’s previous cavalier disregard of her Undertakings, I intend to set out very specific restraints in this Order applicable to the mother.  These restraints will be enforced. 

I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Willis FM

Associate: 

Date:  28 March 2013