MORALES & LOPEZ

[2020] FamCA 979

FAMILY COURT OF AUSTRALIA

MORALES & LOPEZ [2020] FamCA 979

FAMILY LAW – CHILDREN – Where each of the parties has made allegations of physical and sexual abuse against the other parent and his or her then partner – Where no allegation of physical or sexual abuse has been substantiated – Where the child has been coached by the father to make allegations against the mother – Where both parents have failed to protect the child from the conflict  - Where the child is at serious risk of psychological harm by the parental conflict – Where the child is unable psychologically to accommodate the presence in his life of both his parents – Where the child has lived with the mother since 2017 – Where the child currently spends no time with the father – Where re-introduction of time with the father is not in the best interests of the child – Order for the mother to have sole parental responsibility – Orders for the child to live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA, 102NA

MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Morales

RESPONDENT: Ms Lopez

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers

FILE NUMBER: SYC 547 of 2012

DATE DELIVERED: 19 November 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 21-24 September 2020

REPRESENTATION

THE APPLICANT: Mr Morales

COUNSEL FOR THE RESPONDENT: Mr Reeves

SOLICITOR FOR THE RESPONDENT: El Baba Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr Greenaway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
JLM Family Lawyers

Orders

1. All previous orders in relation to the child X, born on … 2008, are discharged.

2. The mother has sole parental responsibility for X.

3. X live with the mother.

4. X spend no time with the father, subject to Order 5.

5. In the event that X expresses a wish to spend time and/or communicate with the father, the mother do all things necessary to facilitate such time and/or communication and will re-engage a therapist for the purpose of facilitation of such a re-introduction of the child to the father.

6. The name of X is removed from the Family Law Watchlist.

7. The mother is at liberty to:

   7.1      obtain an Australian passport for X and

   7.2travel with X outside the Commonwealth of Australia without the consent of the father.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 547 of 2012

Mr Morales

Applicant

And

Ms Lopez

Respondent

And

Independent Children's Lawyer

JLM Family Lawyers

REASONS FOR JUDGMENT

The proceedings

1. Ms Lopez and Mr Morales are the parents of X, who was born in 2008 and is presently 12 years of age.  Sadly for X, he has been the subject of litigation between his parents for approximately eight of his twelve years of life.  He has been subjected to multiple assessments by child protection authorities, interviews by police officers and Family Court single experts and he has seen a number of counsellors.  The single expert in these proceedings, Dr B, described X as "a soldier in his parents' war."

2. The applicant father sought a reinstatement of parenting arrangements which were prescribed by final orders made by consent on 15 December 2015, with the exception that the parties have equal shared parental responsibility.  The Orders made on 15 December 2015 provided as follows:

   1.        the mother have sole parental responsibility for the child

   2.        the child live with the mother

   3.the child spend time with the father each alternate weekend;  for half of all school holidays and on special occasions.

3. The respondent mother sought orders as follows:

   1.        the mother have sole parental responsibility for the child

   2.        the child live with the mother

   3.        the father spend no time with the child

   4.        the father is restrained from all forms of contact with the child

   5.        the child's name is removed from the Family Law Watchlist

   6.the child be permitted to hold an Australian passport and travel out of this country without the consent of the father.

4. At the conclusion of the trial, the Independent Children's Lawyer ("the ICL") proposed the following orders:

   1.        the mother have sole parental responsibility

   2.        the child live with the mother

   3.        the child spend no time with the father.

5. The ICL also sought an order that the father pay her costs of $9,709 and indicated that he had been put on notice of this application on 13 June 2017 and 20 August 2019.  The ICL indicated that the mother had applied for and been granted a waiver in respect of her fees on 24 July 2017.

6. The father was an unrepresented litigant, who received a grant of legal aid for the purposes of cross-examination of the mother pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”). The father elected to dismiss the lawyer who was appointed for that purpose, apparently because she declined to accept his instructions to act beyond the limits of this grant. Given that the trial had been adjourned on a previous occasion, and in the interests of the child, I directed that the litigation nonetheless proceed on the allocated dates in September 2020. In any event, the father indicated to a Registrar in a pre-trial mention that he was prepared to proceed with the hearing on the basis that he would not be permitted to cross-examine the mother.

Background

1. The father and the mother, who are aged 55 and 39 respectively, commenced a relationship around April 2007 and began to live together in September 2007.  They separated and reconciled on two occasions before the relationship finally broke down in 2011.

2. After the separation, X spent limited time with the father until December 2011 and thereafter they had no contact until May 2012.  The child then spent one hour per week in a public place with the father for a period of approximately six months.  For about the next twelve months, X spent time with the father for five hours each Wednesday and from 4.00 pm on Friday until 4.00 pm on Saturday.  In January 2014 interim consent orders were made which provided that the child spend time with the father from Friday afternoon until 4.00 pm on Saturday each alternate weekend and from Friday afternoon until 1.00 pm on Sunday every other weekend.

3. In July 2014 the parties consented to interim orders which provided that X spend time with the father each alternate weekend from 3.00 pm on Friday until Monday morning and for block periods during the school holidays.  On 15 December 2015 the parties consented to final orders which provided that the child spend alternate weekends;  half of all school holidays and special occasions with the father.

4. A notation to the 15 December 2015 Orders provided that each of the parties accepted that there was no unacceptable risk to the child while he was in the care of the other parent and/or his or her partner.  This notation arose in the context of a number of notifications to the now Department of Community and Justice Services ("DCJ") and a Joint Investigation Response Team ("JIRT") investigation in 2013.  Each of the parties made allegations of sexual abuse against the other parent and his or her then partner.  No allegation of sexual abuse was substantiated but JIRT noted a concerning level of acrimony between the parents.  JIRT investigators pointed to a likelihood that X had been coached by the father to make allegations of sexual abuse against the mother.

5. As these allegations and investigations occurred prior to the final orders of 15 December 2015, I will not canvass the evidence relevant thereto in these reasons.  The father made fresh allegations of sexual and physical abuse of X by the mother on 7 April 2017.  The father took the child to a police station and a JIRT team commenced an investigation.

6. X spent the period 13 to 18 April 2017 in the care of the father and then stayed with the maternal grandmother until he was returned to the mother on 24 April 2017.  The JIRT investigation found the allegations of sexual and physical abuse by the mother to be unsubstantiated but concluded that the father posed a risk of psychological harm to the child.

7. On 15 May 2017 and 12 June 2017 the mother and her now husband, Mr C, recorded interviews of X.  In those interviews, the child stated that the father had "trained" him in relation to his complaints to the police about the mother's alleged treatment of him.  The mother and Mr C were both present on 15 May 2017, when he asked most of the questions of X.  These questions were leading and both interviews properly attracted criticism by the single expert.  On 12 June 2017 only X and Mr C were present when he recorded a second conversation in regard to the father's alleged input into his complaints about the mother to police officers.

8. In April 2017 the mother unilaterally suspended X's time with the father.  In May 2017, she began to keep him home from school on Fridays in order to prevent the father from collecting him in accordance with the Orders of 15 December 2015.

9. The father commenced the current proceedings on 25 May 2017, when he sought orders that he have sole parental responsibility;  the child live with him and spend time with the mother "as recommended by a family report writer".  On 29 September 2017 interim orders were made by a Senior Registrar, which provided that the child live with the mother and spend no time with the father.  The father filed an application for review of this decision, which had not been determined prior to the commencement of the trial.

10. The child has not seen or had contact with the father since 2017.  The single expert, Dr B, elected not to introduce the father and the child to each other in the course of her assessment in February 2018.

11. The father migrated to Australia from Country D in 1995 and the mother came to this country from Country E in 2006 or 2007.  The father and the mother both work in allied health.

12. The father has been in a relationship for some years with Ms F.  He has a daughter, W, from a previous marriage.

13. The mother began a relationship with Mr C in 2016, whom she married in 2018.  The have a daughter, Y, who is approximately eleven months of age.  Mr C is employed as a public servant.

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Act sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:

   “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Sub-section (3) explains what is meant by the phrase “substantial and significant time.”

   9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question.  
   Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.

   …

   13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time 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 a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…

The evidence and the witnesses

1. The applicant father indicated that he relied upon his affidavits sworn or affirmed on 4 February 2020 and 6 February 2020.  The father gave oral evidence in response to questions from counsel for the mother and the ICL.  The father gave all of his oral evidence with the assistance of an interpreter.

2. The respondent mother relied upon affidavits sworn by herself on 17 February 2020 and Mr C on 30 September 2019. The mother and Mr C gave oral evidence by way of cross-examination by counsel for the ICL. As indicated above, I declined to allow the father to cross-examine the mother in person as he had elected to dismiss the lawyer appointed for that purpose pursuant to section 102NA of the Act. As further noted above, the father had agreed not to cross-examine the mother at a pre-trial mention before a Registrar. The father elected not to cross-examine Mr C.

3. I had the benefit of a report dated 6 July 2018 by a single expert psychologist, Dr B.  She was cross-examined by the father and counsel for the mother and the ICL.

The best interests of X:  section 60CC considerations

Section 60CC(2)

Primary considerations

(2)      The primary considerations are:

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

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

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. In my view, the tension between these two considerations lies at the heart of this sad case.  Dr B opined as follows:

   93.Providing children are not at risk of harm, it is important that they have an unfettered relationship with both parents and that Orders reflect this.  Previous report writers have foreshadowed that a continuation of the parental behaviour they had observed could well lead to X being so at risk in the maelstrom of parental conflict, that it would become impossible for him to continue to have both parents playing a role in his life.  ...  This is a matter where the child's needs for a relationship with both parents needs to be juxtaposed alongside child protection concerns.  Neither party seems to have the insight into how their conflict and deeply seated bitterness and the allegations that flow out of that are impacting on X and his relationship with each of them.

2. None of the allegations by the father of sexual or physical abuse of the child by the mother were found to be substantiated by JIRT.  The findings and conclusions of the JIRT investigation were set out in the Magellan Report of 4 July 2017 as follows:

   It was observed that [X] was mechanistic in his dialogue and he was not able to particularise any detail of the incidents.  [X] was
   safety planned to the care of the father for the weekend that followed to allow officers time to gather further information.  Upon gathering further information and evidence, it was assessed there were several inconsistencies in [X's] disclosure and concerning information which lead  [sic] to a conclusion that it was highly probable that the father had coached [X's] disclosures.

   JIRT cannot substantiate sexual harm or physical harm by the mother as:

   ●        there is no evidence,

   ●        an inconsistent disclosure was made by [X] at interview,

   ●there were concerns related to the father coaching [X] to make false allegations.

   JIRT has however assessed [X] to be at Risk of Psychological harm in the care of his father, Mr Morales.

Section 60CC(3)

Section 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. Dr B opined as follows in relation to X's expressed wishes:

   96.Notably the criticisms X has made of his mother in the past i.e. that he is scared of her, have now been transferred to his father.  There was a marked shift in X's disclosures in this assessment to those which he has made in previous assessments.  He now says he is afraid of his father and does not want to see him although implicit in his stance there is likely to be an element of protection from fear of reprisal or disappointing his father.  It would appear that, over the years, X has been left with the impression that he has let one or the other of his parents down by either making his disclosures or by making them in a way that was not agreeable to the adults.  His feelings are so aptly encapsulated in his disclosures that nobody wanted him.

2. In those circumstances little weight should be attached to the stated views of X, although he is twelve years of age.  His stated wish for no contact with the father would appear to be a psychological coping mechanism, in terms of the chronic state of mutual antagonism between his parents.

Section 60CC(3)(b)  the nature of the relationship of the child with:  (i)  each of the child’s parents; and (ii)  other persons (including any grandparent or other relative of the child)

1. In their oral evidence, both the mother and Mr C acknowledged that X loves his father.  They each described his "grief" following the cessation of all time with the father in 2017.  Mr C indicated that he had offered to accompany X on visits to his father but he declined and "made it very clear that he wants no contact."

2. It seems to me to be highly likely that X has now reached a point where he is unable psychologically to accommodate the presence in his life of both his parents.  Dr B identified and described this sad dynamic as follows:

   92.X presents as a child who has been deeply swept into the parental dispute and is well aware of the conflict between his parents.  He is approaching a stage of psychosocial development when for many children, it becomes too difficult to manage inter-parental conflict and one of the coping strategies such children often assume is a positional black and white perspective.  This is because it is untenable to walk the fine line between two warring parents and it is much easier to choose one parent often the one who is perceived by the child as the more needy or vulnerable, who has been treated unfairly, who is the primary care-giving parent or who is least likely to have boundaries and rules.  The allegations that have been made by the parties indicate that they have a parenting relationship which is highly critical and myopic rather than collaborative.  The behaviours to which both parents have exposed X have the potential to result in at least realistic estrangement of X from both parents even though the parties themselves consider the other to be culpable of parental alienation.

Section 60CC(3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i)  to participate in making decisions about major long‑term issues in relation to the child; and (ii)  to spend time with the child; and (iii)  to communicate with the child

1. The father has been prevented by Order of the court from participating in the child's life since 2017.  There is no doubt that the father has a strong wish to resume spending time with the child and making major decisions in relation to his care, welfare and development.

Section 60CC(3)(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. History would suggest that a reinstatement of arrangements in which the child spends substantial and significant time with each parent would be highly likely to result in further allegations of abuse and mistreatment.  As a consequence the child would be subjected to further investigations by DCJ and police, together with an additional bout of litigation.  Obviously, nothing of benefit to the child could result from such a scenario.

2. The antipathy of each parent toward the other was well evident in these proceedings.  The affidavits of each of the parties were replete with emotive submissions as to the shortcomings of the other as a person and a parent.  Notably the father referred to the mother repeatedly in his affidavits as "Lopez", which is self-evidently disrespectful of her role as the child's mother.

3. In her oral evidence, Dr B addressed the prospect that X may seek out the father of his own accord.  She said words to the effect that:

   It is essential that the mother facilitates those wishes or he could well position himself with the parent who has been absent.  If the mother does not, the worst possible scenario is rejection of her.

4. Dr B referred to the potential dangers inherent in a child seeking out a parent who has been an absent figure for a considerable period of time.  She said words to the effect:

   a child's decision to seek out a parent is not necessarily planned, it can happen spontaneously and create a crisis.

   She said also:

   an order for the mother to facilitate a request by X to contact the father would be empowering for him.  I think a therapist should be re-engaged at that point, rather than the mother to facilitate a reconnection.  It would be rocky and would need some very careful management.

Section 60CC(3)(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. No issues as to practical difficulty and expense of the child spending time and communicating with each parent arise in these proceedings.  Both parents live in Sydney, although their addresses are currently unknown to each other and it appears that this situation will not change at their behest in the near future.

Section 60CC(3)(f)  the capacity of:  (i)  each of the child’s parents; and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs

1. In my view, the fact that the parties have allowed X to become entrapped in the psychological quagmire in which he currently finds himself is a

   
   

   self-evident indictment on their capacity to meet his needs.  Dr B made several references to their lack of insight into X's needs and the impact of their behaviour upon him in both her report and her oral evidence.

2. Dr B noted that previous expert reports and DCJ material referred to "the emotional damage the behaviour of the parties is having on X".  She noted that "officers from [DCJ] who spoke to both parties after the allegations were made in 2013 raised their concerns about the emotional damage of their behaviour upon X".  Nonetheless, the parties continued with their conflict and contest over X in spite of these clear warnings.

3. X discussed with Dr B his perception that the father told him what to say to police officers about the mother.  She reported inter alia:

   78.... He said that his father got angry "because I did not do it like Dad wanted me to".

4. Dr B reported also:

   80.... X said that he misses his father but does not want to see him as he is scared of how his father will behave if he sees him again,  When [sic] this was explored, X replied that he is afraid that his father will "teach" him and he will have to go to the police again.

5. It is sad indeed that X has such a perception of the potential consequences of a re-introduction of time with the father.  No reassurance as to the father's insight into these difficult dynamics can be extracted from his proposition put to Dr B as follows:

   do you want me to solve this problem?  I will just go to the school on Friday and see how he reacts.

6. X discussed with Dr B his experience when Mr C insisted that he read a book titled "The Boy Who Cried Wolf".  Dr B reported:

   79....  He added that he became upset because Mr C raised his voice when he asked him why he thought he had asked him to read the book and wanted an answer immediately.

7. Dr B was critical of the decision of the mother and Mr C to involve X in recorded interviews concerning the father in May 2017.  She opined as follows:

   104.... she and Mr C interviewed X twice and taped his disclosures in a very poorly orchestrated and leading manner.  Such behaviour on the part of parents contaminates a child's accounts as it increases the times that they are expected to re-tell their story especially when they are also interviewed by investigating bodies and counsellors.  ...  it does appear that X felt reprimanded and afraid by the adults' reaction and that would only have increased his anxiety ...

Section 60CC(3)(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother has displayed an appropriate attitude to the child and to the responsibilities and duties of parenthood, in that she has provided for his material and educational needs for several years.  His 2019 school report indicates that he is achieving educationally and appears to be enjoying his school life. His teacher  noted:

   X is a friendly and courteous student who has made pleasing progress throughout the semester… [he] is a well-liked student and has a positive attitude in the classroom.

2. The father's current attitude to the responsibilities and duties of parenthood is unknown to some extent, in that he has been prevented from all contact and decision-making for the past three years.  His history of allegations of abuse by the mother, however, does not inspire confidence for the future in terms of this consideration.

3. The father pays no Child Support for X.  It appears that he has been content to leave this responsibility solely to the mother for a number of years.

Section 60CC(3)(j)  any family violence involving the child or a member of the child’s family

and

(k)  if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:  (i)  the nature of the order;  (ii)  the circumstances in which the order was made;  (iii)  any evidence admitted in proceedings for the order;  (iv)  any findings made by the court in, or in proceedings for, the order;  (v)  any other relevant matter

1. The parties have had no contact with each other for approximately three and-a-half years.  The mother described allegations of coercive and controlling behaviour on the part of the father during the relationship to Dr B.  In my view, these considerations are now historical and not relevant to the determination of the outcome to these proceedings.

Section 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. Most regrettably, it seems to me that the only way to minimise the risk of further litigation is effectively to remove one parent from X's life for the foreseeable future.  X told Dr B that "his biggest wish" is for "the case to be closed".  In her oral evidence Dr B said:

   I am not surprised that he is saying “enough is enough, I can't do this anymore.”

2. Dr B made recommendations in the clearest possible terms, to the effect that X is unable to cope psychologically with involvement in any further allegations of abuse, investigations by child protection authorities and litigation.  She opined as follows:

   97.The material subpoenaed from J.I.R.T and [DCJ] as well as [X’s psychologist] points to the high level of distress and anxiety X has experienced as he has negotiated his way through repeated assessments.  In the interests of X mental health, his involvement in making any further disclosures needs to stop.  It is essential that X is provided with some respite from being a soldier in his parents' war.  X himself has articulated a desire for the Court proceedings to end.

   98.X needs to be given the opportunity to enjoy his childhood and meeting the milestones that would be expected for a 10 year old boy.  These include focusing on his schoolwork and immersing himself in age appropriate extracurricular activities that interest him.

Parental Responsibility

1. I am comfortably satisfied that the presumption of equal shared parental responsibility is rebutted by evidence that this outcome would be contrary to the best interests of X.  The parties appear to be incapable of engaging in constructive communication in relation to his best interests.  They continue to wage their contest and indulge in a high level of dispute and conflict.  The single expert opined that X must be relieved from this psychological pressure and that, in effect, one parent must step out of his day-to-day life at this point.

2. Accordingly, there will be no order for equal shared parental responsibility.  That being so I am not required to consider whether it is in the best interests of X, and reasonably practicable, that he spend equal or substantial and significant time with each parent.  I am at liberty to determine directly what parenting orders are in the best interests of the child.

Conclusion

1. I am satisfied that X has now reached a point where he is unable to tolerate psychologically the presence of both parents in his life.  Both parties have failed, over a number of years, to heed warnings from experts that their perpetuation of a contest over X, involving counter-allegations of abuse and consequential investigations, would lead to this situation for their child.  In my view, it is now necessary for X to be granted the benefit of a reprieve from this anxiety and pressure.

2. The father was responsible for the most recent round of allegations of abuse of the child and the triggering of further investigations by child protection authorities.  On the other hand, the conduct of the mother and Mr C in recording interviews of X properly attracts criticism and censure.  As indicated above, there is sound reason for concern as to the lack of insight of each of the parents into the emotional needs of X.

3. In my view, there are real barriers to a reintroduction of regular time for X with the father.  He is resistant to any such re-introduction and expressed to Dr B a fear that the father will again "teach" or "train" him to make allegations of abuse on the part of the mother.  Dr B described a re-introduction to the father, even at the request of X, as "rocky and would need some very careful management" with the assistance of a therapist.  The father's past conduct and proposal simply to arrive at the child's school gives no basis for confidence that he has the will or capacity to handle such a reintroduction with sensitivity or a focus not on his own needs but those of X.

4. For those reasons, I see no outcome to these proceedings other than orders as proposed by the mother and the ICL.  I will make orders as advised by Dr B to address a future request by X for contact with the father.

5. I note the application of the ICL for an order for payment by the father of a contribution to her costs.  I will not do so, as there is simply insufficient evidence to ground such an order.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 19 November 2020.

Associate: 

Date:  19 November 2020