Mosher and Churchill
[2010] FMCAfam 1426
•21 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOSHER & CHURCHILL | [2010] FMCAfam 1426 |
| FAMILY LAW – Parenting – child aged almost twelve – child has lived with mother since his parents separated in 2000 – ongoing difficulties with child spending time with father – whether a change of residence should be ordered. |
| Family Law Act 1975, ss.60CC, 61DA |
| McCall & Clark (2009) FLC93-405 Re David(1997)FLC92-776 |
| Applicant: | MR MOSHER |
| Respondent: | MS CHURCHILL |
| File Number: | SYM8070 of 2006 |
| Judgment of: | Terry FM |
| Hearing dates: | 9, 10, 11 & 17 August 2010 |
| Date of Last Submission: | 31 August 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 21 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Delaney Lawyers |
| Counsel for the Respondent: | Ms Winfield |
| Solicitors for the Respondent: | Morris Corkill Solicitors & Barristers |
| Counsel for the Independent Children’s Lawyer: | Mr Fermanis |
| Solicitors for the Independent Children’s Lawyer: | Gonzalez & Co |
ORDERS
All previous parenting orders concerning [X] (also known as [X]) born [in] 1999 are discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
The mother shall spend no time with and have no communication with the child for one month from the date of these orders.
Commencing not earlier than one month after the date of these orders the child shall for six consecutive months spend time with the mother once each fortnight for a minimum of two hours supervised either at a contact centre or by an agreed supervisor on dates and at times nominated by the contact centre or the agreed supervisor.
Unless otherwise agreed between the parties the mother’s time pursuant to Order (5) shall take place at the contact centre nearest to the father’s home.
Upon the completion of the six month period referred to in order (5), and provided that the mother has attended for supervised time on a regular basis throughout the six month period, the child shall spend time with the mother as follows:
a)each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school on Monday with the mother or her nominee to collect the child from school on Friday return him to school on Monday.
b)for one half of each school holiday period being for the second half in even numbered years and the first half in odd numbered years.
c)if the mother’s time occurs in the first half of the holidays the mother or her nominee shall collect the child from school at the commencement of her time with the child and the father or his nominee to collect the child from the contact centre or other agreed venue at the conclusion of the period.
d)if the mother’s time occurs in the second half of the holidays the mother or her nominee to collect the child from the contact centre nearest to the father’s home or other agreed venue at the commencement of the period and the father or his nominee to collect the child from the contact centre or other agreed venue at the conclusion of the period.
e)for this purpose the school holidays are to begin after school on the last day of term, to conclude before school on the first day of term and the mid-point is to be midday on the middle day counting the last and first days of term.
f)special occasions:
(i)if Father’s Day does not fall on a weekend the child would otherwise be in the father’s care pursuant to these he is to spend that weekend with the father from Friday after school until before school Monday and order 6(a) is suspended for that purpose.
(ii)save for Mother’s Day 2011 if Mother’s Day does not fall on a weekend the child would otherwise be spending time with the mother pursuant to these order they are to spend that weekend with her.
Upon completion of the six month period referred to in order 5, the father is to facilitate the child communicating with the mother while in his care by telephone each Tuesday at about 6.00 pm assisting the child to call the mother at that time.
If the mother fails to spend time with the child on a regular basis pursuant to order (5) she shall continue to be offered the opportunity to do so until she has spent six consecutive months with the child on a regular basis in accordance with order (5).
The mother is to facilitate the child communicating with the father while in her care by telephone each Tuesday at about 6.00 pm by assisting the child to call his father at that time.
Each party is restrained and an injunction is granted restraining them from denigrating the other party or a member of the other parties household to or in the presence of the child.
The father is to:
(a)forthwith advise the mother in writing of the name of the school at which he enrols the child and the mother will be entitled to obtain directly from the school copies of all reports related to the child’s progress and any newsletters or other material provided by the school to all parents;
(b)keep the mother informed of any non-routine medical treatment sought for the child and provide at the same time the name and contact details of the treating medical practitioner; and
(c)keep the mother informed of any other major decisions taken in relation to the child’s upbringing.
The mother is restrained and an injunction is granted restraining from attending at or being within 100 metres of the child’s school until such time as she commences spending time with the child pursuant to Order (7).
The Independent Children’s Lawyer shall provide a copy of these orders to the child’s school.
The Independent Children’s Lawyer is to ensure that a copy of these orders and the Reasons for Judgment are placed on the file maintained by the Department of Human Services and to ensure the existence and availability of these documents are recorded on any database referable to the child.
The father forthwith take all necessary steps to arrange for [X] to attend upon a counsellor for the purposes of [X] being supported in his adjustment to the change in his circumstances and meet all costs associated with [X]’s attendance on that counsellor.
A person nominated by the Senior Family Consultant Child Dispute Services at the Federal Magistrates Court at Newcastle shall meet with the child and explain the orders to the child prior to the child coming into the father’s care following the delivery of this judgment.
The appointment of the Independent Children’s Lawyer shall continue for a further six months.
IT IS NOTED that publication of this judgment under the pseudonym Mosher & Churchill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
SYM8070 of 2006
| MR MOSHER |
Applicant
And
| MS CHURCHILL |
Respondent
REASONS FOR JUDGMENT
The problem
[X] (also known as [X]) will be 12 years old in January 2011. His parents separated when he was 19 months old and since separation [X] has lived with his mother and spent only spasmodic time with his father.
Parenting arrangements for [X] have been the subject of three applications for final orders, the mother has twice been arrested for failing to attend court events and [X] has twice within quick succession been removed from the care of one parent pursuant to a recovery order and placed in the care of the other.
[X] has missed two substantial amounts of school connected with the parenting dispute. He did not attend school between May and November 2006 when his mother went into hiding with him, and he did not attend mainstream school between September 2008 and the end of 2009, allegedly because he feared that the father would come to the school and remove him.
The last attempt to arrange for [X] to spend regular time with the father failed in June 2010 after only four visits.
The stark issue which confronts the court is whether an order should now be made that [X] to live with the father.
If no such order is made, then there is no chance that [X] will spend any further time with the father or develop a relationship with him. If such an order is made it will be separate [X] from his mother and his four younger siblings, and the consequences of a change of residence and whether it will endure are impossible to predict with absolute certainty.
The evidence
The hearing took place over four days, although the first day was largely taken up with counsel inspecting the (substantial) court file and doing some preparation which should have been done well before the hearing commenced.
The witnesses in the father’s case were the father and his wife Ms M.
The father relied on his updating affidavit filed on 6 August 2010. In that affidavit he referred to his affidavits filed on 7 March 2006
(2 affidavits), 16 May 2006, 19 June 2006, 15 October 2006,
16 November 2007 and 4 December 2008 and I have also read those affidavits.
Ms M’s evidence was contained in an affidavit filed on 15 November 2007.
The father was cross-examined but Ms M was not required for cross-examination.
The witnesses in the mother’s case were the mother, Ms F, a psychologist from [omitted] and Ms H from the Uniting Church [suburb omitted] (operators of the local Brighter Futures program).
The mother relied on her affidavits filed on 3 May 2010 and 5 August 2010. The evidence of Ms H was contained in an affidavit filed on
5 August 2010 and the evidence of Ms F in an affidavit filed on
13 August 2010. The mother, Ms F and Ms H were cross-examined.
The mother annexed to her 5 August 2010 affidavit reports dated
19 May 2008 and 12 August 2008 prepared by Ms D, a clinical psychologist. Ms D was involved with the mother, [X] and the father in 2007 and 2008. The reports the mother relied on were released to the parties in 2008 by FM Housego in the same way that Family Reports are released. The parties agreed that these reports should be admitted into evidence.
During the hearing a further report from Ms D dated 20 February 2009 was admitted as an exhibit. Ms D was not required for cross-examination.
An expert’s report was prepared by Dr R. He conducted interviews in December 2009 and his report was released to the parties on
10 March 2010. Dr R was cross-examined.
For the purposes of gaining an accurate understanding of the litigation history of the matter I had regard to all of the documents on the court file.
The witnesses
The father was reasonably responsive and forthright when answering questions during cross examination.
The mother’s counsel was highly critical of the father for telling Dr R that he “had no legal problems apart from family law issues.” She suggested that in giving this answer the father deliberately sought to conceal the existence of his criminal convictions in the 2001-3 period.
I do not accept that this answer undermines the father’s credit. The question Dr R asked the father on its face seemed directed to ascertaining whether the father had any current legal problems, not whether he had had past involvement with the police. Dr R himself said that the father might have legitimately taken the question that way. I considered that the father minimised the seriousness of his brushes with the law between 2001 and 2003, but I do not accept that he attempted to mislead the court or Dr R.
The mother’s counsel was also critical of the father for telling Dr R that his separation from his first wife was amicable, when in fact his first wife took out an AVO against him in 1994.
The issue of the father’s separation from his first wife sixteen years before was touched on only lightly during the interview between the father and Dr R and there is insufficient information about the circumstances surrounding this separation to convince me that this answer reflects poorly on the father’s credit.
The mother’s counsel asked me to find that the father gave his evidence with “lightly veiled aggression.”[1] I do not consider that he did. The mother’s counsel cross-examined the father for the best part of a day, and he and the mother’s counsel had one or two isolated exchanges during which they each became impatient, but for the most part the father answered the questions put to him in a calm and measured tone. On one or two occasions he expressed some sympathy for the mother, and he showed some insight into what this case was all about, namely what was best for [X].
[1] Mother’s Outline of Case Document 31 August 2010
The mother was not a satisfactory witness.
When the mother first went into the witness box her counsel sought and was granted leave to ask her some additional questions before cross-examination commenced.
The mother was asked to give her version of what happened on 4 July 2010, a day on which [X] was supposed to spend time with the father pursuant to interim orders made on 7 May 2010 but did not do so.
The mother’s version of events was as follows. She said that she and [X] drove to the changeover point at McDonalds and went to the outdoor area where they met the father. The father told [X] that [X] was going with him and [X] shook his head. The mother said something reassuring to [X] and excused herself to go the toilet. Upon coming out of the toilet the mother told the father that it was not her fault that [X] was not going with him. [X] raised his voice and said “It’s not Mum’s fault, stop blaming Mum” and took off to the car which was parked outside. The father said to the mother “I’ve told you many times I’ve got friends in the police, I’ve got friends in the Federal Police and the courts are on my side, just give up.”
The mother said that she went outside and found [X] sitting on the ground near the car. The father came up to them and told the mother that she would be hearing from his lawyer. [X] said “it’s not Mum’s fault leave her alone you fat shit.”
There is not a word about this in the mother’s affidavit filed on
5 August 2010, which her counsel sought to excuse on the basis that the mother was under pressure to put an affidavit on, but perhaps more importantly none of this was put to the father when he was being cross-examined. The father’s evidence in his affidavit was that on this particular day [X] never even got out of the mother’s car.
I was left with the strong suspicion that the mother was making this up as she went along, and I had that impression about the mother’s evidence on other occasions as well.
The mother lost no opportunity to scapegoat the father. She blamed him for her former partner Mr M being out of work, for Mr M drinking heavily, for her separation from Mr M in 2006, and for [X]’s refusal to attend school for more than twelve months in 2008-9. When asked during cross-examination why [X] was deemed suitable to attend the [omitted] Program at Brighter Futures, which he commenced in 2010, the mother stated that “he felt that he needed to take on the role of parent to protect me and his siblings from the father.”
I have such reservations about the mother’s evidence that I feel that I can place little weight on it in the absence of corroboration.
I can place no weight on the evidence of Ms F that [X] fears his father. Ms F is a psychologist and did the job she was asked to do, but she was profoundly misled as to the facts by both the mother and [X] and the conclusions she drew about [X] therefore have no validity.
Ms F said as follows for example:
I have seen [X] for counselling since March 2009. [X] became fearful in late 2008 when his natural father threatened to kidnap him and was seen on multiple occasions by [X] sitting outside the school. [X]’s anxiety prevented him from attending school at that time and gradually expanded until he was unable to go anywhere in public without his mother.[2]
[2] Letter Ms F dated 3 May 2010 annexure KC3 to the mother’s affidavit filed 3 May 2010
Even on the mother’s own evidence at its highest the father never threatened to kidnap [X] and no evidence was given during the hearing that [X] ever saw the father sitting outside the school in a car.
Ms F also said as follows:
[X] still has significant fear of his natural father. This was shown late last year when he underwent a court ordered assessment; when Mr Mosher was required to be in the room with [X], [X] became visibly upset and hid behind his chair and would not talk. He told me in January [2009] when I saw him that he was afraid and couldn’t talk when Mr Mosher was present.
The information Ms F was given about what happened at the court ordered assessment is simply wrong. [X] did talk to the father during the assessment and he did not hide behind his chair or become upset when his father was in the room. [X] did hide behind a chair that day but it was behind his maternal grandmother’s chair during a session at which only he, his maternal grandmother and mother were present with Dr R.
The mother admitted that she as well as [X] had given information to Ms F about what occurred at the assessment. The mother admitted that the information she gave Ms F about the session with the father differed from what was in Dr R’s report but insisted that it was what [X] had told her.
Ms H was a pleasant and co-operative witness who provided useful information about the Brighter Futures program and the mother’s involvement in it. She expressed her willingness to continue to support the mother in the future.
I shall deal with Dr R’s evidence in detail later in the judgment.
A history
Mr Mosher, the father, is 43. He grew up in [omitted] and later Sydney (as [surname omitted]). He did a [omitted] apprenticeship after leaving school.
The father changed his name as an adult after an argument with his father. Mosher is his mother’s maiden name.
Ms Churchill, the mother, is 41. She grew up mainly on the Central Coast (as [surname omitted]) and had a variety of employment after leaving school.
The mother changed her name after separation in 2000. Churchill is her mother’s maiden name.[3]
[3] Exhibit
Court documents filed in the matter give the date of commencement of cohabitation between the mother and father as 1993, when the father was about 26 and the mother 23. Whether this is accurate is open to question. It was common ground that the father had been previously married, and documents produced in answer to subpoena revealed that his first wife took out an apprehended violence order against him in July 1994. Nothing turns however on whether the parties commenced cohabiting in 1993 or at some later date.
On any version of events the parties were living together in 1996 when the mother experienced the first of a series of family tragedies. Her brother [name omitted] was killed after being hit by a car while walking home. The mother was badly upset by her brother’s death. She has not worked in paid employment since [her brother] died.
In 1998 the mother’s eldest brother fell from a train platform into the path of a train and became either a quadriplegic or paraplegic.
[X], the parties’ only child, was born in January 1999.
Later in 1999 the mother’s sister Ms L committed suicide.
This series of family tragedies would alone have made the years from 1996 onwards difficult ones for the mother and potentially difficult ones for the relationship. The mother said that the difficulties were compounded by the fact that the father was impatient, verbally abusive and violent to her. The father denied these allegations and said that he did his best to be supportive of the mother.
It was an important plank of the mother’s case that she was a victim of family violence during the relationship, and I will consider this matter in greater detail later in the judgment.
The father and mother separated in September 2000 when [X] was 19 months old. The father said that he returned home from having a knee operation in Melbourne to find the mother and [X] gone. The mother said that the father had formed a new relationship and rang her from Melbourne telling her to be gone with [X] when he got home.
The mother was not a witness of credit and there is no corroboration for her evidence. I cannot get to the bottom of this issue, but I consider it most unlikely that the father would have said anything to the mother suggesting that he wanted nothing further to do with [X], and that was the tenor of the mother’s evidence.
Upon separation the mother moved first to the maternal grandmother’s home in [U] and then to a refuge in [omitted]. The mother alleged that while she was at the maternal grandmother’s home the father came to the home and threatened her. She also claimed that he swerved his vehicle toward her vehicle when he saw her on the road, causing her vehicle to run into the gutter.
The father said that he went to the maternal grandmother’s home in an effort to see [X], and he denied swerving his car at the mother’s car.
There was no corroboration for the mother’s evidence about these incidents. There is no police report lending credence to the mother’s claim about the father running her off the road, and it is not inherently improbable that the father went to the maternal grandmother’s home not to threaten the mother but to try to see [X].
The mother applied for and obtained an apprehended violence order against the father in September 2000. However the fact that an AVO was obtained is not proof that there was violence or that threats were made during or after the parties relationship.
On 6 October 2000 parenting orders were made in the Local Court at [omitted] on the mother’s application. The parties agreed that the orders provided for [X] to live with the mother and spend time with the father for two hours each Saturday supervised. The mother said that the supervision was to be by the maternal grandmother and the father said that it was to be by the mother. No copy of the orders surfaced and I am unable to resolve this dispute.
As far as I can gather the father did not spend time with [X] pursuant to these orders.
On 14 November 2000 the mother changed her name.[4]
[4] Exhibit F
On 14 March 2001, final parenting orders were made in the Federal Magistrates Court at Newcastle. The orders provided for [X] to live the mother and spend time with the father each alternate weekend until he commenced kindergarten and then each alternate weekend during school terms and for half of the school holidays.[5]
[5] In her affidavit filed on 5 August 2010 the mother maintained that these orders provided for [X] to spend no time with the father. This is not correct. The orders are on the court file and could have been obtained by the mother’s solicitor(s) at any time during the proceedings had they asked to search the file.
The father said that he was the applicant in these proceedings but he is shown on the orders as the respondent, and it is quite possible that the proceedings were a continuation of the Local Court proceedings which had been transferred to the Family Court.
The mother did not attend court on 14 March 2001 and the orders were made in her absence. No time ever occurred pursuant to these orders.
Toward the end of 2001 the father left the Central Coast and moved to [T] with his then partner Ms T. The mother and [X] remained on the Central Coast.
In about 2002 the mother formed a relationship with Mr M, who had been her sister Ms L’s partner prior to Ms L’s death. The mother and [X] moved in with Mr M and [name omitted], one of his two sons with Ms L. The mother went on to have four children with Mr M: [A], born in 2002, [B], born in 2005, [C], born in 2007 and [D], born in 2010.
In 2003 the mother filled out a school enrolment form for [X]. She included his birth name on the enrolment form but requested that he be known as [X] Churchill.
In late 2003 the father (now separated from Ms T) left [T] and moved to Sydney. He met Ms M (now Ms M). They began living together in April 2004 and married in September 2005. Ms M has four children. Two are adults. The youngest two, [Y] and [Z], were about 8 and about 5 when cohabitation commenced, and they lived and continue to live with the father and Ms M.
After he moved to Sydney the father made some inquiries to try and find the mother and [X]. He was unable to do so and on 17 May 2004 he filed an application in the Local Court, Family Matters at [S] seeking orders which would allow him to have contact with [X]. In due course he also applied for a location order.
The location order was made and the mother was served. She failed to attend court however and a warrant for her arrest was issued.
On 2 February 2005 the mother was arrested and brought before the court, and on 23 February 2005 she filed a response seeking orders for a graduated reintroduction of time between the father and [X].
On 25 February 2005 final orders were made by consent more or less in terms of the mother’s proposal. The orders envisaged the father having supervised contact with [X] for a short period, and then having contact during the day only until December 2005 when overnight time would commence.
Between March 2005 and August 2005 the father had contact with [X] in accordance with the orders. He also had a couple of overnight visits by agreement with the mother even though overnight time was not due to commence until December. [X] met the father’s wife Ms M and her children [Y] and [Z]. The mother and father were on reasonably good terms and met sometimes for lunch on the days when [X] was with the father.
Immediately prior to the Father’s Day weekend in 2005 however there was a dispute between the mother and father and the contact between the father and [X] ceased because the mother ceased bringing [X] to the changeover venue.
The father sent at least two letters to the mother asking her to comply with the orders but the non-compliance continued. Finally on 7 March 2006 the father filed an application for contravention in the Local Court, Family Matters at [S]. He also filed an application for final orders, although at that stage all he really sought was some minor amendments to the 25 February 2005 orders and an assurance of the mother’s compliance with them.
This application for final orders is the application still before the court. As it was filed prior to the amendments to the Family Law Act which came into force on 1 July 2006 I was obliged at the commencement of the hearing to seek the parties consent to Division 12A of the Family Law Act applying to the proceedings. That consent was given.
Numerous unsuccessful attempts were made to serve the mother with the father’s applications. In due course a further location order was made but the information obtained was of no assistance.
Unbeknown to the father in about May 2006 the mother had gone into hiding with [X], [A] and [B] and [X] had ceased to attend school. The mother later claimed that she hid out in northern NSW, returning to the Central Coast only as a result of being notified of an illness in the family in November 2006. The father expressed some suspicion that the mother may in fact have simply hidden out on the Central Coast. I cannot resolve this issue.
On 17 September 2006 a warrant was issued for the mother’s arrest. On 1 November 2006 a recovery order was made and on 9 November 2006 an order was made transferring the proceedings to the Federal Magistrates Court at Sydney.
Both the warrant for the mother’s arrest and the recovery order were executed on 12 December 2006. [X] was placed in the father’s care and the father believed that [X] would remain with him until the next scheduled court date which was 19 January 2007.
The mother spent the night in the cells and was then bailed.
On 20 December 2006 the mother filed an application in a case in the Federal Magistrates Court at Sydney seeking an order that the father deliver [X] to her forthwith. In perhaps one of the most unfortunate twists in the case the mother’s application was dealt with ex parte and a recovery order was made. The police turned up at the father’s home on 20 December 2006 and [X] was taken away. I have no difficulty accepting the father’s evidence that he was distraught when this occurred. As it turned out he was not to see [X] again until March 2008.
The matter proceeded through the court system during 2007. There were numerous court events. An Independent Children’s Lawyer was appointed, Mr L a family consultant from the Sydney registry spoke to [X], Dr N prepared a report, the parties and [X] were referred to Ms D at the [omitted] Clinic for counselling/therapy and the matter was allocated a final hearing date in March 2008.
The case presented by the mother at this time was that [X] was afraid of the father and hated him and that [X] had attempted self harm as a result of his distress at being forced to spend time with the father.
The counselling with Ms D did not really get off the ground in 2007 although the mother did take [X] to see Ms D in October of that year.
On 10 March 2008 the hearing date was vacated by consent and an order was made for the mother, father and [X] to attend on Ms D with a view to her facilitating [X] spending time with the father.
Ms D saw the parties on many occasions between March 2008 and September 2008. The first four sessions took place in her rooms and the remaining sessions in a park, on a ferry and at the cinema and various parts of a shopping centre.
From the 3rd consultation onwards Ms D encouraged the mother to allow [X] to spend time with the father while the mother remained at a distance.
Ms D observed a change in [X]’s responses to the father over time, from making little or no eye contact and giving limited responses to questions to making more eye contact and sometimes initiating conversations and sharing experiences with his father. Ms D reported that [X] mostly separated well from the mother although he seemed to regress in the last session.
In her report dated 19 May 2008 Ms D said as follows:
It is my opinion that this series of consultations has resulted in [X] being able to spend up to 2 hours comfortably and enjoyably with his father. This does suggest that it is possible for [X] to have an ongoing relationship with his father, particularly if time spent together is increased gradually and is supported by his mother. (Ms D’s emphasis).
Ms D recommended that the consultations continue.
In her second report dated 12 August 2008 Ms D said that she had made recommendations about the purchase of mobile telephone for use by the parents to communicate about [X] and so that the father could have telephone communication with [X]. Ms D said that it was planned to gradually introduce overnight time
It was the father’s perception that all was going well, but his time with [X] broke down again following an argument between he and the mother just prior to Father’s Day 2008.
The father’s visits with [X] were usually on a Saturday, but prior to the Father’s Day weekend he had proposed that [X] spend time with him on Father’s Day, the Sunday, in lieu of the Saturday. The father raised this with the mother who said that if [X] agreed that would be alright. The father believed that [X] had agreed.
The mother contacted the father prior to the Sunday to tell him that [X] would not be available that weekend at all as he had a sore throat and an ear ache. She also disputed that any agreement had been reached between about the time taking place on Sunday, asserting that [X] had merely shrugged when the father asked him if this was alright and the mother did not take the shrug as agreement
The father did not believe that [X] was sick. There was an exchange of text messages between the parents in the course of which the father advised the mother that he might have to apply for a recovery order if [X] was not made available.
[X] became aware of the messages. The mother blamed the father entirely for this, saying that the phone on which he sent the message was [X]’s phone and that the father must have realised that [X] would read the messages. However the purposes behind the purchase of the phone was so that the mother and father could use it to communicate with each other, and it is not correct that it was exclusively [X]’s phone.
The mother alleged that the father also told [X] during the communications that weekend that he was not to worry and that he would come to the school the next afternoon and walk [X] home. It was the mother’s evidence that [X] became very distressed at the thought that the father seemed to know where he and the mother lived.
It was the mother’s evidence that she rang the police after this exchange and was advised by a police officer not to make [X] available to spend time with the father that weekend. I do not believe this evidence, nor understand why the mother felt the need to bolster her case with this excuse if [X] was genuinely too ill to spend time with the father.
The mother applied for an apprehended violence order against the father following the exchange on this weekend but later cancelled the hearing, which was listed for 18 September 2008.
The parties saw Ms D again after this weekend but she was unable to get the matter back on track. She saw [X] on 2 October 2008 and said as follows:
At the consultation on 2 October 2008, [X] clearly expressed his fear that Mr Mosher would take him from his home or school. This fear led to [X] refusing to sleep in his own bed and refusing to attend school.
My response to [X]’s expressed fears and the breakdown in the spending time plan was to concentrate on [X] only during the subsequent four consultations. My goals included re-establishing a therapeutic relationship with [X].
After four consultations I ceased my attempts because I was not able to re-engage [X] to a sufficient level, and attending the [omitted] Clinic seemed to cause him more distress than benefit.
At that time I provided the details of another psychologist, not the [omitted] Clinic, to Ms Churchill, to assist with [X]’s needs.[6]
[6] Exhibit P
[X] ceased to attend school from this time.
By this time FM Housego, in whose docket the matter was, was sitting in Newcastle and the file had been transferred there also. It was listed for an interim hearing on 24 September 2008 and a final hearing on 2 June 2009. Regrettably FM Housego became indisposed and the interim hearing did not occur.
On 23 February 2009 the matter came before another Federal Magistrate. That Federal Magistrate was informed that during the last session which the parties attended with Ms D in October 2008 the mother had questioned whether the father was indeed [X]’s father. As a result an order for paternity testing was made. The final hearing date of 2 June 2009 was vacated.
In March 2009 the mother arranged for [X] to see Ms F, a psychologist from [omitted]. Ms F said that she was engaged to assist [X] with his school refusal. The mother did not consult the father before engaging Ms F and the father did not find out about the referral until late 2009.
Ms F did not have any immediate success in getting [X] back to school and in about May 2009 arrangements were made for [X] to be enrolled in distance education.
The paternity testing order was not complied with and on 24 July 2009 it was discharged. The mother advised that she had never really had any doubts about [X]’s paternity.
On 3 September 2009 an order was made for Dr R to prepare an experts report. Interviews for the report took place in December 2009. At the time of the interviews [X] had not seen the father since August 2008 and he was still not attending mainstream school.
Ms F was eventually successful in facilitating [X]’s return to school and he re-commenced at [E] Primary School at the beginning of the 2010 school year.
In February 2010 the mother self-referred herself to the Brighter Futures program. Brighter Futures is an early intervention program funded by the Department of Human Services and run by community organisations. In the mother’s area it is run by the Uniting Church at [omitted]. The mother had been referred to the program in 2007 by DOHS after they investigated a notification and in February 2009 she referred herself to the program.
Ms H, a caseworker in the [suburb omitted] Brighter Futures program, gave evidence at the hearing about her involvement with the mother. She said that as a result of the attending the program the mother had access to help with the care of her children (she was caring for [X] and his three siblings and was about to give birth to her fifth child) and assistance to get to appointments.
When the mother referred herself to the Brighter Futures program one of the concerns she raised was that [X] seemed to be taking on a parenting role at home. [X] was offered a place in the [omitted] program, which gives children an opportunity to take part in an extra-curricular activity of their choice. [X] chose kickboxing.
The mother’s fifth child, [D], was born in 2010.
On 10 March 2010 Dr R’s report was released to the parties. His report contained positive observations of the relationship between [X] and the father and he made a recommendation that a change of residence be considered.
On 7 May 2010 the matter was mentioned in the Federal Magistrates Court. It was listed for final hearing on 9 August 2010 (three days allowed) and interim orders were made providing for [X] to spend time with the father on one day each weekend between 10.00am and 5.00pm with changeover to take place at McDonalds.
Pursuant to these orders [X] spent time with his father on 16 May 2010, 23 May 2010, 30 May 2010 and 6 June 2010.
On 13 June 2010 time did no occur. The father said that [X] would not get out of the mother’s car and that the mother did nothing to encourage him to do so. The father said that he endeavoured for about 40 minutes to persuade [X] to go with him but was unsuccessful and he left. The father said that he suggested to the mother that it would be easier for [X] if she brought [X] into McDonalds for the changeover in future rather than simply arriving and leaving [X] sitting in the car.
On 20 June 2010 the mother did not bring [X] to the changeover point at all and not time occurred. The mother said that she and all her children were sick that weekend.
On 26 June 2010 the father was unable to attend as he had a work commitment in Albury.
On 4 July 2010 the father attended for changeover and went inside McDonalds to wait for the mother. It was his evidence that the mother drove up with [X] and came to the door of McDonalds and motioned the father outside. [X] was sitting in the mother’s car. The father hugged him and invited him in for breakfast. [X] refused to get out of the car and the father suggested that the mother speak to him. The father’s evidence was that the mother said “No, he doesn’t want to come in, I’m not going to force him.”
The father went back into McDonalds. After a while he came out again and saw that [X] was still in the mother’s car and had a can of what appeared to be degreaser and was spraying it inside the car and on the interior of the windscreen. The mother stood by doing nothing to stop him. The father went up to the car and asked [X] if he was coming. [X] took a pair of wire cutters and began to demolish a toy car. The father told [X] that he would see him next week and he left.
The mother gave a very different version of the events on 4 July 2010. For reasons referred to earlier I do not accept the mother’s evidence about what occurred that day.
The father attended on 10 July 2010 but the mother and [X] did not attend. It was put to the father in cross-examination that the mother had notified him that she had a child in hospital. The father denied that he received any such notification.
The father attended on 17 July 2010. The mother drove up with [X] in the car. Neither the mother nor [X] got out. The father asked [X] if he was coming. [X] did not reply and the mother did nothing. After a time the mother got out and attempted (unsuccessfully) to forcibly remove [X] from the car. The father said “This is ridiculous” and left.
I accept the father’s evidence that the mother did not attend on
24 July 2010. The father did not attend on 31 August 2010 or 8 August 2010 and the hearing proceeded on 9 August 2010.
The mother’s counsel repeatedly put to the father that during the May/June visits he had told [X] that he would be sorry in August, and that after August [X] would be living with him and would never see his little brothers again. None of these allegations are contained in the mother’s affidavit filed on 5 August 2010. The father calmly denied each allegation and said “my dealings with [X] are to build a relationship, not break one.” I accept the father’s evidence.
The father’s application
At the hearing the father sought an order that [X] live with him. He proposed that the mother spend no time with [X] at first, and that she then commence spending supervised time with him.
This is a fairly recent change of position by the father, who for a long period only sought an order which would allow him to spend time with [X].
If [X] moves to the father’s care he will live with the father, his wife Ms M and Ms M’s two children [Y] (15) and [Z] (12) in [P]. Ms M is supportive of the father’s application. [X] has met Ms M and her two children. He first met them in 2005 when he visited the father’s home on a couple of occasions when he had overnight visits. He also stayed in the father’s home for eight days at the end of 2006 and it might well be that he met Ms M and [Y] and [Z] during some of the four visits which occurred in 2010.
The father is a self-employed [omitted]. He commences work at 5.30am and finishes at 3.30pm. Ms M works at [omitted] and commences work at 9.00am and finishes at 5.30pm. The father said that he and Ms M shared the task of getting he [Y] and [Z] off to for school and supervising them in the afternoon in accordance with their work arrangements, and the same would apply for [X] if he lived in that household.
The father said that he had confirmed that if [X] came to live with him he could be enrolled at [W] Public School, which is within walking distance of the father’s home. When [X] is of high school age he could attend [P] High School.
The mother’s application
A search of the court file revealed that the mother had never filed a response to the father’s 2006 application.
In her application in a case filed on 20 December 2006 she sought suspension of the 25 February 2005 orders and asked the court to make “such other orders as may be appropriate.”
The mother was pressed by the father’s counsel to indicate what orders she was seeking and initially seemed reluctant to nail her colours to the mast. She eventually said that her proposal was that [X] live with her and spend no time with the father at the moment, with the emphasis being on ‘at the moment.’
[X] lives with the mother on the Central Coast in a household which includes his siblings [A], 8, [B], 5, [C], 3 and [D], 9 months.
The extent to which Mr M is involved in this household is a mystery. The mother said that she and Mr M separated in May 2006, but she has had two children to him since. In her most recent affidavit the mother said that she was “well supported by Mr M” but her answers during cross-examination suggested that this was not the case. Mr M did not attend the report interviews with Dr R and did not give evidence in the proceedings.
The mother is engaged in home duties. She continues to receive support from the Brighter Futures program.
Specific issues which require further consideration
Evidence emerged during the hearing that the father had some criminal convictions. I need to consider this in detail before moving on to [X]’s best interests. The following matters also require further consideration:
i)whether the mother was a victim of family violence at the father’s hands during or after their relationship;
ii)why the father spent no time with [X] between 2000 and 2005;
iii)the roles of each party in the cessation of the father’s time with [X] in 2005, 2008 and 2010.
The father’s criminal record
Prior to 2001 the father had no criminal convictions. He was charged with a number of offences in the 2001-2003 period as follows:
Date dealt with by the court Offence Sentence 28.3.2002 Common assault (date of offence 22.10.2001) 2 year Bond 30.07.2003 Mid-range PCA (date of offence 21.07.03) No conviction placed on a s.10 Bond.[7] 20.02.2004 Culpable negligent alteration of a water metre (date of offence 20.08.2003) Fined $500.00 [7] As far as I can gather from the documents the father was convicted on 30 July 2003 in [T] Local
Court and appealed to the Wagga Wagga District Court, resulting in the outcome for the offence noted in column 3.
The father also has convictions in 2002 for offences relating to a dog but nothing was made of this during the hearing.
The assault charge involved Ms T, the father’s partner at time. Police documents suggest that the father was consuming alcohol and there were arguments about alcohol consumption at the time of the offence.
According to the police records the assault consisted of the father pulling Ms T by the arm, hitting her on left cheek and causing her to jam her finger in a door. The father pleaded guilty to the charge but there was no evidence of the particulars which were put up to the magistrate.
During cross-examination the father conceded that he had pushed
Ms T.
The police records reveal another two callouts or so to the home the father shared with Ms T although in respect of one of those the police had concerns about Ms T’s motivation in calling them.
The father made excuses for the drink driving conviction.
The father denied that the circumstances of these convictions suggested that he had a drinking problem at the time.
The water meter offence was an offence of dishonesty. [T] was subject to water restrictions and water meter on the father’s property was connected so that water could be used without it being detected. Compounding the offence was that the father was working for [omitted] at the time.
The father had little choice during cross-examination but to admit to the convictions, as his police record was produced in answer to subpoena. He minimised the seriousness of all the offences which causes me a little disquiet. However the convictions also need to be seen in context. The father had no convictions prior to 2001, and he has not been charged with any since he left [T] at the end of 2003. There was no suggestion that his relationship with Ms M had been marred by excessive drinking or family violence.
Whether the father was violent to the mother before or after the relationship
The mother raised again and again, both in the proceedings in this court and in documents she completed for outside agencies, that she was a victim of family violence and abuse at the hands of the father. In the Brighter Future’s intake notes in February 2010 there is reference to this family violence most of which had allegedly occurred more than ten years earlier.
The father denied that he had ever been violent to the mother and he denied ever being verbally abusive to her or threatening her
The mother’s evidence about the alleged physical violence was for the most part very general. She alleged that the father attacked her physically on countless occasions, and the only particulars she gave were that he pushed her over and stood over her when she fell down. She alleged that he was verbally abusive to her, calling her a dog, slut and a fucking bitch.
The mother asserted that the father threatened her during the relationship by saying “I’ll kill you if you leave me.”
There was no corroboration, whether in the form of police records or witnesses or otherwise, for the mother’s claims about violence. In circumstances where I have considerable reservations about the mother’s truthfulness this poses a problem for the mother’s case.
The evidence that the father threatened to kill the mother if she left him does not sit entirely comfortably with the mother’s claim that in September 2000 she left the home she shared with the father because the father told her he wanted “her and her fucking son gone” before he got back from Melbourne.
The mother alleged that the father went around to the maternal grandmother’s home where she was staying immediately after separation and threatened her. She also alleged that he swerved his car at her and forced her off the road.
There was no corroboration for this evidence by the mother and as previously observed it would have been consistent with the father’s interest in [X] for him to go around to the maternal grandmother’s house to inquire about his son.
The mother alleged that [X] told her in 2005 that the father had a gun and was going to blow the mother’s head off. She also alleged that on 2 September 2005 the father threatened over the telephone in 2005 to punch her hard in the stomach (when she was eight months pregnant) and alleged that he threatened to come to her house and “belt the fuck out of Mr M.”
Mr M, who was still living with the mother in 2005 and who one would assume was made aware of these alleged threats, was not called by the mother to give evidence and she did not explain her failure to call him. Also the mother’s actions (or at least her alleged actions) following the alleged threat to punch her hard in the stomach were not consistent with the threats having been made.
The mother claimed that notwithstanding the threat made to her on
2 September 2005 and notwithstanding the fact that she was so concerned that she rang the police to inquire about obtaining an AVO and notwithstanding that the father continued to harass her with telephone calls after making the threat, she went to McDonalds on
4 September 2005 to do a changeover with the father.[8]
[8] Mother’s affidavit filed 5 August 2010 paragraphs 36, 37, 38. The father denied that the mother in fact turned up on 4 September 2005, adding to the mystery.
This was not the only behaviour by the mother that was inconsistent with her claims that she was a victim of family violence and was frightened of the father. She did not dispute the father’s evidence that she had lunch with him and [X] on occasions in 2005 before the contact broke down. She also attended many sessions with him in 2008 when the parties were seeing Ms D and she took part in a joint interview with him in December 2009 convened by Dr R. Neither
Ms D nor Dr R noticed any fear of the father in the mother.
Certainly the mother applied for and obtained an apprehended violence order against the father after separation. The extent to which the father was involved in this process is unknown to me to me, and the mere fact that an apprehended violence was obtained is not evidence that violence occurred in the past. It is not unknown for example for a party to apply for an apprehended violence order after separation in order to keep the other party at a distance and prevent them re-entering the home or taking the children.
The fact that the father was charged with assaulting Ms T in 2001 also does not assist me. This was a different relationship, and the charge revolved around an incident which occurred on a single day.
The mother was a most unsatisfactory witness and I do not accept her evidence about the alleged violence or threats. I am not satisfied on the balance of probabilities that the father was violent to the mother during their relationship, or that he verbally abused her, or that he threatened her (or Mr M) with violence in 2005.
Why the father spent no time with [X] between 2000 and December 2003
The father cannot be blamed for his failure to spend time with [X] between 2004 and March 2005. He made a concerted effort to find the mother and [X] once he left [T] and returned to Sydney and he filed an application in the Local Court, Family Matters in May 2004 after his efforts were unsuccessful.
I am not convinced however that the father made any consistent effort to find or spend time with [X] between separation in 2000 and the end of 2003.
I accept the father’s evidence that he went around to the paternal grandmother’s immediately after separation because he was keen to keep in touch with [X], and he attended the court hearing in Newcastle on 14 March 2001, while the mother did not, which suggests a level of interest in the outcome of the parenting proceedings.
However the father re-partnered not long after separation and in about September 2001 he left the Central Coast and went to live in [T] with his new partner. He obtained work in [T] and bought a house. He lost track of where the mother and [X] were living.
The father said that he sent [X] a Christmas card at the end of 2001 but it was returned to sender. He also said that he sent presents and cards and letters to the maternal grandparents address at [omitted] [U] but all the items he sent were returned.
The father said that he contacted the mother’s sister [name omitted] and acquaintances on the Central Coast but could not locate the mother and [X]. He also said that he asked the maternal step-grandfather to ask the mother to contact him but she did not.
Between 2000 and 2005 the mother certainly behaved in ways which showed a disregard for the importance of the father in [X]’s life and may have made it difficult for the father to find her or [X]. She failed to attend court on 14 March 2001, and made no effort to acquaint herself with the outcome of the court proceedings. She changed her own name and she requested that [X] be known as Churchill when he commenced school, rather than by his birth surname of [omitted]-Mosher. The fact that she had to be arrested before she would take part in court proceedings in 2005 rather suggests that she was less than enthusiastic about the father having an involvement in [X]’s life.
However the father made only desultory efforts to find [X] or keep in touch with him between separation and the end of 2003 and I am not satisfied that blame for the father not seeing [X] between 2000 and the end of 2003 can be sheeted home to the mother.
The roles of each party in the cessation of the father’s time with [X] in 2005, 2008 and 2010
On three occasions since 2005 the father has commenced spending time with [X] only to have the arrangements break down. In 2005 and 2008 the arrangements broke after about six months and just prior to Father’s Day. In 2010 the arrangements broke down after four visits.
The father’s evidence was that his time with [X] between March 2005 and late August 2005 went well and that [X] often did not want to go back to his mother. He said that during this period he would usually telephone [X] each evening and that on occasions the mother asked him for help to settle [X] or encourage him to go to school.
The father said that he and [X] went on fishing trips, played in the local area, went to the movies and went shopping at [omitted] Mall. He said that the mother sometimes came to lunch with them. There were a couple of overnight visits which the father said went well.
Ms M gave unchallenged evidence that [X] showed no signs of distress while spending time with the father during 2005. She confirmed that [X] slept over uneventfully on two occasions.
The father’s evidence was that the visits in 2008 and 2010 also went well while they lasted.
The mother did not concede that the 2005 visits always went well. She accused the father of denigrating her to [X] and on one occasion telling [X] that he had a gun and would kill the mother. The mother said of this period that:
I was extremely concerned for [X]’s welfare. He had spoken of killing himself. I was concerned he felt scared, threatened and intimidated by the Father. I was also concerned as to what psychological damage he may suffer under circumstances of staying with a person he hates.[9]
[9] Mother’s affidavit filed 5 August 2010 paragraph 60
The mother did not accept that [X]’s time with the father went well in 2008. She said that [X] protested about attending the sessions with Ms D and on one occasion cut his arms. The mother said that she told Ms D about this.
The mother did not give any evidence in her affidavits about the time in 2010.
The father’s time with [X] in both 2005 and 2008 time broke down after an argument between the parties just prior to Father’s Day.
The mother’s evidence was that on 2 September 2005 she received calls from the father’s number and did not answer because each time he rang he became aggressive and threatening. She alleged that when she finally she did answer the father threatened to come around to her house and “belt the fuck out of Mr M” and punch the mother hard in the stomach. The mother said that she was eight months pregnant at the time. She also alleged that the father asked her to bring [X] to his home on the Sunday and that she said no and terminated the call.
Strangely enough, the mother’s evidence was that notwithstanding these serious threats she took [X] to McDonalds on 4 September 2005 but the father was not there.
The father denied that he had threatened the mother. He said that he did ask if he could have [X] on Sunday instead of Saturday because Sunday was Father’s Day. He said that the mother became very angry and said
You’ve got the cops on your side. Your mates in the AFP arrested me. You’re not going to have it all your own way.
I do not accept that the mother is telling the truth about the events of
2 September 2005. The mother was not a witness of credit, and there was no corroboration of her evidence. The evidence about the alleged threat to Mr M is strange, because the mother does not suggest that there was any history between the father and Mr M and does not allege that the father made any other threats against him before or afterwards.
Mr M was not called by the mother to give evidence.
In any event, at or around this time the mother ceased to comply with the 25 February orders and all time between the father and [X] ceased.
As further justification for ceasing to comply with the 2005 orders the mother alleged that [X] was threatening self harm as a result of exposure to the father’s denigration of the mother and that on
9 November 2005 the father came to her home and bashed on her door and threatened her.
I do not accept the mother’s evidence about either of these matters. The father did go to the mother’s home but I accept his evidence that that he went to the mother’s home only to serve her with some papers and that he behaved in a civil fashion.
The father annexed to his affidavit two polite letters he wrote to the mother on 7 and 11 November 2005 drawing her attention to the braches and asking her to comply with the orders. His evidence that these letters were sent at the time was not challenged.
I do not accept that there was any justification for the mother ceasing to comply with the 25 February 2005 orders. There was certainly not a shred of justification for the mother going into hiding with [X] in May 2006.
The cessation of time in 2008 also occurred as a result of another dispute just prior to Father’s Day.
Pursuant to the interim plan drawn up by Ms D, the father was spending time with [X] on Saturdays. It was the father’s case that just prior to Father’s Day he negotiated a change of arrangements so that he would see [X] on Father’s Day rather than on the Saturday.
On the Friday the mother sent the father a text message telling him that the Sunday was not agreed and anyway [X] was sick and he would not be able to spend time with the father on Sunday. The text message was sent on a phone which had been purchased pursuant to an agreement reached by the parties with the assistance of Ms F. It was described by the mother as
[X]’s mobile telephone [which] was used by myself to communicate with Mr Mosher in relation to the parenting of [X], and also for general communication to take place between [X] and Mr Mosher
On this weekend an unfortunate exchange took place between the parents in which [X] became involved. The father admitted that he did not believe the mother when she told him [X] was ill. He went to the agreed location on the Sunday and when [X] did not attend he sent a text message to the mother saying that he would apply for a recovery order the next time the matter was in court.
There also appears to have been an exchange at this time which indicated that the father knew the mother’s address. It was the mother’s case that [X] was very frightened to think that his father knew where he lived. She also alleged that he would come to the school next day and walk [X] home.
The father’s time with [X] never resumed after this break-down and [X] spent no further time with the father until May 2010.
Four visits occurred in May and June 2010. It was the mother’s case that this time broke down because the father kept telling [X] that he come August he would be living with the father and would not see the mother and his brothers again. The mother said that after hearing this [X] refused to visit the father at all.
The father denied that he had said such a thing to [X].
The mother’s counsel sought to deflect blame from the mother for the contact not occurring after the first four visits in 2010 by emphasising that there were occasions when the father did not attend for changeover. I accept that there was an occasion in July 2010 when the father did not attend but given the events on the preceding weekends it is not difficult to understand why he would have decided to honour a work commitment rather than be party to another abortive visit to McDonald’s.
I do not accept that the mother has been truthful about the events of September 2005 and I do not accept that she had a reasonable excuse for failing to comply with the orders made by consent on 25 February 2005. I do not accept the mother’s evidence about the events of September 2008 and I do not accept that she made any effort to ensure that [X]’s time with the father after the events of the Father’s Day weekend 2008 was preserved rather than derailed.
I do not accept that the mother made any reasonable effort to comply with the orders of 7 May 2010 after the first four visits in 2010.
There are many examples of the mother, in the guise of encouraging [X] to spend time with the father, saying things likely have the opposite effect, such as “Don’t worry [X] your father won’t hurt you.” This is the mother’s own evidence, not something reported by the father, which suggests that the mother has no insight into the damaging nature of such comments.
After [X]’s interview with his father concluded, Dr R spoke to [X], the mother and the maternal grandmother together. Dr R said that the mother looked very concerned about [X]. After a short period [X] got off his chair and crawled behind his maternal grandmother’s chair and hid himself completely. The following then occurred:
Ms Churchill said, “How did you go with your father?” [X] said, “I don’t know.” Ms Churchill asked “How do you feel?” The maternal grandmother said, “He doesn’t say much, I try to play with him. He doesn’t want to see his dad…
The maternal grandmother said ……”I just want him to be happy again. He’s scared about his father.” Ms Churchill said, “He worries. His father sent a text to me through his phone and it was nasty. The text indicated he was go to ‘f’ me up. He feels he needs to protect me.
The mother stood passively by on 4 July 2010 while [X] sprayed the inside of her car with degreaser and cut up a toy car with wire cutters.
A clue to the real underlying reason why the father’s time with [X] has kept breaking down is contained in the following evidence given by the mother during cross-examination in answer to a question about why the time broke down. The mother said that:
In 2005 [the father] said that he was going to blow my head off and [X] would never see me again; in 2008 he said that he was going to take [X] from school and he would never see me again and this time he’s been telling [X] that he is going to be living with him after the court proceedings and he will never see me again.
Dr R said that one of his concerns about the mother’s parenting capacity was her inability to separate her anxiety and [X]’s anxiety from each other and her ability to release [X] enough so that he could have a relationship with the father, and I am satisfied that the real reason that arrangements for the father to spend time with [X] have kept breaking down is not anything done by the father but the mother’s inability to control her anxiety, an anxiety which has no reasonable basis in any well founded fear.
[X]’s best interests
In considering appropriate orders I must treat [X]’s best interests as the paramount consideration. Ss.60CC(2) & (3) of the Family Law Act set out the considerations to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s.60CC(2) is as follows:
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.
In McCall & Clark,[10] the Full Court discussed the meaning of s.60CC(2)(a), and concluded that the “preferred interpretation of the benefit to a child of a meaningful relationship in s. 60CC(2)(a) is “the prospective approach.”” The Full Court said that the prospective approach required the court to:
consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents….
[10] McCall & Clark (2009) FLC93-405
It was the father’s case that it would be in [X]’s best interests to have a relationship with him, and Dr R observed that the father has much to offer [X].
The father is in a stable relationship, he has a good employment history, and he has both the willingness and the time to do father and son things with [X] such as fishing and watching football. There is no other person in [X]’s life who can fill this role.
Dr R talked of the enormous loss to a child entailed in losing a relationship during their childhood with their father and the whole paternal extended family. He said that the relationship which children develop with their parents in their formative years cannot be recaptured later if the child reconnects with a parent when they are an adult.
The difficulty in this case is that I am satisfied that the time is passed where any orders for [X] to spend time with the father will result in this actually occurring. Only an order that [X] live with the father will create an opportunity for [X] to have a meaningful relationship with his father.
Although the mother deeply fears this outcome, there is nothing to suggest that an order that [X] live with the father will result in [X] losing his relationship with his mother, although the relationship may be interrupted for a time. For reasons to be given below, I am satisfied that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the mother.
The second primary consideration is the need to protect [X] from harm from being subjected to or exposed to abuse neglect or family violence.
The mother did not allege that [X] was at any risk of being subjected to abuse neglect or violence at the father’s hands. Indeed when asked in cross-examination if [X] was in fear of his father she said:
He’s in fear is of what the father may do to me, not of what his father may do to him
There was no evidence that the father’s relationship with Ms M was a violent one and the mother’s counsel did not require Ms M for cross-examination.
There was no evidence that [X] would be exposed to abuse neglect or family violence in the mother’s household.
The additional considerations are contained in s.60CC(3) and the first of these is any views expressed by the child, and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The father did not give any evidence about [X]’s views, and the mother made no reference to [X]’s current views in her most recent affidavit.
Ms F was of the view that [X] feared his father but as previously observed her evidence was tainted by the false factual information given to her by the mother and [X].
Dr R said that when he interviewed [X] in December 2009 [X] initially said that he did not like his father and that his father was mean to his mother and “he might take me away.” [X] told Dr R that his wishes were to go back to school and be left alone.
Dr R then conducted an observation between the father and [X] in which [X] fairly readily warmed to the father.
Dr R commented that:
Although the child says he’s frightened of the father I believe that the powerful dynamic is the fear of being away from his mother. I believe there is a reverse parenting dynamic and that he wants to make sure that his mother is safe.
Ms Churchill appears to have a strong dependent personality style as she appears to be very reliant on [X] emotionally.
Dr R commented during cross-examination that:
[X] has had a very strange and distorted childhood. To be able to form a mature view about his own best interests is beyond his scope.
I must consider the nature of the relationship of the child with:
a) each of the child’s parents; and
b) any other persons (including grandparents or other relatives of the child
Dr R conducted an observation of the father and [X]. He reported that when the father came into the room
[X] sat quietly and didn’t respond. He had his hood covering his face. There was a slight smile on [X]’s face. He didn’t appear distressed.
There was some conversation between the father and Dr R and after a time the father and son began to “chat in a friendly way.”
Dr R then recorded that:
[The father] tried to be playful with [X]. [X] appeared to enjoy the playfulness….
[X] held out his hand to Mr Mosher. Mr Mosher and [X] held each other’s fingers.
Some further conversation took place and Dr R recorded that:
The interview came to an end. [X] continued to have his hood over his head but there was no sign of distress.
This is consistent with the unchallenged evidence of Ms D who found, in 2008, that when [X] saw the father again after a period of two and half years in which he had spent only eight days with him, he initially refused to make eye contact but gradually warmed to his father.
Dr R expressed the view that [X] and the father did have a significant bond with each other. I place weight on this evidence, which is consistent with other evidence in the case including the unchallenged evidence of Ms M and the unchallenged evidence of Ms D
[X]’s relationship with the Ms M and her two children was not explored to any great degree at the hearing. Ms M gave evidence that [X] was a bit shy when he first met [Y] and [Z] but then fitted in with them. Ms M took [X] on a shopping trip in December 2006 and said that he appeared content.
I am satisfied that there is nothing to be concerned about in respect of these relationships but they can at best be called embryonic relationships..
Dr R’s opinion was that [X] had a close relationship with his mother, but he said that:
The mother and [X] have an extremely enmeshed relationship. I believe that there is a strong anxiety dynamic between them. [X] has significant separation anxiety which has resulted in him being unable to attend school or to be able to separate from his mother confidently.
This observation is consistent with the history of the matter, and with the mother’s own evidence that [X] did not fear his father as such, rather he feared that the father might take him away from his mother.
It also resonates with the mother’s evidence that [X] has “at times felt that he needed to help her out with running of the family.” [11]
[11] Mother’s affidavit filed 3 May 2010 paragraph 12
Dr R reported that [X] “described a good relationship with his three brothers…”[12] At the time of the report interview [X]’s sister [D] was as yet unborn.
[12] Dr R’s report page 6
Dr R did not comment on the relationship between [X] and his maternal grandmother, although the maternal grandmother was present at the report interviews. The mother’s counsel submitted that the maternal grandmother was an important person in [X]’s life and that Dr R should have assessed the relationship. However the mother herself gave no evidence of a close relationship between [X] and his maternal grandmother and did not arrange for the maternal grandmother to give evidence at the hearing, and I am not troubled by Dr R’s failure to comment on this relationship.
There was no evidence about [X]’s relationship with Mr M, who still appears to inhabit the fringes of the mother’s life. There was no suggestion that he was a father figure to [X]. It follows that if the father remains absent from [X]’s life there is no other adult male available to act as a role model for [X].
I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
I am satisfied that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the mother and [X]. He displayed no hostility toward the mother when giving evidence and indeed showed some compassion for her, commenting that “she’s probably afraid of losing her child”.
I do not accept the mother’s evidence that the father has denigrated her to [X] during visits. The mother’s counsel submitted that there was evidence in the affidavit of Ms M that the father had denigrated the mother to [X]. I have carefully read the affidavit and I do not accept this submission.
The mother entirely lacks the willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father. This is demonstrated by any number of her actions including:
·failing to attend court in 2001 when final orders made.
·making no attempt to acquaint herself with the orders which were made.
·failing to attend court in 2005 when served with the father’s application, until arrested.
·failing without reasonable excuse to comply with the 25 February 2005 consent orders.
·going into hiding with [X] for six months in 2006.
·making no effort to encourage [X] to spend time with the father in June and July 2010.
The mother’s case was that in resisting [X] spending time with the father she was being appropriately protective of [X]. She alleged for example that in 2005 [X] feared the father and was threatening self-harm as a result of his distress about going on the visits.
I do not accept the mother’s evidence of what occurred in 2005 and do not accept that she was being appropriately protective of [X].
If [X] continues to live with the mother he will from this point on spend no time with the father and will not have a relationship with him. It would be pointless in the face of the mother’s intransigence to make another spend time with order.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
a) either of his parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child have been living.
This is a significant issue in this case.
[X] has lived all his life with his mother and as they have been born over time, his siblings. He has a close although perhaps not healthy relationship with his mother and has adopted a nurturing and protective role with his siblings.
If I make an order changing [X]’s residence he will experience a fairly radical change in his life. He will move to a new home, he will be the youngest rather than the oldest child, he will commence at a new school and he will need to make new friends. He will not see his mother at all for a period of time while he settles in to his new life.
The thing which the father has been promising [X] during the report interviews would not happen, ie his removal from his mother, will in fact occur.
Despite all of these things, a change to living with his father could well be a beneficial one for [X]. Moving to his father’s household may lift a weight from his shoulders, as he will not need to feel responsible for his mother’s emotional well-being or the day to day care of his siblings. Counselling could assist him to understand that his mother will not come to harm if [X] is not constantly present in her home.
Although [X] would be removed from the mother’s home, he could hopefully with the assistance of counselling be brought to understand that he can still have a relationship with his mother, and that it is possible to have a relationship with both parents rather than just with one.
It is however impossible to predict the effects of the change with absolute certainty. Any number of possibilities could occur, including the father and his partner finding [X]’s behaviour in their home too challenging or [X]’s presence in the home creating too much pressure on the existing family dynamic, leading to the father preferring to return [X] to his mother.
While the arrangement with the father might break down, at least the opportunity will have been created for [X] and the father to have a relationship.
The mother has in the past raised concerns about [X] threatening self harm or cutting himself when stressed. She alleged that on
18 November 2005 she asked a friend to take [X] to school and told him that he was going to see his Dad tomorrow. [X] replied that he wanted “a gun to blow my dad’s head off and a knife to stab myself so I don’t have to see him.”
I have serious reservations about the veracity of the mother’s evidence but there is reference in one of Ms D’s reports to [X] cutting himself on the forearm with a pencil sharpener blade when he was waiting in the family vehicle at the clinic whilst the mother attended to settle an account. Ms D said that asked [X] about the ‘recent cutting incident’ and he stated that he was feeling upset in relation to coming to the clinic to see [the father] when he really didn’t want to. She commented that [X] was able to identify that rather than cutting himself he could talk with his mother when he felt so upset.[13]
[13] Report of Ms D annexure G mother’s affidavit filed 5 August 2010
It is of concern that [X] reacted in that way to the stress he was under in 2008 and [X] needs to be appropriately supported to ensure that he does not resort to this behaviour if he is under stress in the future.
The mother did not mention self-harm as a current concern either to Dr R or to the court, and [X] must have been under significant stress following the abortive attempts to arrange for him to see his father in July 2010.
I must consider the practical difficulty and expense of the 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 a parent on a regular basis.
This is not a relevant consideration in this matter.
I must consider the capacity of each of the parents to provide for the needs of the child, including their emotional and intellectual needs.
I am satisfied that the father has the capacity to provide for [X]’s needs on a day to basis. I also have no reason to be concerned about his capacity to provide for [X]’s emotional needs.
The father has shown some sensitivity to [X]’s well being at various points in the proceedings. In his affidavit of 16 November 2007 he referred to the fact that [X] talked of missing his mother during the eight days he spent with the father in December 2006. When this occurred the father made an effort to ring the mother so that [X] could speak to her, although his attempts were unsuccessful.
The mother’s counsel submitted that the fact that three AVO’s had been taken out against the father by three different women demonstrated that the father had a significant propensity for violence and that he had a “serious flaw in his personality such as to affect his relationship with his son, indeed all of the father’s relationship, and potentially affect his son’s attitude to women.”[14]
[14] Mother’s outline of case document 31 August 2010
I do not accept this submission.
As Dr R pointed out, the fact that an AVO is taken out is not evidence in itself that family violence has occurred. I am not satisfied on the balance of probabilities that the father was violent to the mother during their relationship. The father committed an act of violence against Ms T in 2001, but there was no evidence that his current relationship, which had subsisted since 2004, involved violence and the mother’s counsel did not require Ms M for cross-examination.
I do not accept that the father threatened the mother and Mr M in 2005, and there is nothing in the father’s behaviour in 2005, 2008 or 2010 when he and the mother came face to face over his time with [X] which suggest that he is a man prone to angry outbursts.
The father is not perfect, his convictions in the 2001-2003 period are ample evidence of that, but it does not follow that he is an unsuitable role model for his son.
The mother’s counsel went as far as to imply that the father had showed a poor attitude to the responsibilities of parenthood and a lack of concern for his son’s well being by asking the court in 2006 to issue a warrant for the mother’s arrest and a recovery order for [X]. It was submitted that the father should have “attempted more gentle means of restoring his relationship with [X], by the father’s sending messages to the Mother through [X]’s mobile telephone.”[15]
[15] Mother’s Outline of Submissions 31 August 2010
The father was unrepresented during 2006 and it could well have been the case, as the father implied, that the magistrate rather than the father suggested that these orders be made.
In any event by the time the mother was arrested and [X] recovered in December 2006, the mother had been flouting the 2005 court orders for more than a year and had been in hiding with [X] for six months. Certainly the arrest of the mother and the recovery of [X] were harrowing events, but it is nonsense to suggest that the father might have been able to restore his time with [X] by sending text messages to the mother. For the mother to blame the father for the fall-out of her actions shows a quite extraordinary self-focus and lack of insight by the mother.
I have the gravest concerns about the mother’s capacity to provide for [X]’s needs.
The mother’s counsel submitted that the mother was doing a good job parenting [X], and that this was evidenced by the fact that [X] had returned to school this year and was doing reasonably well at school socially and educationally.
I do not accept that this fact taken in isolation establishes that the mother has the capacity to provide for [X]’s needs.
The mother is coping at present on a day to day basis, but not without difficulty. She has a history of depression and is not finding it easy to parent five children. She recognised this by making a self referral to Brighter Futures.
There was no evidence that Mr M, the father of the mother’s four youngest children, was doing anything much to help her and the mother herself identified that she was perhaps leaning to much on [X] for support. She was concerned about this and said that she “just wanted him to be a kid again.” As a result [X] was put into the [omitted] program with Brighter Futures.
The mother’s inability to recognise the benefits of [X] having a relationship with his father show that she has a seriously impaired capacity to provide for [X]’s emotional needs. Dr R said that one of his concerns about the mother’s parenting capacity was her inability to overcome her own anxiety in order to act in [X]’s best interests.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant.
As a separate consideration this is not relevant in these proceedings.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
It was the mother’s case that the father forgot about [X] after he went to [T] in 2001 and in this showed a poor attitude to the responsibilities of parenthood.
I do not accept that the father forgot about [X], but I do consider that the father made only desultory efforts to keep in contact with [X] during this period and I do consider that that extent he showed a poor attitude to the responsibilities of parenthood.
The fact that the father did not begin to actively seek time with [X] until [X] was five years old has compounded the difficulties with this matter. However it has never been the mother’s case that the fact that the father did not spend any time with [X] between separation and March 2005 irreparably damaged the father’s relationship with [X]. The father has since demonstrated commendable persistence over a period of more than six years in seeking time with his son
The mother was critical of the father over the issue of payment of child support. The father admitted that he paid no child support in 2001 and said that it was his belief that if he was not having time with [X] he did not need to pay. He said that he now understood that this was wrong
The father said that he had been paying child support as assessed since the mother filed a fresh application in February 2005.
It was submitted on the mother’s behalf that the father was “a person concerned with his own pride and his own interests rather than the welfare of his son.”[16] I reject this submission. There was not a shred of evidence that the father was a person fixated on father’s rights and he has shown patience and persistence to a marked degree during the progression of this matter through the court system. There was no evidence that he had rushed in at the first opportunity seeking a recovery order or a warrant for the mother’s arrest, rather these options were pursued only when other attempts to engage the mother in the proceedings and obtain compliance with court orders had failed.
[16] Mother’s outline of case 31 August 2010
It was the father’s case that the mother had shown an extremely poor attitude to the responsibilities of parenthood in being obstructive and defiant concerning the father spending time with [X]. There is strength in this submission.
The mother failed to attend court in 2005 when served with the father’s application, went into hiding in 2006 and allowed [X] to remain absent from school for six months, created the situation where she was arrested and [X] was the subject of two recovery orders, wrote on an enrolment form in 2007 that the father had mentally abused [X] and gave Ms F erroneous information about the father’s relationship with [X].
I am satisfied that the mother has shown a poor attitude to the responsibilities of parenthood in going to quite extreme lengths to prevent [X] having a relationship with his father. The fall-out for [X] has been unfortunate. He has not only been deprived of a relationship with his father, but has missed two substantial periods of school.
I must consider any family violence involving the child or a member of the children’s family.
I am not satisfied on the balance of probabilities that the father was violent to the mother during the relationship. I reject the mother’s claim that the father threatened her or Mr M with physical harm after the parties separated.
I must consider any family violence orders involving the child or a member of the child’s family.
There are no current family violence orders.
I must consider whether it is preferable to make the order least likely to lead to the institution of further proceedings.
The orders least likely to lead to further proceedings are the orders sought by the mother, namely that [X] spend no time with the father. This is because, while the father has persisted with court proceedings since 2004, the time has probably come when he will walk away if he is unsuccessful.
It does not follow however that this would be the best outcome for [X], and the desirability of an end to litigation is only one matter I need to consider in determining the orders which will be in [X]’s best interests.
The mother’s counsel submitted that an order that [X] live with the father was the order most likely to result in the institution of further proceedings, as [X] might self place back to the mother.
Dr R did not consider that [X] was likely to self place back to the mother if an order was made that he live with the father, especially if a period of time occurred in which [X] did not see the mother and had an opportunity to settle in. This is not a case where the parents live around the corner from each other, and Dr R’s view was that [X] was still young enough to accept the court’s decision.
Parental Responsibility
Pursuant to section 61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that his parents have equal shared parental responsibility for him, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
I am not satisfied that any family violence has occurred and I am not satisfied that either party has abused [X] as that term is defined in the Family Law Act. The presumption therefore applies unless rebutted by a finding that to apply the presumption would not be in [X]’s best interests.
It would not be in [X]’s best interests to make an order for equal shared parental responsibility. The parents have no capacity to communicate effectively, and no history of sharing decision making for [X]. In my view the order for parental responsibility must align with the order about where [X] is to live.
Dr R’s recommendations
Dr R’s opinion in December 2009 was as follows:
Should [the father] not have any contact with [X] I believe that [X] would continue to grow up in a very disturbed and emotionally enmeshed home. He will grow up believing that his father is dangerous and a threat to him. He is continually anxious and wanting to be protective of his mother. I believe that this is likely to distort his upbringing. He is at high risk of being deprived of a normal education or social experience with his peers. In addition he will be denied a relationship with his father and paternal family. I formed the view that this would be very detrimental to his adjustment as an adult. He is likely to be very anxious and then likely to become depressed as an adult. He is also likely to be unable to work or function adequately in society. I believe that his prognosis for the future would be very poor if his current circumstances continue.[17]
[17] Dr R’s report page 17
Dr R said that:
Should [X] continue to reside with the mother and have regular contact with his father I believe that they would very quickly develop a strong relationship and that [X] would thrive from this additional input into his life. This however, would increase the anxiety in his mother and it is likely she would try and abscond with him or make allegations against the father to prevent the father from seeing [X] again. However there is only a short window of time for [X] and [the father] to establish a relationship before adolescence begins when any change to the current circumstances would be more difficult.
The other alternative is for [X] to reside with [the father]. In order for [X] to reside with [the father] this would need to be accommodated by Ms M and Ms M’s children…The mother’s reaction to the child changing residence is likely to be extreme and unpredictable.
Dr R’s recommendation was that an order should be made that [X] live with the father. He also recommended however that:
Because of the extreme nature of this situation for this child I also recommend that there be a reassessment of this child and the families in approximately 6-12 months time.
The mother’s counsel mounted a number of challenges to Dr R’s report. Firstly, at the time of the hearing the report was nine months old. During court events earlier in the year it had been flagged that
Dr R would be asked to prepare an updated report. I was advised at the commencement of the hearing that Legal Aid had declined to fund an updated report.
Secondly, there had been developments since the report interviews, namely that [X] had returned to mainstream school, and that there had been a further attempt at arranging for [X] to spend time with the father and the attempt had failed.
Thirdly, some of Dr R’s assumptions were not soundly based. He assumed that it was the mother’s fault that the father had not spent time with [X] in the first four years of his life. He had also made assumptions about the father’s character which are slightly undermined by the fact that the father had a number of convictions in the 2001-3 period.
Dr R was made aware of all of these issues and did not consider that they undermined his conclusions. He said that [X] returning to school was an advance, but it was still important that he had a relationship with his father as well.
The failure of the 7 May 2010 consent orders illustrated the validity of Dr R’s recommendations, rather than undermined them.
In regard to the father’s convictions between 2001 and 2003 and his failure to mention them Dr R commented that the father saw himself as an upstanding citizen and that perhaps the transgressions in the past are not how he sees himself now. In the light of evidence that the father had no convictions prior to that period and has had none since, there is merit in this view of the matter.
The Independent Children’s Lawyer’s submissions
Counsel for the Independent Children’s Lawyer submitted that orders should be made in line with Dr R’s recommendations.
He submitted that [X] would benefit from having a relationship with his father, who had a great deal to offer. The father would be a positive male role model for [X] and there was no evidence that there was any other such adult role-model in [X]’s life. Although the mother suggested in her affidavit that Mr M was still in her life, she did not suggest anywhere that he had a relationship with [X].
There was always a risk that the placement with the father might not endure, but making the order would at least create a chance for [X] to have a relationship with his father, and Dr R had identified a very high risk to [X] of an unsatisfactory outcome if he remained living with his mother and spent no time with his father.
Conclusion
The mother acknowledged as a general proposition the benefit to [X] of having that relationship, although not at the moment. It was submitted on her behalf that:
there was no benefit to [X] in seeing his father at this stage but that with counselling and assistance and provided that the father did not denigrate her to [X], he should start to see his father again.[18]
[18] Mother’s outline of submissions 31 August 2010
It was the mother’s case that it was premature to give up on the prospect of [X] being able to form a relationship with his father while remaining in her care, and that the solution was in the father’s hands because if he stopped denigrating the mother a spend time with order might work.
In my view however unless an order is made that [X] live with the father there is no prospect of [X] having a relationship with the father in the future. There is no likelihood of the mother actively encouraging that relationship, and [X] has such an enmeshed relationship with the mother that absent her approval and encouragement any attempts at changing him over between his parents is doomed to failure, whether that venue is McDonalds or a changeover centre or some other place.
It is a serious matter to a long standing residence arrangement, but sometimes the court is left with no option.
In Re David the Full Court were dealing with an appeal by a mother from a decision of a trial judge to change the residence of a 6 year old child. The Full Court dismissed the appeal and said as follows:
While it is obviously a very serious step to alter a Residence Order in respect of a young child which has the effect of removing him from his principal caregiver, there are some situations, and we think that this is one of them, where the Court has no option but to do so.
Where a parent is the residence parent pursuant to a Residence Order, they have a clear obligation, not only to comply with the order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order. All too often, such parents behave as this mother has done, and rely upon a child’s purported refusal or stated lack of desire to see the other parent, as a justification for denying contact.
However, in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt a position that he or she thinks will be the one desired by the parent concerned, because of the powerful position that such a parent occupies. To permit such a situation to continue is extremely damaging to such a child and should not be countenanced.
The first difficulty is to identify that this really is the situation and that there is not some more significant basis for the child’s attitude, such as a genuine complaint of ill treatment or abuse. In the present case, this process has been undertaken and the trial Judge has concluded that there is no such basis. Moreover, as mentioned earlier in this judgment, the mother through her counsel effectively conceded that the sexual abuse allegations were ill-founded.
The second difficulty is to achieve a positive solution. In the present case there were exhaustive attempts to bring about a situation where a previously satisfactory contact regime could be resumed, all of which were thwarted by the mother and her husband.
It is sometimes said that this sort of behaviour can be overcome by a more rigorous attitude on the part of the Court to the enforcement of its orders. There are however a number of difficulties about this proposition.
………………
….., the enforcement options open to the Court are extremely limited. In substance, they consist of imprisonment or fine, the making of a community service order and make-up contact. Where there is implacable opposition by the residence parent, the making of any one of these orders may, in many cases, have a most destructive effect upon the welfare of the child in question and achieve little or nothing in relation to bringing about meaningful contact. If compliance does result, the manner in which contact thereafter occurs and the attitude of the residence parent to it may, in some cases, be more damaging to the child than if it does not occur.
The option of a change of residence must therefore be seriously considered in cases such as this one as being the only way in which contact with the other parent can be preserved.[19]
[19] Re David (1997)FLC92-776
[X] is older than the child in Re David but in all other respects the observations of the Full Court in that case provide a template for the resolution of this case.
The mother has not complied with her obligations to make [X] available to spend time with the father. At the abortive attempts at changeover in July the mother made no effort to ensure that [X] spent time with the father, and during the hearing she attempted to justify her position by claiming that [X] did not want to spend time with the father.
There is no significant basis for [X]’s attitude “such as a complaint of ill-treatment or abuse.” The mother conceded that [X] did not fear the father and would not be at risk in the father’s care.
There have been several attempts to achieve a satisfactory regime for [X] to spend time with the father, and each attempt has failed, on two occasions after six months and on the last occasion after only four weeks.
The mother’s counsel submitted that the court should not give up on being able to achieve a situation whereby [X] spent time with the father while still living with the mother. She pointed out that the parties had not yet tried doing changeover at a contact centre. However it is no more likely that the mother will encourage [X] to leave her motor vehicle and go with the father if the changeover venue is a contact centre than it is if the changeover venue is McDonalds.
It is in [X]’s best interests for him to have a meaningful relationship with his father, and the opportunity for this will only be created if he lives with the father. The father has a great deal to offer [X] and it is in [X]’s best interests that this opportunity be created. I intend to order that [X] live with the father.
This does not have to result in [X] losing a relationship with his mother or his siblings, but it is essential that there is a period of time in which he has no contact with his mother, so that his new placement is not undermined. [X] may need assistance from a counsellor during this period, so that he can receive support and be assured that his mother will be all right without him and that he will see her and his siblings again in the not too distant future.
Dr R suggested that given the extreme nature of the case if an order was made for a change of residence the situation should be reviewed in six to twelve months. He made it clear during oral evidence however that he was not suggesting that interim orders be made.
This case has been in the court system for far, far too long and it is essential that final orders be made. [X] can attend counselling to assist him with his adjustment and I intend I intend to order that the father arrange this and to extend the appointment of the Independent Children’s Lawyer for six months so that he can keep a watching brief on the situation.
I do not intend to make the orders sought by the Independent Children’s Lawyer that the Senior Consultant adopts a supervisory role. This would place an unacceptable strain on the resources of the Dispute Resolution Service at the court and a counsellor in the private sector is more than capable of providing appropriate support for [X].
As I intend to make an order that [X] live with the father I intend, for the reasons outlined earlier, to make an order that the father have sole parental responsibility for him.
I intend to order that the Senior Consultant arrange for the order to be explained to [X] so that he has some understanding, before he leaves with his father, that he will be seeing his mother again in due course and some reassurance that there are other people (such as Ms H from Brighter Futures) who will support the mother.
Dr R was of the opinion that [X]’s transition to the father’s care would be aided by a ‘stepped transition’ that is, a situation where [X] at first spent one on one time with the father and over a period of weeks began living with the father’s family unit. This would be ideal, but I am uncertain about whether it is practical for the father. I am not going to make an order to this effect, but hope that the father will take on board Dr R’s view that [X]’s transition will best be aided if has a great deal of one-on-one time with the father in the first instance.
As to time with the mother, both the father’s counsel and counsel for the Independent Children’s Lawyer made a proposal broadly in line with Dr R’s recommendation, although the father’s counsel proposed that [X] spend no time with the mother for three months and counsel for the Independent Children’s Lawyer proposed one month. I intend to adopt the latter suggestion, if only to try to avoid a situation where [X] becomes unduly anxious about his mother.
The ideal arrangement for [X] would be for his time with his mother to take place at the contact centre nearest to the father’s home. I am conscious of the fact that this may create a difficulty for the mother, as she has four young children, but she attested in her most recent affidavit to the fact that she had family who provided her with support, and Brighter Futures are committed to supporting the mother, and an order to this effect ought not to create such a difficulty that no time occurs.
Dr R recommended that after six months perhaps fortnightly weekend time be introduced if the mother was able to fulfil certain therapeutic requirements. This is difficult. The mother perceives no problem with her parenting or her attitudes and it is difficult in those circumstances to envisage the mother benefiting from counselling and to articulate what the mother should be required to seek counselling about.
Although it is not without risk, on balance I consider it preferable to order that the weekend time with the mother commence after six months provided that the mother has availed herself of the supervised time on a regular basis.
The mother needs to be very aware that if there is any difficulty with [X] being returned to the father at the end of a weekend and the matter comes back before this court then the mother’s time may immediately and for a considerable period revert to supervised time.
Dr R recommended that [X] not have telephone communication with the mother during the first six months of his placement with the father, as it was likely to be too unsettling for him. There is merit in this recommendation and I intend to make the orders proposed by counsel for the Independent Children’s Lawyer concerning telephone communication save that I intend to order that it occur once each week.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgement.
I certify that the preceding three hundred and thirty-nine (339) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 21 December 2010
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