Northey and Claughton

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTHEY & CLAUGHTON

[2014] FCCA 1260

Catchwords:
FAMILY LAW – Embittered parenting and property dispute – both parents lacking insight and blaming the other for all problems – child fearful of father – whether fear wholly caused by mother – mother resisting any time with father – whether child should spend no time with father – father seeking change of residence – orders made as sought by Independent Children’s Lawyer – father inheriting most of property pool – short marriage – mother having significant health difficulty and associated lack of income-earning capacity – property adjusted 65/35 in favour of father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(2A), 60CC(3)

Goode v Goode [2006] FamCA 1346
Stanford v Stanford (2012) 247 CLR 108

Applicant:

MS NORTHEY

Respondent:

MR CLAUGHTON

File Number:

MLC 8359 of 2012

Judgment of:

Judge Burchardt

Hearing dates:

7, 8, 9 & 10 April 2014

Date of Last Submission:

10 April 2014

Delivered at:

Melbourne

Delivered on:

25 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Serra

Solicitors for the Applicant:

O'Farrell Robertson McMahon

Counsel for the Respondent:

Ms Tulloch

Solicitors for the Respondent:

J A Middlemis

Counsel for the Independent Children's Lawyer:

Ms Boymal

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders be discharged.
The mother and father have equal shared parental responsibility for the child X born (omitted) 2001.
The child live with the mother.
The mother and father forthwith do all acts and things, including the mother taking the child to the intake assessment, and execute all necessary documents to participate in Fairground Children’s Contact Service (“Fairgrounds”) for the purpose of the child spending supervised time with the father.
Until further order, the child spend supervised time at first instance for up to two hours each fortnight at times and days as nominated by the Coordinator at Fairgrounds.
The supervised time referred to in order 5 herein be commenced with the view to enable the time between the child and the father to extend to periods of unsupervised time within and outside of Fairgrounds at the discretion of Fairgrounds and the child, provided that the commencement and conclusion of time takes place at Fairgrounds.
The mother and father do all acts and things and execute all necessary documents to enable the child to continue to attend upon Ms L for the purpose of therapeutic counselling with the view to repairing the relationship between the child and father, and the mother, father and child shall attend as directed by her.
Ms L, at her discretion, see the child alone, the child with each of the mother or father or the mother and father alone.
Until time commences at Fairgrounds, and thereafter, at Ms L’s discretion, the child spend time with the father in the presence or partial presence of Ms L as part of the therapeutic process.
The therapeutic counselling with Ms L shall be non-privileged and separate to the Court.
The mother and father at their equal expense obtain a report from Ms L prior to the next court date and the cost of the therapeutic counselling shall be at the equal expense of the mother and father.
The mother and father attend a Post Separation Parenting Course at Centacare (omitted) called ‘Keeping Kids in Mind’ and provide a certificate of completion to the other parent and the Independent Children’s Lawyer.
The father attend upon a mental health professional to address issues including but not limited to his distress surrounding the nature of his relationship with the child and his emotional presentation and provide the name of such professional to the Independent Children’s Lawyer.
The mother attend upon a mental health professional to address issues including but not limited to her anxiety in relation to the child spending time with the father and her past relationship with the father and provide the name of such professional to the Independent Children’s Lawyer.
The mother and father do all acts and things and execute all necessary documents to enable the child to attend upon Ms D for the purpose of the child’s personal counselling and the cost of such counselling shall be shared equally between the mother and father.
The Independent Children’s Lawyer be at liberty to communicate with Ms L, Ms D and the respective counsellors of the parents.
Ms L be at liberty to communicate with Fairgrounds.
There be such further or other time spent between the child and the father as may be agreed between the parents.
The mother and father, their servants and/or agents be and are hereby restrained from:-
(a)using or permitting the use of any name other than “X” in respect of the child; and
(b)denigrating the other parent in the presence or hearing of the child.
The father be at liberty to receive school reports, school notices, photograph order forms and any other such school documents ordinarily provided to parents at his request and expense.
The mother and father keep the other advised of their residential address and telephone contact details.
The mother keep the father advised of any medical emergency or major illness of the child.
The Independent Children’s Lawyer forward a copy of these Orders and Judgment to Ms L, Ms D, Mr T and Fairgrounds.
The mother and father forward a copy of these Orders and Judgment to their respective mental health professional.
Prior to the adjourned hearing date the parties and the child attend upon Mr T for the purposes of the preparation of a supplementary family report pursuant to section 62G(2) of the Family Law Act 1975, to be provided to the Court and Mr T shall ensure that he confers with the child alone for such time as he deems appropriate as part of the report and the report shall address the issue of time spent between the child and father.
The proceedings in relation to the child be adjourned to 12 March 2015 at 9.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8359 of 2012

MS NORTHEY

Applicant

And

MR CLAUGHTON

Respondent

REASONS FOR JUDGMENT

Introduction

This case involves a regrettably embittered dispute between the mother and the father of X born (omitted) 2001. In addition to the issues relating to X’s wellbeing, the parties are also involved in an equally embittered dispute as to the adjustment of their property interests.
The bulk of the proceeding in terms of the time in Court and the evidence tendered and given concerned X. The mother’s position is that X does not wish to see his father and that his wishes should be respected. The father’s position is that X has been wholly alienated by the mother’s efforts and should live with him to overcome this difficulty. The Independent Children’s Lawyer, putting the matter broadly, proposes that X continue to live with his mother but that such steps that are practicable be made to foment his relationship with his father.
For the reasons that follow I propose to make the orders sought by the Independent Children’s Lawyer.
So far as property matters are concerned, in my view, there should be an adjustment of the property pool as to 65 per cent to the father and 35 per cent to the mother.

A short word about methodology

The parties have filed copious affidavit material and the hearing itself involved a number of days. I do not propose to deal in detail with the parties’ affidavit material which speaks for itself. I would emphasise that I have read and reread the entirety of the file including the exhibited material and have regard to all of it.
Similarly, I propose only to paraphrase the parties’ and witnesses’ oral evidence. This is because in my opinion the factual findings to be made are relatively clear when the evidence is considered as a whole and it would be prolix and also in my view unnecessary to traverse it in laborious detail.
This is all the more so because a number of the essential facts in the case are not really subject to significant dispute.

Matters that are agreed

The father was born on (omitted) 1961. He has lived and worked on what effectively is the family farm for most of his life. On the family farm there have been, at all relevant times, two properties close to one another. The father’s father and mother lived there until fairly recently and following commencement of the relationship the father and mother and in due course X lived in the other house.
The mother was born on (omitted) 1962, she described herself without challenge as the daughter of a (occupation omitted) and I accept that she likewise comes from an (omitted) background.
The parties appear to have commenced cohabitation in June 2000 when they married on 24 June 2000.
As earlier indicated, X was born on (omitted) 2001. The parties both agree that they separated under one roof in mid-2005 and although it is not entirely clear how much the father knew about this, the mother applied for and obtained Centrelink benefits in June 2005.
In 2004 the parties bought a property in (omitted) which is currently leased. The purchase price would appear to have been approximately $145,000.
In 2008, the father was convicted of dealing in stolen goods. The extent of the goods was substantial. Whether or not the mother knew anything about it was a matter in issue in the proceeding.
Both of the father’s parents lived on the farm until relatively late in the day. The father’s mother died in either November 2008 or 2009 and his father in either June 2009 or 2010. It seems clear that each of the paternal grandparents spent time in care before their death. The extent to which the mother assisted either or both of the paternal grandparents was a matter in issue in the proceeding.
It is clear that the father spent a period of time working in Melbourne. There was some dispute as to how long this period was but it was certainly well in excess of a year. During this time, the father returned on weekends and, although once again there was some dispute about the matter, it would seem inescapable to me that the mother must have continued to run the farm in his absence. It should be noted that the farm is not just agricultural land but involves substantial activities in (omitted).
It should also be noted that the father has the skill to and has, from time to time, worked in the (omitted) industry as a (omitted).
The mother has had a (omitted) business despite suffering from multiple sclerosis, a condition that she suffers on an ongoing basis. There was some dispute as to the extent of this business in the course of the proceeding.
The father inherited the family farm when his parents died but there was subsequent disputation with the father’s sisters. This was ultimately settled. The mother’s property application issued on 13 September 2012 followed very rapidly after the resolution of that dispute.
On 29 August 2012, the mother took out an Intervention Order against the father. Shortly thereafter the father built a large fence between the two properties on the family farm. Given that these properties were adjacent the impact of this fence, of which photographs have been tendered, was striking. He also installed cameras. As he put it, the father did this to inhibit the mother and her two adult children, to whom I have not previously made reference (but Y was still living at home with her mother) from stealing matters from his property. As the mother put it, this was part of a spying campaign on her.
The fence had the effect of precluding X from accessing various play items he wanted and it appears that he may, with or without the assistance of his mother, have formed a way through the fence but the father took steps to ensure this was not possible.
X has seen his father on only two occasions meaningfully, since August 2012. Once followed shortly after Orders made by the Court by consent on 24 October 2012. What happened on that occasion is the subject of dispute. The other time X saw his father was for the preparation of the most recent family report.
Although the mother put it that the father’s father died in 2009 the father put it as 2010.
The mother’s Initiating Application filed 13 September 2013 also sought spousal maintenance but the father’s position is that he simply has no money with which to pay for it.
The father’s mother moved into a nursing home in approximately 2005 and died in late 2008 or 2009. The father’s father died some months later.
The father settled his dispute with his sisters for a payment of $50,000. It is not quite clear whether that was $50,000 each or $25,000 each but it seems more probably the latter.
In October 2012 the mother moved with X to (omitted). Naturally enough, X was removed from the primary school he had previously attended in (omitted) School and was re-enrolled in school in (omitted). It seems clear from the school reports annexed to the mother’s Affidavit filed 24 May 2013 that he is doing well at that school.

Some of the matters in dispute

There are all too many matters in dispute in the proceeding. There is a dispute as to the extent to which the father may have controlled, dominated and abused both the mother and/or X. There is an issue as to whether the father has suffered depression, particularly since about 2010 and what, if any, the effects of that depression might be. There is an issue about the father’s extent of earnings and capacity to earn and a similar issue as to the extent to which the mother’s multiple sclerosis prevents her, or is likely to prevent her, from working.
As earlier indicated there is a very significant dispute about the nature of X’s interrelationship with his father and the reasons for this. There is an issue as to whether the mother is genuine in her professed desire to foment the relationship between X and his father. It should be noted at present she says this would best be achieved by X not seeing his father for a period of time to let him settle down and work through the issues he has with his father on his own.
There is an issue as to whether X should be compelled to undertake counselling with a view to assisting him in maintaining a relationship with his father and whether this should be done by a counsellor favoured by the mother, Ms D, or a counsellor favoured by the father, Ms L.
There are various other issues which will be indicated when I deal with the evidence given. At this point it is appropriate to turn to that evidence. What follows is taken from my notes.

Evidence of the Mother

The mother adopted her affidavits and financial statements as true and correct. She tendered exhibit A1, being X's Term 1, 2014 school report which shows that X’s progress while certainly not outstanding, might be thought to be in an acceptable range. She also tendered exhibit A2, showing photographs of the fence built by the father. Some of these are dated in September 2012 and appear to show construction itself on 16 September 2012. Although it is not wholly clear, it would seem that the photographs on 16 September 2012 might show a further fence at the rear of the property in addition to that which bifurcated the two properties direct boundary shown in the photographs of 3 September 2012. Although this is not entirely clear, what is clear is that the fence was put in and subsequently either added to or as it were further fortified by subsequent efforts on the part of the father.

The Mother under Cross-Examination by Counsel for the Father

The mother was cross-examined about the events that followed the Court Orders made on 24 October 2012 for X to spend time with his father. On Saturday 27 October 2012 X went to the farm with his father but the mother said that when he was at the police station X said that he did not want to go outside of (omitted) and wanted to visit (omitted). The mother said that the father agreed with this but it was not what happened. When challenged as to why this version of events was not in her affidavit material she said she must have forgotten. She said that X did not want to go. He was frightened of his father. X has said previously why he was frightened of his father. His father used to go off at him all the time for little or no reason. The mother said that she had witnessed this herself many times.
The mother said that X had been deeply upset by the father’s denigration of her. The father had talked to him about the Court case and X was scared that he would be taken away from her and that his mother was going to gaol. The mother said the father and X were heading towards (omitted) on 27 October 2012 when the father stopped the car and talked him into going to the farm.
There was cross-examination about the extent to which the father might have left X and gone to the hotel. It was put to the mother that the father only left with a friend briefly and did not go to a hotel, but the mother said that X said he went to the pub with a friend.
On the mother’s version of events as described to her by X (clearly hearsay as it was) a friend of the father Ms S, had questioned X about where he lived. X was playing with other children present at the farm and was glad they were there because he was not frightened as a result, albeit he did not like some of the children. As soon as he reached the farm X said he was told to get on a tractor and do work and had to pick up a freezer and take it to the tip.
The mother conceded that X knows that she does not like the situation that has occurred. She said that she does not like the father much now and that X probably knows this. She said that X did not want to go to his father on the first time in October 2012 and she made him do so. X is frightened of his father and does not want to be alone with him.
The mother gave evidence that when X is asked by her every Friday to go and see his father he gets cranky and starts talking louder. She said that she tries to talk him into it but it doesn’t make any difference.
This evidence, I would interpolate and say, was given in a fashion I found believable.
The mother said she had a normal relationship with the father until about three years before final separation. She said the father was depressed during these three years. She said the father changed when he lost his parents.
The mother said she tried to get X to spend time with the father in (omitted) and offered to buy him a scooter for $400 if he went but he started crying. She said that X had migraines two or three times because of his father and had been taken to the doctor as a result.
She said that she tries to encourage X to see his father, who texts every Friday, but X says “I am sick of you asking every Friday”. Once again I would interpolate and say this evidence had about it the hallmark of truth.
The mother was cross-examined about her interrelationship with the family report writer Mr T. She said that she felt intimidated by the way he treated her and X. She said that X is a very timid child who had not wanted to go to see Mr T and initially refused. She said that she had in fact called the Bendigo court for advice who told her to ring the Melbourne Magistrates Court. The latter said that X could have a peer person present at the interview, if not a parent.
The mother said that there were no problems changing schools from (omitted) School to (omitted) although X had not mixed out of school for a while.
The mother confirmed that she had told Mr T that the father worked X like a slave. He had him working ploughing paddocks for a couple of weeks per season and on most days after school and on the weekend. He would return from school at 4.00pm and work for a few hours after tea. She said it was not common for a child to be on a tractor at eight years old and this should not occur until the age of 12 as it was too dangerous. She told the father that she didn’t like X being on the tractor at so young an age but she could not stop him. She said he was his son too.

She said that X had to drive the father home when he was eight years old and said this occurred on numerous occasions and she had seen it.
The mother was then cross-examined about Mr T’s second family report. The mother said that X should have a relationship with his father and it would be a shame if he didn’t. She said that they could do fun things on the farm and that X enjoys the farm. She went on to say however that the father does not care about X, as it appeared to her. She said the father never spent quality time with X throughout his entire life.
Very tellingly the mother said the real reason for this case is the dispute over property settlement. She said, with evident bitterness and sincerity, that “he doesn’t want me to have anything”.
She said that she takes X to sport, the pictures and (omitted) but the father does not do this. She conceded that the father had taken him to the pictures once.
The mother was cross-examined about visits to the counsellor Ms L. After the first couple of visits X did not want to go as he felt he was being pushed to see his father. X had said he wouldn’t go and went into his room. The mother said she had talked to him and tried to explain the processes and Court orders but that when X thought he would see his father he ran away.
When pressed as to the outcome she was seeking the mother’s position was ultimately simple. She said that everyone should leave X alone for a while and he would be right. She said he was frightened of his father. She was not however saying that the father would threaten him. She said however that child abuse was yelling at X and spitting in his face. She confirmed that she had told X that his father was depressed.
I would interpolate again and say it is clear beyond doubt from the mother’s evidence and her demeanour while giving it that she has, whether wittingly or otherwise, fomented in X a fear of his father albeit that X was inclined to be fearful in any event.
The mother has told X that the father is not well and would have to go on medication for a while. She thought this was in about 2010. She said that she had said to X the whole way through that she would always help him.
The mother confirmed that she had applied for Centrelink as a sole parent in 2005. She confirmed that following separation the father had paid power bills and that he is now assessed paying child support at $15 per day or $450 per month.
The mother denied that she had said that she did not want child support and said she that she did not ask the Child Support Agency to collect until 2012.
It emerged that the mother between 2005 and 2012 had her car registration and insurance paid by the father but not petrol. He also paid for home help, power, telephone, gas, firewood and mechanical repairs to the car.
The mother was cross-examined about her (omitted) business. She said that she was (omitted) and (omitted) and was lucky to clear a $100 per month which had gone on for about three years.
She denied earning $20,000 in her business over some 18 months. She said that she cannot continue her business now as a result of her health.
She said that she had had a business (omitted) but this business was now no longer practicable since the craze had passed. She said that she cannot work as a (omitted) as it gives her arthritis.
She confirmed that the father’s mother moved into a nursing home in early 2007 and she had not had to cook for her after that. The father’s father was in hospital for only some two weeks before his death. When the father himself was in Melbourne, which she thought was from February 2005 to Christmas 2006 she cooked for both grandparents.
The mother was cross-examined about chattels claimed by the father. She said the father could have the electronic organ. She said that X was now too big for the toys and she had bought them for him. She proposed that he should keep them and hand them down to his own children. She denied removing a crystal cabinet. She said that it was not possible to get it out of the barn. She said that the father had obviously divested himself of a number of other chattels. She said that Y’s washing machine was a Christmas present and that other items belonging to Y were at the farm before she left.
The mother confirmed that she had moved from sole parent to disability pension when she was diagnosed with multiple sclerosis, probably in 2007. She had home help as a result of her osteoarthritis from before 2007 until she left the former family home in 2012. She said that she cannot clean. She is on a walking frame although she would still in theory be able to do her (omitted) business.
The mother was cross-examined about the father’s criminal proceedings. She said that she was not even questioned by the police. She knew that the father had bought the goods, or some of them, but she did not know they were stolen. She said that she thought they were buying a truck and indeed borrowed $7,000 to do so. In fact they bought a bulldozer which was not a stolen item.
I would interpolate again and say that the mother’s evidence in this regard about this latter issue was given with conviction and I believe it.
The mother was cross-examined about her daughter who has sworn an affidavit in the proceeding. She confirmed that Y lives with her and that she took her to the first interview with Mr T. Y is aware that the father is seeking that X live with him. She said that Y was upset with the father because he had turned on her too. He would not let her work in the shearing shed. She said that Y had had a big blue with the father and that was what had ended the marriage. She said that Y said to her “he has gone mad mum, don’t come home”. She said that Y had tried to get X to see his father also but had had no success. She said that Y and X are very close.
In response to cross-examination about X driving a tractor the mother asserted that the father was not always in the same paddock when X was driving. She said that she went to X when he telephoned and that was when he was eight years old.
There was extensive cross-examination about an incident with a friend called Mr D. It was put that the father yelled at Mr D but only briefly. The mother replied “if you call 15 minutes brief”. She said that she could hear it and that Mr D was in tears. Mr D is a man of some 50 years of age. She said that she has not spoken with X about this incident since it occurred.
The mother said that she had moved in 2000 with Y and Z to the farm. Their father was not involved and did not pay child support for years. He only started doing so in about 2005. The mother conceded that the father had supported her two children during this time.

The Mother under Cross-Examination by Counsel for the Independent Children’s Lawyer

The mother was cross-examined about a Statutory Declaration declared on 9 October 2012 by which the mother asserted:-
As of the date below, I would now like to be known as, “Ms Northey”. Also, my son X, I would like him to be known as “X”, he would also like to be known as this.
The mother conceded that this was declared two days before she left the family home. She said that she wanted to change X’s name. She conceded that this was probably not appropriate in the circumstances. She confirmed that Y and Z are in the process of changing their names from ‘Claughton’. The mother said that the father was not a good role model. He has a criminal history. He did not cook or clean. She asserted that the father was indirectly teaching X to steal. She asserted that the father had only taken X to the pictures because she made him do so.
The mother confirmed that the father supported Y and Z financially. They did things on the farm together and indeed he was terrific with the older children.
She confirmed that X knows a lot about his father’s convictions. This was asserted to be from conversations he had overheard. She said that X has spoken about it but she had never had a one-on-one with X about it. X had asked the mother whether the father was going to gaol and she told him he was not.
The mother confirmed that she found out that in July 2012 that the matter of the father’s parents’ Will had been finalised. The father moved out on 18 July 2012. He refused to take his medication. The mother packed up his belongings and put them into the other house.
The mother told X that she moved the father’s stuff out of the house because she could not bear his conduct any more. X said nothing in reply. She said that not much time was spent by X with his father thereafter but he was still happy to see him. Then the fence was put up in September 2012.
Tellingly, the mother said “I didn’t break the bridge and I don’t see why I should have to fix it”.
She denied that X refuses to see his father to please her. She said that X would not tell his father to “get stuffed”. She said that X said he was glad that the interview with his father was over and he would not have to do it again. The mother tendered various medical records which are exhibit ICL2 confirming migraine attacks from time to time and the process of counselling with Ms D in 2012.
The mother confirmed that she is now divorced. The divorce took effect on 13 February 2014. She said that she did not discuss it with X although he knew she was applying for it because he saw her doing the paper work.
The mother was cross-examined about an incident on 12 February 2014 involving the death of (omitted). X had two days off school at that time. X had not mentioned (omitted) to Mr T.
The mother said that she filed her Statutory Declaration on 9 September 2012. She had first seen her solicitor in September 2012. The mother said that she was 90 per cent sure that X would have a relationship with his father. He would go to Ms D but not Ms L who was forcing him to see his father.
When cross-examined about the prospect of X spending two weeks with his father, the mother said that this would tip him over the edge. She was cross-examined about an assertion that X had said that he would commit suicide if made to see his father. She said that X had only said it once about the time he was due to see his father with Mr T. She said that he said he would kill himself. The mother had not told anybody. She did however go to the doctor on 19 March 2014. X is on Stemetil, a muscle relaxant. She intends to take him back to Ms D.
In re-examination the mother confirmed that there is no air conditioning in tractors so they are driven with the door open. She regarded this as dangerous.
The mother confirmed that the father was in a better mood when he took Zoloft pills. She could not remember what happened to the $7,000 borrowed from her parents but that her mother had said it had been repaid.

The evidence of Ms M

Ms M is a friend of the mother and a long time neighbour of both of the parties. She deposed to heavy drinking by the father and drink driving as a result. She further deposed relevantly to the fact that X seemed better since he moved to (omitted).
Under cross-examination Ms M confirmed that X does not want to see his father right now. She said that X had told her this the previous week at (omitted). She said that X and her children get along well and the mother was present at the time. Ms M said that she asked X “how are you coping X, are you okay” and he replied “I’m really upset, I do not want to see my father”.
The mother tells her that X is afraid of his father and had described incidents during the marriage when the father was screaming in X’s face so that spit would be on his face. This took place allegedly when X was eight or nine years old.
She said the mother had discussed the father with her and said that their marriage was over. She was disappointed it was ending. She had told the father to get treated for his depression. She said that the mother was scared of the father and that the fence had been erected when separation took place.
The father was irate. There were guns on the property and the mother was terrified.
The father and mother had been to see her some five to six times in the last year of their marriage. She said that she saw how much they drank.
Under cross-examination by the Independent Children’s Lawyer Ms Baker confirmed that she knew this case was coming up. She said that she had heard that X was stressed and that he was a nice kid. She said that she just wanted to know that he was okay.

The Mother recalled

By leave, the mother was recalled to give further evidence. She said that X said “if I have to go see him I’ll kill myself” when due to speak with Mr T. She said that she had not gone to the doctor on 19 March 2014 about this.
X saw the father on 24 March 2014 and it was put that the disclosure took place on 26 March 2014. She said that she had pulled X out of school before 19 March 2014. Exhibit ICL3 are progress notes for X taken by Dr R on 19 March 2014 which show inter alia on questioning:-
worries re his father –“he get angry at the littlest thing”
worried re his father’s anger
not seen since last year
also –court counselling –finds disturbing
Also tendered was exhibit ICL4, a report from Dr R dated 28 March 2014. This confirmed that X was very stressed inter alia about this ongoing Court proceeding. The report finished:-
X appearing quite comfortable in the care of his mother and did express independently a concern for being with his father. There is certainly a degree of stress affecting him and unfortunately it has appeared to have been made worse by the up coming court case and the counselling that is accompanying that.
The mother confirmed that she did not take X to the doctor about the threat to kill himself. She had told him that they would talk about it later. She said that “we were dealing with it ourselves” and I have been spending extra time with him.
She said that X had enough of everything and did not want to see anyone. She said that she thought she would give him a break. She confirmed that X was probably prepared to see Ms D but she had not discussed these matters with X since 26 March 2014. She said she might enrol him in Headspace but she had only heard about Headspace the previous weekend.
Under further cross-examination by counsel for the father she confirmed that X went and saw Mr T at 4.00pm after school on 24 March 2014. He was at school on 25 and 26 March 2014. She was talking to X on 26 March 2014 at bedtime about Mr T and the father and it was then that X was alleged to have said that “I am not going, if the judge makes me go, I’ll kill myself”.
She was cross-examined about why this assertion was not in her Affidavit filed 4 April 2014. She replied that she did not think about it. She said that she knew it was serious but never gave thought to putting it in the Affidavit. She said that she was dealing with it at home.

The evidence of Y

Y adopted her Affidavit filed 12 June 2014 as true and correct.
Under cross-examination she confirmed she was in the process of saving up so that she could change her name. She said that she had a good relationship with the father until 2012. She could not recall any incident with the father in May 2012. She said that the last time she had seen him was around about his birthday in August 2012.
She said that there had been a gradual breakdown in her relationship with the father who had become a different person. She said that she was not home often and was working fulltime. She heard him talking with her mother. She said that X had said that he was scared of his father. X said he had heard his father say that he did not love him and that he only wants him to work. She said that the relationship between X and his father was terrible.
Under cross-examination by counsel for the Independent Children’s Lawyer, Y confirmed that she had been living with her mother and X since February 2012. She did not know which of the father and mother had actually moved out of the former family home. She said that she did not often talk with her mother about X although they did discuss how to try and regain a relationship between him and his father. She said that she had tried to bribe him with a scooter but he still would not budge. She had not been told that X might kill himself.

The evidence of Ms D

Ms D is a psychologist who treated X in 2012 after a referral from his treating doctor, Dr W. She adopted her reports dated 26 November 2012 and 9 May 2013 annexed to her Affidavit filed 16 May 2013.
It is fair to say that the purport of these two reports reflect an account by X of concern about his father’s behaviour and a need to live separately from him with his mother. It indicates X’s improvements since he has been living in (omitted) and in the second report dated 9 May 2013 a confirmation that the father had yelled and screamed and that he had been worried that either his mother or himself would be hurt by his father during these episodes. It confirmed that in the access after he had moved to (omitted), X had felt relieved when there were adults around whom he trusted. It confirmed a positive relationship with his father until approximately two and a half years before the May 2013 family report and that he did not want access visits with his father at that stage although he might reconsider in the future.

Cross-Examination by Counsel for the Father

Ms D confirmed that following November 2012 she had three sessions with X in 2013. Her last contact was on 30 July 2013.
Her first contact with X was 18 September 2012. X was brought by his mother and she saw the parent and child together for a short time but then the bulk of the time was spent with X himself. She was told of the recent separation. Part of the stress on X arose over the medication of his father and the fence that he had erected between the two properties. X had told her about the pills that his father was supposed to take. X told Ms D when he was with her on his own that this was the trigger for most arguments. He said the father was shouting and the mother became scared. He said that the father was depressed and that was what the medication was for.
He said that there was a distinct change in the relationship with his father as a result. Prior to that, he and the father did things together on the farm and had a good relationship. Then the father’s behaviour started to change and X became confused and scared. This arose from yelling and screaming because he was scared that he or his mother might be injured.
When X was alone with Ms D his presentation matched what he was saying. When he was saying he was fearful, he was pale and crying and shaking.
Ms D confirmed that she had not made contact with the father because of X’s fear. She felt it would be a breach of trust. She said that her overriding concern was for the child.
She said that they did not just talk about the father, they talked about the move to (omitted) which X was anxious about. But by the end of the sixth session X had reported that he was going quite well and that he had settled into school and was enjoying (omitted) where he was making new friends. X did not need further sessions thereafter.
Taken to her notes of the meeting with X on 25 October 2012 Ms D confirmed that she had been told there was a Court case yesterday and that the mother had explained the Court orders to X. X was scared when his father yells and screams. He said he would be better in (omitted) than (omitted) School’s schools. X was on his own when he was saying he was scared. He was mixed about his father. He was apprehensive about his temper and worried that he might question him about where the mother was living.
Asked about X’s visit with his father to the farm on 27 October 2012 Ms D confirmed that all information came from X on 6 November 2012 when they had a counselling session. He had told the father that he had wanted to stay in (omitted) but the father had already organised a barbeque at (omitted) School. He was relieved that other adults were there and felt “heaps better” as a result. The father asked where they were living. He said that he was relieved at the end of the day when he was collected. Ms D said that X had not told her that the father left him alone with Ms S and had gone to the pub. X had indicated that he was reluctant to go on further visits.

Ms D said that X was quite mature for eleven years of age and was quite articulate. He had managed the transition to (omitted) well.
When she saw X in June and July of 2013, Ms D confirmed from her notes that X had told her he had not seen his father at all. Ms D was a little surprised that X was so vehement about not seeing his father. They had discussed problems with the Court orders. The mother wanted to cope with X’s fear but also to comply with the Court orders.
It was clear to Ms D that X’s fear of his father was still extant.
Ms D confirmed that she has a good relationship with X. She said that it might be difficult for her to counsel X to see his father although she would have no difficulty in seeing him.
Under cross-examination by the Independent Children’s Lawyer, Ms D confirmed that X was scared because of the father’s screaming and yelling and that he or his mother might be hurt as a result. She confirmed that the mother’s attitude was also a difficulty. For any chance for time to be spent with the father X would need to see the father somewhere he felt safe. This should take place for small amounts of time with an adult that X trusts there. She said that a supervised contact centre might make X feel safe. She confirmed that it would be difficult for X to say to his mother that he wants to see his father.
She confirmed that X was fragile at the start of counselling but not at the end. There had however been a lot of bullying at (omitted) School. Ms D did not support a change of residence as a result of X’s fears. The longer the delay the worse X’s anxiety would be. It would need to be very small amounts of time initially and the Court should end the Court process.
In re-examination, Ms D confirmed that she had no experience of (omitted) College in (omitted) which X presently attends but could probably arrange weekly consultations.
I would interpolate at this stage and say that Ms D presented to me as an evidently honest and sincere witness. She was in no way unresponsive or dogmatic in her answers to questions in cross-examination and it is clear that she has X’s best interests at the very forefront of her considerations. Her evidence about the difficulties that might obtain if she were to seek to counsel X to see his father were clearly given from a perspective not of hostility to the father but of a concentration on X’s best interests. She was as I have said an excellent witness.

The Evidence of the Father

The father in evidence in chief, adopted his affidavits and financial statements as true and correct. He also tendered exhibit R1 being a statement of his (omitted) superannuation interest. He confirmed that he had spoken to (omitted) on that day and his superannuation is presently $29,204.97.
He further confirmed that the extent of his two loans is approximately and presently $125,000.

The Father under Cross-Examination by Counsel for the Mother

Cross-examination of the father was very extensive. What follows is, inevitably, something of a condensed paraphrase.
The father gave details of his work history and said he had always been a hard worker. He had said that he was also always a homebody and said that when he was not working in Melbourne there had been an arrangement for shared care of X.
He said that the mother was extremely manipulative and that as far as her mental state was concerned there was a lot to be desired. He said that it was strange to him that his relationship fell apart immediately after he inherited from his father. He said that the parties had a fine relationship until 2012 when the estate was finalised. He had good relationships with Z and Y until 2012.
The father denied that he was badly affected by the loss of his parents and said that there were no changes in his behaviour after they died. He said it was just the opinion of one person (clearly the mother).
He said that there were two occasions when he raised his voice to X. One was when he could have drowned (this referring to an incident where it appears that X and a friend got a vehicle bogged) and the other was the Mr D incident.
He placed the blame entirely on the mother for the problems between himself and X and said that nothing he had done could have caused any problem.
He said that he was aware that X does not want to see him and that he had heard Ms D’s evidence. He said that Ms D is very biased and had never even spoken to him. He said that nothing he had ever done could cause X to be scared. He said that the parties have been separated for years when he erected the fence in 2012. He said that he paid all of the mother’s bills, she lived in his father’s house and had never paid anything for it. He said that the relationship had really been that of landlord and tenant since separation under one roof in 2005. He said that when his father died, the mother moved into his parents’ house and he lived in the former family home. He said that X was well aware of the toxic relationship between the parties. He said that every time he walked in, the mother would start an argument.
He denied that the fence would stop X using the basketball ring and other amenities and said that he had not blocked the gate (this does not appear I should say in passing, consistent with the photographic evidence). He said that he had not spoken with X before the fence was erected and that the mother would not allow him to see him.
He said that he had put the fence up in effect to protect himself from allegations of breaching the Intervention Order. He said it was put there to make the police’s job easier. He said that he installed two cameras because stuff was being stolen, one at the front door and one over the road at the shed.
He was cross-examined about matters contained in the family reports. He said that it was only in the report that X was said to have cut the fence and struggled to believe that an 11 year old could cut a fence six foot high. It was not his intention to make the mother leave the farm, but rather to safeguard his own position because of the abuse of the mother. He said that he does not get angry and was not angered by the Intervention Order.
When cross examined about the second report of Mr T he could not explain what X had said. He said that there were no problems with safety for X. He said that he had taught X to drive a tractor and he had been sitting on his knee in the tractor since he was in nappies. He said that X possibly started driving a tractor at the age of 10 but before that he would sit on his knee and steer the tractor. It emerged however in my view, quite clearly, that this started when he was eight years old.
He said driving the tractor under supervision was okay. He would sit on the seat next to X. Otherwise he would be in the same paddock. He confirmed that X mainly drove the bigger ploughing tractor and did so on his own. The biggest paddock is 300 acres. He said that X was never not keen to drive the tractor and he never made him do so. He said that he explained the right and the wrong way of doing things and whatever dangers there were and that children only learn by having a go. He said that he, himself, started farming when he was only six or seven years old and started driving a tractor at a very young age.
He said that he was not happy with the prospect of X following him on the farm and that he should get a trade although he said “everything I own is his”.
He said that he never allowed X to do anything that he did not want to do and anything he did do, he was competent at.
He said that X has three tractors, two of which are in a state of disrepair. He said that he would keep these until X turns 18 when he would give them to X.
He said that the mother could have the electronic organ which had been in situ for 10 years. He said that an electronic motorbike and old fashioned car were in the barn but X did not want these. He said that X knew everything was his.
He said that he did not know where all of the other items on the list claimed by the mother were.
He said that he had no idea about where Y’s washing machine was. He said that this was the same as not knowing where his parents’ furniture had gone.
I interpolate that this bickering over chattels of little worth is entirely symptomatic of these parties’ relationship.
The father was cross-examined about his medical history. It was put that he had seen Dr W about depression in 2010 and he admitted this. He said that he had agreed to have antidepressants for peace and quiet. He went back and he took the pills for a while, simply to have peace and quiet at home. He said that he did not think he had been depressed. He said that he had been stressed because the mother had threatened that he would not see his son again. He denied taking any of the Zoloft and said he might have lied to the doctor. He could recall his Zoloft prescription being increased in October 2010. He said the mother had stressed to Dr W that he needed counselling and that he never had any because he did not think he needed it. He said that he would undertake counselling if ordered to do it and would be willing to do so.
I should interpolate again and say that the father’s answers about his taking of Zoloft had all the appearances of being made up on the run.
The father said that his “depression has left (omitted)”. He said this was because the mother had left town. He said that his sisters had been driven away by the mother but were now back in his life. He was not aware that Dr W had prepared a mental health plan.
This answer flew rather in the face of exhibit A3, being the subpoenaed records from Dr W’s practice. This shows that inter alia the father had told Dr W on 9 November 2010 that he was feeling okay on 100 milligrams of Zoloft and a report on 2 April 2013 that he was still feeling down with “alot stress from ex wife - court involved, sleep concerns, nil suicidal idea, counselling, medications Advised”.
The father was taken to the report of Mr T and the reports about the incidents where Mr H bogged down the motorbike. The father denied losing his temper and yelling at them and said he may have raised his voice for some 30 seconds to one minute. They could have drowned in the creek but he had never lost his temper with X.
The father admitted yelling at Mr D but only for a couple of minutes. He said that he had not lost his temper but was frustrated that Mr D had done something he should not have done. This was because of his ex-wife. He went on to say that he had never lost his temper in his life and that “I am the most placid person there is”.
This statement, made with evident sincerity, belies both the father’s overbearing and arrogant demeanour when giving his evidence and flies, as is immediately apparent, in the face of the reality of human life. The suggestion that the father has never lost his temper in his life only has to be stated for it to be immediately apparent that it is absurd. I should make it clear that it was certainly not the impression that I got of him.
The father said that Mr D was not crying. He said it was the mother who would have an angry outburst and that he would walk away. He said he has no mental health problems but the mother has.
The father said that the mother knew all about his criminal conduct and said that if he had faults he would admit them. He said he gets on very well with X and that there were no faults caused by him.
He said that a relationship breakdown cannot be one sided. He said that he has no animosity to anyone. He said that he forgives, forgets and moves on.
He blamed the mother wholly for X’s mental state. He always tells X to tell the truth. He said that it was hard to understand when X was not telling the truth. He said that Ms L is very good and open minded. He said that he will always put X’s needs above his own and has a pile of cards and presents waiting for him which he has not sent. It would be nice if X came out and enjoyed his presents with him and that he would not send cards through a solicitor.
When taxed with a conviction in 1990 the father said that on that occasion he was put on a good behaviour bond. In relation to his 2008 conviction he received a 24 month suspended sentence, with $5,000 compensation to be paid and a $3,500 fine.
The father said that the goods which were stolen which were the subject of the criminal charges were all confiscated by the police and he had taken all the blame to shield the mother and X. He asserted that the mother was fully complicit in his activities but took all of the blame because the mother might go to gaol. He said that this conduct was before separation. He was also taxed with having an unregistered firearm in 2008 as indicated by police records, exhibit A4. The father’s answers to these aspects of cross-examination were unresponsive and argumentative.
The father confirmed his employment with (omitted). He had put this as starting in February 2006 and finishing 18 months later. He emphasised the amount of time he was able to return and participate in family life.
The father said that X should live with him at (omitted) and when asked when this should start he said that this was a hard thing to say but certainly should be as soon as possible. This would be a hard thing for X the way his mind had been poisoned. He said that Mr T was wrong with his three suggested options and that living with him was the best option for X. The father became labile while giving this evidence.
The father said that X should return to (omitted) School. He said that he is quite shocked to hear the evidence of Ms D. He said however that every school in Victoria has problems like that and that X could go to (omitted) school in any event.
While X had always lived with his mother he said the damage was caused by his mother and not him. He said that once X gets home in his old environment he will be happy like he used to be. He said the one time X came to the farm it was two minutes before he was having a great time. He said that Ms L would be good with X and would help X to change. He said that he was horrified that Ms D did not want to talk to him. He said that Ms L had 35 years of experience and that he would respect what she would say. The father said that she could see that X is frightened but would still ask for a change of residence.
The father was cross-examined about the incident during the visit on 27 October 2012. When he had collected X at the police station he had said that his mother said he had to take him to the movies and could not leave (omitted). The father said that he told X that there was a party of mates at (omitted) and they had made arrangements. On that occasion Ms S was there with her daughter. The father said that he never told X to drive the tractor but X did want he wanted. He said that X was impressionable and the fear that he has was true. The Court has to work out who planted that fear in his mind.
When cross-examined about Mr T’s account, that it was he who suggested that X come to the farm, the father’s answers were evasive. He said that he couldn’t say what Mr T said. He said that he had said that you are welcome to come to the farm whenever you want to.
I pass over cross-examination about financial matters because I understand the pool of assets is not the subject of disagreement.
The father was cross-examined about his parents. He said that they were not frail in later years. In essence he put in issue the amount of assistance that the mother might have provided to his parents. It did emerge however that his father had had dementia and an administrator had been appointed in 2000.
The father confirmed that his health was good and he has a licence to perform (omitted) work. He said that he was not qualified as a (omitted). His responses to questions about his capacity to work were in my view combative and bullying.
He said he had a fulltime job running the farm and (omitted) which ran at a loss in 2012. He said he would make more money in (omitted) than as a farmer. He confirmed that he had not spoken to banks about refinancing from the farm. He said the houses on the farm would be easier to sell because the land was marginal and would be difficult to sell.

The Father under Cross-Examination by counsel for the Independent Children’s Lawyer

The father confirmed that if X lived with him he would not travel or do contracting work. X would go to school where he felt comfortable but he would more likely be comfortable at (omitted) School with his old friends.
He confirmed that the mother had spent 90 per cent of her life in the old house and had not worked while they were living together under one roof. He said he had continued to pay the mother’s expenses and she had accepted this until he inherited the rest of the farm. He said as soon as the mother left he pulled down the fence. He described in some detail the way the fence was built over half a day. He said that the 16 September 2012 photographs were him repairing the fence. He said that the fence had enormous impact on X. The fence had been built to avoid conflict.
I should interpolate and say that the father was labile when giving this evidence and I noted that the mother’s demeanour was pitiless and unyielding even when the father was distressed.
The father confirmed that the incident with Mr H and the motorbike had occurred in mid-August 2012 and the Mr D incident was in 2012 also.
When cross-examined as to whether X’s perception of his behaviour was troubling to him the father said that it could be but said that it was drummed into him by his mother. It was clear to me that the father does not take any responsibility for X’s fear of him.
The father said there were arguments with the mother every time he walked in and the mother was seeking to humiliate him. He said that he walked away and there was minimal argumentation from him.
He said that the mother had been hanging around to get a bigger slice of the pie and that the fear of X had been exaggerated and caused by the mother. He did however accept that it was a genuine fear.
The father said he had trouble understanding how two incidents could give rise to such an entrenched fear.
He confirmed that he had had some three or four sessions with Ms L. He said that he struggles to understand why X is not telling the truth, but Ms L had explained to him that that is what he perceives. Ms L had explained to him that he has to agree with X to allow him to move on, but he said that it is hard to agree when it is not the truth and he becomes emotional.

The Father in Re-Examination

The father confirms that he had got Dr W’s prescription filled. He said that he had put the pills under his tongue and would spit them down the sink when the mother was not looking. He said he only ever swallowed a handful despite the mother’s supervision.
When taken to the mental health plan, he said that he went to the doctor because he was ill and stressed. He said that he was frustrated that the Court system was not permitting him to see his son. He was not really aware what a mental health plan was.

The Evidence of Ms S

Ms S is the Assistant Principal at (omitted) School and filed an Affidavit on 29 May 2013 in support of the father. Put shortly she deposed that she had spoken with X when he visited the farm on 27 October 2012 and her observations were that he was not afraid of his father but loved him dearly.
She confirmed in evidence that there is bullying at the (omitted) school also she said it was a difficult community to deal with and there was often conflict in the yard or the school. It is sufficient to say that I thought Ms S was an honest witness but clearly partisan, as were the other non-professional witnesses called by the parties.

The Evidence of Ms L

Ms L was first cross-examined by counsel for the Independent Children’s Lawyer.
Ms L had heard about what I described as the ‘Mr D’ and ‘Mr H incidents. She said that the ‘Mr H’ incident involved the bike going into a dam. X had got it out by himself and did not get into trouble. His mother and father were yelling so he went away.

Ms L confirmed that X’s fear is the reason why he does not want to see his father and that he is genuinely distressed. It is not just the mother’s influence.
Ms L confirmed that part of her sessions with the father was trying to help the father understand that X is not just brainwashed. The father however is fixed on telling X the truth. She said that she had tried to shift the father’s view and that he had taken this on board in the second interview.
Ms L confirmed that X will not challenge his mother with whom he is fairly compliant. She said that the mother would like to promote a relationship between X and his father but is too anxious. She feels he has already suffered enough.
Ms L said that she thought it was worth pursuing a relationship between X and his father and that X had said “I’m not sure if I would like a dad or not”. What X wants is a father in control of himself. He does not want the mess that he has seen anymore.
Counsel took Ms L to the series of events that culminated in X’s threat to kill himself made to his mother on 26 March 2014. When asked if X could cope with a relationship with his father Ms L replied that X is a very fragile child. She said “I think he could get through it. I was close”. She said that it needed some more small steps but she cannot support a change in residence. It would take a long time and supervised time.
She said it would assist if the father could stay calm and put X’s interests first. They need a mutual meeting point, not the farm.
She said that time should be sooner and the father and X both needed counselling. She said that X does well in counselling and could have Ms D as a safe place for this.

Ms L under Cross-Examination by Counsel for the Mother

Ms L gave details of the number of times she has seen X, the father and the mother. She said that X is fragile and would experience the anger of others more keenly than another child.
She confirmed the extent of the ‘Mr H incident when the father got really upset and yelled in his face. She noted that the father admitted that it had occurred but had a different explanation.
She confirmed that X has said that his mother never yells at him. She confirmed that a change of residence would be particularly troubling and that X would need a third party present to see his father.
She said that the father was not blind to his faults. He struggled with some feedback but took it on board.
She said that at a superficial level, X does not want to see his father but also is not sure what he really wants.
It would be devastating for X to change schools and he has been much better since the change of school occurred. He said he hated (omitted) School and the teacher and seems to enjoy (omitted) College in (omitted).
Ms L confirmed that she did not think it would be a good idea for there to be a break in X seeing his father. The longer he does not see his father the bigger his fear will be. He should see the father in small increments and the father should obtain counselling to help to control his emotions.

Ms L under Cross-Examination by Counsel for the Father

The cross-examination commenced with what in effect was a surreptitious attack upon Ms L’s experience and professional competence. It became quite clear that Ms L is an exceptionally experienced counsellor with some 28 years of child and adolescent mental health experience. She specialises in separated parents.
When cross-examined about the father’s presentation Ms L expressed concern about the levels of anger and frustration he shows. The quality in his voice is angry and quite intimidating. She said it was not meant to be, but it is.
Ms L confirmed X’s expressions of fear both in the instance where his father had yelled at him and on occasion when his parents had yelled at each other.
It was put to Ms L that X’s fear comes from his mother. She replied part of it is X himself. Whatever happened up to 2012 had an effect. She said that she does not know where the rest came from. It could be the mother’s anxiety in part, but it could be the boy himself. She confirmed that some children experience one event and it is disastrous for a lifetime. She confirmed that X experiences his father’s anger in a way different from other children and that he would also pick up on his mother’s anxiety. She confirmed that X did not know about the stealing charges against the father until his mother discussed it with him and this had disappointed him.
Ms L confirmed that the last session arranged was 26 February 2014. The father was supposed to meet X. The mother called up and said X is refusing to go. She thought this might repeat itself. She said that this impasse must be breached by X spending time in a room with his father.

The Evidence of Mr T

Mr T adopted his two reports. Intervention was necessary if X was going to see his father. He said it would not work if there was no intervention.
He said that X’s emotions to his father if not resolved would be highly likely to magnify over time. They would reinforce his decision not to see his father. He was not sure how X would manage his relationships in the future. He would have a sense of rejection. He might come to understand the conflicted separation of his parents. Having seen him with his father for one hour there was some connection and it was worth trying to keep the relationship.
When taken to the sequence of events culminating in X’s threat to kill himself on 26 March 2014, Mr T was not sure if the mother had maximised this incident or X had minimised it. He had only got X to see his father by the threat of a further report. He said that he had set it up carefully and that X could have left at any point. He said that the discussion was positive and that the father and son reconnected.
He said it was better not to have a final conclusion to the Court proceeding at this time and that the matter should be reviewed in some six to nine months after the start of recommencement of time between the father and X.
Mr T was clear that the change of residence was not in X’s best interest and he would run away if it were ordered. He said that X is quite determined and a change of residence would not help. He needed to continue with Ms L. He said that X would struggle with going back to the farm. He would not enjoy a contact centre but it would be safe. He said that the Fairgrounds Children’s Contact Service would be a good potential venue but if X was to refuse they should accept this.
Under cross-examination by counsel for the mother Mr T confirmed that it is clear that X might run away if ordered to spend time with his father. He is serious that he does not want to live with his father at the moment. Mr T had told the father not to mention the farm before he saw X but he did so nonetheless. He agreed that X was fragile and aligned with the mother.
Mr T confirmed that the mother wants the trial process to finish and it was this in Mr T’s opinion which effectively enabled/forced X to come and see him and to see his father. He said that X thawed during the discussion. It is clear that X reports back to his mother. He said that the completion of this case would be worse than an adjournment. If the matter was left to X there would be no time spent with his father. He said that X’s presentation involved the complete rejection of his father and this was unusual. He is clearly very aligned to his mother.
Under cross-examination by counsel for the father Mr T confirmed it would be traumatic for X to relocate to live with his father. He said that Ms D might have legitimised the mother’s concerns and that he would have included the father in the discussions. He said that X was well aware about old issues including his father’s medication. There is no filtering of the information exchanged between the mother and X.
In the second interview X did not swear and the intensity was not there. He was less critical of his father and more concerned with his safety on this occasion.
The mother talked about (omitted), but this was not as apparent in the second report. It was clear there was a lot of talking going on between X and his mother. Mr T said that he got the sense that X reported back immediately to the mother, who might undermine any process whereby X was to see his father.
In re-examination Mr T confirmed that he preferred equal shared parental responsibility. He said the father was more open to post separation counselling. The mother had a very rigid personality and was unlikely to accept it.

Brief observations about the credit of the parties

Having concluded this necessarily lengthy traversal of the evidence, albeit in what I concede are relatively general terms, it is appropriate to say what I made of the witnesses. To an extent I have already given some indications in passing.
The mother presented as somewhat overborne by her experiences. She presented with what I would describe as “dull affect”. Nonetheless it is clear that she is deeply embittered by her experience as she sees it with the father. I have already commented on her pitiless aspect when the father was labile. The answer she gave with the greatest force in the entirety of her evidence was her assertion that the father wanted her to get nothing out of the property settlement. It is clear that for all the vivid emotions that both parties feel about the father’s relationship with X, the property dispute stands as a massive issue in their minds.
I would not describe the mother as an untruthful witness, but it is clear that a marked rigidity of personality (I accept Mr T’s comments in this regard) together with a very considerable lack of insight means that her evidence cannot be wholly accepted, particularly in respect of her views about X having a relationship with his father.
I have already made some observations about the father which are not flattering to him. It is always regrettable to have to say things about parties or witnesses which may distress them. Nonetheless it is once again clear that while the father may well have been a witness of truth in the sense that he believed what he was saying, he was not a good witness. He was at times arrogant, overbearing and bullying in his demeanour. He was at other times of course labile. Some of his answers as I have already indicated were evasive or had the appearance of being made on the run. This was particularly the case in relation to his mental health.
As with the mother, the most striking aspect of his evidence was in two matters. First, he clearly thinks that the mother only stuck around to try and get the maximum amount of money out of him and waited until his father’s estate was finalised before she moved out. As it happens, I think he is correct. The other aspect of his evidence is his incredulity that the two, according to him, minor incidents might have led to so violent an abreaction on X’s part. Regrettably, the father is markedly lacking insight.

Findings about the facts

The parties as is agreed, lived together from 2000 to 2005 as husband and wife. Thereafter, they lived separated under one roof until 2012. The relationship between all of them seemed to be relatively good until around about 2010.
In 2009 to 2010 or thereabouts (surprisingly the dates do not seem to be entirely clear) first the father’s mother died and then his father. The father completely denies that this had any effect on his mental health but the medical records tendered from Dr W’s practice show that this is not the case.
It is clear both that the father became depressed and it also clear that he denied it. He refused to take any of his medication (or at the very least did so as little as he could) and his personality changed.
The evidence given by the mother, by Y and by X (as evinced to the various people he spoke to about it) could not be clearer. The father’s personality changed from being supportive and generally pleasant enough to being erratic and angry.
It is clear that the father and mother argued from time to time. Each blames the other but it is far more probable that they were as bad as each other. Each of them has a pronounced tendency to see themselves as the persecuted party and to place all the blame on the other but in my view it is far more probable than otherwise, in light of ordinary human experience, and bearing in mind I saw these parties in the witness box for some considerable period of time, that they were equally responsible. X was clearly exposed to these arguments and distressed by them. Everyone seems to agree that he is a particularly sensitive child.
The ‘Mr H’ incident and the ‘Mr D’ incident obviously happened as the mother and X have described them. The father’s lack of insight in his minimisation of these incidents is troubling. The incident on 27 October 2012 does the father no credit. It is quite clear that he overbore X’s desires and effectively pressured him to go and spend time at the farm. X had not wanted to do so and this incident only went to strengthen X’s desire not to see him.
The father’s assertion that X always liked being on the farm and driving the tractors and so on is only partly correct. It is clear that X has formed the view that the father does not love him and simply wants to make him work. What the father does not understand is that while he himself loved being on the farm from a very young age, X may not be in the same boat.
The father’s assertion that X only needs as it were, to return to the farm and all will be well effectively almost immediately shows a staggering lack of insight. The evidence conclusively shows that this is not the case.
The professional witnesses all gave their evidence with evident sincerity. They were all manifestly well qualified in their professed areas of expertise and were giving evidence within that area of expertise. Ms D and Ms L are not in my view unfairly partisan. To the extent that they are perceived to be so merely arises out of the circumstances in which they conducted their various activities.
I should make it clear that I accept the evidence of Ms D, Ms L and Mr T although it should be noted that that evidence does not readily lead to particular outcomes in the context of this case.
So far as what might be described as the financial issues are concerned, it is clear that the father had already inherited substantial amounts of land before the relationship and in due course he effectively inherited the family farm (less the distributions to his sisters). The mother had no meaningful input to this outcome whatsoever.
The father worked fulltime, whether on the farm or for a period of time on the (omitted) in Melbourne. The mother was clearly the major homemaker (I roundly reject the father’s assertion that it was a shared care arrangement when he was living at the farm) as X’s alignment to his mother would not otherwise be explicable.
The mother did conduct a (omitted) business of her own but its earnings were very limited and she is not now in a state of health to be able to continue to work, either in that capacity or indeed in any other. The father however does have work prospects albeit that he may well stay on the farm where his future earnings are uncertain.
The mother must have given some measure of assistance to the father’s parents in their later years, given the state of their ill health. It is a matter to be taken into consideration although of its nature it is not susceptible of precise computation and on any view would not have been a massive consideration.

The Family Reports of Mr T

I have not, save in passing, when dealing with the evidence, dealt with Mr T’s two family reports. In the particular circumstances of this case it is not necessary to do so. In his first family report dated 6 May 2013 Mr T reported at length the recitations given to him by the parents and X.
Mr T’s first family report showed the very considerable dysfunction between X and his father and said at paragraph 85 of his first report:-
The writer notes the serious claims made by each parent about the other parent in this matter that include threats to kill and claims of illegal activity. It is also noted that Mr Claughton is making claim that Y is intent upon·ceasing his relationship with X. The writer was troubled by the outright rejection X showed in relation to his father.
Mr T’s first report noted at paragraph 90, page 29 that if time were to be spent “it appears that this will take time to evolve and will need many resources to make it happen. Such resources might include the services of therapy in the first instance followed by utilising Fairground and then engaging in a graduated regime of time spent. This may be difficult to manage even with such resources”.
The second report brought matters up to date and stated at paragraph 55, page 29:-
The writer notes the very difficult journey that has transpired since separation, particularly for X. It is difficult to consider that X has only seen his father three times since separation and two of these were in the process of assessment. For the writer, this speaks volumes about intent.
Mr T noted that the father remains desperate to reconnect with his son and the resistance of his mother to this. At paragraph 59 of the second report Mr T said:-
What was clear to the writer during the last assessment and again in this assessment was the that the parents clearly lived in a toxic relationship separated under one roof for many years and considers that this is the foundation of much of the difficulty that lies in this matter.
Mr T was unable to offer any particular recommendations. He asserted that if the Court thought it was in X’s best interests to pursue time spent it would take time to evolve and may need many ongoing supports. Mr T observed (paragraph 62) that if the Court felt that any time spent with would be too difficult for X then other methods for connection were appropriate.

The Submissions of the Parties

The Submissions of the Independent Children’s Lawyer

The Independent Children’s Lawyer provided a Minute of proposed orders. The orders proposed included equal shared parental responsibility and a process whereby X would gradually reconnect with his father including continuing counselling with Ms L. This would leave to Ms L, at her discretion, the possibility of X meeting his father with her. In the alternate, it is proposed that there be supervised time at Fairgrounds and there are a number of ancillary and significant issues of counselling and therapeutic intervention proposed.
I do not propose to traverse the helpful submissions of counsel for the Independent Children’s Lawyer in any detail as in essence they are consistent with the findings that I myself have already made. I note that the Independent Children’s Lawyer is not pressing for a final outcome of the proceeding but I further note that the final outcome of the property aspects of the proceeding is likely, in view of my opinion as to its significance in the underlying scheme of things, to assist the parties considerably.

The Submissions of Counsel for the father

Counsel for the father’s position accepted that enrolling at Fairgrounds was appropriate if the father’s primary position was not accepted. Nonetheless she submitted that there must be a change of residence. It was put that this would be the only way of breaking the cycle of the mother’s alienation of the child.
Once again I do not propose to traverse the submissions of counsel in any detail. They were self-evidently consistent with the father’s case and were highly critical of both the mother and indeed Ms D.
Putting the matter in the round, it was put that the mother will undermine any endeavours to approach this matter in a therapeutic way and that ultimately the only way in which the father relationship with the child can be maintained is by the shock of an immediate change of residence.
I will return to the submissions made about property issues in due course.

The Submissions of Counsel for the mother

Once again I do not propose to paraphrase these helpful submissions at great length. I note that the mother did not oppose an order for equal shared parental responsibility and accepted that there should be a restraint on her change of X’s name. This is an entirely appropriate concession. The mother’s decision unilaterally to change X’s name almost immediately upon separation speaks for itself. Counsel sought that time be suspended and submitted that there should be six months off counselling following which it should be resumed and with Ms D and not Ms L.

The Statutory Pathway

The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-
Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.

Equal Shared Parental Responsibility

Although as counsel for the Independent Children’s Lawyer correctly submitted, things have happened in X’s life that would rebut the presumption as to equal shared parental responsibility, in circumstances where the Independent Children’s Lawyer supports it and the father and mother do not oppose it, it is plainly appropriate to make it. The reality is that both these parents, for all their failings, do love X and it is appropriate that they both have a role in making decisions about his future, notwithstanding the difficulties they have in inter-communication between themselves.

Section 60CC(2) – The Primary Considerations

In this instance all parties, at least ostensibly agree, that it is appropriate that X have a meaningful relationship with each of his parents. All parties agree that it is appropriate to protect X from physical and psychological harm and from being subjected to family violence within the meaning of the Family Law Act 1975 (Cth) (“the Act”).
The Court is of course required to give greater weight to the latter considerations (s.60CC(2A) of the Act).
In the particular circumstances of this case, it is appropriate to deal without further ado, with the additional considerations in s.60CC(3) of the Act

Section 60CC(3) – The Additional Considerations

X is a mature child for his years and could not have expressed clearer views about what he wants. His views are plainly relevant and must be given weight. However, as counsel for the Independent Children’s Lawyer pointed out care should be given to giving great weight to this view because in the circumstances of which it obtains. As counsel submitted it seems apparent from what X said to Ms L that he does, in an underlying way, to an extent want a relationship with his father.

Section 60CC(3)(b)

This can be dealt with briefly. X is greatly enmeshed with his mother and has a fractured relationship with his father. He has a close relationship with Y who is also the subject of a fractured relationship with the father.

Section 60CC(3)(c)

Both parents have sought to participate in making decisions about the major long-term issues in relation to X. The father’s endeavours to spend time and communicate with the child have been noted as being very intense by both Mr T and Ms L.

Section 60CC(3)(ca)

The mother has plainly been X’s primary carer but it should be noted that until things went wrong in 2010 the father was unobjectionable as a father and seemed to be a good and loving one. While it is true that the father did not provide child support until late in the day, he made numerous other payments to the mother, who lived in rent free accommodation. In my view neither parent can be particularly criticised under this heading.

Section 60CC(3)(d)

Plainly, separation from his mother would be devastating for X at this stage. The father’s claims for a change of residence reflect the lack of insight to which I have referred to on more than one occasion in these reasons for judgment. A change of residence is utterly counter-indicated by all the evidence including the professional evidence. I note that X would probably miss Y as well as his mother were this to occur.

Section 60CC(3)(e)

There is no difficulty in respect of expense with regard to X spending time and communicating with the father. The practical difficulty that obtains is X’s present state of mind.

Section 60CC(3)(f)

Both these parents are flawed in their capacity to provide for X’s needs. The mother is unable to see that her own entrenched rigid opposition to the father might be causing X distress and the father is at least as bad if not worse in his incapacity to understand that his own behaviour may have contributed (and in my certain view has contributed very significantly) to the state of affairs that obtains.

Section 60CC(3)(g)

Here there are a number of things to be said. First, X is both mature for his age but also, it would seem, ultra-sensitive. He experiences things more than other children of the same age would. Each of the parents for the reasons I have described lack insight in a fashion that acts very unfortunately upon the extant set of circumstances.

Section 60CC(3)(h)

This is not relevant

Section 60CC(3)(i)

Both these parents love X. Both at least ostensibly wish to play a proper role as parents to him. For the reasons as I have already given however, their approaches are both extremely flawed.

Section 60CC(3)(j) and(k)

These are important matters. I have already made it plain that there has been family violence within the meaning of the Act constituted both by the arguments between the parents and the father shouting at X from time to time. Whether it is limited to the two instances that appear to have caused most concern, namely the ‘Mr H’ incident and the ‘Mr D’ incident, or as I suspect has been more general, there is no doubt that there has been family violence.

Section 60CC(3)(l)

This is an important matter in the context of this case. The mother desperately wants to bring it to an end and from her perspective this is understandable. X is clearly very distressed by the ongoing Court proceeding. Nonetheless the mother’s true position is that there should be no more proceedings because X should not see his father. While I am not prepared to say that she is dishonest when she says that she thinks X will have a relationship in the long term if the program she propounds is adopted, the fact is that she is in truth adamantly opposed to the father spending any time with X. If I make final orders now, it will have the net effect that X’s relationship with his father will be sundered.
The Independent Children’s Lawyer has proposed a set of orders which would require the matter to return to Court in due course. I will return to this shortly.

Section 60CC(3)(m)

As counsel for the Independent Children’s Lawyer correctly submits that a relevant issue here is the extent of X’s resilience. Mr T says that X can manage and so does Ms L. The threat of suicide arises with a very protective mother and should be construed as meaning the same as “I will run away”. Counsel for the Independent Children’s Lawyer pointed out that Mr T said that this meant “Don’t do that to me”.

Conclusion on the Parenting Issues

This is a very distressing matter. The highly qualified nature of Mr T’s reports only goes to emphasise what is patent, namely that the Court is faced with a very difficult problem. On the one hand, it is apparent that X is expressing very clear and determined views that he does not wish to see his father at the moment and it is absolutely clear that the mother wholly supports this. On the other hand, the observations of both Mr T and Ms L suggest that X’s true position is more complex.
Taking all the materials in the case as a whole in my view, the orders proposed by the Independent Children’s Lawyer should be made. I think that much of the underlying fury in this case in truth is related to the property issues and their resolution will diminish some of the difficulties between the parties. I should make it clear, if I have not done so already, that in a sense I think that each of the parents is correct in their appreciation of the other’s position. On the one hand, I think the mother is correct to assume that the father would like her to get virtually nothing and certainly as little as possible out of the property settlement. On the other, I think the father is correct to assume that the mother did stick around, in a witting way until the estate was finalised before lodging her claim. Neither of these conclusions does either parent any credit.
The evidence of Mr T and Ms L, in my opinion, goes far enough to show that it is in truth in X’s best interests that his relationship with his father be endeavoured to be maintained and that this is what X really wants. The case is desperately inhibited by the lack of insight of both parents and it is to be hoped that these reasons for judgment together with therapy ordered will assist the parents to come to grips with their failings and the terrible effect that these failings are having upon X. If they love him as they say they do, they will adopt the position that the Court imposes as proposed by the Independent Children’s Lawyer with alacrity.

Property Issues

The agreed asset pool comes to a total of net assets and superannuation in the figure of $1,749,604. It is inserted from the schedule provided.

ASSET/LIABILITY	OWNED	VALUE	NET VALUE
506 acres located Property C - "Property C"	H	$572,500
605 acres located North of Property C - "Property H" & "Property B"	H	$369,500
195 acres located "Property F"	H	$247,000
13 acres Residential property at Property N, - "(omitted)"	H	$237,500
SUBTOTAL	$1,426,500
Father's (omitted) Bank overdraft secured against properties (as at 28/2/14)	H	($122,076)
$1,304,424
Property M	JT	$200,000
Mortgage to (omitted) Bank (as at 1/1/14)	JT	($125,854)
$74,146
(omitted) - time share	JT	$17,000
1000 (omitted) shares	JT	$1,000
3200 (omitted) Shares @ $5.40 per share	JT	$17,280

495 (omitted) Shares @ $2.95 per share	H	$1,460
1284 (omitted) Shares @ $5.12 per share	H	$6,574
Mazda Motor Vehicle	W	$18,000
(omitted) Finance	W	($6,000)
$12,000
Livestock	H	$40,000
(omitted) Stock (as per valuation )	H	$45,000
Farm Plant & Equipment	$209,515
NET TOTAL ASSETS AND LIABILITIES	$1,728,399
(omitted) superannuation	H	$21,205
NET TOTAL ASSETS, LIABILITIES AND SUPERANNUATION	H	$1,749,604

Pursuant to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 it is first necessary to consider whether, having isolated the parties’ legal and equitable interests (something achieved by the agreed property pool set out above) there ought be a property adjustment between the parties.
This is one of the many cases as the High Court indicated would occur in Stanford, where it is clearly appropriate to make a property adjustment. The parties’ relationship has broken down and the parties both seek that there be an adjustment.
The father sought that the mother be given the Property M property free of encumbrance as her share of the property pool. This would equate to approximately 13 per cent of the pool on the figures set out in the table above. The mother sought that there be a distribution of 60 per cent to 40 per cent in the father’s favour.

The Asset Pool

As indicated the property assets are set out above.

Contribution

This matter may be dealt with shortly. The reality is that all of the real property, with the exception of the (omitted) property, together with the plant and equipment effectively comes from the father. He inherited it either before the commencement or following the end of the relationship. The real property constitutes the vast bulk of the asset pool.
The relationship was, as the father’s submissions state, only one of some five years, but as is often the case, the true position is more opaque. While the parties’ separated under one roof, they continued to conduct their affairs to an extent together. The mother must have had some role in running the farm and (omitted) activities during the 18 months that the father worked in Melbourne. This was all after separation in 2005 on any view. Likewise, the mother must have had some role in helping look after the father’s parents up until the father’s death in 2010.
Further the mother appears to have continued to provide food, cooking and other services for the husband until he actually moved out of the property in which they lived.
The wife’s contribution from her earnings in her business must be set at a very minimal level. It was her own case that she made very little money at it. As is always the case in such matters, assessments such as these are matters of impression and involve judgment in a broad sweep.
In my view the father should receive a loading of some 30 per cent in his favour in this regard.

Section 75(2) factors

Here the position is rather the other way. The father is in good health and has earning capacity. I note his earnings of recent times, but on any view his evidence is that he could make more as a contractor than as a farmer.
Although it is a significant finding to make, the bitterness that the father obviously feels about the mother’s financial claims is so clear and so great that I am prepared to find and do find that he has taken such steps as he is able to ensure that his income has been minimised of recent times. Whatever the future holds for him, he will make a living. He has substantial unencumbered property in any event.
The position for the mother is much more difficult. She has multiple sclerosis. I accept that she will not be able to work in the future. She will live on statutory benefits and child support, which will in all probability of course, cease when X turns 18. The mother will have the responsibility for the care and expense of looking after X.
In all the circumstances in my opinion there should be a 15 per cent adjustment in the mother’s favour in this regard.

Just and Equitable

Taking into consideration all the relevant circumstances of the relationship, noting its brevity and noting all the other matters referred to above, in my view an outcome giving the mother 35 per cent of the property pool including superannuation is entirely appropriate.
I note that the authorities make it clear that superannuation must be considered as a separate matter. In this case however, the amount of the superannuation agreed is slightly in excess of $29,000. It is such a small proportion of the asset pool that it does not in my position require further deliberation.

Chattels

I found the evidence given about chattels both confusing and in most instances unpersuasive. In my view, save to the extent that the parties are prepared to come to agreement, each party should simply retain whatever is in their present possession.

The form of orders to be made

The father has not turned his mind in effect to buying the mother out. The orders that I make will make his proposal that the Property M property alone be given to the mother unworkable. I will give the parties the opportunity to consider these reasons for judgment and to hear them further in the event that they are unable to agree.

I certify that the preceding two-hundred and seventy-eight (278) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 25 June 2014

[2014] FCCA 1260

25 June 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs