PACILLO & SEALES

[2014] FamCA 534

FAMILY COURT OF AUSTRALIA

PACILLO & SEALES [2014] FamCA 534

FAMILY LAW – CHILDREN – Whether orders should be made on an interim or a final basis – Where the child is not currently spending time with the father and there is a strained relationship – Where the Independent Children’s Lawyer proposes interim orders be made and the child have the opportunity to receive therapeutic assistance to rebuild the relationship with the father – Where the father proposes final orders be made and the child change residence into his care – Where the Independent Children’s Lawyer seeks that the Department of Family and Community Services be requested to intervene pursuant to Section 91B of the Family Law Act 1975 (Cth) – Where weight is placed upon the Family Consultant’s opinion that no orders should be made for the child to spend time with the father – Where the child’s wishes are given some weight – Where there are concerns about both parents’ capacities, attitude to the child and responsibilities of parenthood – High parental conflict – Where the child’s interests would be best served by interim orders being made

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

APPLICANT: Mr Pacillo

RESPONDENT: Ms Seales

INDEPENDENT CHILDREN’S LAWYER: Ms Coady

FILE NUMBER: PAC 4189 of 2008

DATE DELIVERED: 10 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 8 – 10 July 2014

REPRESENTATION

THE APPLICANT: Self-represented Litigant

THE RESPONDENT: Self-represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyers

Orders

UNTIL FURTHER ORDER IT IS ORDERED THAT

1. The child shall live with the mother.

2. Each party is hereby restrained from permitting or causing the child to operate a motor vehicle without the child first obtaining a driver’s license.

3. The mother is restrained from consuming alcohol at any time when the child is in her care.

4. The parties shall communicate with each other by SMS text message regarding the child.

5. Each party shall maintain an active mobile telephone and shall ensure that the telephone has credit, is charged and is switched on between 8.00 am and 6.00 pm each day.

6. Each party shall advise the other party of any change in that party’s mobile telephone number within 24 hours of any change occurring.

7. The mother shall notify the father of any medical treatment the child receives, while in the mother’s care, within 2 hours of the child receiving medical treatment.

8. Each party is restrained from denigrating the other party within the presence or hearing of the child.

9. Each party is authorised to obtain information from the child’s school and any treating medical professional regarding the child.

10. The mother is to arrange a mental health assessment for herself during the adjourned period and file a report in this regard 7 days prior to the adjourned date.

11. The matter is adjourned to 9 October 2014 at 10.00am for interim hearing.

12. With the consent of the mother, the mother will participate in such parenting programs or counselling or adolescent services as recommended by the Independent Children’s Lawyer.

13. The mother shall set up a personal email account, if necessary with the assistance of any other person except the child, and is to provide that email address to the Independent Children’s Lawyer within 7 days of today’s date.

14. The parents are restrained from discussing these proceedings or any of the evidence in these proceedings with the child.

15. The matter is adjourned to 22 July 2014 at 2.15pm for sentencing proceedings in relation to the contravention application.

16. The Independent Children’s Lawyer is excused from attending the sentencing proceedings in relation to the contravention application on 22 July 2014.

17. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

18. In the event that the Secretary, he/she is to file and serve a Notice of Intervention (by no later than 7 days prior to 9 October 2014.

19. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

NOTATIONS

1. During the operation of the interim orders, the child and the father will be given an opportunity to participate in therapeutic services and programs directed at rebuilding their relationship.  In the event that either or both of them do participate in such programs, that information in relation to their progress with such service or any such program will be provided to the Court on the next occasion.

2. The Independent Children’s Lawyer will use her best endeavours to facilitate the child communicating or spending time with his father (and any other paternal family member the Independent Children’s Lawyer deems appropriate) in the event that the child wishes to do so.  If such communication or time together takes place a report or information will be provided to the Court on the next occasion.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4198 of 2008

Mr Pacillo

Applicant

And

Ms Seales

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns L (the child), who is 15. L is the only child of the parents who separated prior to his birth. They have fought over the child for the whole of his life and it would appear that the child is now bearing the scars of that conflict in that he is exhibiting difficult adolescent behaviour, which at time places himself at risk.

2. Following a hearing relating to parenting orders, which is the third set of proceedings between the parents, together with the sixth set of proceedings where it has been proved that the mother has contravened Court Orders, the Independent Children’s Lawyer has sought orders on an interim basis and that the matter be returned to Court in three months. The mother agrees to these orders being made but they are opposed by the father.

3. The matter for me to determine is whether the interim orders sought by the Independent Children’s Lawyer or the final orders sought by the father are in the child’s best interests.

Background

1. L, who is 15 years old, was born in 1999. His parents are Ms Seales, who is 49, and Mr Pacillo, who is 47. The parents formed a relationship in the mid-1990s and lived together for a couple of years but had ceased living together by the time Ms Seales was pregnant with the child.

2. L has at all times lived with Ms Seales and the maternal grandmother. Ms Seales moved from Sydney in around 2003 to the Region D when the child was four. Mr Pacillo has remained living in western Sydney.

3. Orders in relation to the child were first made in May 2000. The current proceedings are the third contested parenting proceedings between the parents, though there have also been numerous contravention proceedings between 2003 and 2012, brought by the father against the mother, many of which have been found proved.

4. The most recent parenting Orders were made in September 2010 and, other than variations to a couple of the Orders following the proved contraventions, the September 2010 Orders govern the parenting arrangements for the child.

5. Under these Orders, the mother has sole parental responsibility for the child and he lives with her. The Orders provide for the child to spend time with his father on alternate weekends during school terms from 10.00 am Saturday, or at the conclusion of the child’s sport if at a later time, to 6.00 pm Sunday, or the conclusion of the child’s sport if at a later time. The Orders also provide for the child to spend time with his father during half of the school holidays and on special days and also provide for communication between the child and his father.

6. The mother has contravened the Orders on many occasions since they were made and, in particular, has not made the child available to the father for the purposes of them spending time together on both weekends and school holidays. The Orders so far as they relate to the child’s time with his father have not been operative since March 2012.

7. L’s relationship with his father up until this time was said to have been positive and there is no evidence of any particular incident which triggered a change in attitude in either the child or his mother in relation to compliance with the Orders. However, police records indicate that in April 2012, when the police were called to the mother’s home, the mother showed the police text messages and referred to calls over the last two weeks from the father in relation to seeing the child. She also said that the child did not wish to go to time with his father last weekend and this had made the father angry. Police records indicate that they viewed the messages that the father had sent and there were no threats contained in them. Police observed also that the mother was heavily intoxicated at the time of this call and were also concerned about her behaviour due to possible mental illness.

8. The mother has been previously diagnosed with a borderline personality disorder, which was described as “fitting with the drug abuse, alcohol abuse and history of self-mutilation.” Although it is an extremely old report (being January 1988) there are references to the mother having a previous history of amphetamine and cocaine use.

9. Initially when he commenced high school in 2012 the child was doing well and was described in his school reports as having adapted well to high school and to the workload expected in the selective class he was placed in. By semester two of the Year 7 his performance at school had deteriorated and the semester was described as a disappointing one in which there was a gradual decline in effort. It was noted that despite the child having a great deal of ability, he needed to focus to achieve his full and high academic achievement. The child was suspended on a number of occasions in 2013 and also in 2014. By the time the hearing commenced the child had deteriorated significantly at school and by October 2012, he had been moved from a selective class to a lower academic class and was on a monitoring programme due to him having developed disruptive behaviour.

10. L also had frequent and prolonged absences from school particularly in 2013. His semester one report, for example, recorded 48 total absences from school, only 13 of which were explained.

11. In January 2013 police were called to the mother’s house and she informed them that the child, who was 13, had received abusive and threatening messages via email from the father. The mother is described in police records as having demanded that police provide the child with an apprehended violence order against the father, claiming that the father had been threatening to him. The police listened to a recorded phone message and noted, while the father was hostile towards the child, he did not threaten the child and his hostility was in response to abuse from the child. Police also noted that during the recording the mother could be heard urging the child to abuse his father as well as well as “guiding the conversation”.

12. On 15 March 2013 the child, who was 13, attended a party. Although the mother claims that she did not consent to the child attending the party and that he had sneaked out of the house, the child’s witness statement made to police, which forms part of Exhibit 10, indicates that he was taken to the party by the mother of some of his friends at 8.30 pm. Alcohol was available at the party and the child was seriously assaulted by being punched in the mouth and lost consciousness. the child was hospitalised and required significant dental treatment.

13. There are also indications that the child has been sexually active since 14. In addition, in February 2014 police were involved in a reported incident that police records indicate involve an ongoing conflict between the child and another young person.

14. On 14 May 2014 the child was a passenger in a car driven by an unlicensed youth. Police records indicate that the child was the owner of the vehicle being driven and that his mother had agreed she had sold it to him.

15. Some time in early 2014, when the child was 14, he acquired a large tattoo across his chest, ironically bearing the words “family forever”. The mother gave conflicting evidence as to whether she consented to him being tattooed, but ultimately appears to have agreed on the basis that all his friends have tattoos and it meant so much to him.

16. On 25 March 2014 police attended the mother’s home as she had contacted them stating that she intended harming herself. Ambulance officers also attended. Police records indicate that the maternal grandmother at the home told police that the mother had drunk a large amount of wine throughout the night. The mother told ambulance officers that she had been hit in the hand with an axe by her 14-year-old son, that is the child, who police observed was asleep at the time. The maternal grandmother told police that this incident had not occurred. The police observed a small scratch inconsistent with an axe injury on the mother’s hand, the mother was taken by ambulance to a mental health facility as a voluntary patient. There is no further evidence in relation to the outcome of the mother being taken to the mental health facility, nor is there any current information concerning the mother’s current mental health status.

17. When the parties and the child were interviewed by a Family Consultant in June 2013, the child told the Family Consultant’s that he “really wouldn’t be very happy” and had “no idea what I’d honestly do” if required to spend time with his father. He said that he knew that Judges’ Orders had to be obeyed, but he did not think he would cope and would feel very stressed and did not think he could actually go to his father. There were no formal observations undertaken of the interaction between the father and the child as the father was concerned that the child would behave in the manner he had been told to behave, that is, by his mother.

18. The Family Consultant concluded that it was not his recommendation that the child be subject to orders that provide for him to spend time with or communicate with the father. The Family Consultant attached particular weight to the views expressed by the child, which were consistent with the views expressed in early March 2013. Under cross-examination he remained of this view.

19. It appeared that the Family Consultant may not have known the full extent of the current difficulties in the child’s life, (especially as the report was completed a year ago). The Family Consultant was asked about whether there would be any change in his opinion on the basis that there were serious deficits in the mother’s parenting capacity as evidenced by the behavioural difficulties and problems that the child has experienced in the last 18 months or so. He was also cross-examined, particularly by the father, about whether his opinion would change if a number of the matters told to him by the mother were incorrect. The Family Consultant conceded that his opinion may change if matters such as the mothers drug use, assessment of the child’s school performance and mother’s criminal history were shown to be untrue, but said that the difficulty was that there was no viable alternative being proposed for the child’s care. The Family Consultant said that if there were real concerns about the mother’s care and no viable proposal then the only alternative may be for the Department of Family and Community Services to become involved.

20. The father up until the second day of the hearing had not proposed that the child live with him. However, as the Family Consultant had foreshadowed that the only alternative if the mother’s care were found to be inadequate was a notification to and involvement of Community Services, which he thought would be unlikely to happen, I asked some questions of the Family Consultant about his assessment of the father’s capacity to meet the child’s needs. The Family Consultant said that it was untested and he could not give a clear view as the father had never had full time care of the child and that the main difficulty he saw was with  problems that may arise in requiring a 15-year-old to do something he did not want to do.

21. Overall, the Family Consultant remained of the view that it was best for the child for no order in relation to time with his father to be made and, in particular, described the benefits to the child of having a break from the extremely high levels of conflict and what he described as the “seemingly unrelenting dispute” that he has been subjected to. In his report the Family Consultant said “involving a child in or exposing them to high levels of parental conflict is associated with poorer long-term outcomes for the child’s development and well-being.” This opinion of the Family Consultant was unchallenged.

The law to be applied

1. The relevant principles in relation to parenting and interim parenting proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways. Of particular relevance in this case are the following objects :-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   The principles underlying the objects include:

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Should the Court make an order in respect of parental responsibility?

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that each of the parents of a child has parental responsibility for that child. Under the proposed interim order the Independent Children’s Lawyer does not seek that any order be made for parental responsibility. The father opposes the interim order and is seeking sole parental responsibility for the child on a final basis.

1. In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of section 61C and an order for shared parental responsibility, which has the effect set out in section 65DAC.

2. Under section 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply when the Court is making an interim order if the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (section 61DA(3)).

3. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under section 61DA(1) of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility as some of the facts relating to the child’s best interests are yet to be determined and it is anticipated on the proposed interim order that additional relevant material will come to light during the adjourned period.

4. So far as other orders are concerned, the Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in section 60CC.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

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

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

2. Under the Independent Children’s Lawyer’s proposed interim order there is no specific order for the child to communicate with or spend time with his father. Although the father is extremely concerned about this and has expressed the view that this will be detrimental to the child, the purpose of making no order is to allow the child to have a break from the conflict between his parents, to communicate with or spend time with his father if he chooses, for an opportunity to be provided to him to make that choice without parental influence and for various therapeutic services to be made available to him to assist him in rebuilding the relationship with his father. In this way the Independent Children’s Lawyer submits that the child will be given an opportunity to develop a meaningful relationship with his father.

3. Although it is not the case that the proposed orders of the Independent Children’s Lawyer provide for the child to have the benefit of a meaningful relationship with his father in the sense that that expression has been interpreted to mean a significant relationship in any immediate sense, the purpose of the adjournment and the provision of services to the child is to assist in the development of that meaningful relationship.

4. The father submissions rely strongly on this consideration and the fact that the child has for the last two years been denied of the benefit of a meaningful relationship with him. However, the father also conceded under cross-examination that he has never had the child in his full time care and that it is likely that some form of therapeutic service would be required to re-establish the relationship. This is not addressed in the father’s proposed minute of order.

5. So far as the need to protect the child from harm, in my view, there are real concerns about him having been psychologically harmed from being subjected to the extreme levels of conflict between his parents, which amount to family violence, and also possibly to neglect, having regard to the matters set out concerning the deterioration in his behaviour and his mother’s extremely lax form of parenting. The proposed interim order of the Independent Children’s Lawyer also involves the mother participating in an adolescent parenting program, which she has agreed to do, inviting the Department of Family and Community Services to intervene in the proceedings and offering some services to the child, such as through a youth support agency, to protect him from harm that may arise from his domestic circumstances in his mother’s home.

6. The father also based his submissions to a large degree on concerns about the need to protect the child from harm and the focus of his cross-examination was on these matters. However, it is the father’s proposal that the child be immediately transferred into his care and live with him, notwithstanding that under cross-examination, the father agreed that as it is over two years since he last saw the child it is likely that some therapeutic intervention will be required to reintroduce the child to him. In my view, having regard to not only the child’s strongly held views but a demonstrated incapacity by both parents in having the child do something that he does not want to do even when he was 13, if orders are forced upon the child at this stage, in all likelihood, he will resist them and place himself at a much greater risk of harm, particularly physical harm, if he were, for example to leave his father’s home. In my view, the orders proposed by the Independent Children’s Lawyer offer a greater degree of protection from harm

7. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

8. L has consistently expressed strong views that he wishes to reside with his mother and not spend any time with or communicate with his father. I agree with the submission of the Independent Children’s Lawyer that his views should not be determinative, and I am also concerned that the basis of those views is likely to have been adversely affected by the mother. I nonetheless attach significant weight to them having regard to his age and the form of parenting he is used to under which he is essentially able to do as he wishes. In saying this I am not indicating that I am of the view that it that is an effective or suitable form of parenting, but indicating that a real practical issue arises in trying to have a child of 15 comply with orders that are contrary to his views.

9. In my view, the father’s evidence about his own capacity to have the child comply with an order that is contrary to his views is unrealistic and naive. On the father’s own evidence in the contravention proceedings, which were heard concurrently with the parenting proceedings, he indicated that in 2012, when the child was 13, that he was not able to have the child comply with Orders in relation to time spent between the child and himself.

10. There is evidence contained in the Family Consultant’s report that the child and the father have had a positive relationship, but it is now a very strained one. the child indicated a close relationship with his mother to the Family Consultant who was of the view that it did not appear possible for the child to be able to enjoy a relationship with both of his parents. Although the father had significant criticisms of the Family Consultant’s report, which will be dealt with later in these reasons, I did not understand that the father was critical of the Family Consultant’s view that previously he and the child had a positive relationship.

11. The orders proposed by the Independent Children’s Lawyer give opportunity for the child to develop a relationship with his father, which has not been able to do under the current Orders, especially given the mother’s attitude towards those Orders. The father’s proposed orders that the child immediately live with him does not allow the child the opportunity to rebuild the relationship with his father, which is currently not positive.

12. The likely effect of any change in the child’s circumstances is a significant issue in this matter. Under the Independent Children’s Lawyer’s proposal, the only change is that the child will be given the opportunity to receive some assistance in developing the relationship with his father and to commence communication with his father if he chooses in circumstances where he is not influenced by his mother. In my view, this will undoubtedly be a positive improvement for the child if it succeeds.

13. The alternative proposal of the father’s involves a dramatic change in the child’s circumstances. I am of the view that given his current strong expression of views and the style of parenting to which he has been exposed in recent years, the child would vote with his feet and if he was able to be physically transferred to his father’s home, he would immediately leave it. If he were unable to return to his mother’s home, which is the likely position given the mother’s extremely precarious position if she were to contravene Court Orders again, the likely outcome is that the child would become homeless. Given his current behavioural problems, it is also likely that he would disengage with school and many of his life circumstances would deteriorate even further. Given that, even though it is dysfunctional, the relationship with his mother is a close one the likely impact of living with his father after being raised by his mother his entire life would be detrimental to the child’s psychological well-being.

14. There would, however, in my view, possibly be positive changes for the child if he were to reside with his father in accordance with the order. Although as I have indicated, in my view, he would likely not remain in his father’s home if he were ordered to live there, in the event he did he would be exposed to a different type of parenting in his father’s home. Although the father may overestimate his own parenting capacity and seems to think that strictness is the most admirable parenting quality, I agree with the father’s submission that the child has not been well served by the lax parenting in his mother’s home and may improve with a different parenting style. However, the child’s behaviour has significantly deteriorated in the last couple of years and it may be some time and require a great deal of assistance before he is performing as he was in the past.

15. There would be no practical difficulties and particular expense under the orders proposed by the Independent Children’s Lawyer, except the difficulties associated with the child receiving independent advice and assistance and an independent opportunity to contact his father. There are also the expenses associated with the provision of services, but this is not an impediment raised by the Independent Children’s Lawyer. On the father’s proposal, the mother would be required to collect and return the child at the commencement and conclusion of all periods of contact at Suburb C railway station. This appears quite onerous for the mother, and more importantly the child, considering the time involved in travelling and it is unclear why the father is not prepared to do at least half of the travel considering that he is the only one with a driver’s licence.

16. The capacity of each parent to provide for the child’s needs is also another significant matter in this case. The Independent Children’s Lawyer has serious concerns about the mother’s capacity to function properly as a parent and for that reason seeks to invite the Department of Family and Community Services to intervene. I share those concerns as well as concerns about the mother’s inability to ensure that the child is properly attending school. However, having regard to the disruption that would be involved in moving the child from his current home, especially contrary to his wishes, I am not of the view that the incapacity of the mother is sufficient that it is in the child’s best interests for the orders sought by the father to be made.

17. Each of the parents has, in my view, shown an incapacity to provide for the child’s psychological need to not be exposed to the high levels of parental conflict , and I attach weight to the Family Consultant’s evidence that such exposure is associated with poorer long-term outcomes for the child’s development and well-being.

18. The only cultural issue that specifically arises is that the child is of Italian heritage on his father’s side and it seems that as he shared a relationship with his Italian grandmother and an exposure to and enjoyment of time with his Italian family this factor must be given some consideration. I agree that the immediate effect of the orders the father seeks would be to allow the child to enjoy time his extended family, but having regard to the balance of the best interests factors and my view about the likelihood of the child to comply with such orders the father seeks, this is not a matter of great significance.

19. The attitude towards the child and responsibilities of parenthood demonstrated by each parent is another significant matter in these proceedings. I agree with the characterisation by the Independent Children’s Lawyer of the lack of responsibility towards parenthood indicated by each of the parents in that the mother appears to want a relationship with the child that is more akin to a friend and allow him to do what he wishes, rather than provide parental guidance, and the father is fixed on casting blame against the mother, rather than focusing on the child. I have no reason not to accept that each of the parents loves the child, but the way in which they have engaged in conflict between themselves has not been child-focused.

20. The final matter, which is one of great significance, is that I am of the view that it is preferable to make an order least likely to lead to the institution of further proceedings in relation to the child. As is clear from these reasons, the parents have been involved in litigation in relation to the child for all of his life. I have grave concerns that the mother may not comply with orders that see the child residing with his father and which only allow for her to spend time with him on alternate weekends. In light of the child’s age and the parenting he is used to, the child is likely to do whatever he wishes, which will certainly involve the father in instituting further contravention proceedings and which may involve the mother being found to have contravened the orders. In light of the history of the matter, this could ultimately lead to the mother’s incarceration but no greater likelihood of compliance with the orders.

21. The Family Consultant recommended that no order be made for the child to spend time with his father and explained the benefit of a break from the conflict for the child. The Independent Children Lawyer’s orders at this stage are only interim and involve no order for time with the father, whereas the father’s orders propose a dramatic change in the child’s life, which he is unlikely to comply with. This may then lead to further proceedings if the father wishes the orders to be complied with, which appears likely to be the case.

22. A number of the considerations referred to rely upon the evidence of the Family Consultant. The Independent Children’s Lawyer attaches great weight to the Family Consultant’s report, except the weight to be attached to the child’s views. The father, on the other hand, essentially submits that I should attach no weight to this report and that it is flawed due to the unreliable and untruthful information provided by the mother. I am satisfied that the mother did provide incorrect information, including that she lived in a five bedroom property when in fact it had three bedrooms, in suggesting that the child was doing well at school at a time when his school performance was significantly deteriorating, in omitting to mention a conviction of her own for possession of amphetamine, and in giving incorrect information concerning her prescription drug use. Although, in my view, each of these matters does have some significance in these proceedings, I am of a similar view to the Family Consultant’s firm view that, in the absence of any viable alternative for the child’s care, no orders should be made in relation to time with the father.

23. I am not of the view that the mother’s misleading information was trivial, but having regard to all of the Family Consultant’s evidence, including his concessions under cross-examination, and those matters which are not affected by the mother’s misleading information, such as his expertise concerning the impact of conflict upon children, I am of the view that it is a substantial and reliable piece of evidence and I attach significant weight to it.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various factors to which I have referred.  In my view, having regard in particular to the two primary considerations and to the child’s views, the parents’ capacities and attitude and that it is preferable to make an order least likely to lead to the institution of further proceedings, the interim order proposed by the Independent Children’s Lawyer, together with two additional orders, are in the best interests of the child.

2. As far as the two additional orders are concerned, in my view, the documents produced on subpoena, particularly from the police, revealed that there very well may be a current difficulty with the mother misusing alcohol, which is relevant to the child’s best interests, especially as he will continue living with her. Under the orders previously suggested by the Independent Children’s Lawyer but withdrawn, alcohol use is addressed. I include proposed orders 12, 14 and 15, together with an order that the mother is to arrange a mental health assessment during the adjourned period and file a report in this regard prior to the adjourned date.

3. With the consent of the mother an order will be made for the mother to participate in such parenting programs or counselling or adolescent services as recommended by the Independent Children’s Lawyer.

4. In relation to the child being provided with therapeutic services, the opportunity to communicate with the father and so forth, a notation be included that the child and the father will be given an opportunity to participate in therapeutic services and programs directed at rebuilding their relationship and in the event that either or both of them do participate, that information in relation to their progress with such services or in such program will be provided to the Court on the next occasion.

5. Another notation be made for the Independent Children’s Lawyer to use her best endeavours to facilitate communication between the child and his father or spending time together in the event the child wishes to do so and information in relation to this is also to be provided to the Court on the next occasion.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 July 2014.

Legal Associate:       

Date:    17 July 2014