Pecks and Pecks - [2020] FCCA 2511

FEDERAL CIRCUIT COURT OF AUSTRALIA

PECKS & PECKS

[2020] FCCA 2511

Catchwords:
FAMILY LAW – Parenting – 15 year old boy – mother having physically beaten and emotionally abused the child – child choosing to remain with father after visiting him for a holiday – child expressing strong wish to have no contact with his mother.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MR PECKS

Respondent:

MS PECKS

File Number:

MLC 10463 of 2012

Judgment of:

Judge Riley

Hearing dates:

1, 2, 12 and 25 June 2020

Date of last submission:

16 July 2020

Delivered at:

Melbourne

Delivered on:

8 September 2020

REPRESENTATION

Counsel for the applicant:

Mr Lovering

Solicitors for the applicant:

Lewis Holdway

Counsel for the respondent:

Mr McLeod

Solicitors for the respondent:

Irwin & Irwin Law

Advocate for the independent children’s lawyer:

In person

Independent children’s lawyer:

Ms Augustin

ORDER BY CONSENT

All previous parenting orders be discharged.

ORDERS

The father have sole parental responsibility for X born in 2004 (“X”).
X live with his father.
Except as otherwise stated in these orders, X spend time and communicate with his mother at his request, and such time and communication be at X’s instigation only.
In the event that X wishes to travel to visit his mother, and if the parents have agreed in writing for X to spend time with his mother, the costs of X’s air travel be borne solely by his mother and X travel unaccompanied unless the father otherwise deems fit.
The mother be restrained from contacting X directly through email or on his mobile telephone.
The mother be at liberty to send to X letters, cards and/or presents from time to time and on special occasions such as X’s birthday, Christmas and Easter at PO Box B, Suburb C, Victoria.
In the event that the father’s post office box address changes, the father provide to the mother, within seven days of the change, details of the new PO Box address.
The father authorise X’s school to provide to the mother copies of X’s school reports, applications for school photographs and school newsletters.
The father inform the mother if X changes school.
The mother be restrained from attending X’s school, or contacting any of his teachers or other school personnel, except with the express written consent of the father.

DIRECTION

The registry release X’s existing passport to his father.

ORDERS

X’s existing passport and any new passport obtained for X be retained by his father.
The father be authorised and permitted to apply for and receive an Australian passport for X without first obtaining the written consent of the mother.
X be permitted to leave the Commonwealth of Australia without the permission of his mother.
If the father plans to travel overseas with X, or X is planning to travel overseas without his father, the father provide a copy of X’s itinerary to his mother at least 14 days before the proposed travel.
The mother be restrained from interfering in X’s travel plans, or attending the airport where he will arrive at or depart from for three hours either side of his scheduled departure and arrival.
The father encourage and facilitate X attending upon a clinical psychologist for counselling regarding:
(a)the violence perpetrated by his mother against him; and
(b)his fractured relationship with his mother.
The independent children’s lawyer explain these orders to X.
The appointment of independent children’s lawyer be discharged in 14 days.

ORDERS BY CONSENT

Each parent facilitate any request by X to send letters, cards and/or presents to the other parent from time to time and on special occasions, such as the mother’s birthday, Mother’s Day, Christmas and Easter.
Orders 2, 3 and 4 made on 21 November 2012 and orders 10 and 12 made on 18 October 2013, being the airport watch list orders, be discharged.
The parents notify each other within 24 hours of any changes to their mobile telephone numbers.
The parents notify each other as soon as possible of X having any emergency or being hospitalised.
Each parent be restrained from attending the home address of the other parent, without a prior agreement in writing between the parents.
While denying the necessity for the same, each parent be restrained from denigrating or insulting the other or members of the other’s family in the presence or hearing of X.
While denying the necessity for the same, each parent remove any Facebook or social media posts made by them that breach s.121 of the Family Law Act 1975.
The father forthwith do all things in his power to ensure that the mother has access to COMPASS in respect of X.

ORDERS

The mother pay the father’s costs of the proceeding on 6 December 2019, fixed in the sum of $1,813.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10463 of 2012

MR PECKS

Applicant

And

MS PECKS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in respect of X born in 2004 (“X”). X is now 15 years and eight months old. His parents are in dispute about which of them he should live with.
X’s parents separated on 24 November 2011, when X was six years and 11 months old. After separation, X lived with his mother. From 2013, by consent, X and his mother lived in Adelaide and X spent time and communicated with his father, who was living in Melbourne. The parents had equal shared parental responsibility for X.
According to the father, on 22 and 23 October 2017, when X was 12 years and 10 months old, X told him by text message that:
a)the mother physically and emotionally abused him;
b)X called the police because the mother had slapped him;
c)X told the police he wanted to live with his father; and
d)the mother confiscated X’s telephone, laptop and iPad and told him that, if he complained to the authorities, she would place him in foster care.
The mother denied that she had abused X, and said she had confiscated his telephone because he had been bullied at school.
On 11 November 2017, the mother informed the father that X would spend six days with him over the forthcoming summer holidays, rather than a month, as provided for in the final orders made on 18 October 2013, because she wanted X to attend a special educational program before he commenced secondary school.
On 27 November 2017, unbeknownst to the mother, the father visited X’s school. According to the father:
a)the principal and X’s teacher told the father that X was not being bullied at school, and that the mother had told them that she confiscated X’s telephone because he misused it at home; and
b)X’s friends told the father that X had told them that his mother was mistreating X at home.
The mother denied these allegations.
According to the notes made by the father’s solicitor of documents produced under subpoena by Victoria Police:
a)X said in a video interview on 14 February 2018, that, in late 2017:
i)the mother hit X repeatedly with a wooden ladle, while using the words “fucking”, “idiot”, “cunt” and “shit”;
ii)X later noticed bruising;
iii)the mother told X to read a story from the Bible and compare himself to the protagonist;
iv)X told his mother that he was not like the protagonist;
v)the mother told him he was not a Christian and hit him again with the ladle every time he said something she did not agree with;
vi)the mother lectured X for a prolonged period; and
vii)she had slapped him and called him names on a previous occasion; and
b)the mother was interviewed by police on 26 March 2018, with her lawyer, and declined to answer questions on the advice of her lawyer.
Neither the police nor the Department of Health and Human Services (“DHHS”) have taken any action against the mother.
On 7 January 2018, just after X had turned 13 years old, the father collected him at the airport in Melbourne. X did not have his telephone with him, and he had no luggage. According to the father, X told him that:
a)he was very scared of his mother;
b)he had tried to run away before but the mother’s boyfriend stopped him; and
c)if he were forced to return to his mother, he would need to do something to himself.
On 8 January 2018, the father contacted DHHS, who advised him to contact the police, which the father did.
On 10 and 11 January 2018:
a)the mother contacted the police saying that she was worried for X’s welfare;
b)the police attended the father’s house;
c)X told the police that his mother had abused him; and
d)X sent his mother a text message, specifying certain conditions that he wanted his mother to comply with in relation to their communication.
On 17 January 2018, the father filed an application for final orders in this court. The mother filed a response on 9 February 2018. On 13 February 2018, I made interim orders for the appointment of an independent children's lawyer and the completion of a s.11F report.
On 19 March 2018, a family consultant provided an oral report to the court. Her evidence included the following:
X reports that in his mother’s care he tends to get long lectures from her and her partner. He stated these can go for over an hour and are not necessarily about a recent incident. He can become so worried about doing anything that may lead to a lecture [that] he tries to stay out of his mother’s way. X reported that she has stopped him from having access to electronic media for discipline. X disputes this and feels that it was motivated mostly to prevent him from telling his father about concerns at home – about … how he feels about living with his mother. X stated that his mother had told him that he would go into foster care if he told the school psychologist what was happening at home.
… X reported being hit around Christmas by his mother with a ladle that has caused him to have restricted movement of his arm and a sore shoulder. In relation to being hit by a ladle, X reported that this was an isolated incident; that generally his mother would hit him with her hands. She has threatened him with a ladle previously but not followed through. X was adamant that he did not want to see his mother. When he was provided with the opportunity today he was clear that he recalled having some positive interactions. When we asked him to expand on this he said that he enjoyed playing chess with his mother but this only happens about once a year. (emphasis added)
… When asked what his three wishes would [be] … in relation to living with his mother, X stated one wish was for her to be more gentle with lectures and, two, for her to be more friendly and the third one he didn’t know.
…
… although he is reluctant to see his mother today, he did articulate wanting to see her in a supervised context …
The family consultant recommended that:
a)X live for the time being with his father;
b)X spend privately funded supervised time with his mother once a fortnight; and
c)both parents undertake a parenting teenagers program.
The family consultant also said that there had been some issues of bullying at school, but they were resolved in first term. In relation to the mother’s claim that X had engaged in vandalism, the family consultant said that he conceded to her that he had broken a bat out of frustration with his home life.
The court made orders, not by consent, on 19 March 2018 as follows:
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
2.X born in 2004 (“X”) live with his father.
3.X spend time with his mother for two hours each alternate weekend supervised by the Family Contact Service, or such other service as is agreed by the parties, at times nominated by the service.
4.The cost of supervision be borne by the mother in the first instance with the question of who is to ultimately bear the cost being reserved to trial.
5.X communicate by telephone with his mother if and when he wishes.
THE COURT ORDERS THAT:
6.Each parent attend as soon as possible a parenting teenagers program nominated by the independent children’s lawyer, and provide a certificate of completion to the independent children’s lawyer and the solicitor for the other party upon receipt.
7.The mother attend as soon as possible an anger management course and provide a certificate of completion to the independent children’s lawyer and the solicitor for the other party upon receipt.
…
AND THE COURT NOTES THAT:
A.The applicant has given his mother, through the independent children’s lawyer, a list of his possessions he would like her to deliver to him.
On 20 May 2018, X and his mother had a supervised visit at a shopping centre. The supervisor reported that (CB336-7, exhibit 2):
…
Ms Pecks then asked X, “So, tell me what you are doing, how is school?” and X explained he is going to school but doesn’t like this particular school that much; he said he would like to change schools but needs his passport and his birth certificate. The mother stated she didn’t need his passport when she enrolled him in a prestigious school in Adelaide, when he was living with her. X stated he needed his documents also because he wants to join the Cadets - he said he has to apply for it very soon because the spots are limited and he doesn’t want to miss out because it’s very important for him. The mother again resisted and said, “You could use an ID” and X, seeming annoyed, said, “What ID? You have them all”. The mother commented, “A normal ID”. The supervisor intervened and advised the mother that because X didn’t have “a normal ID” (e.g. driver’s license), he could apply for a Key-Pass, however he needed one hundred and twenty points for proof of identity, and a passport would be considered a lot of points. X remained calm but was clearly annoyed with his mother’s continuous refusal to give him his passport – he stated strongly but politely, “It is my passport and birth certificate and I need them”.
The mother, who until this point remained calm and was smiling, became serious and said, “X, leave this to be solved between your father and myself, we’ll deal with it”. The mother then asked X how he gets to school and X said he rides to school. The mother asked who bought his bike and X said he found a bike, just it’s frame, dumped in front of someone’s house – he said he had wheels and put it together. The mother looked puzzled and unimpressed and then asked, “Have you had a shower today?” and X seeming a little embarrassed said, “Of course I had a shower”.
The mother then asked X about not having his hair cut and asked if he needed something and X said, “Perhaps shoes”. The mother said, “X, I provide for you and there is a budget that should be used for what you need”. The mother looked at X’s shoes and said, “Those are the ones that I bought for you”. The supervisor observed that X seemed unfazed with his mother’s comments and seemed determined to put his point across. The mother, although remaining calm, seemed annoyed at X’s demeanour and attitude.
…
X asked his mother why she didn’t bring any of his belongings that she promised she would bring and Ms Pecks said she couldn’t bring things with her in the aeroplane. X disputed this, saying she could’ve brought smaller things like his iPad, etc and the mother brushed this off …
…
Ms Pecks again asked X what he wanted to do besides sitting at the table and X refused to go anywhere else. The mother then asked X what his hobbies are and X said he loves programming. When the mother asked what kind, he said, “Java, URT etc”. The mother then proudly stated, “And where did you learn programming from?”, referring that she is a professional and X replied, “Myself”.
Ms Pecks then seemed somewhat annoyed and said, “X, you have to learn to be gracious and thankful” and added “So, you [are] saying that you want to move school, which school?”. X said, “I am not going to tell you” and the mother responded, “Why not? I’ll have to know, I have to talk with your teachers there to see if it’s going to provide a good base for your future studies and to get you in a good university”. Ms Pecks continued and said with a strong tone of voice, “You like it or not X, I’m your mother. I am going to be in your life, as your father would!”. X then expressed to his mother, “I found a letter where it said that my father paid $1000 per month child support. You have lied to me that he did not pay child support, you lied. I know that you have my father’s address in your phone, I want you to wipe Dad’s address”. Ms Pecks became irritated and looked intensely at X and said in a strong and almost aggressive tone, “X, that is between your father and I and you have to understand that!”. X started crying and asked again for his mother to give his passport and birth certificate and expressed, “They are mine”, with tears falling down his face.
…
On 28 May 2018, the mother texted the supervisor to cancel the next supervised visit scheduled for 3 June 2018, saying that she could not afford to travel to Melbourne for the visit.
On 15 June 2018, orders were made by consent for the parents and X to attend reportable family counselling with Ms D, and for X to spend time with his mother in the presence of Ms D or as otherwise agreed in writing.
The mother and X attended a joint reunification session with Ms D on 24 September 2018. Ms D reported that (CB341-343, exhibit 3):
…
Session with Ms Pecks
Ms Pecks is grieving the loss of her son, X who has now relocated to live with his father in Victoria. She is very focused on X's education, his future needs and his social network. She sees that she has and can in the future offer X the best opportunity for a future ...
Ms Pecks was disparaging of Mr Pecks and his capacity to parent and support X in the way she sees is in X's best interests.
She wanted to affect (sic) a return of X from Victoria in the session, a request, which was not successful. As her views were not agreed with by Mr Pecks, Ms Pecks was observed to become agitated and angered and frustrated with not feeling heard by Mr Pecks.
She is of the belief that X was coached to stay with his father. She also believes that her chastisement of X for his lack of school focus, his alleged laziness and his school teachers reports were the underpinning of X's flight.
Ms Pecks does not accept that Mr Pecks can support X. She believes he lives in substandard housing, does not support X to attend "good" school. She also believes that X is only communicating with only when he wants something from her, e.g. Xbox, his laptop, for example.
Ms Pecks refutes X's complaint of abuse although she acknowledged to her being a disciplinarian for X's poor behaviour and vandalism.
Ms Pecks would like to have further sessions with X. Her motive is to ask him to [return] to her in Adelaide.
Sessions with Mr Pecks
The sessions with Mr Pecks focussed on how he became involved in X seeking to live with his father. Mr Pecks denies any coaching or manipulation of X. He spoke of responding to X when he arrived for his school holiday week. It was noted that originally X was to spend more time with his father over the long school holiday however his mother had restricted this to a week.
X was distressed, according to Mr Pecks. He was asked by X to stay with him. Mr Pecks has a family of his own and hence this was not a planned event for him. He has the support of his partner. He also spoke of X and his young son engaging well.
Mr Pecks is supportive of X having a relationship with his mother. He has not suggested that X travel to spend time with his mother to south Australia and X believes that he will not be allowed to return.
Mr Pecks is positive that X is doing well at school. Developed friendships and is happy with his paternal family.
Mr Pecks was observed to try to conciliate with Ms Pecks about the ongoing issues and location of X. He attempted to reassure her of his commitment and his support of X and his relationship with his mother.
Sessions with X
The sessions with X revealed a distressed young man who had been expose to violence from his mother according to X. He spoke of her "bashing" him and how she had ejected his sister from the home. He sees his mother as very self -focussed, as determined to impose her own ideas and needs upon others. He experienced her as a person who does not listen to his needs. He acknowledged his acting [out] behaviour and has harboured anger towards his mother for some time.
He was distressed that he was not allowed to spend much time with his father. He refutes his mother's assertions that his father was not interested in him over the years.
There is much background and history in this matter for X which is the underpinning of the fractured relationship between he and his mother. He is at the age of not being able to let go of some of these experiences.
He also sees how his requests for “his things” has been held as punishment or control.
A major issue for X was the passport that his mother held and refused to provide to him. He was due to go on an overseas trip with his school; and need[ed] the passport for the school to purchase tickets, obtain a visa etc. he was angry that his mother was using the passport as leverage to get him to return to Adelaide.
The issue of the passport was the theme for the main discussion with X. He saw this as his mother controlling his life and referred to her using the possibility of withholding the passport as punishment for his relocation.
The joint session with his mother commenced as a reserved and tense one. It took time for him to speak [and] relax with [her]. Initially he was reluctant to enter the room especially if she had not brought “some of his things”.
The return of the Xbox was an important step for X that his mother did think of him, however this positive feeling was eroded when he found that Ms Pecks had not brought the passport. She eventually countered this disappointment and anger with advising that she had a certified copy for Mr Pecks so that the school could proceed with the overseas arrangement.
Although the exit and the scene where X saw how his parents did talk to each other, was cordial, Ms Pecks negativity towards Mr Pecks and X was evident.
In Summary
X is still processing what he experienced from his mother. In his eyes she has been abusive towards him. He has experienced a warm and nurturing environment with his father despite the limited financial resources in the paternal family.
The two sets of values from the parents is difficult to negotiate. Both believe that X's best [interests] are served by their involvement. X seeks a warm and relaxed environment. He feels pressured by his mother in her care and given his experience of her she is refusing to return.
The focus now must be on the reconnection between the mother and son. X however will not engage if he is forced or if his mother is very demanding of his return.
The loss for Ms Pecks is evident. The task for her is to support her son albeit from afar if she can set aside his rejection of her. Mr Pecks' task is to support X to repair his relationship with his mother.
X will see change by practical strategies, i.e. his clothes, some games etc, as he sees these as a symbol of his mother accepting his stay with his father. If he does not obtain these symbols of acceptance there will continue to be a tension in their relationship.
Ms Pecks may need to consider if she can occasionally travel to see … X, use cyber communication, even though he may not have a reply for [her], and Mr Pecks to try to go with X to Adelaide on occasion to support any possibility of reconnection.
From a therapeutic perspective X would benefit with ongoing support to help him process his anger towards his mother. The cost in the private system may be prohibitive and hence a referral to a not-for profit service could be undertaken.

Although the orders made on 15 June 2018 contemplated X and the mother attending ongoing reunification sessions with Ms D, there were no reunification sessions after the one on 24 September 2018. X has not spent time with his mother since that date. In other words, since X arrived in Melbourne on 7 January 2018, he has seen his mother twice, once under supervision in a shopping centre on 20 May 2018, and once with Ms D on 24 September 2018.
According to the father, X was due to travel to Country E on a school sports trip in October 2018. However, the mother initially refused to give X’s passport to him to enable him to go on the trip. However, ultimately, the mother did return X’s passport to him, and eventually the mother agreed to orders by consent, which were made in chambers, suspending the airport watch list order that had been made in 2012. The order suspending the airport watch list order was made on 5 October 2018, nine days before X was due to depart on his school trip.
There was an adjournment by consent of the interim hearing listed on 8 November 2018 to allow further sessions of reunification therapy. However, no such sessions occurred.
On 8 February 2019, the mother’s application to communicate with X electronically was dismissed, and the matter was listed for final hearing.
On 7 March 2019, Victoria Police asked the father to attend a police station to be interviewed regarding allegations made by the mother of historical sexual assault perpetrated by the father. The father denied the allegations and no further action was taken by the police.
On 20 August 2019, the mother sent X a text message, without his consent, contrary to the orders made on 15 June 2018. The text message said:
Hi X
I’ve been having some dreams about you and just wanted to see if you are ok?
You know I am always here as your mother, and friend. Mama
On 15 November 2019, Knight Family Lawyers, who was then acting for the mother, asked chambers to list the matter for an urgent mention as the matter had “stalled”. The matter was mentioned on 6 December 2019, as requested by the mother. She was represented by counsel, but the mother did not attend court herself, contrary to the rules. The father and his counsel attended court. The mother’s counsel did not know the purpose of the mention. No substantive orders were made, but the mother was ordered to pay the father’s costs, fixed in the sum of $1,813, which was in accordance with scale. The mother seeks that that order be discharged. This issue is considered further below.
On 9 December 2019, the father received a child support assessment which indicated that, in the 2017-2018 financial year, the mother had a taxable income of approximately $214,977, and that, in the 2018-2019 financial year, she had a taxable income of $71,789.
In January 2020, X transferred from F School to G School.

The family report

The parents and X had family report interviews with Mr H in March 2020. Mr H prepared a report, in which he said (CB347-372):
…
Current arrangements
2.X has lived with Mr Pecks since he over-kept him when the boy, who had gone to spend time with him in January 2018, told him that he had been in physically and emotionally abused by Ms Pecks. (Mr Pecks reports the boy had extensive bruising on his shoulders and arms, had taken him to a doctor and thought that medical records would describe his injuries.) Since going to live with Mr Pecks, X has been having no contact at all with Ms Pecks.
3.As is this Family Consultant's practice, the solicitors for the parents were contacted to schedule appointments for the clients. One of the practitioners informed that proposals were being exchanged with a view to obtaining consent orders and that a report may not be required. This Family Consultant was subsequently informed that, as no agreement had been reached, the report would be required and appointments were scheduled as planned.
4.Perhaps due to miscommunication on this Family Consultant's part, Ms Pecks was not informed and did not attend the appointment scheduled for her on 5^th March at 10:00 am. This Family Consultant contacted Ms Pecks and offered her a Saturday afternoon appointment to be conducted by way of telephone interview as she lives in Adelaide. Mr Pecks and X's appointment, also scheduled for 5^th March 2020, proceeded as planned.
…
Relevant family background
6.The parents were living in Suburb J at the time of the separation in 2011. Ms Pecks suggested that the separation occurred partly after Mr Pecks’ other child, Ms K, had been diagnosed with Asperger's Syndrome and that, as Mr Pecks refused appropriate medical interventions, Ms K’s condition remained untreated, worsened and that this is impacted on X as well. Mr Pecks provides a different account and alleges that Ms Pecks was emotion physically abusive towards him and Ms K as well. Mr Pecks eventually and unexpectedly left the family home with Ms K. (Given Ms Pecks’ explanation, it is somewhat perplexing that it was Mr Pecks who decided to leave the relationship.) X remained with Ms Pecks. The parents had relationship counselling through their church and another organisation with a view to reconciling but this did not eventuate.
7.In 2012, Ms Pecks moved to Adelaide to pursue greater work opportunities. She has lived there ever since. Following the separation, final orders were made on 13^th of October 2013 for X to reside with Ms Pecks and to spend time with Mr Pecks. As the parents were living in different states, X's time with Mr Pecks was limited to part of all school holidays only. Following X's contact visit to Mr Pecks in January 2018, Mr Pecks over-kept the child and X has remained with him since. Save for a contact session between X and Ms Pecks on 3^rd June 2018, supervised by the Family Contact Service, and possibly the therapeutic meeting, conducted by Ms D in September 2018, X has had no contact with Ms Pecks. Further details of what transpired prior to and following the separation are available in the affidavit material and will not be repeated here.
History of the dispute
8.This is a complex matter with an extensive and long history of litigation as the date when the Court file was created attests to. The Department of Human Services became involved, the Family Contact Service has endeavoured to facilitate contact between X and Ms Pecks and Ms D has provided limited therapeutic intervention as well, presumably with a view to healing the X/Ms Pecks relationship. All have prepared reports and the Court is referred to these. Effectively, the child has had no contact with Ms Pecks for over 18 months.
PROPOSALS OF THE PARTIES
9.Mr Pecks wants orders reflecting the current arrangements. Namely, that X live with him and that X be able to spend time with Ms Pecks at his own volition. (At present, X wants to have no contact at all with Ms Pecks.)
10.In addition, Mr Pecks seeks sole parental responsibility orders, for X to be removed from the airport watchlist and orders enabling him to retain the child's passport. This Family Consultant understands that currently, the passport is being held by the Federal Circuit Court.
11.For her part, Ms Pecks will reluctantly not pursue orders for the child's return to her care, nor orders for him to spend time with her. However, she wants orders for equal/shared parental responsibility (so as to be able to be appraised as to the child's educational progress), she seeks orders for the child to remain on the airport watch list (believing as she does that Mr Pecks might remove him from Australia) and also wants the passport to be kept by the Federal Circuit Court (for the same reasons) but is amenable to it being released to X once he turns 18 years of age. She wants to be able to contact the child with a view to having a casual meeting with him when she travels to Melbourne for this purpose. (It's unclear whether she will be pursuing orders in relation to the last proposal/intention.)
RISK FACTORS
12.Family Violence and Abuse
13.These have been identified as issues in the past. (See below.)
14.Child Safety and Wellbeing
15.This has been identified as an issue in the past. The Department of Human Services has become involved following several notifications. The Department has withdrawn on the basis of the child is currently living with Ms Pecks and apparently no longer at risk of physical or emotional harm.
16.As X lives with Mr Pecks and has no contact with Ms Pecks, his safety and well-being are not being compromised in any way. Nonetheless, while Ms Pecks did not articulate it as such, she suggested that X might be at risk in Mr Pecks’ care because no limits are being imposed and the boy is effectively able to do as he chooses.
17.Alcohol and Substance Abuse
18.These were not identified as issues
19.Mental Health
20.Each parent makes numerous allegations as to the bizarre sexual practices of the other. In addition, Ms Pecks makes numerous allegations about Mr Pecks’ daughter Ms K engaging in highly inappropriate sexual behaviours as well. Presumably, if the parents have ongoing concerns about such issues, each has the option of pursuing orders for psychiatric assessment of the other to be conducted. In the case of Mr Pecks, presumably as the child is not having contact with Ms Pecks, he is not unduly troubled about her current mental well-being. However, in Ms Pecks’ case, if she remains concerned about Mr Pecks’ mental state, she likewise has the option of pursuing orders for Mr Pecks to undergo a psychiatric assessment. (If the claims made by Ms Pecks about Ms K’s behaviour can be substantiated, they may well be indicative of some serious psychiatric disturbance. Also, if substantiated, Mr Pecks has been extremely remiss in not seeking appropriate professional assistance for his daughter. Conversely should it be the case that such allegations are fabrications, one would have to be seriously concerned about Ms Pecks’ motives and her mental health given the very disturbing and extreme nature of the allegations made.) In addition, should Ms Pecks harbour ongoing concerns about X being at risk whilst in the care of Mr Pecks, she has the option of contacting the appropriate child protective services who are obliged to investigate.
21.Ms Pecks is sceptical about the Court's capacity to order the child to have a relationship with her but thinks it is more likely to be guided by and take into account his understandable views and preference to live in a household where there are no limits, discipline or consequences. She also wondered whether it was appropriate to accord so much self-determination to a 15-year-old.
ISSUES IN DISPUTE AND IDENTIFIED AT ASSESSMENT
22.Issues in dispute
23.The most appropriate time arrangements between the child and Ms Pecks
24.X's passport
25.Whether X should remain on the airport watchlist
26.Sole as opposed to joint/equal parental responsibility
27.Issues identified at assessment
28.The most appropriate time arrangements between the child and Ms Pecks
29.X's passport
30.Whether X should remain on the airport watchlist
31.Sole as opposed to joint/equal parental responsibility
THE ADULTS
32.Mr Pecks - the applicant father
33.Mr Pecks (47) is employed full-time as a tradesman. He re-married about four years ago. He lives with X, with his current wife, Ms L, and her child from previous relationship, M (9). X attends the local high school where he is in Year Ten. Mr Pecks reports the boy is progressing well academically and socially. Mr Pecks also has another daughter, Ms K (23). Mr Pecks has a sound relationship with Ms K who lives independently. Ms Pecks claims that Mr Pecks has another daughter, Ms N (21), who lives in Country O as she was abandoned by Mr Pecks when very young. Mr Pecks explained he did not believe Ms N to be his child but was the biological daughter of a person his then wife was having an affair with.
34.Mr Pecks reports that he only found out indirectly that sometime after separation, Ms Pecks had gone to live in Adelaide. Whilst arrangements were eventually made for him to spend holiday time with X, this arrangement was implemented by way of Court orders and not by agreement. Mr Pecks suggested that re- establishing a rapport with X post separation was no easy matter and that he had to resort to litigation to obtain time with the child.
35.Ms Pecks - the respondent mother
36.Ms Pecks (42) lives in Suburb P, Adelaide. Although she lived with her partner, Mr Q, up until a year ago, they now live separately but remain in a relationship. She is employed full time as a professional. Ms Pecks claims she pays $2000 per month by way Child Support. (Although agreeing that Ms Pecks did pay some substantial Child Support arrears, he claims he presently receives minimal or no Child Support from Ms Pecks and claims he can demonstrate this.)
37.Ms Pecks indicated she was tired and exhausted by the lengthy legal proceedings. She was hopeful of reaching some agreement with Mr Pecks as to orders to be made at the next hearing. She explains she wanted X to be part of her life and for her to be part of his. To this effect, she seeks equal/joint parental responsibility orders so as to be able to be informed as to his school progress and to be able to have input into other aspects of his life. (Given that almost non-existent parental capacity to communicate, she was at a loss to explain how she and Mr Pecks could have any meaningful discussions/consultation about their son.)
38.Ms Pecks explained “I have not seen or spoken with X since he went to live in Melbourne in January 2018. Everything I do or say is discredited, undermined or ignored. I tried to contact him. I gave him time to chill out and take it easy after he'd gone. When I contacted him, he got nasty... Mr Pecks (Mr Pecks) got an order to tell me I can't see him. The current orders say I can’t. I was able to access his progress when he was attending F School. He then changed school and now I get nothing”.
39.Ms Pecks understood that she was “on notice” and that this prevented her from contacting X or his school. She believes herself to be “a victim maternal and paternal alienation” but hoped to be able to reconcile with X sometime in the future.
40.Although Ms Pecks was given a list of items X wanted returned, (including the family cat, his litter box, his litter, his pet food, the boy’s birth certificate etc.), Ms Pecks refused to return these items on the basis that X would play with the cat but would refuse to attend to the other responsibilities the care of a pet require. It is most unfortunate that she did not consider that returning X's possessions might have been perceived by the boy as positive, considerate and generous gestures. One suspects that even if returned to the boy, doing so may not have necessarily led to an improvement in their relationship but may have been a step in the right direction.
41.Ms Pecks is aware of the allegations that she has been physically abusive. She denies having physically disciplined X but acknowledged having endeavoured to discipline and impose limits on him as she claimed that some of his behaviour warranted this.
42.Ms Pecks maintains that she had been primarily responsible for the care of X since he was a baby. She also suggested that Mr Pecks’ involvement in the child's life had only been minimal. If one assumes that Ms Pecks was primarily responsible for the boy’s care, then presumably he would have had a strong, established and meaningful relationship with her. Consequently, it is somewhat mystifying that X would ‘vote with his feet’, as it were, to the extent that he would leave Ms Pecks’ care in anger over her endeavours to set limits, impose discipline and instil in him some understanding of consequences. It is being suggested that moving from the care of one parent to that of the other after so many years is a very significant step and one not usually taken lightly. In this Family Consultant's experience, decisions of this nature tend to be made after a series of drastic/harmful events.
43.Adult relationships
44.The relationship between the parents is very strained and communication non-existent. Consequently, this Family Consultant doubts that Mr Pecks and Ms Pecks possess any capacity to co-parent the child or make any decisions as to matters pertaining X’s general welfare, development and educational needs in a cooperative manner.
THE CHILD
45.X (aged 15 years and 3 months)
46.As X did not want to come face-to-face with Ms Pecks, Mr Pecks and X were offered appointments at different times to that scheduled for Ms Pecks
47.X was observed briefly with Mr Pecks but interviewed predominantly alone. He impresses as a thoughtful, reflective and articulate young man. He is in Year Ten and is considering a career in computers. He has been doing some part-time work. He has developed an interest in cycling, has participated in some competitions and has built his own bicycles. X has regular contact with his sister, Ms K, who now lives independently. He reports he gets on well with his stepbrother, M, despite the child's younger age.
48.X has told his story and explained his position to a number of professionals including protective workers, the Independent Children's Lawyer, Ms D, a Family Consultant at the Court and possibly to the police as well. He was nonetheless willing to meet with this Family Consultant and yet again explain his position, views and reservations about having contact with Ms Pecks.
49.X is adamant that presently he wants no contact with his mother in the short to immediate future. He expressed some trepidation and reluctance about seeing Ms Pecks based on her past emotionally and physically abusive behaviour. X was adamant that he wanted to have no contact with Ms Pecks. He recalled having met Ms Pecks with a supervisor in attendance and this person having to contain his mother's abusive behaviours. He could not think what needed to change or what could be done for his relationship with Ms Pecks to improve. He also spoke about having felt frightened and unsafe about going to school after Ms Pecks had contacted him fearing she might remove him from his school and take him back to Adelaide. (Mr Pecks claims they had to move houses at least once as X thought Ms Pecks had located their whereabouts and had become fearful.) X reports Ms Pecks had sent him some gift vouchers for Christmas 2018 but nothing for Christmas 2019 or on any of his birthdays. (emphasis added)
50.X appears to have vivid memories of the types of abuse he had experienced from Ms Pecks in the past. He was able to provide specific examples of the emotional and physical abuse Mr Pecks claims Ms Pecks inflicted on him. (It is worth noting that Mr Pecks' other daughter, Ms K, in her affidavit dated 17^th of January 2018 details long-term, emotional, psychological and physical abuse on Ms Pecks’ part. Mr Pecks does likewise in some of his affidavits. There seems to be some congruence in the allegations made.) Asked if he had any happy memories of Ms Pecks, the boy was unable to identify any positive experience shared with Ms Pecks. He claimed that even outings on the occasion of his birthdays were somewhat laboured events.
51.Child's relationships
52.X was briefly observed with Mr Pecks. He appears to have a relaxed, easy-going and warm relationship with him. They chatted about areas of common interest, his part-time work and his future career aspirations.
EVALUATION
53.X has been living with Mr Pecks since January 2018 after he made disclosures about having been emotionally and physically abused by Ms Pecks whilst in her care. (It is worth noting that his sister, Ms K, has made similar allegations of long-term, physical, emotional and mental abuse on the part of Ms Pecks. Mr Pecks has done likewise. It is being suggested that X's allegations are not isolated events.) At present, X wants to have no contact at all with Ms Pecks. Mr Pecks is supportive of his son's position. (emphasis added)
54.To Ms Pecks’ credit, she has indicated a preparedness to be guided by X’s wishes and will not pursue orders for her to have contact with him.
55.As stated elsewhere, whilst orders were made for Ms Pecks to see X supervised by the Family Contact Service, this occurred once only. Similarly, orders were made for Ms Pecks and X to engage with Ms D as part of her reunification therapy program. This also occurred once only. The parents provide competing reasons why no further appointments were scheduled by the Family Contact Service or for Ms D’s program. Having said this, it would seem that the period of supervised contact, which occurred on 20^th May 2018, was not particularly successful. A further contact period scheduled for 3^rd June 2018 did not eventuate as Ms Pecks cancelled the session, explaining that having lost a work contract, she could no longer afford the travel involved nor the cost of the service. The Court is referred to the report prepared by the Family Contact Service for further details.
56.Similarly, the report prepared by Ms D (dated 6^th February 2019) of her reunification counselling and/or therapy with X and Ms Pecks on 24^th September 2018, suggests that she was only able achieve mixed results at best. In the case of Ms D, it's not quite clear why further therapeutic sessions were not scheduled. Once again, the Court is referred to her report.
57.There are number of outstanding matters, including sole as opposed to equal/shared parental responsibility orders, who is to keep the boy's passport and whether X should remain on the airport watchlist.
58.The parental capacity to cooperatively reach agreement on issues pertaining to the welfare of the child is very limited. Mr Pecks cited the example of when the boy had a school-related opportunity to travel to Country E. Although consent orders were eventually made, Mr Pecks claims X was only able to travel after he initiated legal proceedings. While Ms Pecks claims she contributed financially to the cost of the trip, Mr Pecks maintains that “Ms Pecks DID NOT (his capitals) contribute a penny towards any expense of X’s trip to Country E. Instead, she tried till the very last minute not to give him his passport and only gave it a few days before the trip”.
59.It is in view of the above difficulties encountered in that instance, that Mr Pecks seeks that the airport watch list order to be varied. Ms Pecks is opposed to this claiming there is a strong likelihood that Mr Pecks will take X to Country O, more so if able to readily access the boy’s passport.
60.Mr Pecks claims he incurred considerable legal expenses so as to enable the boy to travel overseas with what was effectively a school organised excursion. He makes a valid point that he wishes to avoid similar expenses should further travel be required for whatever the reason. In addition, as there is a strong likelihood that X would have known that Ms Pecks was opposed to his overseas travel, this would not have assisted to improve the already strained relationship. If anything, it is very likely to have magnified any negativity he currently feels towards Ms Pecks. Ms Pecks needs to be mindful of this. In view of the above considerations, and unless there are clear contra-indicators that there is a risk that he will be removed from Australia, this Family Consultant favours the airport watch list orders being varied.
61.A further vexed issue is who should retain X’s passport. Presumably, there are expenses involved in a contested application for X to have his passport returned to him, even temporarily. It is for same reasons offered above that this Family Consultant favours orders being varied so as to enable X to hold his passport. Nonetheless, should Ms Pecks be able to conclusively demonstrate that there is a risk that such a course of action will enable Mr Pecks to remove X from Australia, then the passport should remain in the care of the Federal Circuit Court.
62.The final issue in dispute is that of equal/shared versus sole parental responsibility. Sole parental responsibility orders do make it easier for one parent (particularly in cases involving high and long-term conflict) to make decisions about significant matters impacting on the welfare of the children. The most obvious ones are choice of school, the religion a child is to follow, any medical treatment required or as was the case in this matter, whether overseas travel should occur. Sole parental responsibility is an expedient way of enabling a parent to make such decisions, more so when arriving at agreement on such matters has been demonstrably difficult, if not impossible, without recourse to litigation. As such, there is some merit to orders of this nature being made in this matter. If what Mr Pecks, Ms K and X claim is correct, Ms Pecks has been physically, emotionally psychologically abusive and controlling. Such elements are generally seen as being one of the justifications for sole parental responsibility orders being made. Mr Pecks needs to feel that he can make basic but wise decisions on behalf of their child, without being perpetually on the lookout for disagreements or opposition from Ms Pecks as to any choice he makes. He requires some latitude and autonomy.
63.Nonetheless, this Family Consultant has qualms about sole parental responsibility orders be made. Making orders for one parent to have sole Parental Responsibility is potentially a powerfully exclusive measure. In this Family Consultant's experience, such orders require being made where there is evidence of ongoing, severe physical abuse between the parents[1] and virtually no communication at all. This case seems to have such characteristics. However, what is troubling is the message a Sole Parental Responsibility Order gives the children. Ms Pecks is already (and for various reasons) marginalised and excluded as a parent. She is very much beyond the periphery of X’s life. Making of such orders further legitimises and reinforces such marginalisation in X's eyes and constitutes a further barrier to any going back.
[1] Mr H added those words in oral evidence.
64.Ms Pecks is unlikely to intrude in the boy's schooling, has not raised any specific concerns about the religion Mr Pecks follows or argued that it would be undesirable for X to be exposed to this, and presumably she will not resist any medical treatment X requires. (Admittedly these are suppositions and not based on any hard evidence, as it were.)
65.An option implemented in similar matters entails sole parental responsibility orders being made concurrently with specific orders being also made which enable a parent, in this case Ms Pecks, to access information from the school about child's academic and social progress, school photographs, newsletters etc. though with clearly articulated limits as to his or her input/involvement. (Such arrangements generally envisage a one-way only exchange of information, that is from the school to the parent and not vice versa.) Children can benefit from knowing that a parent is taking an interest in and can monitor their academic progress. Consideration should be given to orders of this nature being made. (It is worth noting that orders dated 15^th June 2018 enable Ms Pecks to liaise with the school, but they may have been varied since.)
66.As Ms Pecks is keen to remain a presence in X's life. A simple way to achieve this is to commemorate and celebrate usual personal and religious festivities with the exchange of small and appropriate gifts. (Adolescents tend not to discard or reject these.) In other words, unconditional gift-giving is being suggested. There seems to be some confusion as to whether the current orders enable gifts to be sent to X. Orders will be required for this.
67.Finally, it needs to be noted that in light of X’s age (he is now 15 years and 3 months old), any orders made, whether these be for sole or for equal parental responsibility, will have only a short duration. Finally, it needs to be noted that in light of X's age (he is now 15 years and 3 months old), any orders made, whether these be for sole or for equal parental responsibility, will have only a short duration.
68.Given the severity and chronicity of the abuse reported by X, it seems imperative that he engage with a counsellor so as to enable him to explore and deal with the sequelae of the abuse. There are many family violence services available and readily accessible. If Mr Pecks has not already done so, he is strongly urged to pursue family violence counselling for the boy. Orders may be needed to support this.
RECOMMENDATIONS
69.Based on information gathered from the parties and held in the documents supplied and in the absence of any evidence to the contrary, then this Family Consultant recommends that:
70.X live with Mr Pecks;
71.there be no orders made for X to have contact with Ms Pecks;
72.the orders requiring X to be on an airport watch list be varied;
73.orders requiring X’s passport to be held by the Federal Circuit Court be varied;
74.consideration be given to Sole Parental Responsibility orders being made, though with specific orders being included enabling Ms Pecks to access, information schools generally make available to parents;
75.orders be made enabling Ms Pecks to send appropriate gifts to X for the usual personal and religious festivities;
76.orders be made for Mr Pecks to pursue family violence counselling for X.
…

Notwithstanding that Mr H stated in his family report that the mother:
[had] indicated a preparedness to be guided by X’s wishes and will not pursue orders for her to have contact with him
that was not her position at trial. Indeed, at trial, the mother sought orders that X live with her.
When asked how that would work, in view of X, at the age of 15 years, expressing a strong view that he did not want to see his mother, much less live with her, the mother said that she would take X to a psychologist so that he could be un-brainwashed. When it was explained to the mother that, at best, that would be a slow process, during which X might run away, the mother said that her preference would be for X to be placed into foster care, rather than return to his father.
The mother said three times during cross-examination that her preference would be for X to be placed into foster care, rather than return to his father, notwithstanding that the first time the mother expressed that preference it was met with incredulity.

Consent orders

After a great deal of effort, during the course of the hearing, on 12 June 2020, the parties were able to agree on a set of consent orders in the following terms (exhibit 5):
1.That all previous parenting orders be discharged.
…
11.That each party facilitate any request of the child to send letters, cards and/or presents to the other party from time to time and on special occasions such as the Mother’s birthday, Father’s birthday, Mother’s Day, Christmas and Easter.
…
14.That the Airport Watchlist Order made by the Federal Circuit Court of Australia at Melbourne on 21 November 2012 at paragraphs 2, 3 and 4 and Orders dated 18 October 2013 at paragraphs 10 and 12, be discharged.
15.That the child’s passport held by the Federal Circuit Court Registry be provided to the parent with whom the child resides.
16.That in the event that either party plans to travel with the child, or the child is planning to travel overseas without the other party, the alternative party is to provide a copy of the itinerary for travel, phone numbers for contact with the child and accommodation details to the other party within 14 days of the proposed travel for their reference only.
17.That the parties are to keep each other notified within 24 hours of any changes to their mobile telephone numbers.
18.That the parties are to keep each other notified as soon as possible of any emergencies or hospitalisations affecting the child.
19.That the parties be restrained from attending the home address of the other party, without a prior agreement in writing between the parties.
20.That, while denying the necessity for the same, the parties be restrained from denigrating or insulting each other or members of that parent’s family or speaking in derogatory terms about each other in the presence or hearing of the child.
21.That while denying the necessity for the same, each party shall remove any Facebook or social media posts made by them that otherwise breach section 21 of the Family Law Act 1975.
…
24. That the parties be permitted to order a passport for the child.
…
26.The parties do all acts and things and execute any documents reasonably necessary to give effect to these Orders and should either party fail to execute any documents within 7 days of their being so requested a Registrar of the Court pursuant to Section 106A be and is hereby appointed and authorised to sign such documents on behalf of such party.
27.That pursuant to section 62B and 65DA of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
However, in her closing written submissions, the independent children’s lawyer indicated that she had mistakenly agreed to proposed order 24, concerning X’s passport. In effect, the independent children’s lawyer withdrew her consent to that proposed order. Consequently, it will not be made as a consent order. The arrangements for X’s passport are discussed further below.
Similarly, in her closing written submissions, the independent children’s lawyer indicated that she had mistakenly agreed to proposed order 16, insofar as it required the disclosure of X’s telephone number while he is overseas. In effect, the independent children’s lawyer withdrew her consent to that aspect of proposed order 16. The mother did not have an opportunity to say whether she consented to proposed order 16 with that aspect of it omitted. Consequently, proposed order 16 will not be made as a consent order. The arrangements for when X travels overseas are discussed further below.
In relation to proposed order 26, being the proposed s.106A order, I cannot envisage any circumstances in which it would be useful, and the parties did not point to any, so it will not be made.
In addition, on the fourth day of the hearing, on 25 June 2020, the parties consented to an order as follows:
The father forthwith do all things in his power to ensure that the mother has access to COMPASS in respect to X.
Except as described above, I am satisfied that the proposed consent orders are in X’s best interests and orders will be made substantially in accordance with them.

Proposals of the father and the independent children’s lawyer

In addition to the matters dealt with by consent, the father and the independent children’s lawyer also proposed orders as follows (Annexure C to the independent children’s lawyers’ closing submissions filed on 3 July 2020):
1.That the Father have sole parental responsibility for the child, X born in 2004 (“the child”).
2.That the child live with the Father.
3.That the child spends time and communicates with the Mother at his request and such communication shall be at the child’s instigation only.
4.That in the event the child wishes to travel to visit the Mother, and pursuant to paragraph 3, the parties having agreed in writing for the child to spend time with the Mother, all cost of air travel of the child are to be borne solely by the Mother and the child is to travel unaccompanied.
5.That the Mother be restrained from contacting the child directly through email or on his mobile phone.
6.That the Father authorises the school to provide to the Mother copies of the child’s school reports, applications for the school photographs and the school newsletters.
7.That the Father is to inform the Mother if the child changes school.
8.The Mother be at liberty to send the child letters, cards and or/ presents from time [to] time and on special occasions such as the child’s birthday, Christmas and Easter to PO Box B, Suburb C. In the event this address changes, the Father is to provide the Mother within 7 days of the change of the updated PO Box details.
9.That the child’s passport held by the Federal Circuit Court Registry be provided to the Father and be held by the Father.
10.The Father be permitted to obtain a passport for the child.
11.In the event that any documents are required to be signed by the Mother to obtain the passport referred to paragraph 9 herein, the Father be permitted to sign all such documents to obtain the passport.
12.That the Father be permitted to make an application to the Department of Foreign Affairs Passport Office for an Australian Passport for the child X born in 2004 and the consent of the Mother to make such an application be dispensed with AND IT IS REQUESTED that the Passport Office accept the passport application of the Father for the child without the consent of the Mother, and furthermore the said child be permitted to leave the Commonwealth of Australia without the permission of the Mother.
13.That in the event that either party plans to travel with the child, or the child is planning to travel overseas without the other party, the alternative party is to provide a copy of the itinerary for travel to the other party within 14 days of the proposed travel for their reference only, noting that the other party cannot interfere in the child’s travel plans.
14.That the child attend Headspace in Suburb R for counselling.
15.That the Independent Children’s Lawyer explain these Orders to the child.
16.That the Independent Children’s Lawyer be discharged within 14 days of the final orders.

Father’s additional proposed orders

In addition to the proposed orders on which the father and the independent children’s lawyer agreed, and on which both parents and the independent children’s lawyer agreed, the father also proposed orders in his closing written submissions filed on 16 July 2020 as follows:
c)The father be permitted to unilaterally hold and apply for any passport for X
d)That the father is not required to disclose his address
e)That the mother be restrained from accessing any personal details regarding X on COMPASS
f)That the mother pay the father’s costs of the trial, being $13,800 for barrister’s fees and $41,250 for Solicitor costs.
g)$79 for the failed attempt to have the documents sent to the father’s solicitor on day 1 of the trial.
h)That the Mother be restrained from contacting X’s school by telephone or attending X’s school other than in writing unless the school has requested to meet with the Mother.

Mother’s additional proposed orders

In addition to the matters on which the parents and the independent children’s lawyer agreed, the mother proposed orders in her closing written submissions filed on 9 July 2020 as follows:
…
2.The Costs order made in the Federal Circuit Court Orders on 6 December 2019 in the sum of $1,813 be discharged.
3.That the Mother and Father have equal shared parental responsibility for the child, X born in 2004 ("the child").
4.That the child lives with the Mother.
5.The child spend time with the Father
1.For 10 days during term holidays,
2.For up to 4 weeks by agreement during the long Summer holidays.
3.at such further and other times as may be agreed from time to time,
…
7.Each parent be authorised to liaise directly with the child's school and may attend the child's school for any event it is usual for parents to attend.
…
10.The child and the parents forthwith engage in therapeutic counselling to improve the relationship between the child and each of them.
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13.Each parent be at liberty to communicate with the child at any reasonable time, and at any time requested by the child, by telephone, email or other electronic means and each parent is to ensure the other is provided with current contact details for the child.
…
15.That the child's passport held by the Federal Circuit Court Registry be provided to the parent with whom the child resides.
16.That in the event that either party plans to travel with the child, or the child is planning to travel overseas without the other party, the alternative party is to provide a copy of the itinerary for travel, phone numbers for contact with the child and accommodation details to the other party within 14 days of the proposed travel for their reference only.
…
22.That while denying the necessity for the same, both parties shall be restrained from posting on social media (including but not limited to Facebook and blogs) and publishing any information to any external party outside of these court proceedings concerning the Mother and the Father or any member of their family and the parties otherwise be restrained from breeching s.121 of the Family Law Act in the future
23.That within 7 days from the date of these Orders, the residential parent provide to the other parent, the child’s identity documents, including his Birth Certificate, Australian Citizenship Certificate.
24.That the parents be permitted to obtain a passport for the child.
25.Each party shall sign a passport application within 7 days of any request for the same.
…
AND THE COURT NOTES:
A)The family report writer has recommended that the child requires counselling.

Material relied upon

The father said in his outline of case filed on 10 June 2020 that he relied on:
a.his affidavit dated 15 November 2012 (paragraph 87);
b.the airport watch list order dated 21 November 2012;
c.the final order dated 13 October 2013;
d.his initiating application filed on 17 January 2018;
e.his notice of risk filed on 17 January 2018;
f.the affidavit of Ms K filed on 17 January 2018;
g.the interim parenting orders dated 13 February 2018;
h.his notice of risk filed on 13 February 2018;
i.the interim parenting orders dated 19 March 2018;
j.the Family Contact Service Observation Report dated 31 May 2018;
k.the interim parenting orders dated 15 June 2018;
l.the suspension of airport watch list order dated 15 October 2018;
m.the documents produced under subpoena by the South Australia Police on 17 January 2019;
n.the documents produced under subpoena by Victoria Police on 17 January 2019;
o.Ms D’s report dated 6 February 2019;
p.the interim parenting order dated 8 February 2019;
q.the interim order dated 6 December 2019;
r.his trial affidavit filed on 3 March 2020;
s.his amended initiating application filed on 3 March 2020; and
t.the family report dated 11 March 2020.
The mother said in her outline of case filed on 11 June 2020 that she relied on:
a.her notice of risk filed on 9 February 2018;
b.her affidavit filed on 9 February 2018;
c.her response filed on 9 February 2018; and
d.her trial affidavit filed on 26 March 2020.
The independent children’s lawyer said in her outline of case filed on 29 May 2020 that she relied on:
a.the s.67ZA response by Ms S (undated);
b.the s.67Z response dated 25 January 2018;
c.the Family Contact Service Observational Report dated 31 May 2018;
d.the documents produced under subpoena to South Australia Police filed on 31 January 2019;
e.the affidavit of Ms D dated 28 May 2020 which attaches her report dated 6 February 2019; and
f.the family report of family consultant Mr H dated 11 March 2020.
The father, the mother, and the family consultant were all cross-examined.
Although the father relied on the affidavit sworn on 16 January 2020 by Ms K, his adult daughter from a previous relationship, the mother chose not to cross-examine her. Ms K is 24 years old. She lived with her father and the mother in these proceedings from the time she was about seven years old. That is, the mother in these proceedings was Ms K’s step-mother.
The reason the mother gave for not cross-examining Ms K was that it was “inappropriate” that she was called by the father to give evidence. The mother tried to pressure the father into not relying on Ms K’s affidavit, but without success. Ms K was available to be cross-examined during the Microsoft Teams hearing, and was visible at various times during that hearing.
I do not accept that it would have been inappropriate to cross-examine Ms K. She is an adult. I consider that the mother tried to pressure the father into not relying on Ms K’s evidence for the simple reasons that it was shockingly damaging to the mother’s case, and her evidence was unlikely to be weakened by cross-examination.

Ms K’s unchallenged evidence

Ms K gave unchallenged evidence, which I accept, that:
a)in about 2003, about two months after the father and mother were married, and while the father was in Country T, and Ms K was about seven years old, the mother beat Ms K repeatedly with a wooden spatula or ladle while yelling at her;
b)in 2003, the mother and Ms K joined the father in Country T;
c)the mother often beat Ms K with kitchen utensils and brooms or mops, for getting questions wrong in her homework, not eating all of her food, or talking to her friends;
d)if the father intervened, the mother would abuse him;
e)on one occasion, when some friends had wanted to play with Ms K, the mother beat her with rods and wooden ladles until the rods bent and the ladles broke and Ms K could not stand;
f)from late 2004, Ms K attended boarding school in Country O;
g)the beatings only occurred when she was home for school holidays;
h)when Ms K tried speaking to a teacher about the abuse, the mother was furious;
i)if Ms K did not understand her school work, the mother would beat her until she completed it;
j)the mother also hit Ms K’s cousin for breaking a key;
k)the family began living in Melbourne in 2008, when Ms K was about 12 years old;
l)Ms K attended U School;
m)the mother removed her from school shortly before the end of Year 8, and again after the first month of Year 9, in 2009, because Ms K was not reading the Bible every morning and was not writing enough in her journal, which the mother would read;
n)Ms K had no formal education for a year and the mother did not allow her to see her friends except at church;
o)in 2010, Ms K attended a church camp for one week;
p)on her return, the mother beat Ms K with a wooden spoon because the camp did not make Ms K the sort of person the mother expected and because Ms K did not write enough in her journal;
q)later that day, the mother kicked Ms K out of the house, with her Bible;
r)Ms K went to a friend’s house;
s)the mother told the father that Ms K had run away;
t)Ms K returned home, but was not allowed to see her church friends or speak to them again;
u)in 2011, when she was about 14 years old, Ms K studied by distance education, but was isolated and became depressed and stopped doing her assignments;
v)the mother beat her again;
w)the mother used metal spatulas and wooden ladles, which caused Ms K to bleed from her face, and caused bruising on her fingers;
x)Ms K ran from the house, and sat all day on the vehicle her father was driving;
y)they went home together, when the mother started abusing the father;
z)the mother told the father that she wanted him to whip Ms K until she was bled of all of her mother’s blood;
aa)when the father refused, the mother smashed a terracotta pot and smashed a guitar on the father’s head;
bb)the mother threatened to kill Ms K if the father left the house;
cc)the father and Ms K left the house with only the clothes they were wearing;
dd)the father attended a police station, but did not press charges;
ee)Ms K has not had contact with the mother since that time [X remained with his mother; he was about seven when the parents separated];
ff)on 1 December 2017, in the context of a text conversation in which X said that his mother had made him see a psychologist, Ms K asked X if the mother had hurt him;
gg)he said, “not physically; ages ago, she called me a fucked up cunt tho”;
hh)when Ms K texted X in late 2017 for his birthday, he replied the following day saying that, “On the 23^rd muma started to use a wooden ladle on me I was hit on my right shoulder blade my elbow my arse and my knee if you add up all the hits I would say 28 in total”; and
ii)since moving to Melbourne to live with his father, X had told Ms K that he is scared to go home to his mother.
The father was asked in oral evidence why he left X with his mother, when he and Ms K left the former family home. The father said that he did not think that the mother would hurt her own natural child.

The mother’s concession

The mother conceded in her oral evidence that:
a)she slapped X’s face in October 2017; and
b)she threatened to hit him with a ladle in late 2017.

The oral evidence of the family consultant

In his oral evidence, the family consultant said that:
a)X had expressed a clear wish to spend no time with his mother;
b)X is 15 years old, and considerable weight ought to be placed on his views;
c)the family consultant was surprised that the mother was now seeking orders for X to live with her, given X’s strong views, and given that the mother had accepted in the family report interviews and in a subsequent email to the family consultant that X would live with his father;
d)the family consultant recommended that X be given the opportunity and encouragement to attend family violence counselling, but should not be forced to do so;
e)if the mother had only slapped X’s face once and threatened him with a soup ladle once, X’s reaction in not wanting to see his mother at all would seem disproportionate;
f)it was possible that X had created a situation for himself and he was now too embarrassed to go back on it;
g)colleagues of the family consultant have said that reunification therapy is not often successful for adolescents;
h)he found it bewildering that the mother would consider foster care a better option for X than living with his father;
i)the family consultant was astonished by the mother’s position on foster care;
j)he found the mother’s position on foster care very punitive;
k)the mother’s position on foster care was indicative of a deeply problematic relationship between the mother and X;
l)the mother’s position on foster care raised questions about the mother’s understanding of X’s needs;
m)the mother’s position on foster care suggested that her parental capacity was severely compromised;
n)the family consultant supported an order that there be no contact between X and his mother at this time; and
o)the parents’ capacity to communicate and reach agreements was very limited.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(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
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)     to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act 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.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

X would benefit from having a meaningful relationship with his mother. However, at present, sadly, X has no relationship with his mother at all. X has only seen his mother or communicated with her twice in the two and a half years since 7 January 2018.
The first visit was on 20 May 2018 in a shopping centre under professional supervision. Although orders of the court permitted ongoing visits of that nature, the mother chose not to avail herself of that opportunity. She asserted that she could not afford the trips from Adelaide to Melbourne. That is very difficult to believe, in circumstances where the mother is a professional who at times has earned over $200,000 per year. I would have thought that, to see her son, a loving mother with that earning potential would adjust her assets and expenditure to allow regular visits, or even move to Melbourne. However, the mother chose not to take any such step.
The second visit was on 24 September 2018 in the context of therapeutic counselling conducted by Ms D. Again, although court orders contemplated further therapeutic counselling sessions, no further sessions occurred. The mother did not pursue them.
Although the mother’s counsel told the court repeatedly that the mother is a grieving mother, the reality is that the mother did not take the opportunities the court gave her to repair her relationship with X.
Instead, the mother was intent on blaming the father for the fracture in her relationship with X. She said that the father had alienated X from her, coached him and plotted against her.
The mother was particularly offended about the father attending X’s school on 27 November 2017, without her knowledge, to speak to X, the school principal and X’s friends. The mother described this as a secret visit. In my view, in the context of X reporting physical and emotional abuse by his mother and the mother claiming X had been bullied at school, it was a reasonable and proportionate step for the father to attend X’s school without the mother’s knowledge to obtain information for himself.
The mother said that the father’s visit to X’s school was part of an orchestrated plot to wrest X from her. However, that fails to acknowledge the mother’s own role in X himself deciding to move to his father’s home.
The mother conceded that she hit X once and threatened to hit him with a ladle on one occasion. According to the family consultant, X wishing to live with his father was not a proportionate response to the mother’s conceded conduct. That suggests, on the evidence and submissions in this case, that X wishing to live with his father was primarily caused by one of two things: the father manipulating X, or the mother beating X with a ladle 28 times in late 2017.
In my view, it is more likely that X wishing to live with his father, and not see his mother, was primarily caused by his mother beating him in late 2017 rather than his father manipulating him.
I am confident that the mother did beat X with a ladle in late 2017. That behaviour was consistent with the mother’s treatment of Ms K over many years. X reported the beating to Ms K almost contemporaneously. X’s behaviour and consistent statements to various people over a period of years are indicative of him being beaten by his mother. The mother’s claim that she did not beat X in late 2017 was unconvincing. Her demeanour in the witness box was of a person convinced of her own superiority and in denial about the effect of her own behaviour on X.
In this context, even if there had been some manipulation by the father, it would pale into insignificance compared with the mother’s own behaviour. Rather than being a case of alienation, this is a case of realistic estrangement, where the mother’s own deplorable conduct has driven X away from her.
While the mother said repeatedly that she was grieving, she showed no awareness that X may also be grieving the loss of a relationship with her. It is a huge loss for him, to have no relationship with his mother, even if he chose to have no relationship with her for reasons of his own safety.
While X would benefit from a meaningful relationship with his mother, there seems little prospect of them ever having a meaningful relationship, or any relationship at all. The only way that X and his mother could have a meaningful relationship would be if the mother changed substantially.
The mother would have to be less punitive and more kind and gentle. She would also have to understand things from X’s point of view. Her repeated statement that she would prefer X to be in foster care rather than in his father’s care demonstrates a staggering lack of concern for X’s welfare, and a staggering wish to win her battle against the father at any cost to X.
The mother’s claim that, if the court returned X to her, she would take him to a psychologist to un-brainwash him, is indicative of magical thinking. The mother seemed to be under the delusion that a psychologist could instantly wave a magic wand and X would suddenly love and trust her again. The mother seemed to be oblivious to the fact that the work of psychologists generally takes a prolonged period of time, and in that time, X could run away, and be at risk while doing so, or harm himself, as he has intimated he might.
For these reasons, while X would benefit from having a meaningful relationship with his mother, there is very little prospect of them having any relationship at all, unless the mother is prepared to do a lot of work on herself, probably with a psychologist, to change her own thinking and behaviour.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

As discussed, I have accepted that the mother beat X with a ladle 28 times in late 2017. She has herself conceded hitting him on one occasion and threatening to hit him with a ladle on one occasion.
In addition, the mother has been emotionally abusive towards X. While professing a Christian faith, the mother has not been kind and gentle towards X, but has been punitive and severe. She has threatened him with being placed into foster care. She has lectured him at length about his failings, as she perceived them.
It is clear that, unless the mother changes substantially, X is not physically or emotionally safe in her care, or even in communication with her.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

X has expressed clear and consistent views that he does not wish to see his mother or communicate with her. X is fifteen and a half years old. A great deal of weight needs to be given to his views, partly out of respect for him, but also because, at his age, he can take matters into his own hands. That is not to say that he should but, as we know, some teenagers live on the streets because they consider that to be safer than living at home.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

As discussed, X no longer has a relationship with his mother.
X has a loving relationship with his father, who is very supportive of him. The father appears to be holding everything together for X, in the very sad circumstances that X finds himself in, being that he feels unable to have a safe relationship with his own mother.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child

As mentioned above, the mother did not take the opportunity to spend supervised time with X, except for on one occasion, and did not take the opportunity to attend therapeutic counselling with X, except for on one occasion. The mother seems to be a my way or the highway kind of person.
While X lived with her, the mother did spend time and communicate with X, and participated in making long term decisions about him. However, at least in relation to the 2017/2018 summer holidays, she sought to dictate terms to the father, rather than reaching a consensus position with him, or indeed, rather than following the existing court orders.
The father appears to have been involved in X’s life while he lived with his mother, seeing him regularly at school holiday time and communicating with him from time to time. The father, now that X is living with him, obviously spends time and communicates with him, and makes long term decisions about his life.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

Neither parent nor the independent children’s lawyer addressed this issue. I assume both parents have done what was legally required of them. However, I do note that the mother has claimed that her income dropped from about $215,000 per year in 2017/2018 to about $72,000 per year in 2018/2019.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

If X were required to live with his mother, as she proposes, the effect on X is likely to be disastrous for him. I say that without any exaggeration. X could be expected to react very badly to such an order by the court. The mother’s idea of X being assisted by a psychologist to come to terms with living with her is fanciful.
If X did not run away from his mother, the probability is that his life with her would be miserable. She would probably punish him for living with his father, and would probably persist in trying to make X fit her idea of what he should be, by hitting him, lecturing him, threatening to put him into foster care and generally being punitive and severe rather than kind, gentle and supportive. There is every reason to believe that X would be seriously psychologically damaged if he were forced to return to his mother.

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

As the mother lives in Adelaide and the father lives in Melbourne, there would be practical difficulties and expenses in X spending time and communicating with whichever parent he was not living with.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

The father appears to be well able to provide for X’s needs. The mother claimed that she is much more able to provide for X to have a good education. That may be so. However, X’s need to be physically and emotionally is more pressing than his need for a good education.
For the reasons discussed above, the mother at present is incapable of providing for X’s emotional needs. In fact, she is creating emotional needs for him, by being such a severe and hurtful parent.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

This was not a major issue in this case. Both parents are Christians of Country O descent.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This factor does not apply in this case.

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

The father has demonstrated an admirable attitude to the responsibilities of parenthood. He has stepped up when called upon by X for assistance, and has welcomed X into his life on a full time basis. The father has focussed on X’s needs.
When X was living with her, the mother provided very well for X materially. However, she did not appear to understand that a parent’s responsibility is to guide and support, rather than to excessively punish and harangue.

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

As discussed, there has been serious family violence perpetrated by the mother against X.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)     the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)    any other relevant matter

This factor is not applicable.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It would be preferable to make the order that would be the least likely to lead to further proceedings. It is not obvious what that order would be.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

The relevant facts are discussed elsewhere in these reasons.

Equal shared parental responsibility

Section 61DA of the Act provides as follows:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

The father and the independent children’s lawyer sought an order that the father have sole parental responsibility for X. The mother sought an order for equal shared parental responsibility.
In view of the family violence perpetrated by the mother against X, the presumption of equal shared parental responsibility is rebutted in this case.
I consider that equal shared parental responsibility would not be in X’s best interests in any event. The parents are not able to deal with each other effectively and respectfully. The mother has demonstrated an inability to comprehend X’s needs, for example, by saying three times in court that she would prefer that he went into foster care than that he lived with his father. The mother appears to be unable to make decisions in X’s best interests. In these circumstances, it is in X’s best interests that his father have sole parental responsibility for him.

Equal or substantial and significant time with each parent

Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or 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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
As there will not be an order for equal parental responsibility, it is strictly speaking unnecessary to consider whether there should be equal time with each parent, or substantial and significant time with either parent. In any case, because the father lives in Melbourne and the mother lives in Adelaide, equal or substantial and significant time are not viable.
The father and the independent children’s lawyer proposed that X live with his father and spend time and communicate with his mother at X’s instigation only. The mother proposed that X live with her and spend time with his father at various times.
For the reasons discussed above, it is not at all in X’s best interests that he live with his mother. Sadly, because the mother did not avail herself of the opportunities she was afforded to spend supervised time with X and to have therapeutic counselling with him, their relationship has reached a point where it is not in X’s best interests to spend any time at all with his mother, or communicate with her except at his instigation. There will be orders as proposed by the father and the independent children’s lawyer.

Additional matters

In addition, the father and the independent children’s lawyer sought an order that:
In the event that X wishes to travel to visit the mother, and if the parents have agreed in writing for X to spend time with his mother, all costs of X’s air travel are to be borne solely by the mother and X is to travel unaccompanied.
The mother did not specifically oppose that order. At this point, it seems unlikely that it will ever be acted upon. However, if the situation does improve, it seems to me that the proposed order is in X’s best interests. That proposal will be made as an order of the court.
The father and the independent children’s lawyer also sought an order that:
While denying the necessity for the same, the mother be restrained from contacting X directly through email or on his mobile phone.
The mother was opposed to this proposed order being made. She thought it was excessive and unnecessary. She proposed orders enabling her to communicate with X from time to time.
This issue is connected with the father’s claim that X had thought that the mother followed him from school in a car, and he was frightened. The mother denied that she had ever done any such thing.
It is possible that X was mistaken. However, I accept that he genuinely thought he saw his mother following him and he was genuinely frightened.
If the mother did not follow X, this incident demonstrates how anxious and apprehensive X is about being anywhere near her. If the mother did follow X, it was stalker-like behaviour and, as events have shown, counterproductive.
In my view, the proposed order is in X’s best interests. He should be spared from any contact from his mother, given how badly she has behaved in the past, and given that she did not avail herself of the opportunities that she was afforded to repair her relationship with X, and given that, even now, she has no insight into his needs, and would rather he be put into foster care than live with his father.
The father and the independent children’s lawyer also sought an order that:
The father authorise the school to provide to the mother copies of X’s school reports, applications for the school photographs and the school newsletters.
The mother proposed a substantially similar order as follows:
The father and the mother must authorise X’s school to provide to the other parent copies of X’s school reports, school notices and applications for school photographs.
For some reason, this proposed order did not find its way into the consent orders. It is clearly in X’s best interests and will be made as an order of the court.
The father and the independent children’s lawyer also sought an order that:
The father is to inform the mother if the child changes school.
The mother sought a substantially similar order that:
In the event that the child changes school each parent be advised immediately of any such change.
Presumably, this was not proposed as a consent order, because the mother’s version did not depend on X living with his father. However, father and the independent children’s lawyer’s proposed order is obviously in X’s best interests and will be made as an order of the court.
The father and the independent children’s lawyer also sought an order that:
The mother be at liberty to send the child letters, cards and or/ presents from time to time and on special occasions such as the child’s birthday, Christmas and Easter to PO Box B, Suburb C, Victoria. In the event this address changes, the Father is to provide the Mother within 7 days of the change of the updated PO Box details.
The mother sought an order that each parent be able to send letters, cards and gifts from time to time and on special occasions to the other parent’s residential address.
For reasons associated with X’s apprehension in relation to the mother, and the occasion when she may have followed him, the father did not want the mother to know his and X’s residential address. That strikes me as in X’s best interests, in all the circumstances of this case. The order proposed by the father and the independent children’s lawyer will be made as an order of the court.
The parents agreed that X’s passport, which is currently held by the registry, should be released to whichever parent he is living with. As X will be living with the father, there will be a direction for X’s passport to be released to his father.
As mentioned above, the parents and the independent children’s lawyer agreed to an order that:
The parties be permitted to order a passport for the child.
However, the independent children’s lawyer later withdrew her consent to that proposed order. In the circumstances of the father having sole parental responsibility for X, X living with his father, and the mother withholding X’s passport when he wanted to go to Country E on a school trip, it is in X’s best interests that it be only his father who should be able to obtain a passport for him, and if the mother does not sign the appropriate form, that the father be able to obtain a passport without her consent. There will be orders accordingly.
The father and the independent children’s lawyer also sought orders that:
… in the event that either party plans to travel with the child, or the child is planning to travel overseas without the other party, the alternative party is to provide a copy of the itinerary for travel to the other party within 14 days of the proposed travel for their reference only, noting that the other party cannot interfere in the child’s travel plans.
The mother agreed to that proposed order save that she also sought that the non-travelling parent be provided with contact telephone numbers and accommodation details for X while he is overseas. For the reasons discussed above, that is not in X’s best interests. The mother’s proposed orders would permit contact between X and his mother at the mother’s instigation, when it is in X’s best interests that any such contact only occur at his instigation.
There will be an order as proposed by the father and the independent children’s lawyer, recast to reflect the reality that X is only likely to travel with his father, if at all, or, if détente is achieved, with his mother with his father’s permission, which would no doubt include a requirement for an itinerary and contact details.
In addition, there will be an order restraining the mother from being at the airport when X is likely to be there. That is to prevent any unintended contact between them.
The father and the independent children’s lawyer also proposed an order that:
… the child attend Headspace in Suburb R for counselling.
Counselling for X was a remarkably contested issue. The family consultant recommended that he have family violence counselling. The mother opposed that, saying, incorrectly, that he had not experienced family violence. The father was resistant to X having any counselling, ostensibly because X himself was not keen. The independent children’s lawyer, it seemed, would have preferred an order for family violence counselling, but ultimately proposed the order set out above.
In my view, it would be in X’s best interests to have family violence counselling and also counselling to deal with the fallout of his fractured relationship with his mother. However, at his age, it would obviously be difficult to make him attend counselling if he did not want to, and it would be a waste of time if he were not willing. Moreover, X has had a very difficult time. I consider that he needs more heavy duty assistance than a counsellor is likely to be able to provide. In my view, he should see a properly qualified clinical psychologist.
In these circumstances, there will be an order requiring the father to encourage and facilitate X attending upon a clinical psychologist to address issues arising from his fractured relationship with his mother, and his mother’s violence towards him.
The father and the independent children’s lawyer also proposed orders that:
… the Independent Children’s Lawyer explain these Orders to the child.
… the Independent Children’s Lawyer be discharged within 14 days of the final orders.
The mother did not specifically oppose those orders. They are in X’s best interests and will be made.
In addition, the mother proposed an order that:
Each parent be authorised to liaise directly with X’s school and may attend X’s school for any event it is usual for parents to attend.
I do not consider this proposed order to be in X’s best interests. It is inconsistent with the orders mentioned above that contact between X and his mother be only at X’s instigation. There was much debate at the hearing about whether the mother should be able to contact X’s school. However, this was not reflected in the final proposals, which seems to have been an oversight. Given the mother’s poor behaviour, I consider that it is in X’s best interests that he not have to deal with his mother contacting his school or his teachers or attending his school. There will be restraints accordingly.
The mother also proposed an order that:
X and the parents forthwith engage in therapeutic counselling to improve the relationship between X and each of them.
The mother had an opportunity to have therapeutic counselling with X but chose not to avail herself of that opportunity, except for on one occasion. Given the point that this matter has reached, I do not consider it to be in X’s best interests to be subjected to a regime of therapeutic counselling with his mother, which she may decide not to attend in any event.

Costs

The father also sought orders that the mother pay his costs as follows:
a)the $1,813 that she was ordered to pay on 6 December 2019;
b)$79 for a courier that was sent to the mother on the first day of trial to collect documents belonging to X that she said she would provide but then decided not to; and
c)the costs of the trial, being $13,800 for counsel’s fees and $41,250 for solicitors’ fees.
The mother asked the court to discharge the costs order made on 6 December 2019. She intimated that it had been her former solicitor’s fault that the matter was listed that day, not hers, and submitted that she should not have to pay. I do not accept the mother’s claims in that regard. However, either way, it certainly was not the father’s fault that he incurred the costs of that day. I am not persuaded to vacate the order that was previously made. In fact, I will restate it, in case someone takes the view that interim orders have been subsumed in final orders.
In relation to the other costs, the mother has not had an opportunity to respond to the claims, as the father made them in his closing written submissions, which were filed after the mother’s. Except for the costs of 6 December 2019, I will hear the parties on the question of costs, in the usual way, following the delivery of judgment.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 8 September 2020