PERRI & PERRI

[2014] FamCA 408

FAMILY COURT OF AUSTRALIA

PERRI & PERRI [2014] FamCA 408

FAMILY LAW – CHILDREN – Best interests – parental responsibility – with whom the child shall live and spend time – child has been psychologically disturbed by loyalty conflicts – high conflict between the mother and father – child has primarily lived with the father for the past three years – father has superior capacity to provide for the child’s psychological needs – child to remain living with the father – father to have sole parental responsibility for the child – no order made for the mother to spend time or communicate with the child – injunctions imposed upon the mother

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Family Law Rules 2004

Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
Michaels v Commonwealth (2002) 124 FCR 473

MRR v GR (2010) 240 CLR 461
NSW Bar Association v Somosi (2001) 48 ATR 562
Rogers v The Queen (1994) 181 CLR 251
Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19

APPLICANT: Mr Perri

RESPONDENT: Ms Perri

INDEPENDENT CHILDREN’S LAWYER: NLS Law

FILE NUMBER: NCC 1956 of 2009

DATE DELIVERED: 17 June 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 20, 21 & 22 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr R Wilkinson

SOLICITOR FOR THE RESPONDENT: Toronto Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr I Duane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: NLS Law

Orders

1. All former orders relating to the child S, born … 2004, (“the child”) are discharged.

2. The father shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. Pursuant to s 68B of the Family Law Act, other than with the father’s written consent, the mother is restrained from:

   (a)Approaching the child; and

   (b)       Entering upon or approaching within 500 metres of:

   (i)The father’s residence; and

   (ii)Any school attended by the child.

5. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

6. The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.

7. Leave is granted to the parties to furnish a sealed copy of these orders to the principal of any school attended by the child.

8. Leave is granted to the father to provide to the Secretary of the NSW Department of Family and Community Services and any therapist or counsellor consulted by the child:

   (a)       A copy of the Family Report dated 17 January 2014;

   (b)       A sealed copy of these orders; and

   (c)       A copy of the reasons published for these orders.

9. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

12. Any and all outstanding applications are dismissed.

Notation

(A)These orders intentionally make no provision for the child to spend time or communicate with the mother. Whether the child ever does so and the circumstances under which that may occur will be determined by the father as an incident of his sole parental responsibility for the child.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1956 of 2009

Mr Perri

Applicant

And

Ms Perri

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The 10 year old child who is the subject of these proceedings is a very disturbed young boy.

2. The Family Consultant offered the following insight into his predicament, the validity of which was not seriously challenged by either party or the Independent Children’s Lawyer:

   Unfortunately it seems unlikely that [the child] can have a relationship with both of his parents. Due to the position that the parents appear to place him in [the child] feels he has to choose between his parents and this pressure is psychologically distressing for him. The conflict of loyalty he feels is so strong he emotionally decompensates and his behaviour deteriorates. It may be that at present the only way for [the child] to cope is to live exclusively with one parent and spend no time with the other parent.

3. That evidence raised the stakes for the parties because, if accepted, it meant that for all intents and purposes one of them would need to be eliminated from the child’s life. Neither wanted to be consigned to only a childhood memory, but neither foresaw the need to modify their behaviour or to compromise. Unfortunately, the same distrust and antipathy that characterised their relationship was on display during the hearing.

4. The parties each conducted the hearing in a manner designed to demonstrate that the other was exclusively or principally responsible for the child’s distress in an attempt to position themselves as the preferred residential parent, in full knowledge of the potential repercussions if they failed.

5. The weight of the evidence warranted the child’s residence with the father and the elimination of his interaction with the mother, together with the allocation of parental responsibility for the child exclusively to the father.

Short history

1. It is common ground the parties finally separated in early 2009.

2. The mother commenced litigation concerning the child, who was then only five years of age, in July 2009. Those proceedings were saturated with allegations of child abuse and family violence, but were nonetheless compromised by the parties in September 2011.

3. On 12 September 2011 the Court made a comprehensive suite of final orders about the child, with the parties’ consent, that provided for:

   (a)The child to live with the father;

   (b)The father to have sole parental responsibility in respect of decisions related to the child’s health, but for the parties to otherwise share parental responsibility for the child;

   (c)The child to spend time with the mother on a gradually increasing basis, which culminated in a program of four nights each fortnight, half of school holidays, and other special occasions;

   (d)The child to have regular telephone communication with the parties when not in their respective care; and

   (e)Numerous injunctions regulating the parties’ behaviour, including an embargo on allowing the child to have any contact with an older half-sibling, who it was alleged had sexually abused the child.

4. The parties were represented by barristers when those orders were made so there can be no doubt about their understanding of the agreement they reached.

5. Importantly, the parties instructed their barristers to make several significant concessions to satisfy Part 10.15A of the Family Law Rules and to persuade the Court to endorse their agreement.[1] Firstly, they acknowledged the allegations of child sexual abuse and family violence were satisfactorily addressed by the consent orders, and secondly, they positively asserted that the orders were made in the child’s best interests and were reasonably practicable to implement.

   [1] Notations C and D made on 12 September 2011

6. The parties’ mutual belief that the orders promoted the child’s best interests did not last for long. These proceedings were commenced by the father little more than 18 months later in March 2013 and since then both parties have made plain their belief in the other’s parenting incompetence. Both now seek substantial revision of the former orders.

7. Although the proceedings were commenced in the Federal Circuit Court of Australia, the proceedings were transferred to this Court in June 2013.

8. In July 2013, following the release of a memorandum prepared by the Family Consultant, the parties agreed upon interim parenting orders that provided for suspension of the orders made in September 2011, the child to live with the father, the father to have sole parental responsibility for the child, and the child to spend supervised time with the mother at a contact centre for two hours each fortnight.

9. Those orders were successfully implemented until only early December 2013. During a supervised visit at the contact centre the child became unruly and ran away from the mother. He could not be cajoled to resume the visit and the contact centre staff would not schedule any more visits due to the high level of supervision required and their concerns about the child’s behaviour.[2] Resumption of the supervised visits was mooted between the contact centre, the Independent Children’s Lawyer, and the parties in February 2014, but it did not eventuate.

   [2] Family Report, paras 48, 59, 75

10. The final hearing proceeded in May 2014 in circumstances where the child last saw the mother in the company of the Family Consultant in January 2014.

Proposal of father

1. The father was unrepresented. The Court noted in October 2013 his proposal to have sole parental responsibility for the child, for the child to live with him, and for the mother to be eliminated from the child’s life.[3] His proposal remained unchanged when he conferred with the Family Consultant in January 2014,[4] and also throughout the hearing. He said wistfully during final submissions that he could see no other reasonable alternative.

   [3] Notation C made on 18 October 2013

   [4] Family Report, para 12

Proposal of mother

1. The nature of the mother’s proposal was also noted by the Court in October 2013, which was for the parties to have equal shared parental responsibility for the child, for the child to live with her, and for the child to indefinitely spend only supervised time with the father.[5] Her proposal remained unchanged at the time she conferred with the Family Consultant in January 2014.[6]

   [5] Notation D made on 18 October 2013

   [6] Family Report, para 13

2. However, the mother’s proposal did change in two respects during the hearing. At the commencement of the hearing, apparently for the first time, the mother announced that the child should spend unsupervised time with the father on alternate weekends, for half school holidays, and on other special occasions. Then, after the evidence was closed, the mother announced she instead sought sole parental responsibility for the child. She tendered a minute of the orders she finally proposed.[7]

   [7] Exhibit M1

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer did not reveal her proposal in respect of the child until the commencement of final submissions. She tendered a minute of the orders she proposed,[8] which entailed the father having sole parental responsibility for the child and the child living with him. It was further proposed that the child have no interaction of any sort with the mother, other than by way of written communication after the elapse of three months.

   [8] Exhibit ICL16

The evidence

1. The father relied upon his affidavit filed on 24 April 2014.

2. The mother relied upon:

   (a)Her affidavit filed on 16 May 2014; and

   (b)The affidavit of her partner, Mr D, filed on 16 May 2014.

3. Tranches of the affidavits filed by the father and mother were consensually rejected as inadmissible.

4. The parties and the Independent Children’s Lawyer also relied upon the evidence of the Family Consultant, who prepared the Family Report dated 17 January 2014. The Family Consultant was cross-examined and her oral evidence only endorsed and elaborated the contents of the Family Report. Her evidence was logical, reasoned and convincing in all respects.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. One point on which the parties were agreed was that the child has meaningful relationships with both of them. There was, however, a serious issue about the child’s simultaneous derivation of benefit from those relationships.

2. There was a surfeit of evidence about the child’s unruly behaviour, described by the Family Consultant as being “at the extreme end of the spectrum”, which is linked to the nature of his relationships with the parties.

3. The Family Consultant observed the child in the company of the mother. The child greeted her warmly and hugged her,[9] even though when he last saw her only a month before at the contact centre he was “obnoxious” to her, looked like he “wanted to kill [her]”, and fled from her.[10] The child’s suggestion to the Family Consultant that he had not seen the mother for the preceding “2-3 years” was nonsense.[11] The child was insistent in the mother’s presence that he be permitted to live with her and he was conversely critical and disparaging of the father. Afterwards, when alone with the Family Consultant, the child spoke of the mother in idealised terms.[12]

   [9] Family Report, para 77

   [10] Family Report, paras 48, 54

   [11] Family Report, para 76

   [12] Family Report, paras 80-87

4. The child was not similarly observed by the Family Consultant in the company of the father because the child became unsettled beforehand.[13]

   [13] Family Report, paras 31, 92

5. The Family Consultant said in the Family Report:[14]

   …it is clear [the child] has serious emotional issues but the aetiology of this is unclear.

   [14] Family Report, para 74

6. The Family Consultant was more forthright about the cause of the child’s problems during her cross-examination. She attributed his grossly disturbed behaviour to the parties’ shortcomings. Those aspects of the evidence will be elaborated in more detail when discussing the parties’ parenting capacity under s 60CC(3) of the Act later in these reasons.

7. The police have interceded in the family’s affairs quite often over the years. Despite their lack of the expertise or experience possessed by the Family Consultant, they held consistent views about the cause of the child’s troubles. Their records note:[15]

   Police do not have any concerns of the child beyond the long term results that the parents behaviour will have on the child (sic)

   [15] Family Report, para 90

8. During cross-examination the Family Consultant described the general importance of a child forming primary and secondary psychological attachments to his or her primary and ancillary carers. Although the parties disagreed over who was primarily responsible for the child’s care up to the time of their separation, it is undeniable the parties have been the two predominant carers of the child. His psychological attachments with each of them are likely the two most important attachments he has. Nevertheless, his relationship with both parties is fractious and the Family Consultant said he experiences “very ambivalent feelings about both parents.”

9. The child reacts unpredictably and inconsistently with both parties. He can be loving and warm one moment but viciously aggressive the next. By way of example with the father, the child occasionally assaults him with implements. By way of example with the mother, he was argumentative and rude with her during supervised visits at the contact centre and, on the last occasion, fled and would not return. He clearly feels both attracted to and repelled by each party, which contradictory feelings must be extremely confusing to a child of his chronological age and relative immaturity.

10. The Family Consultant hypothesised that the child’s unpredictable and ambivalent behaviour towards his parents may well manifest his disrupted psychological attachment to each of them. Other aspects of his behaviour also correlate with characteristics attributed by the Family Consultant to children of that age with disrupted attachments: he hurts other children, he misbehaves at school, and he is prone to abscond.

11. The benefit the child derives from his relationships with each party is therefore a matter of considerable conjecture, even though he loves them both. The Family Consultant adhered to her opinion that the child could not enjoy relationships with both parents since they create too much stress and pressure for him.[16] By implication, whatever benefit the child derives from his relationship with one party is counteracted by the detriment he experiences in attempting to maintain his relationship with the other.

    [16] Family Report, para 107

Section 60CC(2)(b)

1. Since these proceedings were commenced after 7 June 2012, the amendments to the Act, and in particular those pertaining to the definitions of “abuse” (s 4) and “family violence” (s 4AB) and the considerations relevant to findings about the child’s best interests (s 60CC), wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) now apply.

1. The new definition of “abuse” encompasses conduct which causes the child to suffer “serious psychological harm”, irrespective of whether such harm is caused deliberately or inadvertently.

2. Although the Family Consultant did not give explicit evidence to the effect that the child had suffered “serious psychological harm” caused by the parties’ conduct, that inference was fairly open on the available evidence. But since no submission was made about it, rather than indulge in an esoteric analysis of whether such circumstances amount to “abuse” from which the child needs protection, which would be a primary consideration under s 60CC(2)(b) of the Act, it is more practical and less controversial to consider the parties’ conduct and its deleterious effect upon the child as an additional consideration under s 60CC(3) of the Act.

3. Presently, there is frank evidence of family violence and physical abuse which needs to be addressed. For the following reasons, the evidence does not prove that the child is in need of protection from physical or psychological harm as a consequence of his subjection or exposure by the father to either family violence or abuse.

Alleged family violence

1. Although the mother contemplated her past victimisation by the father’s family violence was a pre-eminent issue for the Court’s consideration, as it ordinarily would be, in the peculiar circumstances of this case it was not.

2. Initially, it is worthwhile recording that the father certainly committed family violence upon the mother in the past. He was formerly convicted of assaulting her, following his plea of guilty, for which he was penalised and a small amount of compensation was awarded to the mother.[17] I reject the father’s denial of the assault as disingenuous. His conviction for assault of the mother is a decision in rem which is conclusive proof of his commission of the offence (see Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 at 21; Rogers v The Queen (1994) 181 CLR 251 at 274; NSW Bar Association v Somosi (2001) 48 ATR 562 at [80]; Michaels v Commonwealth (2002) 124 FCR 473 at [31]-[49]). He cannot come to this Court denying the offence when he previously publicly professed his guilt in the State court.

   [17] Family Report, para 26

3. The mother sought to allege the father’s commission of family violence was far more frequent and serious than his conviction on a single charge suggested. However, for several reasons, her approach to this litigation was misconceived.

4. All of the mother’s allegations of family violence against the father were antecedent to the litigation they previously contested between 2009 and 2011. Such allegations were of course relevant to the outcome of that litigation, but those proceedings were settled by the parties in September 2011. The mother then agreed the child should live with the father. Even though the mother told the Family Consultant about,[18] and deposed to,[19] the reasons why she compromised that litigation, the fact remains she voluntarily settled the dispute over the child on that basis. She would not have agreed to the child living permanently with the father if she genuinely believed the child was then at risk of harm through subjection or exposure to family violence in the father’s home. If she did, and settled the case on that basis regardless, then she cannot be reasonably heard to be honestly interested in the child’s best interests.

   [18] Family Report, para 42

   [19] Mother’s affidavit, para 74

5. Section 60CC(2)(b) of the Act requires the Court to contemplate the need to protect the child from harm through his subjection or exposure to family violence in the future. Whatever violence beset the parties’ relationship in the past, it ceased at a time proximate to their final separation in 2009. There was no evidence of any family violence between the parties in the five years elapsed since then. That period is sufficiently long to find the chance of family violence occurring between the parties in the future, to which the child will be exposed, is quite remote.

6. Given the absence of any harm to the child attributable to his exposure to family violence in the last five years it is unsurprising the mother’s counsel properly made the following concession on her behalf in his Case Outline at the commencement of the hearing:

   …[the mother] does not believe that [the child] is now in danger of physical or psychological harm whilst spending significant time with his father.

7. Just because the mother alleged the father’s violent treatment of her in the past was more potent than he admitted, the Court was not bound to resolve their factual dispute. Disputed allegations of misconduct between parties are not the ultimate issue in child-related proceedings under the Act and so the Court is not obliged the resolve such allegations in a definitive way (see M v M (1988) 166 CLR 69 at 75-77). The ultimate issue is the determination of orders that serve the child’s best interests and only factual disputes that bear upon that issue need be resolved. Given the concession made on the mother’s behalf, it was unnecessary to decide historical disputes about family violence.

8. Of course, the pernicious conflict, distrust, and dislike that continues to exist between the parties is another issue altogether. It does not fall within the definition of “family violence” and is later addressed in these reasons.

Alleged child abuse

1. The mother told the Family Consultant the father physically assaulted the child and swore at him numerous times from a very young age. She even asserted her belief that the child’s sufferance of epileptic seizures was caused by the father striking the child’s head on a table during an argument when the child was a baby.[20] She further alleged her genuine apprehension the father would have a “psychotic episode” and hurt the child if he did not have his way in this litigation.[21]

   [20] Family Report, paras 46, 56

   [21] Family Report, para 53

2. I do not accept the mother’s reports to the Family Consultant as truthful or accurate. It is absurd she would assert such an abusive history but then consent to the child living with the father in September 2011 and, even now in these proceedings, despite her alleged fear, propose that the child spend substantial amounts of time in the father’s unsupervised care for the remainder of his minority.

Best interests of child – additional considerations

1. There was no issue in this case about the capacity of the parties to meet all of the child’s physical and intellectual needs. It was their respective capacity to provide for the child’s emotional needs that was under serious attack.

2. These proceedings were commenced by the father in March 2013, apparently simply because he was worried by the mother’s lack of supervision of the child on motorcycles, from which the father feared the child would fall and injure himself during an epileptic seizure. The Initiating Application he filed on 22 March 2013 only sought orders requiring the mother to properly supervise the child and to desist from allowing him to ride motorcycles. The father spoke of his concerns in that regard to the child’s school counsellor on 18 March 2013, only days before the litigation commenced.[22]

   [22] Exhibit ICL2

3. Although that was the nub of the dispute then, the dispute quickly spiralled out of control. The father said the situation for the child soon worsened and his impression was corroborated by independent evidence.

4. Only three days after the proceedings commenced, on 25 March 2013, the child approached staff at his school to make a complaint about the father, allegedly at the mother’s instigation. The school records note:[23]

   [The child] wanted me to know that ‘his dad called his mother rude words (f…c…) and would I call [the Department] about it because mum said I would if [the child] asked me to’ (sic)

   …and he said…you should also tell them that dad scams the government and that he only wants me for money.

   [23] Exhibit ICL9; Family Report, para 94

5. Days later, on 28 March 2013, the child’s school counsellor recorded the child’s comments as follows:[24]

   …mum tells him “home is where the mother is”. [The child] said his mum told him that his dad doesn’t want him he only wants their money and that she says his dad is rorting the government. I asked [the child] about whether he thought dad loved him and he engaged in talk about his dad cuddling him…(sic)

   [24] Exhibit ICL3

6. Within a week, on 4 April 2013, the child was sent home from school because of “self-harm at school and [him] not wanting to stay in the classroom or with the acting principal”.[25]

   [25] Exhibit ICL4

7. On 8 April 2013, accompanied by the mother’s partner, the child made bizarre reports to his teacher about the father, after which he was highly disruptive in class.[26]

   [26] Family Report, para 95; Exhibit ICL10

8. On 9 April 2013 the child was described as being in a “dysregulated state” running through the school corridor yelling out and kicking out at others. The father was summoned to the school for help, but not even he could successfully calm the child. One statement made by the child was “my mother said you [the father] hated me so much that you threw a glass of wine over me…when I was a baby”. The child’s distress was such that an ambulance was called and he was conveyed successively to a hospital in Town A, a hospital in Newcastle, and then to a child and adolescent mental health unit.[27]

   [27] Exhibit ICL5, Exhibit ICL6; Family Report, paras 97-98

9. A synopsis of the child’s deteriorating behaviour at school was set out within the child’s school counselling file, compiled on 3 May 2013.[28] That report referred to the counselling given to the child over the preceding 14 months, but noted his specific deterioration within the preceding four weeks. Significantly, the report notes:

   On several occasions [the child] has self-harmed with a pair of scissors in the classroom and caused a flow of blood.

   [The child] is showing increasingly disturbed presentation following the access visits with his mother and is making comments regarding disturbing things being repeated to him by his mother.

   [28] Exhibit ICL8; Family Report, para 96

10. The mother denied in cross-examination that she denigrated the father directly to or in the presence of the child, but I reject her evidence. The Family Consultant was also sceptical of her denial.[29] The statements made by the child at his school which were critical of the father tended to reflect similar complaints made by the mother about the father in these proceedings. For example, she alleged the father threw a glass of water at her when the child was a baby,[30] and she alleged the father made financial demands connected to the child’s residence.[31]

    [29] Family Report, para 14

    [30] Family Report, para 46

    [31] Family Report, para 40; Mother’s affidavit, para 63

11. In July 2013, orders were made for the child to spend only supervised time with the mother at a contact centre. On the whole, those visits were not a success. The child visited the mother at the contact centre each fortnight and he was generally described by contact centre staff as argumentative with and rude to the mother. On their last visit in December 2013 the child absconded and would not return.[32] The opinions of the contact centre staff correlated with the father’s impression, since he reported to both the child’s counsellor and the Family Consultant that the child’s behaviour deteriorated once he commenced supervised visits with the mother.[33]

    [32] Family Report, para 75

    [33] Exhibit ICL11; Family Report, para 35

12. On 2 April 2014 the child was suspended from school for two days for disobedience, threats and violence. The father ensured the child was taken to his counsellor to discuss the situation.[34]

    [34] Exhibit ICL14

13. A week later, on 9 April 2014, the child was suspended from school for two days again due to his disobedience, threats and violence. The father telephoned the child’s counsellor to discuss the matter again.

14. The father said in cross-examination that although the child’s behaviour fluctuates, overall it had deteriorated. When speaking to the child’s counsellor on 9 April 2014 he admitted to being overwrought with the problem.[35] That is understandable because the child’s behaviour has been incorrigible and the father has very little assistance to care for the child and almost no respite from his difficult task.[36]

    [35] Exhibit ICL15

    [36] Family Report, para 33

15. The child now attends two different schools, one of which enables his participation in a dedicated “emotional and behavioural disturbance” class for part of each week. It was that school from which he was suspended twice in April 2014. The child does not like attending the school in which he is placed in the special behavioural class. He told his counsellor he hates that “new school” and wants to return to his “old school”.[37] The child is expected to attend his usual school only one day each week and to attend the special school for the other four days each week, but his attendance at either is presently limited to an average of only two or three days each week because of his defiance. The father is presently trying to negotiate the child’s transition back to his usual school from the start of next term, where he believes the child’s behaviour is more manageable.

    [37] Exhibit ICL14

16. Despite the father’s best efforts, he has not been able to arrest the child’s delinquent behaviour. The mother seemed to believe that demonstrated some grave deficiency in the father’s parenting capacity, because she has had very limited involvement in the child’s life over the last nine months and was in no position to influence the child. Her analysis of the situation was, however, superficial. Although she and the child have spent very little time together over the last nine months, the child is aware of this litigation and aware of the mother’s desire to play a much larger role in his life. So while she may not be in his physical presence, she is most probably in his thoughts. The mother sensibly admitted in cross-examination that the child was aware of her feelings. Therefore, when the child occasionally inquired of her in the past why he could not live with her and she answered him by telling him it is because “the Court has ordered [him] to live with [the father]”,[38] he undoubtedly received the message that it was only due to compulsion by others and she did not agree.

    [38] Mother’s affidavit, para 70

17. No doubt the child will be anxious about the outcome of this litigation because the last five years of his life have been tumultuous. The mother prevented him from seeing the father for several months in 2009. When he made allegations of his sexual abuse by his older half-sibling he must have known the mother disbelieved him. Undoubtedly he felt at fault for his half-sibling having to vacate the family home because of the allegation. The orders agreed between the parties in 2011 required the child to move and live with the father, even though he had always lived with the mother. But the reversal of the child’s residence was not supported by the mother, even though she agreed to it. The parental conflict continued unabated and only intensified when the father started these fresh proceedings in March 2013. The mother admitted in cross-examination that she and the father had been “at war” for five years since their separation and the child’s life has been a “battle zone”.

18. The child has often expressed a wish to live with the mother. He has done so to her, his counsellor, the Family Consultant, and occasionally even the father. I do not, however, repose much weight in that evidence. Firstly, the child’s elevated anxiety pre-disposes him to make false statements for different motives – for example, to wound or please the listener. Secondly, even if those expressions of opinion were uniformly truthful, the child’s young age and immaturity do not allow him to comprehend and assimilate the various important factors that properly influence a decision about with whom he should live in order to promote his best interests.

19. The Family Consultant remarked that both parties have “significant deficits” in their parenting capacity, but opined the mother’s capacity is even more impaired than the father’s. She gave several reasons for that opinion – the mother’s staunch rejection of the child’s sexual abuse allegations against his half-sibling; her impulsive acceptance of and reaction to the child’s allegations of misconduct by the father; and the superficiality of her understanding about the depth of the child’s emotional disturbance. Those reasons deserve more thorough analysis to demonstrate the correctness of the Family Consultant’s opinion.

20. In January 2011 the child alleged he had been sexually abused by his older, female half-sibling. The child was interviewed by the NSW Joint Investigation Response Team (“JIRT”) and those officers substantiated the allegation of abuse.[39] The child’s description of the sexual abuse he suffered was explained with the type of contextual detail and in the type of age-appropriate way that afforded a reasonable basis for the allegation to be substantiated.

    [39] Exhibit ICL1, page 3

21. The Independent Children’s Lawyer contended the Court should preferably make a positive finding that the sexual abuse occurred, or alternatively find that the child remains at unacceptable risk of sexual abuse by his half-sibling, in order to finally determine the issue. I do not accept that submission, since the Court is not seized of all the relevant evidence and resolution of that issue was not central to this litigation. For present purposes, it is really immaterial whether the child was sexually abused by his half-sibling or not. What is important is the child’s perception of the mother’s rejection of his allegation about it.

22. The child told the mother of his sexual abuse by his half-sibling, but she challenged him about whether he was telling the truth and he recanted.[40] Perhaps he recanted because his allegation was untruthful, but it is just as plausible he recanted because he did not perceive the mother was a sympathetic audience. The mother told him that his half-sibling was unable to continue living at home because of his allegation against her,[41] so the child probably imputed her displeasure over the issue.

    [40] Mother’s affidavit, para 69

    [41] Affidavit of Mr D, para 20

23. The child’s half-sibling was interviewed by the JIRT officers about the child’s allegation, but at the mother’s insistence that interview occurred in the presence of the mother, another adult male, and another of her older siblings. Perhaps unsurprisingly in such an environment, confronted by maternal family members anxiously expecting her rebuttal of the allegation, the half-sibling did indeed deny it.[42] The JIRT officers wanted to interview them all separately but the mother refused.[43] She remonstrated with them about their conclusion the abuse had actually occurred.[44]

    [42] Exhibit ICL1, page 3

    [43] Mother’s affidavit, paras 66-67

    [44] Family Report, para 39

24. The mother was adamant, both to the Family Consultant[45] and in evidence,[46] that the child’s sexual abuse allegation could not possibly be true because the child and his half-sibling were not together in the week before Christmas 2010. The significance of that time frame was the mother’s receipt of information from the JIRT officers that the child reported his abuse had occurred before Christmas 2010. However, there was no precision about the alleged timing of the event. The mother simply assumed from what she had been told it was in the week immediately preceding Christmas. She acknowledged it was quite possible the alleged abuse occurred on some other occasion proximate to Christmas, but outside the precise week upon which she focussed, when the child was or could have been in the company of his half-sibling. Although the mother was forced to concede the illogicality of her disbelief, she did not convincingly dispense with it.

    [45] Family Report, paras 38, 42, 44

    [46] Mother’s affidavit, paras 67-68

1. The mother did not appreciate the irony of her situation. She was sexually abused over a period of years when she was a child by her step-father, but her allegations were disbelieved by the maternal grandmother. She admitted her own mother’s disbelief of her plight was hurtful. When forced to confront that reality the mother cried instantly, demonstrating the depth of her emotion about those distressing events which occurred decades ago. She must therefore know the effects of sexual abuse are injurious and long-lasting. Disbelief of the allegations only compounds the vulnerability and hurt of the victim. Against that background, the mother still failed to grasp the significance of her disbelief of the child, who is now in much the same predicament as she once was.

2. The child knows his allegation in early 2011 caused an enormous ruction in the mother’s home that ultimately resulted in the departure from that home of both him and his half-sibling, which left the mother exasperated and him confused. The mother seems unable to appreciate the child’s perspective, since she was fixated on her other child’s innocence.

3. In the belief he disappointed, or even angered, his mother, it is easy to conceive how the child would feel disposed to redeem himself in her affections. One obvious way he could do so would be to make reports to her of misconduct by the father, since he is well aware of her disaffection with the father. The mother is a willing, indeed eager, listener. Only a few examples need be given.

4. In February 2012 the mother took the child to police to facilitate his report of an allegation the father had “used a firearm to intimidate [him]” by holding a “pistol/revolver to [his] head”, after which the father used the firearm to shoot holes in the kitchen floor and in five windows. The child was formally interviewed by police, the seriousness of which was signified by it being recorded electronically. The police then attended and searched the father’s home, but found no firearm, no ammunition, and no evidence of any damage caused by bullets. The police concluded the report was vexatious and suspected the mother’s complicity.[47]

   [47] Family Report, para 91

5. The mother was asked about that incident in cross-examination. She asserted she did not believe the child’s story, but said because he pleaded with her to let him make a formal complaint she relented and took him to the police so he could learn what would happen when police investigated and found the allegation was untrue. Assuming for the moment the mother gave truthful evidence on that topic, it was an amazingly foolish parental tactic. She willingly submitted the child to a gruelling investigation about serious allegations of criminal conduct implicating his other parent. If the child was admonished by the police for the fabrications he would have felt completely humiliated. On the other hand, if he was not admonished and remains oblivious to the police officers’ conclusions about his dishonesty, then the only lesson he learned was his empowerment to make outlandish allegations and be taken seriously.

6. In January 2014 the mother met with the child in the company of the Family Consultant. In that meeting the child told the mother that the father had pushed him, strangled him, and banged him to the floor, but he could not remember when it had happened. The mother demonstrated her empathy by hugging him in comfort.[48] Later, in the mother’s absence, the child told the Family Consultant the father had slammed him on the floor only two days before.[49] In each case, the Family Consultant observed the child’s demeanour was entirely incongruous with the allegations of his physical abuse. He did not seem upset or fearful.[50] The mother did not pause to consider whether the child’s reports that day were truthful, even though she knows the child is capable of dishonesty. Instead, that same night she reported his allegations of abuse to the police and requested them to check on the child’s welfare in the father’s home, which they then did.[51]

   [48] Family Report, paras 80-81, 83

   [49] Family Report, para 84

   [50] Family Report, para 101

   [51] Family Report, paras 61, 88-89

7. I accept as correct the Family Consultant’s opinion that the child believes it will please the mother if he makes adverse reports about the father.[52] The mother’s eager reception of such reports only serves to reinforce the child’s inclination to continue making them. The mother seems unable to understand that.

   [52] Family Report, paras 102, 103

8. In fact, the mother seems to have no sophisticated understanding of the child’s plight. Despite the gravity of his emotional turmoil, the mother simplistically believed a reversal of his residence will solve the problem. Her plan is to enrol the child in a new school near to her home, but she has made no inquiries concerning the suitability of those schools to cater to the child’s current needs.[53]

   [53] Family Report, para 104

9. The mother works permanently on a part-time basis each weekday between 9.00 am and 2.00 pm.[54] She intends to maintain her employment if the child lives with her and, even though her work hours ordinarily fall within the margins of school hours, she told the Family Consultant she intended to enrol the child in “before” and “after” school care at a venue in her community.[55] She does not therefore intend selflessly devoting the time and energy the child’s reparation obviously needs. That is to be contrasted with the father, who is not gainfully employed and devotes all his time to the care of the child.[56] He has attended two parenting courses to improve his parenting performance.[57] The father is presently having only limited success with the child, but his intention and effort cannot be doubted.

   [54] Family Report, para 9

   [55] Family Report, para 59

   [56] Family Report, para 8

   [57] Family Report, para 27

10. The evidence does not otherwise offer much comfort about the mother’s past parenting record. She has four older children, three of whom are adults. The mother told the Family Consultant she has “virtually no contact” with two of those three adult children because of past problems within the family. The fourth child, who is still a minor, is in foster care.[58] That child’s placement into foster care followed her assault of the mother in 2011, for which she was subsequently charged and convicted.[59] That child is the half-sibling allegedly responsible for sexually abusing the child. She herself was allegedly sexually abused by one of her older siblings. The mother also disbelieved those allegations, notwithstanding they were also substantiated by the authorities at the time.

    [58] Family Report, para 3

    [59] Family Report, paras 44, 99

11. The Family Consultant identified parallels between the behaviour of the child and his next oldest half-sibling.[60] She was not mistaken, because the similarity was conceded by the mother. In cross-examination the mother admitted the half-sibling was “pretty uncontrollable” and assaulted her numerous times. The mother said “she was behaving a bit like [the child] is behaving now”. The half-sibling was removed from the mother’s care because of her uncontained behaviour, despite the mother’s best efforts to control her. When the mother was asked why she thought she would now have more success controlling the child if he was returned to her care, she had no convincing answer to give. When she was asked to explain her plan for the child, she simply said “I will get him whatever help he needs”.

    [60] Family Report, para 100

12. But the father has already done that. He has engaged the child with specialist juvenile mental health services, involved the child in school counselling, and enrolled the child in specialist classes at school. The mother could have done no more than the father has already done. She had no answer for what more she would have done in his place. I accept the Family Consultant’s evidence to the effect that the child would present a behavioural challenge to both parents and that his problems are not attributable exclusively to the father or to a function of his care. The mother’s strategies for the child’s improvement were no better than the father’s.

13. Few, if any, other issues were contended as influential under the factors prescribed by s 60CC(3) of the Act. However, for the sake of completeness, two other features are mentioned.

14. Numerous apprehended violence orders were previously issued against the father for the protection of the mother, but none is now current. The last such order expired in May 2012.[61]

    [61] Family Report, para 4

15. The father lives at Town B in the lower Hunter Valley. The mother lives in Town C. Their homes are about 40 kilometres apart.[62] There is no practical or financial impediment to the child’s exchange between them, would that otherwise be in the child’s best interests, but it is of course futile wondering whether an outcome is practicable if it is undesirable.

    [62] Family Report, paras 8-10

Conclusions and orders

1. There is no doubt the father perpetrated family violence upon the mother in the past, which fact renders the presumption of equal shared parental responsibility inapplicable (s 61DA(2)). The frequency and potency of the family violence is irrelevant in that respect. Any evidence that affords reasonable grounds to believe a parent engaged in any family violence will suffice. The father’s past conviction for assault of the mother is certainly sufficient for that purpose.

2. The manner of allocation of parental responsibility for the child is guided by the child’s best interests. Parties to whom equal shared parental responsibility for a child is allocated are obliged by law to consult and make a genuine effort to reach consensus on matters of relevance to the child (s 65DAC). That takes courtesy, patience, and tolerance. Regrettably, neither party has any of those qualities when dealing with the other. They are hopelessly conflicted and will likely remain that way. The Family Consultant was correct to observe that the parties have no respect for one another. It is an unfortunate fact that the parties really loathe one another.

3. The father harbours an honest belief that the mother deliberately “destroyed” the child. He said in cross-examination he believed the mother “mentally and emotionally purposefully destroyed” the child by “willing [the child] to harm [him]”. He also said he believed the mother intended to “mentally abuse him and inflict harm, pain and suffering on him by using [the child] as a tool, not caring how she affected [the child] in the process”. The manner in which he explained that belief could leave no-one in doubt about his vehemence.

4. On the other hand, the mother could hardly bare to meet the father’s gaze when he cross-examined her. She turned her body away from him and looked blankly at another part of the courtroom as she answered his questions. The father asked her bluntly whether she hated him. After a pause she said “how do I answer that? I don’t like you.” The mother actually believes she “lost three babies due to physical and emotional abuse by the father”. She reported that to the Family Consultant[63] and, when pressed about it in cross-examination, she said she “truly believed” it. She also believes the father “put [the child] up” to make his past allegation of sexual abuse against his half-sibling,[64] which she believed to be false. The mother also asserted the father physically mistreated her other children.[65] If the mother’s reports to the Family Consultant and her evidence about those beliefs were truthful then she really must disdain the father, just as her demeanour implied.

   [63] Family Report, para 45

   [64] Family Report, para 39; Exhibit ICL1, page 3

   [65] Family Report, para 51

5. There is no feasible option but to allocate parental responsibility for the child exclusively to one of the parties. As would be obvious, that should be the party with whom the child lives. That determination accords with the mutual proposals of the parties and the Independent Children’s Lawyer and the opinion of the Family Consultant.[66]

   [66] Family Report, para 108

6. One certainty is that the orders made in September 2011 must now be changed. The regime under which the child lived with the father and spent substantial and significant time with the mother failed. Even the imposition of supervision upon the time spent by the child with the mother, pursuant to the interim orders made in July 2013, was a failure.

7. Only two alternatives therefore recommend themselves. Either the child should remain living with the father and have no interaction with the mother at all, or alternatively, the child should return to live with the mother. In the latter instance, the mother’s proposal for the child to continue spending time with the father must be considered.

8. The mother forcefully submitted that the child’s future was dire if left to live with the father. For more than the last 12 months the child’s behaviour has been worsening to the point where he dictates terms. He attends school only when he wants, he is regularly disruptive at school, his academic progress is lagging behind his peers, and he has few or no friends. That is true, but those circumstances have developed or intensified in the context of the parties’ continuing conflict during the currency of these proceedings, of which the child is well aware.

9. It was finally correctly submitted for the mother that the “dysfunctional parental relationship has impacted significantly on the child’s mental health”. It was also finally conceded that reversal of the child’s residence might not be an “instant fix”, but it was submitted the child’s future with the mother looked brighter than with the father. I am unable to accept that submission, which was really an expression of hope rather than an inference fairly drawn from the available evidence. The situation would likely be no better if the child’s residence was reversed and orders were made, as the mother proposed, for the child to maintain his regular relationship with the father.

10. The mother could offer no convincing explanation for why the Family Consultant’s firm evidence should be rejected. The Family Consultant’s opinion that the child was unable to cope with the unrelenting pressure exerted upon him by the parties and their conflict, which necessitated the removal of one of them from his life,[67] was made good on the evidence.   

    [67] Family Report, paras 102, 106, 107

11. If the child was to live with the mother, her loathing of the father would preclude her from genuinely supporting the child’s continuing relationship with the father, despite her proposal to the contrary. She might make a perfunctory effort to comply with orders by delivering the child for regular visits with the father, but the child would soon know she, her partner, and his half-siblings were not genuinely supportive of his continuing relationship with the father and so the relationship would soon wither away. The elimination of the father from the child’s life would therefore eventuate anyway, but in a more protracted and excruciating manner at greater emotional cost to the child.

12. There is no realistic option but to require the child to live with one parent and temporarily eliminate the other from his life. On balance, the child should live with the father rather than the mother. There are several reasons which dictate that outcome: the child has now lived with the father for nearly three years and the child would not then be forced to accept and adapt to further change; the mother’s plans for reversal of his residence are rudimentary at best and certainly no better than the father’s plans for the child’s continued engagement with therapists; the mother’s capacity to cater to the child’s emotional needs is inferior to that of the father; and the mother has no satisfactory plan for how she will deal with the unresolved tension within the maternal family about the child’s alleged sexual abuse by his half-sibling, which will likely only continue to fester as a problem.

13. An order requiring the child to live with the father conforms with the proposals made by the father and Independent Children’s Lawyer and also with the recommendation of the Family Consultant.[68]

    [68] Family Report, para 109

14. Exclusion of one parent from a child’s life is indeed a drastic step, but the circumstances of this case warrant it. The orders do not, however, unconditionally restrain any and all interaction between the mother and child in perpetuity. Rather, the father will have unilateral control over any future interaction between the child and the mother. It may be that in the years to come the father considers some form of interaction with the child is justified and the orders should not purport to prevent that possibility. However, for as long as the father deems it necessary for the child to have no interaction with the mother, that situation will prevail. The orders expressly restrain the mother from frustrating the intention of the orders by approaching the child, and in particular by attending the father’s home or the child’s schools.

15. Although the orders exclude the mother from the child’s life, she needs to appreciate that the orders will only operate until the child attains his majority some eight years hence. By then the child will have sufficient maturity to make his own decisions about with whom he wants to live and associate. There is every chance the child will later recover his relationship with her, just as the mother has now done with the maternal grandmother. They were previously estranged over the issue of the mother’s childhood sexual abuse by her step-father, but they have since recovered their relationship as adults. The relationship between the child and mother is a life-long relationship. For the foreseeable future it will wane, but with effort it can later be revived. For now, the child needs sufficient time and space to emotionally recuperate.

16. The Family Consultant said, and the father acknowledged, that the child would be very upset by news that he would have no further interaction with the mother. The Family Consultant fully expected the child will “act out” in the short term. The child is used to acting out when he does not get what he wants, but that is not a good reason to always give him what he wants. The tail cannot be allowed to wag the dog.

17. The Independent Children’s Lawyer proposed an order allowing the mother and child to resume written communication after a hiatus of three months.[69] No doubt the order was well-intentioned as a salve, but I reject the proposal. The Family Consultant said the child is particularly vulnerable and, while it might be “possible” to later introduce written communication, she said the child’s circumstances would need to be much more stable than they are presently before that should occur. There is no evidentiary basis to fairly conclude that could be as soon as three months hence. Revival of communication after only that period of time may well just re-open emotional wounds.

    [69] Exhibit ICL16, Order 5

18. An order is made which will enable the mother to procure the child’s school reports and school photographs if she wants to keep appraised of his progress.

19. An order is made restraining both parties from exposing the child to denigration of either of them. The injunction is expressed to include the mother in case the father does allow the child some form of interaction with her in the future.

20. An order is made requiring the parties to keep one another informed of their current mobile telephone numbers. It is important that they know how to contact one another in respect of any unforeseen emergency.

21. An order has already been made, consistently with the Independent Children’s Lawyer’s proposal,[70] for the Family Consultant to explain the orders and, if thought appropriate, these reasons to the child. Such an order was made in chambers on 11 June 2014 in anticipation of the delivery of these reasons. The child will therefore receive the benefit of a considered, independent and empathetic explanation of the outcome of this litigation.

    [70] Exhibit ICL16, Order 12

1. The Family Consultant recommended that the Family Report, the Court’s orders, and the Court’s reasons should be furnished to the Department and the child’s therapists in an effort to aid the child’s therapy and obtain some respite assistance for the father. I accept that advice and orders are made to that effect. The father is also permitted to furnish the Court’s orders to the principals of the schools attended by the child.

2. With considerable regret, I conclude those orders reflect the child’s best interests.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 June 2014.

Associate: 

Date: 17 June 2014