Peters and Allen

FAMILY COURT OF AUSTRALIA

PETERS & ALLEN

[2011] FamCA 260

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT:

Mr Peters

RESPONDENT:

Ms Allen

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Geraldine Murray

FILE NUMBER:

TVC671

2009

DATE DELIVERED:

13 April 2011

PLACE DELIVERED:

Townsville, Qld

PLACE HEARD:

Mackay, Qld

JUDGMENT OF:

Monteith J

HEARING DATE:

15, 16 & 17 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Mr McLennan of Counsel

SOLICITOR FOR THE RESPONDENT:

Ms Hinschen

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER

Mr Honchin of Counsel

Orders

1.The mother have sole parental responsibility for the child, M, born … September 1997.
2.The mother shall keep the father informed of decisions made in exercise of her sole parental responsibility.
3.The child live with the mother.
4.Should the child express a wish to see or contact his father, the mother will assist him to do so.
5.The father may communicate with the child in writing on special occasions (the child’s birthday, Christmas, Easter) and the mother will ensure the child receives these communications.
6.The mother and the father have responsibility for decisions relating to day to day care of the child during the time the child is in their respective care.
7.The mother shall provide the father with the contact details of any doctor, hospital or any allied health professional attended by the child.
8.Each parent is to keep the other informed of their current address and telephone number and notify the other of any change within 48 hours of such change.
9.These orders act as an authority to any school attended by the child to provide to either parent upon their request and at their expense any document including school newsletters, report cards and photos relating to the child’s education.
10.These orders act as an authority to any doctor, hospital or allied health professional attended by the child to provide information or documents to either parent upon their request and at their expense relating to any treatment received by the child.
11.Each parent will notify the other as soon as practicable of any medical emergency involving the child.
12.Neither parent will denigrate the other to, on in the presence of, the child, or permit any other person to denigrate the other parent to, or in the presence, of the child.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC671 of 2009

Mr Peters

Applicant

And

Ms Allen

Respondent

REASONS FOR JUDGMENT

Introduction

The father commenced these proceedings on 24 July 2009 in the Federal Magistrates Court, Townsville. He sought orders, inter alia, that the child M, who was born in September 1997, live with the mother but spend time with him from 5.30 pm Thursday to the commencement of school on Monday each alternate weekend and for half the school holidays.
The orders that he sought reflected the consent orders that had been made by Federal Magistrate Slack on 28August 2006 in Mackay, save that those orders also included the child, L, who was born in February 1993.
By the time the matter came on for hearing before me in Mackay on 15 March 2011, L had turned 18. He was therefore not part of these proceedings save that his relationship, both present and past, with his father was one of the important factors in the determination of these proceedings.
There had been two prior interim orders, one on 17 October 2005 and one on 29 November 2005 which each related to L and M and both made by Federal Magistrate Coker. The orders were very similar save that in the later order, it made provision for the children to live with the mother and for there to be joint parental responsibility. They each provided for the father to have alternate weekend “contact”. The latter order provided for the father to have half the school holidays and made provision for special days and the like.
Before the consent orders were entered into, a Family Report was prepared by Mr H and dated 16 June 2006. It became Exhibit ICL-4 in these proceedings. The consent orders made on 28 August 2006 largely reflected his recommendations save that they provided for the father to have alternate time with the children from 5.30 pm Thursday to commencement of school on Monday. This extended alternate weekend time with the children had been canvassed by Mr H with the children and they had not embraced it. Nevertheless, it was agreed to between the parties.
As I have said, the father commenced these proceedings on 24 July 2009, largely seeking that the Court make orders very similar to the orders that he had made by consent in 2006.
The matter came on before Federal Magistrate Willis on 21 September 2009 and she arranged for Ms E, a Family Consultant with the Federal Magistrate’s Court to see the parties, and in particular to interview M.
After hearing Ms E’s evidence, Federal Magistrate Willis provided for the child M to attend confidential counselling and for counselling at Counselling Service 1 for the father and the mother and adjourned the matter for further mention on 30 November 2009.
The matter was ultimately transferred to the Family Court of Australia and came on for hearing before me, as I have said, in March 2011.
The reason that the father commenced proceedings in July 2009 is that M was refusing to spend time with him. The father blamed the mother and the mother said that it was M’s decision and she could not make him go.
One of the very significant issues in this case was whether the father had any insight into the problem.
It is telling that on the morning the trial commenced, the father, who was self represented, sought leave to amend his Initiating Application and as that application was not opposed, I gave leave.
He amended the Final Orders Sought which became “A” on the file and he obtained assistance in relation to doing that from Mr Honchin of Counsel who appeared for the Independent Children's Lawyer.
What he sought was, inter alia, that M live with the mother and the father on a week about basis and that the mother and the father have equal shared responsibility. This was despite it being common ground that he had not seen M since November 2008.

Chronology

The only Chronology I was supplied with was a chronology in the Independent Children's Lawyer’s Case Outline and I propose to rely on that. It is set out hereunder:

[1964]	[Mr Peters] born (47 years)
[1971]	[Ms Allen] born (40 years)
1991	Parties form a relationship
11.1992 – 07.1997	Parties separate though appear to spend short periods of time together – (mother)
[1993]	[L] born (now 18)
[1997]	[M] born (now 13)
1997	Initial separation (according to Father)
1998	Final separation both parties confirm this date
1998-2005	Father states that he enjoys contact time with the children Friday pm to Sunday pm and Thursday afternoon. Mother denies father spent regular time with children.
2003	Mother alleges father hit [L] holding him by throat. Matter was reported to police and father charged with assault – fined but not convicted.
07.2005	Major argument between mother father, father advises mother would not allow children to go with him and called the police, mother claims boys were hiding as they did not want to go with their father, father tried to enter her home forcibly so she called the police. Mother takes out an application for a Domestic Violence order later withdrawn. Father believes this was Child Support Related. Mother advises withdrawn as she was nervous about facing father in court. Mother advises father was not paying child support.
28.11.05	Father files application in Federal Magistrate Court
29.11.05	Interim Orders made by FM Coker
16.06.06	Family Report prepared by [Mr H] recommending alternate weekends and ½ school holidays and counselling for the parents
28.08.06	Consent Orders filed encompassing the Family Report Recommendations except allowing for the father to spend a longer alternate weekend with the children – 5pm Thursday to before school Monday.
06.07.07	Mother alleges father punched [L]
11.207	Mother alleges father punched [L]
08.2008	Mother files Domestic Violence Application following incident described in Pg. 25 – 29 incl. Affidavit filed 21/09/2009. [M] was present during this incident and was crying running to the car to get away from his father. Father ceases spending time with [M].
10.10.08	Domestic violence order made in [Town 1] Magistrates Court for 18 months
11.2008	Father seeks Legal Aid Conference. Conference held but no agreement reached. Mother advises she also sought conference and agrees no resolution reached.
25.11.08	Last time father saw [M]
19.08.09	Mother states [L] advises her father told him to grab [M] and bring him to the car.
11.2008	Father attends [M’s] school and when [M] ran away from him picked him up physically and carried him to his car. Mother reports [M] has said if he is forced to spend time with his father he will run away from home.
06/2009	Father attends [M’s] school and [M] hides on seeing his father. Mother goes to school and [M] admits to hiding from his father.
23/02/09	Mother states father drops clipseal bag of drugs when dropping [L] home.
24/06/10	Family Report prepared by [Mr H] recommending no order be made for [M] to spend time with his father and any future contact be at [M’s] instigation.
23/09/10	Psychiatric assessment filed in court by ICL – neither party has a formal psychiatric disorder or disturbance or personality disorder. States Father needs to take a different approach in establishing a relationship with [M] basically leaving it up to [M] if he sees him or not.
03/03/10	Clear drug test provided by mother after request by ICL
07/03/10	Clear drug test provided by father after request by ICL

The Evidence

It is convenient to start with the evidence that Ms E gave to Federal Magistrate Willis on 21 September 2009. That was contained in some transcript which was tendered and became Exhibit ICL-6.
It was as a result of this evidence that her Honour made the orders with respect to counselling. I set out hereunder the relevant part of the evidence given by Ms E before Federal Magistrate Willis:-
HER HONOUR:       Did you have an opportunity to meet with [M]?
MS EAST:     Yes, your Honour. In fact, I took the opportunity to meet not just with [M], but I met with the mother and the father briefly.
HER HONOUR:       Okay.
MS EAST:     As a result of [M’s] feedback to me, I formed the view that he does indeed have his own independent issues with his father. To test out the depth of those issues I suggested to [M] that it would be helpful for him to talk and meet with his dad, and he did. It was quite a stressful experience for him. I think out of that, you, you know, he decided that he would do that and I think he’s a stronger boy. And I think even though the outcome was unhappy for dad, in that [M] spoke his issues quite clearly and told dad why he was feeling like he was and that he was very upset, out of that I think it had a therapeutic effect, because after I took [M] back and away from dad I said, “How do you feel?” and he said, “Well, I feel good.” I said, “Well, that’s what happens when you actually try to talk these matters through.” So that, I think, can reassure the dad.
I think what’s required now is some patience on his part. [M] – if I might just give you a quick overview, in my view he is traumatised as a result of witnessing a violent altercation between his mum and dad in December ’08. He has reacted by withdrawing from his father. He was deeply, deeply upset for his mother’s sake. It’s also been – the situation for [M] has also been complicated because over the years, he has witnessed a very unhappy relationship between his older brother and his father. [M] is a very intelligent young boy. He has decided in his own mind that with [L] maturing and becoming independent and doing his own thing, he is going to be the next one, basically, to experience, as he puts, his father’s anger.
Ms E was called on the trial before me and in the examination in chief by Mr Honchin, she said:-
HIS HONOUR:         Do you have a copy, [Ms E]?---Yes, I have a copy.
Yes. That’s okay?---Yes, line 35.
MR HONCHIN:       Yes, about line 35?---Yes:
He has reacted by withdrawing from his father.
And it goes on from there:
Is deeply, deeply upset for his mother’s sake. It has also been the situation for [M] has also been complicated because over the years he has witnessed a very unhappy relationship between his older brother and his father. [M] is a very intelligent young boy. He has decided in his own mind that with [L] maturing and becoming independent and doing his own thing, he is going to be the next one, basically, to experience, as he puts it, his father’s anger.
Now, do you recall whether [M] made those statements himself, or whether or not you asked him a question to which he responded?---When – look, you know, it is a very long time ago, and it was more than two years, and I really can’t recall on the detail. All I can say is, to my recollection about that, it is not my habit to ask kids that kind of question, leading questions. I mean, I try to the best of my ability just to, you know, go with the discussion as they direct it and as they read it.
But you don’t have any independent recollection now of the way in which that came about?---Well, he had been – I will just go to my notes. He had been discussing with me his problems with his father, and he went almost immediately to describe his brother’s relationship and he talked about he was in trouble at school, cancelled his apprenticeship. Actually, he didn’t – I’m just looking at this, sorry, I was on the wrong page. This is the [M] interview only. He talked about him being very afraid of his father, and he hurts his mother, and then he went on to talk about his own issues, actually, and he then went on to describe an altercation between his father which he witnessed, and then he talked about the rules and the incident when his father took him at school. And then he started – he said, “Because he is controlling at work, or has been … with the fist, he punched him in the arm. He was putting in the something and when [L] had done something wrong at work, I’m afraid it’s going to be me once [L’s] gone and does his own stuff, he will push me around.”
Is that a conversation that you recorded when it was just you and [M]?---Yes, yes.
Later on when [the father] was involved, did [M] say these things again?---You know, when I have a joint like that, it becomes more difficult to take extensive notes as to what people said, so they become quite cryptic, my notes, and I have just said here that when [M] tells his father how he feels. Now, I don’t recall – it’s very difficult to recall the exact detail at such a distance, but I remember being impressed by the way even [M] did articulate himself. I’ve got here, and I’ve obviously written this afterwards, he said, “You hurt me and you hurt my brother and I feel upset.” Now, these were just the words, the sentences that I’ve jotted, “and I want you to change.”
…
All right. And in the time that you spoke with [M] were you able to form an opinion as to his level of maturity at that time?---I felt he was expressing himself very clearly. He was appropriate to his age and when I say he was speaking in derogatory terms at times about his dad, but I mean, that’s how kids are at that age. But he – you know, not only did he express an opinion, and then when I would explore that, he would back that up with examples as to why he had had that opinion. So I formed the view that he was quite coherent and he had his own issues with his dad.
…
HIS HONOUR:         Yes. And mature for his age or not?---For his age, yes, I would say so.
Under cross examination by the father, she said:-
I said, “Why don’t you want to spend time with me or see me, [M]?” and his response to that question was because I yell at his mother. Do you agree with that?---Well, look, I would say that that probably is the case, but I can’t really remember, and I haven’t – as I said, my notes in my individual interview with you – with him, sorry – and in that he does make extensive reference – and I will just go back:
He made a devil stare at my mum, like he was going to kill her. I had been really happy. I got a PlayStation the day before, and then he got right up in her face and spit was coming out at her face, and it was really intense, and it was really scary, and me and mum were both crying.
The mother gave evidence with respect to this incident and although the transcript is not perfect, I will set out hereunder what it records:
… At that point, [M] came out to me to see ….. and tell ….. to stop and [the father] came to me and seemed, like, quite ….. really out of control, I was very concerned that he would really – I didn’t know if he was going to hit me. [The father] then stood directly in front of ….. just yelling and I just stood there, too scared to move, [M] was ….. saying that he was …. And he just kept yelling and he was getting angrier and angrier so [M] took off towards the car but his side door was actually locked so he couldn’t get in and [the father] chased him, saying “[M], come back here.” And [M] got round to the other side of the car, to the driver’s side, and [the father] grabbed him by the collar of his sweatshirt and grabbed him in ….. very scared and just let go of [M’s] shirt and then continued yelling at me. I went to go and open my car door and [the father] took the keys away from me. [M] was still yelling at [the father] to stop and I still don’t know why [the father] mentioned that ….. let me go into the car and unlocked the passenger side and got [M] in, then [the father] then handed me the keys. As he handed me the keys ….. he was still yelling that he was letting me go so I could go get ….. to his place. If I didn’t, he would come and get him and ….. police.
…..?---…..police. I quickly ….. car started, [M] had already got to his door and I locked mine and went straight to the police station because I was concerned about what he was going to do …..
There were two Family Reports, both prepared by Mr H, a Family Consultant, one dated 16 June 2006 and one dated 24 February 2010. The earlier Report of June 2006 was the basis on which the Consent Orders were entered into and the Report of February 2010 was the most recent report for my purposes. He was also called to give evidence before me.
The Report of June 2006 became Exhibit ICL-4 and the Report of 24 February 2010 became Exhibit ICL-5.
It is convenient to refer to the June report simply because of its historical value. I will set out hereunder the paragraphs that I think are significant:-
11.Some years ago [the father] was disciplining [L] and ended up by hitting him with a thong a number of times and leaving some significant bruising. [The father] justifies his actions by stating the need of [L] to be punished for lying but he does not see that the use of physical punishment was inappropriate or dangerous. [the father] blames [the mother] for reporting it to the police and he appears to continue to feel justified in his actions because of his role as father.
…
15.[L] seemed more comfortable talking about his father and he stated that he enjoyed seeing him and he enjoyed his time with him however there were times when his father became angry when he found the father difficult to deal with. [L] states that his father is not physically aggressive to him and does not use physical discipline, at least in the recent past, but when he becomes angry he gets verbally aggressive and [L] feels intimated and fearful.
…
21.[M] stated that he enjoys art and drawing at school and also playing sport, especially soccer. He stated that he enjoyed going to school, although he wasn’t sure on whether it was better or worse without his brother. [M] stated that he enjoys visiting his father and that he feels safe at his home. He states that his father does often get angry and sometimes he is afraid but his father usually simply shouts or sends them out of the house as a punishment. He acknowledged that sometimes his father got angry when they were naughty but also sometimes he just seemed to be angry for no reason. He stated that his father and [L] often argue but that he didn’t argue with his father as much.
…
23.[M] talks of going to his soccer games and stated that he used to go to guitar lessons, which he didn’t like very much but now he has stopped. [M] stated that there have been occasions when he and/or [L] haven’t wanted to go on contact and that as a result, his father gets angry. He recalls the incident in July 2005 and states that he was frightened because his father was more angry than usual. [M] stated that his father did not hit them although a long time ago his father hit him in the head. At the end of the interview [M] stated ‘mum buys all our sports gear, not dad’.

In the most recent report, Mr H concentrates on the matters that are especially relevant to me and I set out hereunder those paragraphs which I believe assist in the determination of these proceedings:-
8.The altercation occurred in front of [M] and since that incident he has refused to spend time with his father stating to his mother that his father was continually aggressive and occasionally verbally abusive which caused him significant anxiety and he further stated that on at least one occasion his father hit him on the head for refusing to eat his vegetables.
9.In November 2008 [the father] attended [M’s] school and after approaching him stated that he wished to take him to the hospital to visit the wife of his stepfather however [M] refused and tried to run away so [the father] grabbed him and physically picked him up and took him to the car and thence to the hospital. [The father] alleges that after a few minutes [M] was relaxed and chatted as if nothing had happened however [M] indicates that he was extremely frightened of his father and had to humour him.
10.A few days later [the father’s] stepmother passed away and [the father] put pressure on [the mother] for [M] to attend the funeral which she reluctantly agreed to however [the father], after the funeral, kept [M] overnight which was not part of the agreement. [M] indicated to his mother and subsequently to the writer that he was upset and frightened and cried himself to sleep that night.
11.In August 2009 [the father] attended the home of [the mother] because [L] had not come to work. [The father] alleges that [the mother] was aggressive and hysterical whereas [the mother] alleges that [the father] was verbally abusive and aggressive and became physically aggressive by grabbing her and putting her into a headlock and she subsequently phoned the police and he was charged with a breach of the DVO. During the writing of the current Family Report, [the father] was found guilty of the breach and fined and he stated that he has now cancelled [L’s] apprenticeship because of issues that he blames [the mother] for. [The mother] suggests that [the father] blames [L] for being charged with a breach of the DVO.
12.[M] has not seen his father since the funeral in November 2008 and states that he does not wish to see his father because of the unpredictability of his father’s mood and states that he is frightened of the constant verbal abuse and aggression that he has experienced and also witnessed towards his mother and his brother [L].
13.Since November 2008 [M] has had many opportunities to speak with and to see his father because of the apprenticeship of [L] but has not availed himself. [M] is adamant that he does not wish to see his father in the near future but suggests that he might change his mind in the future and would like to be able to choose when he sees his father. [M’s] attitude is supported by his mother.
…
27.During the first interview [M] indicated that the time with his father prior to August 2008 was increasingly difficult as his father exhibited angry and aggressive behaviour towards him, [L] and their mother. [M] stated that his father was increasingly unpredictable in his moods and describes one occasion when he became angry when he did not eat his vegetables and hit him on the back of the head. [M] stressed that this only occurred on one occasion however it increased his anxiety and concern over his father’s behaviour.
28.[M] stated that he witnessed the altercation between his father and his mother and this upset him greatly and he subsequently refused to go to see him. With regards to the funeral, [M] stated that his father turned up at school and demanded that he come with him to the hospital and when he tried to move away his father physically grabbed him, picked him up and put him into his car. [M] stated that he was frightened and anxious and tried to keep his father happy because of his anxiety. Following the funeral, [M] states that his father took him to his house and when he asked to go back to his mother his father was angry and derogatory towards her and refused. [M] stated that he remembers crying himself to sleep.
29.[M] acknowledged that since that time [the father] has come to the house to collect [L] on numerous occasions but when this occurs he hides in his mother’s bedroom. [M] also indicated that although he and [L] did not talk about their father a great deal he was aware that his father continued to be verbally aggressive and that he often lost his temper.
Mr H also gave evidence before me and when asked by Mr Honchin about M’s maturity, he said this:-
Now, can I just ask you, in terms of maturity, you have seen [L], as I said in – sorry, [M], in 2006 and again in 2010. Are you able to say anything about his level of maturity?---[M] came across as sort of quiet, but articulate and certainly mature. Certainly right for his age, and …..
HIS HONOUR: …..?---Yes, I considered him to be reasonably mature for his age. He was thoughtful – he gave his answers after some thought.
He was also asked about M’s threat to run away and he had this to say:-
MR HONCHIN: In terms of his comment about running away, did it seem real, or just something that he said to emphasise the depth of his feelings?---I think that it would be real, especially if there was an altercation or an argument. Yes, I think it would be a real possibility.
He was cross examined by the father about the fact that Mr H had said the father and L were both alike, which is very informative as to Mr H’s view of the father and his relationship with M. He had this to say:-
[THE FATHER]:       Is that correct? You said that me and [L] are both alike?---Look, if I remember correctly - - -
The last time you seen me?---Yes. [L] was exhibiting some similar behaviours to yourself in terms of not accepting any alternative view, insisting that he was right all the time, that kind of thing, which is how I perceive yourself.
Right all the time?---Yes. You don’t – I found that you found it very difficult to accept an alternative view to your own, that there may be other reasons other than you being at the centre. For instance, you had blamed [the mother] for [M’s] behaviours and refusal to see you etcetera. You were not able to understand that perhaps it was [M] himself that was having difficulty in this relationship with you, and you do not accept that. And I tried very hard to explain to you that your attitude and your methods of going about it, you were in fact alienating yourself, and that is what has occurred.
I also told you that on the alternate weekends [the mother] would go to [Town 2] instead of dropping him off to me, and I also told you about the motocross?---I think that was one incident ….. yes.
And I sort of got about as close as, he’s coming over, on a couple of occasions, and just sort of as time went on, it broke down, but so – I had done nothing - - -
HIS HONOUR:         What’s the question?
[THE FATHER]:       I had done nothing. I just – yes?---I’m sorry, my impression on this day, [the mother] was responding to [M’s] wishes.
Yes?---Because [M] was tentative about seeing you, and has consistently been tentative about seeing you.
He has?---And eventually decided, after discussing it with his mother, that he didn’t want to see you.
Yes?---I believe quite strongly that was [M’s] decision. You find that difficult to accept.
I accept that things broke down after not seeing him for a long time but I had done nothing besides – I did have an altercation with [the mother]?---But [the father] - - -?---
And then he - - -?---[The father], I am sorry, it is not a question that you have done nothing, this is about your relationship with [M]. This is about the episode in the school. This is about the episode at the funeral. This is about [M] witnessing you being violent towards his mother. This is about [M’s] experience of you. So, I am sorry, I cannot accept you simply saying I have done nothing because this is a product of your relationship with [M].
Yes, but - - -?---You cannot say “I have done nothing” because it is the product of years of what [M] has observed and [M] doesn’t want any of it now, he wants away from it. He doesn’t want to be part of that system any more, and that is what this is all about.
A little later in his evidence when being cross examined by the father, he had this to say:-
… [M] was quite clear in telling me and [the mother] ….. that your manner is aggressive and pedantic, and you very rarely listened to anyone else’s point of view, and that’s why it’s the dominant feature, because it is the dominant issue that has resulted in the breakdown of your relationship with your son. The fact that your son hides every time you come to the house - - -
Every time I come to the house he hides?---That’s what he told me.
That’s what he told you. Okay?---Really speaks for itself, the fact that the relationship between yourself and your son has broken down. It had ample opportunity of even just being in the same room, but he told me quite clearly that every time you came to pick up [L] - - -
I would verbally abuse him?--- - - - he would disappear.
And I would verbally abuse him?---He would disappear because he was frightened of you.
Frightened of me. Yes, yes?---He was frightened of you. He thought you might grab him again - - -
Yes, grab him – yes?--- - - - like you did at school. That’s what he said.
Finally, in what I regard as the most telling part of his evidence, Mr H had this to say towards the end of his cross examination by the father:-
… No, sorry, can I just go a bit further. You talk about physical and emotional safety. The physical safety would also include in my view the running away – the threat to run away. That would be a threat to his physical safety especially as you live in a very rural situation.
A very rural - - -?---Well,, you have a house on the cane farm.
It’s nice isn’t it?---Yes, it’s lovely.
Yes. Yes, it’s great?---It’s a lovely house.
Nice isn’t it? Good area?---It’s – [the father], you have a house that most young teenagers would dream of it. You have a sound system, you have speakers in the roof. You’ve got electric guitars, you’ve got amplifiers, you’ve got drum kits. You’ve got electronic games, he has his own motorbike. You have a wonderful place and he still doesn’t want to come and see you. It doesn’t matter. That, to me, indicates that the reasons he doesn’t want to come and see you are very deep seated and about your relationship and not about the material things around him.
Yes, I realise this, that the material things are just - - -?---It’s just the intensity of his determination and the emotional risk ….. is that he is frightened of you.
But isn’t for his father to determine that. I mean, fair enough from 5 o’clock - - -?---No, I’m sorry, it is my role to determine that because of these proceedings. That’s what I’ve been asked to do. And he is frightened of you.
There was evidence from Dr K, a Consultant Psychiatrist, who saw the father on 17 August 2010. He provided an affidavit to which was annexed his Report. He was not required for cross examination. In his Report, at paragraphs 71 and 72, he had this to say:-
71.To summarize I say he doesn’t have a psychiatric disorder, personality disorder or substance abuse but he is a fairly forceful and dogmatic sort of person who rightly or wrongly has alienated [M].
72.I don’t see how a Court could effectively insist on [M] seeing his father or the father seeing [M].
Exhibit ICL-1 was an Advice of Conviction or Order from the Magistrates Court, Town 1, which showed that the father had breached a Domestic Violence Protection Order on 19 August 2009 and been fined $500, in default seven days imprisonment.

Competing Proposals

As I have said, the father on the morning of the trial amended his orders sought to seek week about and equal shared parental responsibility. The mother seeks orders that M live with her and that she have sole parental responsibility and that should M express a wish to spend time with or communicate with his father, the mother would assist M in doing so. The Independent Children's Lawyer proposes that I should make an order that the mother have sole parental responsibility, that M live with her, and that should he express a wish to see or contact his father, the mother will assist him to do so. Therefore, the Independent Children's Lawyer supports the mother’s proposal.

Part V11 of the Family law Act 1975 (Cth) Sections 60A to 70Q

The High Court recently considered this part of the Act which was substantially amended in 2006. The decision reported as MRR v GR 80ALJR 220.
In a consideration of this case, it will help if I set out in some detail what the High Court had to say.
[6] Part VII of the Act (ss60A – 70Q) concerns children. It was substantially amended in 2006 by the Family law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] 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”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
[7] Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
In the present case, the mother seeks sole parental responsibility for the child and the father seeks equal shared parental responsibility.
Consequently, the first question that I have to consider under the legislative scheme is whether the presumption of equal shared parental responsibility when making parenting orders under s 61DA applies. Section 61DA is headed “Presumption of equal shared parental responsibility when making parenting orders” and provides:
(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 parenting 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.
This section raises a presumption of equal shared parental responsibility being in the best interests of the child, but provides that that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence and further provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
“Abuse” is defined under s 4 under the heading “Interpretation of the Act”. It provides as follows:-
Abuse, in relation to a child means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
Family violence is also defined in the same section as follows:-
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Consequently, it would seem that issues of abuse and family violence must be considered by the Court as individual matters as defined under the definition section, and in the event that the Court finds reasonable grounds to believe that such abuse or family violence has taken place by a parent, the presumption does not apply.
However, under ss 4 which deals with the presumption being rebutted, that requires the Court to consider whether the presumption has been 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. As the best interests of the child are to be determined by reference to the matters enumerated in s 60CC, a consideration of whether the presumption has been rebutted under s 61DA(4) requires a consideration of that evidence in light of s 60CC.
As the High Court said in MRR v GR (supra):
Section 65D(1) provides that the Court may make such a parenting order as it thinks proper subject to the provisions of ss 61DA and 65DAB.
Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
Consequently, if s 61DA does not apply, then the Court may make such parenting order as it thinks proper.
In this case, I find reasonable grounds to believe that there has been abuse and family violence. Apart from anything else, there is Exhibit ICL-1 which establishes that the father breached a Domestic Family Violence Order on 19 August 2009 and was fined $500. There is the evidence before me in relation to that incident and many other incidents that amount to family violence and there is the assault on L, M’s brother, for which the father was charged and fined.
Consequently, ss 2 of s 61DA applies and as a result, the presumption under ss 1 of s 61DA does not apply.
With respect to joint parental responsibility, the father gave evidence that when he telephones the mother (presumably her mobile phone identifies his call) and she does not answer. He said she has never given him any information about M in the last four years. He says everything that he hears about M comes through L. He said he had no information from the school, or from the doctors, and in the last four years, he had not had a telephone conversation with the mother about M. He further said that he had not had a face to face discussion with the mother about M in the last four years. He conceded that as recently as February this year, he and the mother were unable to organise a joint birthday party for L. He gave evidence that it was his view that the mother hated him and as a result of that, they are unable to communicate.

Whatever the cause, the fact is that the father and the mother are completely unable to communicate about the welfare of M and joint parental responsibility is out of the question for the reason that it would be totally unworkable.
Consequently, since the presumption of equal shared parental responsibility does not apply by reason of s 61DA(2) and because I consider equal shared parental responsibility would be completely unworkable in this case, I do not propose to make a parenting order that provides for the parents to have equal shared parental responsibility for M.
Consequently, s 65DAA does not apply.
That means that s 65D(1) is the operative section which provides “In proceedings for a parenting order the Court may, subject to s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper”.
Section 60CA requires that a Court must regard the best interests of a child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
This Section is set out below:-
SECTION 60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)      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).
Primary considerations
(2)      The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are:
(3)      Additional considerations are:
(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;
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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.
(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 rights to maintain personal relations and direct contact with both parents on a regular basis.
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s           family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)     any other fact or circumstance that the court thinks is relevant.

(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5)      If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)      For the purposes of paragraph (3)(h), an Aboriginal child’s or a 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.

It will be seen that by ss (1), that in determining what is in a child’s best interests, the Court must consider the matters set out in s (2) and s (3).
Sub-section (2) provides the primary considerations that a Court is required to consider.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to “abuse, neglect or family violence”.
My findings with respect to abuse and family violence are such that the second primary consideration is a very real factor in this case. I need to make orders to protect M from physical or psychological harm, from being subjected to or exposed to abuse and family violence. It is clear on the evidence that the exposure of M to abuse and family violence has had a devastating effect upon his relationship with his father. As Mr H opined, M is afraid of his father.
This has meant that since November 2008, he has refused to have any contact with his father. The evidence is overwhelming as to why this is so, and I accept the evidence that if forced, he would run away. This would put him at considerable risk in my opinion.
I now turn to consider what are described as the additional considerations under s 60CC(3).
(a)Any views expressed by the child
In my opinion, it is clear beyond argument that M, because of what he has witnessed wants nothing to do with his father. That of course may change in the future but for the present, that seems set in stone.
(b)The nature of the relationship with the child’s parents and with any other person
M appears to have a close bond with his mother and no relationship whatever with his father. He does have a relationship with his brother, L, who maintains a relationship with the father. L still lives with the mother but is apprenticed to the father. That apprenticeship is somewhat problematic, but that L has a relationship with the father has not changed M’s views about having a relationship with his father.
(c)The willingness and ability of each of the child’s parents to facilitate and encourage a relationship between the child and the other parents
I am persuaded that the mother has done what is humanly possible in the circumstances to encourage M to have a relationship with his father but he resists that. I am not persuaded that the father has encouraged a relationship between M and the mother and there are a number of matters in the evidence that suggest that he has not. However, M has a strong relationship with his mother.
(d)The likely effect of any changes in the child’s circumstances
In my opinion, if an order were made for M to spend time with his father, it would be damaging to M and if he were forced to go, in my opinion the most likely result is that he would run away which would pose a grave risk to his safety.
(e)The practical difficulty and expense of a child spending time with or communicating with a parent
This consideration does not seem to have any relevance in this case.
(f)The capacity of the parents to provide for the needs of the child including emotional and intellectual needs
On the evidence, I think each of the parents can provide for the basic needs of M. On the evidence, it would seem that the father can provide many material things for M, electric guitars, amplifiers, drum kits, electronic games, motor bikes and the like, but nevertheless, M does not want to go and visit him. This of course is because of his deep-seated fear of his father.
(g)The maturity, sex and lifestyle of the child
On the evidence, I am persuaded that M is mature for his years and his view should be given full weight. Otherwise, this consideration does not appear to have much relevance.
(h)Not relevant
(i)The parents’ attitude to the child and to the responsibilities of parenthood
It would seem that the mother has played a traditional role and the father by his conduct has alienated M.
(j)Any family violence
I have already made a finding about that.
(k)Any family violence order
There is none presently in place.
(l)An order least likely to lead to the institution of further proceedings
This is an order that would give M an opportunity to decide for himself. Otherwise, there is the possibility of further proceedings by way of enforcement applications.
(m)Any other relevant circumstances
I do not think there are any other relevant circumstances.
Subsection 4A provides “If the child’s parents have separated, the Court must, in apply ss 4, have regard in particular to events that have happened and circumstances that have existed since the separation occurred”.
In this case, the separation occurred at the very latest in 1998. Consequently, all of the events that I have taken into account are events that have happened and circumstances that have existed since the separation occurred.
Subsection 4 expands upon ss 3(c) and (i). This really relates to what each of the parents has done to exercising their parental responsibility for the child and facilitating the other parent to do likewise. It also directs the Court’s attention to the parent’s obligation to maintain the child.
There is a dispute on the evidence as to Child Support and it has played little part in my consideration of this case.
With respect to the other matters, although the father makes complaints about the mother’s failure to communicate and allow him to participate, the reality is that because of the extreme volatility existing between the parents, M simply withdrew which then really made it impossible for the father to participate in the matters referred to in ss 4. As I have already found, the relationship between the parents is such that joint parental responsibility is simply unworkable. This has certainly been the case since at least 2008.
Subsections 5 and 6 are not relevant.

Conclusions

Consequently, pursuant to s 65D, I consider that it is proper to make orders in the form proposed by the Independent Children's Lawyer, namely that the child live with the mother and that the mother have sole parental responsibility. With respect to the issue of the child spending time with the father, the order proposed by the Independent Children's Lawyer that should the child express a wish to see or contact his father, that the mother will assist him to do so seems, in the circumstances, the best that can be done. The proposal that the father can communicate with the child in writing on special occasions, being the child’s birthday, Christmas and Easter also seems an appropriate order because it provides a means for the father to maintain some contact with the child without exposing the child to any further harm. The other orders which relate to keeping the father informed also seem an appropriate way of dealing with the circumstances of this case.
.The orders proposed by the Independent Children's Lawyer although similar in nature seem a better composite set of orders than those proposed by the mother.
As to the orders sought by the father, that the child live with the mother and the father on a week about basis, such an order is simply fanciful. Equally, an order that the mother and father have equal shared parental responsibility in the circumstances of this case is fanciful.
It is, in my opinion, in the best interests of M that I make the orders in the form proposed by the Independent Children's Lawyer.
My orders therefore are:-

1.The mother have sole parental responsibility for the child, M, born … September 1997.
2.The mother shall keep the father informed of decisions made in exercise of her sole parental responsibility.
3.The child live with the mother.
4.Should the child express a wish to see or contact his father, the mother will assist him to do so.
5.The father may communicate with the child in writing on special occasions (the child’s birthday, Christmas, Easter) and the mother will ensure the child receives these communications.
6.The mother and the father have responsibility for decisions relating to day to day care of the child during the time the child is in their respective care.
7.The mother shall provide the father with the contact details of any doctor, hospital or any allied health professional attended by the child.
8.Each parent is to keep the other informed of their current address and telephone number and notify the other of any change within 48 hours of such change.
9.These orders act as an authority to any school attended by the child to provide to either parent upon their request and at their expense any document including school newsletters, report cards and photos relating to the child’s education.
10.These orders act as an authority to any doctor, hospital or allied health professional attended by the child to provide information or documents to either parent upon their request and at their expense relating to any treatment received by the child.
11.Each parent will notify the other as soon as practicable of any medical emergency involving the child.
12.Neither parent will denigrate the other to, on in the presence of, the child, or permit any other person to denigrate the other parent to, or in the presence, of the child.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith delivered on 13 April 2011.

Associate:

Date: 13 April 2011

[2011] FamCA 260

13 April 2011

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Areas of Law

Family Law