POTTER & ROSS

FAMILY COURT OF AUSTRALIA

POTTER & ROSS

[2015] FamCA 26

FAMILY LAW – CHILDREN – with whom a child lives, spends time and communicates – where the parties have a long history of parenting proceedings – where final parenting orders have previously been made by consent in 2008 and 2013 – where the father continues to allege the child is at an unacceptable risk of harm in the mother’s care – where the mother alleges the child is at an unacceptable risk of harm in the father’s care – where the father has previously retained the child in his care contrary to operative orders

Family Law Act 1975 (Cth)

APPLICANT:

Mr Potter

RESPONDENT:

Ms Ross

INDEPENDENT CHILDREN’S LAWYER:

Jones McCarthy Lawyers

FILE NUMBER:

BRC

2007

DATE DELIVERED:

30 January 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 and 23 January 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

INDEPENDENT CHILDREN’S LAWYER:

Mr Dodd of Jones McCarthy Lawyers

Orders

IT IS DIRECTED

That Ms M be provided with a copy of the Reasons for Judgment delivered today for the purpose of assisting her in explaining the Orders made today and the effect of the same to the child.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The child Y, born … 2005 (“the child”) live with the mother immediately from the making of this Order.
This Order is authority for Child Dispute Services, Level 3 Harry Gibbs Commonwealth Law Courts Brisbane, to deliver the child Y born … 2005, into the care of his mother, Ms Ross.
Ms M shall explain these Orders to the child at the Child Dispute Services rooms this afternoon.
The mother shall have sole parental responsibility for the major long term issues for the child with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and
(b) the mother shall give the father 14 days to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The child will spend time and communicate with the father at all times as may be agreed between the parties and failing agreement on a supervised basis at the O Contact Centre for no less than two (2) hours every fortnight at such times as the Contact Centre can make available to the parties.
Each party shall contact the Contact Centre within seven (7) days of the date of this Order and each shall, at their own cost, participate in the first available Intake Session offered to that party by the Contact Centre.
Until the debt currently owing by the father pursuant to the Child Support (Assessment) Act1989 is extinguished, the father shall be responsible for the entire cost, save for any cost associated with the parties’ participation in any Intake Session required by the Contact Centre, of the child’s supervised time with him.
Once the debt currently owing by the father pursuant to the Child Support (Assessment) Act1989 has been extinguished, the parties shall share equally in the cost of the child spending supervised time with the father at the Centre.
The mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change; and
(b)notify the other at least twenty-one (21) days prior to relocating their residence; and
(c)inform the other as soon as is reasonably practicable of any medical emergency involving the child.
Within 28 days of receiving the same, the mother shall provide the father with a copy of any school report relating to the child.
Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and failing the third parties’ compliance with such a direction shall remove the child from that environment immediately.
Neither parent shall discuss these proceedings with the child save for as may occur during any counselling interaction or during any discussion with Ms M.
During the time the child is with either parent, the parent shall:
(a)respect the privacy of the other party and not question the child unduly about the personal life of the other party;
(b) speak of the other party respectfully; and
(c)not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the child.
The mother has leave to provide a copy of the Family Reports prepared by Ms M and the Reasons for Judgment delivered 3 September 2008, 9 November 2011, 3 February 2012, 25 November 2014 and 30 January 2015 to any counsellor upon whom the child attends.
The Independent Children’s Lawyer is discharged.
All outstanding Applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Potter & Ross 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 BRISBANE

FILE NUMBER: BRC 48 of 2007

Mr Potter

Applicant

And

Ms Ross

Respondent

REASONS FOR JUDGMENT

The child Y, born in 2005, (“the child”) has the misfortune of membership of that unfortunate category of children whose parents have been engaged in disputes and litigation about care arrangements for the vast majority of their lives. Regard need only be had to the fact that parenting Orders were made in mid-October 2006 and the first Family Report is dated 31 October 2007.
Included within the issues considered in the October 2007 Family Report was the parent with whom the child would live and the arrangements for his time and communication with each parent. The second Family Report, dated 30 April 2008, records that at least the issue of the time the child would spend with the father remained the focus of dispute at that time also. The third Family Report, dated 27 September 2012, records that the issues returned to the parent with whom the child would live and the arrangements for his time and communication with each parent. The fourth Family Report, dated 12 January 2015, records that these remain the operative disputes.
Thus, whilst time has passed and the child has aged, these issues remain the focus of the current litigation.

A broad summary of the past

A “final” Order regulating the child’s time with each of his parents was first made, by consent, on 3 September 2008. The terms of this Order reflected the parties’ agreement that the child continue to live primarily with his mother and spend increasing periods of time with his father.
The consequence of the implementation of the September 2008 Order was that, from the start of 2010, the child spent time with the father each alternate weekend from Friday afternoon until Monday morning and each alternate Wednesday from after school until before school on Friday.
On about 22 October 2011, the father failed to return the child to his mother’s care as he was required to do by the September 2008 Order. He removed the child from school for a period of about two weeks and only recommenced his attendance there on the Monday of the week in which the matter came before the Court. He acted in this manner because he was concerned that, if he returned the child to school, the mother would “remove” him (as she was entitled to do by the operative Order) and prevent the child from spending time with him.
On 9 November 2011, Murphy J ordered the child’s return to the mother. His Honour did so after conducting an interim hearing[1] at which he permitted the father to cross-examine the mother and Mr S, her partner. The Ex Tempore Reasons delivered by his Honour that day record that the father withheld the child and failed to facilitate his attendance at school because he thought the mother would collect him and return him to her household, in which he considered the child would be at a significant risk of harm. From the father’s perspective, the risk to the child arose because Mr S represented a significant risk of causing him physical harm and, secondly, the mother had failed, and would continue to fail, to protect the child from harm likely to be caused by Mr S.[2]
[1] On 25 January 2012.
[2] Paragraph 15, Reasons for Judgment delivered 9 November 2011.
Additionally – and consistent with his rationale for withholding the child from his mother – the father sought, in responding to the mother’s Application for a Recovery Order, that the child not be brought into contact with Mr S.[3] After the mother confirmed to the Court that Mr S was part of her life, that she lived with him and intended to maintain a relationship with him[4], the father sought an interim order that the child live with him and spend time with the mother on the same terms as had previously applied to him by virtue of the terms of the September 2008 Order.
[3] Paragraph 17, Reasons for Judgment delivered 9 November 2011.
[4] Paragraph 18, Reasons for Judgment delivered 9 November 2011.
The basis relied upon by the father for his assertion at this time that the child would be at an unacceptable risk of harm from Mr S and in his mother’s household was based on alleged disclosures made by the child to him that Mr S had been violent.[5]
[5] Paragraph 11, Reasons for Judgment delivered 3 February 2012.
Having ordered the child’s return to his mother, Murphy J dismissed the father’s Interim Parenting Application and made a number of interim orders.
The child and Mr S were interviewed by police in relation to the assertions made in October 2011. The police concluded that it was highly doubtful an assault had been committed and expressed a view that the complaint appeared to be vexatious as there were current “fresh” Court proceedings.[6]
[6] Paragraph 56, Family Report dated 27 September 2012.
The parties appeared before Murphy J again to argue competing Interim Applications on 25 January 2012. On 3 February 2012, his Honour dismissed their respective Applications for further interim parenting orders. The Reasons for Judgment delivered that day record that the Court was then asked to consider the father’s assertion that the child was at a significant risk of harm if he remained in the mother’s household because Mr S represented a significant risk to him. The father seemingly relied on what the child reported as physical harm having been perpetrated upon him by Mr S and he contended the mother would fail to protect the child from that harm.[7]
[7] Paragraph 23, Reasons for Judgment delivered 3 February 2012.
His Honour recorded[8] that the evidence before him revealed, in respect of the alleged harm, that:
[8] Paragraph s 24, 34, 44 of the Reasons for Judgment delivered 3 February 2012.
a)the allegations were wholly dependent upon the hearsay report of comments made by a six year old child; and
b)the allegations formed the basis of a report to police: whilst the child made some disclosures of harm when interviewed – namely, that Mr S “punches” him and “pulls” his ears – these assertions were unparticularised as to date, time or other detail and police concluded that it was “highly unlikely that a prosecution for assault” would succeed; and
c)evidence contained within documents produced by the Department of Communities (Child Safety Services) referred to a “number of vexatious complaints” being made with respect to the child and that this particular complaint “appeared vexatious”, being made in the context of parenting disputes; and
d)the documents revealed Mr S had no previous criminal convictions in Queensland; and
e)no further investigation was to be undertaken by either the Department – which had determined that the complaint was “unsubstantiated” – or the Queensland Police Service in relation to the child; and
f)none of the child’s teachers reported any disclosure being made by the child; and
g)there was no independent medical evidence in respect of any of the allegations; and
h)whilst the father took the child to a psychologist (Ms Z), there was no evidence that the father took the child to a medical practitioner; and
i)whilst the child repeated a statement to Ms Z said to have been made to his father about harm perpetrated by Mr S, she recorded that this statement was made “in the first moments of [the] session…”
For the reasons he expressed, Murphy J was not persuaded, on an interim basis, that the child was at an unacceptable risk of harm whilst in the care of his mother and Mr S.
The consequence of his Honour’s determination was that the terms of the September 2008 Order remained operative, pending resolution of the parties’ respective Applications for different final parenting orders: the father was then seeking that the child live with him and spend supervised time with the mother and the mother was then seeking that time between the child and his father be supervised.
Ms M prepared a third Family Report, dated 27 September 2012. It records the father’s assertions that the child had complained to him on a number of occasions – 28 August 2010, 18 December 2010, 9 March 2011, October 2011, 10 January 2012 (about a week after Murphy J dismissed the application) - that Mr S had hit him or physically disciplined him or that he had seen incidents of domestic violence between the mother and Mr S.
Despite these assertions, on 12 June 2013, Murphy J made the second set of “final” parenting Orders – again, by consent. Again, the terms of this Order reflected the parties’ agreement that the child continue to live primarily with his mother. His time with his father was, in a sense, consolidated so that, during school terms, he would spend from after school Friday until before school Wednesday each alternate week in his father’s care. The parties also agreed they should have equal shared parental responsibility for the major long term issues relating to the child and that he spend half of the school holiday periods and specified time on ‘special’ days with each of them.
The parties implemented the terms of the June 2013 Order until about mid May 2014.

The path to this trial

On about 11 May 2014, the father again failed to return the child to his mother’s care. On 13 May 2014, he filed an Initiating Application seeking that the child live with him, and, contingent upon her attending counselling “to address her involvement and issues regarding domestic violence in the mother’s home” and providing “sufficient evidence” that she will not bring the child Y, or her other son J, “into risk of domestic violence or emotional abuse”, to spend time with the mother:
a)for six months: each alternate weekend from after school Friday until before school Monday; and
b)thereafter, if he (the father) is satisfied she will not bring the child Y into contact with domestic violence or emotional abuse: from after school Friday until before school the following Thursday; and
c)as particularised on “special” days like his birthday, Mother’s Day, Father’s Day and Christmas Day.
The father proposed the continuation of an order for equal shared parental responsibility and sought to restrain both parties from physically disciplining the child. As he had previously, he also sought an order prohibiting the child from coming into contact with Mr S.
The child remained in his father’s care between 11 May 2014 and 13 June 2014. During this period he had no time or communication with his mother other than, at best, one telephone conversation. Additionally, his father enrolled him in, and he attended at, a school other than his usual school.
On 13 June 2014, a Recovery Order was made which required the child’s return to the mother’s care that day. The father complied with the terms of this Order. Following his return to his mother’s primary care, the child resumed attending his previous school.
The parties recommenced compliance with the operative parenting order.
On 26 August 2014, the father took the child to a medical practitioner reporting that he noticed an abrasion on the left temporal zygomatic region of the child’s head when he collected him from his mother’s home on 22 August 2014. The medical practitioner’s notes record that the child denied any memory of injury and that the father reported a previous adverse reaction from the stepfather after previous reports of injury, such that he (the father) felt the child may be reluctant to complain.[9]
[9] Exhibit 2.

The competing proposals

The father’s proposal is as outlined in the Initiating Application referred to above.
The mother’s proposal is that the child live with her, have the opportunity to have telephone communication with the father and spend time with him:
a)if he seeks psychiatric counselling on a permanent basis and provides evidence of the same to her: unsupervised, each alternate weekend from Saturday morning until Sunday afternoon; or
b)if he cannot provide evidence of ongoing psychiatric treatment: supervised at a Contact Centre at such times as may be available.
She also proposes she have sole parental responsibility for major long term issues relating to the child.
The father made it clear during his evidence that he has no intention of seeking future psychiatric counselling in the manner sought by the mother or at all because he does not think this is required. Consequently, the reality of the mother’s position is that she advances that the child’s time with the father should be supervised indefinitely.

The rationale underlying the competing proposals

I incorporate the contents of paragraphs 10 and 11 of the Reasons for Judgment I delivered on 28 November 2014 into these Reasons.
At the risk of repetition, the parties’ respective contentions may be broadly summarised as follows:
a)the father says his proposal is in the child’s best interests because he alleges the child is exposed to violence in the mother’s home such that he will be at an unacceptable risk of harm if he remains living primarily with her in that household; and
b)the mother says her proposal is in the child’s best interests because he is exposed to emotional harm because of the father’s inability to refrain from asserting he is at risk of exposure to violence whilst in her care and his repeated decisions to retain the child in his care contrary to the terms of operative Orders.

Principles

In these proceedings, being proceedings for a parenting order (section 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to the child, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard his best interests as the paramount consideration.[10]
[10] Family Law Act 1975 (Cth) ss 60CA, 65AA

The benefit for the child of a meaningful relationship with both parents

Ms M’s evidence is that the child has an established relationship with both of his parents. She assesses his father loves him and, from his perspective, considers that his actions have been taken with the motivation of protecting and caring for the child. I accept that but, of course, note that it is from the perspective of a consideration of the child’s best interests that a decision about his future parenting arrangements must be made.
As long ago as 2007, Ms M correctly identified that one of the significant issues for the child was that his need for a relationship with both his parents has to be balanced against the need to protect him from harm.[11] This is, I consider, the significant issue at this time, particularly given that events after the preparation of this report – as outlined by Ms M in her subsequent three Family Reports – persuade me that there has been no amelioration in the conflict between the child’s parents.
[11] Paragraph 298, Family Report dated 31 October 2007.

Is the child at an unacceptable risk of harm in the mother’s care?

The father has made a number of allegations over a number of years to the effect that the child has been subjected to or has witnessed domestic violence between the mother and Mr S. Additionally, he has alleged that Mr S has physically harmed the child. The most recent allegations were made in late April 2014 and, on the face of the father’s evidence initially, provided the rationale for his decision to refuse to return the child to his mother pursuant to the terms of the operative Order.
Both the mother and Mr S have confirmed to Ms M, the author of a number of Family Reports prepared during the course of this matter, that they have had arguments during their relationship. During his most recent interview Mr S confirmed that he has yelled and sworn. Both associate the arguments arising more often than not from stress associated with the father’s actions. Ms M considered that their interaction at interview “indicated a mutually supportive couple who are comfortable with each other. There were no indications of a power imbalance in their interaction.”[12] I accept her assessment and evidence in this regard.
[12] Paragraph 70, Family Report dated 15 January 2015.
An email sent by Ms P, Guidance officer, to a superior on 3 March 2014, records that the child’s brother J asked to speak with her that morning. He said he was upset because he was feeling sad for the child and said that:
a)the child told him that morning that his mother caught him (the child Y) getting J’s money, yelled at him and hit him on the leg before he came to school; and
b)the child was crying when he saw J that morning – J took the child into the office; and
c)the child apparently told J that he did not want to be with his mother anymore and wanted to live with his dad; and
d)the child told him that if he (J) could get to be with his father, the child might be able to be with his too.[13]
[13] Exhibit 3.
Whilst there appeared to be some divergence in the recounting by the mother and Mr S about whether there was any incident of a nature similar to that reported by J as having been told to him by the child, I am not persuaded that such divergence means that either or both of them are being untruthful about this or in the remainder of their evidence.
On 24 April 2014, the child disclosed to one of his teachers some concerns about returning to his mother’s care. He said that Mr S hit him regularly and had slapped him across the face; he disclosed he had witnessed domestic violence between his mother and Mr S. He also spoke about his concerns that his mother was a liar and expressed a wish not to return to her home.[14] In the context of the history of this matter and, particularly, the concerns raised by Ms M in the September 2012 Family Report about the possible impact on the child of continued exposure to the father’s beliefs that he had been subjected to violence whilst in his mother’s household, it is particularly relevant to note that such comments occurred after the child had been staying with his father over the holiday period.
[14] Paragraph 29, Family Report dated 12 January 2015.
Police subsequently interviewed the mother. She advised them that Mr S had not physically disciplined the child in the past 12 months, the last time being a smack on the bottom (for stealing) some 12 months earlier. Police also interviewed Mr S. He confirmed that neither he nor the mother physically disciplined the child. He outlined discipline measures included sending the child to his room.
The Police documents note “there is no evidence to support that the child was unlawfully assaulted” and that investigations indicated the child may be disclosing incidents that occurred some time ago. Police concluded that it was “highly doubtful” than an offence had occurred. The Department recorded a Child Concern Report.
The father says that Police telephoned him on 28 April 2014 to ask if the child had complained about being hit by Mr S. He says Police asked him to talk with the child and, when he did, the child said nothing. The father concluded from his silence that the child had learnt, that if he did say something, “there could be trouble”. The father also asked Police not to speak with the mother and Mr S when the child was in their care. He says Police blamed him for putting the child up to it.
The father says that, on 30 April 2014, J told him that the child had said at school that day that the mother and Mr S had yelled and abused him the night before. Additionally, they were accused of having made the child disclose to them that J stayed with the father and him alternate Thursday nights. The father says J told him that the child wanted to go to his house because the child was frightened of his mother and Mr S.
A Record of Concern Summary, dated 15 May 2014, prepared by the Department records that the father told Police he had spoken with the child and the incident occurred some time ago and there were no current issues. The father told the Police the child had indicated to him that he did not want to speak with them as there were no issues. (my emphasis)
On 21 May 2014, the Department was notified that the father had retained the child contrary to the terms of the operative Order. On 27 May 2014, the Department recorded a notification reflecting comments said to have been made by the child to another person.
On 6 June 2014, the Department assessed that an investigation into the matters was warranted and should occur within five days: the harms identified included whether the child had been coached and whether the father’s actions reflected “parental alienation syndrome”. The Department’s documents noted the father’s history indicated: “he is a violent man that uses control and intimidation in his relationships. [The father] appears to place his own needs before the child. His controlling parenting style places [the child] at an unacceptable level of emotional abuse.”
On 13 June 2014, the Court made a Recovery Order and the child was returned to his mother’s care. She described him as emotional, tearful and subsequently demonstrating clingy behaviour. Given the absence of contact with his mother during the six week period he was in his father’s care, I accept without reservation that the child demonstrated such behaviour upon his return to his mother’s care.
The parties then resumed implementation of the terms of the operative Order.
On 26 August 2014, the father took the child to the doctor in relation to an abrasion on his left temporal area which the father reported noticing on 22 August 2014 when he collected the child from his mother’s home. The doctor’s records record that the child denied any memory of the injury and that the father felt the child may be reluctant to complain due to “previous adverse reactions from Mr [S] about previous reports of injury.”
The father subsequently reported his concerns to the Independent Children’s Lawyer and, in an email dated 15 September 2014, outlined that the child said the mother had slapped his face when she and Mr S were fighting, that he had been terrified and had tried to run to J’s house to safety.
The 2014 matters outlined above are helpfully analysed in the context of previous allegations made by the father to the effect that the child is at risk of harm in his mother’s household.

Previous allegations

In the 2007 Family Report, Ms M recorded that the father referred to his responsibility to protect his sons, viewing the child at risk physically and emotionally from the mother. He spoke of having considered installing security cameras in her home to check on her care of the child. Ms M concluded that his focus was such that he was unable to cooperate with the mother and, relevantly, was not focused upon facilitating her role in the child’s life but, rather, on protecting the child from her.[15]
[15] Paragraph 395, Family Report dated 31 October 2007.
The 2007 Family Report records that the father’s allegations the mother posed a physical danger to her oldest son and the child were not borne out by the information and assessments in the Police and Department of Child Safety files.[16] In fact, Ms M noted her concern that, in the past, the mother seemed to have given priority to her relationship with the father over her need to protect the children, a decision which resulted in the children being exposed to domestic violence.[17]
[16] Paragraph 385, Family Report dated 31 October 2007.
[17] Paragraph 385, Family Report dated 31 October 2007.
Ms M also recorded, in the 2007 Family Report, that there were no indications the child was frightened of his mother and that they presented as having a warm and affectionate attachment.[18]
[18] Paragraph 466, Family Report dated 31 October 2007.
It is instructive, I think, to reflect upon and consider previous allegations made by the father to the effect that the child has been exposed to and has witnessed domestic violence between his mother and Mr S whilst in their care.
The Reasons for Judgment delivered by Murphy J on 9 November 2011 record the following matters asserted by the father to provide the evidentiary foundation for his assertion that the child was then at significant risk of harm from Mr S:
a)in August 2010: the child said “[Mr S] gets angry with mum to and I’m scared of [Mr S], dad. He is not my dad.” No allegation of physical harm was made;[19] and
b)a week before Christmas 2010: as the father was driving the child away from the mother’s home (having attended at her request to take the child into his care), the child told him that the mother and Mr S had a huge fight and that “Dad, [Mr S] threw sushi in the bin and shoved mum across the floor and made mum cry. Mum pulled the Christmas tree over and everything went everywhere, dad”; and[20]
c)in March 2011: whilst in his care, the child started crying and said Mr S smacked him on the bum and hit him in the back of the head and went on to say that, “mum and [Mr S] had a big fight again and punched two holes in the wall next to the toilet at home.” Additionally, the child said “I’m scared that [Mr S] is going to hurt my mum and he always makes her cry.” No specific allegations of behaviour by Mr S toward the child was made;[21] and
d)20 March 2011: the father said he and the child “bumped into” Mr Olsen (J’s father) who “spoke about the incident at Christmas and how [the mother] pulled a kitchen knife on [Mr S] while they were fighting. [J] said he witnessed the whole fight and told his dad. He said he and [the child] were very frightened their mum was going to get hurt.” No specific allegation of behaviour by Mr S toward the child was made;[22] and
e)21 October 2011: after the father picked him up from school, the child said Mr S had hit him again, that he was naughty and Mr S smacked him hard on the bottom and then started shouting at him, then grabbed his head and shoved him to the ground hurting his right shoulder and side – the child started crying in the car, the father became very upset, returned home and called the Department of Child Safety.[23] He subsequently made a complaint of assault to Police on 28 October 2011.
[19]         Paragraph 30, Reasons for Judgment delivered 9 November 2011.
[20]         Paragraph 31, Reasons for Judgment delivered 9 November 2011.
[21]         Paragraph 32, Reasons for Judgment delivered 9 November 2011.
[22]         Paragraphs 34 and 35, Reasons for Judgment delivered 9 November 2011.
[23]         Paragraph 38, Reasons for Judgment delivered 9 November 2011.
The mother and Mr S both gave evidence and were cross-examined by the father on 9 November 2011. Both said that there had never been any occasion at all upon which Mr S had perpetrated any form of physical assault on the child. Mr S swore that he had never on any occasion in any way shape or form hit or smacked the child even as a form of punishment. Save for one occasion of engaging in physical contact arising out of fun wrestling activities, Mr S said that he had not engaged in any form of physical contact with the child. The mother swore that Mr S had never engaged in any form of physical punishment or any other assault on the child; additionally, both the mother and Mr S denied that there had been any form of physical violence between them.[24]
[24] Paragraphs 50 – 56, Reasons for Judgment delivered 9 November 2011.

The most recent allegation

As noted above, on 28 April 2014, the father was telephoned by a Police officer from the E Town Child Abuse Unit in relation to a report made by the child’s school. He recounts that he was told this related to the child making disclosures about Mr S hitting him.
The father says that, when the officer asked him if the child had recently mentioned being hit by Mr S recently, he said he was unaware of another incident relating to Mr S hitting the child until then.
He says that the Police officer asked him to ask the child about the incident. He subsequently spoke with the child. I consider that the father’s evidence establishes that, after he had spoken with the child, he concluded that anything the child had said at school related to historical alleged events and was not a recounting of any alleged recent behaviour. He also knew from the child himself that there were no issues.
I accept that, when speaking with Police on 1 May 2014, the father said the child had not made any disclosure of concern during his time with him, nor had he (the father) observed any bruising to the child or seen anything else to indicate the child had been subjected to inappropriate physical interaction in his mother’s household. It further became apparent that the child himself told the father to the effect that there was nothing of a concerning nature happening.
All of the above was known to the father before he decided not to return the child to his mother’s care. He also knew that the mother denied that the child had been the subject of any inappropriate physical discipline in her household. I accept that the mother denied the allegations that either she or Mr S had harmed the child in the manner suggested.
The father’s action in asking the mother to meet him for a ‘cuppa’ to discuss the allegations is, I consider, demonstrative of his manipulative and disingenuous approach to the interactions between them. Given the history of the parties’ interaction and the father’s previous actions in withholding the child, it is not remotely surprising that such request was met with a negative response.
It is clear the father based his decision not to return the child to his mother’s care, in accordance with the operative Order, on the basis of his reaction to his conversation with Mr S (which occurred after he raised the allegations of inappropriate behaviour in the mother’s household again and, I accept, after he had threatened the mother that he would not return the child to her care) and not on the basis of allegation made by the child as reported by J to the school.
I accept the evidence given by the mother and Mr S to the effect that, whilst there are arguments and disagreements between them on occasion about various issues, they have not engaged in acts toward each other which may be considered to fall within the category of domestically violent behaviour.
The child spent the weekend before the most recent Family Report interviews in the care of his father. The father said that, on the Sunday, the child disclosed further harm: he said he had urinated on the toilet seat at his mother’s home and Mr S had sat on the seat; Mr S yelled at him and the mother choked him and hit him on the head. He complained that he had been made to spend the entire day cleaning the house. This was said to have occurred the weekend before.
I accept the explanation provided by both the mother and Mr S about these comments. I have no hesitation in concluding that, whilst the child was admonished by them about this event (or, more particularly, his failure either to clean the toilet seat or alert anyone else to the presence of his urine on it), he was not subjected to any physical consequence. I also accept Mr S’s evidence to the effect that, whilst he spoke with the child about the necessity to clean up after himself, it was Mr S (and not the child) who subsequently cleaned the toilet.
I am not persuaded on the evidence before me that the child is at risk of harm from either the mother or Mr S whilst in their household.

Is the child at an unacceptable risk of harm in the father’s care?

As outlined above, the mother asserts that a reduction in the child’s time with his father is in his best interests because he is currently at an unacceptable risk of suffering emotional harm caused by his father’s:
a)manipulative and undermining parenting style; and
b)repeated decisions to act unilaterally to retain the child in his care contrary to the terms of operative Orders; and
c)subsequent decisions either to refrain from ensuring the child attends at school or to change his school unilaterally.
She asserts the father’s continued allegations that the child is at an unacceptable risk of harm in her household amounts to a form of domestic violence by which he seeks to undermine, disrupt or exert influence over her relationship with Mr S and the relationship between Mr S and the child. Additionally, she expresses concern – as she has in the past – that the father has previously coached the child to make false reports about events in her household and that, if his time with the father is not confined in some way, it is likely he will continue to influence the child to act in a similar manner in the future.
Given the history of the matter and the assessments made by Ms M – as recounted in the Family Reports – there is, I think, significant force in such assertions.
The father admits he has previously committed domestic violence. There is clear evidence which provides support for a conclusion consistent with this admission – for example, when J was interviewed by Police on 1 September 2007, he described seeing the father pushed the mother to the ground and onto the couch on a number of occasions and that he saw the father hit her. [25]
[25] Paragraph 36, Family Report dated 30 April 2008.
He says that he has reflected upon his past behaviours and is a changed person. He offers to assist the mother and Mr S in dealing with the domestic violence he continues to allege exists within their relationship and household. The particulars of the orders he seeks makes it clear he considers that he should be the arbiter of whether the mother has sufficiently recognised her previous alleged difficulties in entering into and remaining engaged in relationships in which domestic violence has been a feature.

I accept Ms M’s evidence to the effect that the father’s belief that there is domestic violence in the relationship between the mother and Mr S is unwavering and unchangeable. I am persuaded that there is every likelihood that the father will continue to assert that the child is at risk in his mother’s care. He clearly continues to believe this to be the case and that she and Mr S present a risk to the child. Things have now reached the unfortunate stage where it doesn’t matter to the father what the child says to him:
a)he is now prepared to conclude from an absence of complaint by the child that the child is too intimidated to make complaint; and
b)he is now prepared to ignore the child’s positive information that nothing untoward happened whilst in the care of his mother or Mr S in favour of his own unshakeable belief that the child is in fact being harmed.
I record that in the September 2012 Family Report, Ms M expressed her concern that, if the father continued to expose the child to his beliefs that he (the child) is at risk:
a)the child may well turn away from him; and
b)such exposure could also undermine the child’s relationship with his mother – a matter which would “represent a significant emotional cost to [the child].”[26]
[26] Paragraph 196, Family Report dated 27 September 2012.
The father’s actions in April 2014 and his continued expressed belief that the child is at risk in his mother’s household both pose a significant risk to the child’s relationship with his mother, the undermining of which would be highly likely to have a significantly adverse effect upon the child in both the short and long term.
I accept Dr H’s evidence, contained within his report (dated 21 August 2008) that the father has a long history of highly dysfunctional interpersonal relationships with almost all individuals and his environment including intimate partners, possibly children, employers, some staff of government agencies and others. Nothing in the father’s behaviour, including his determination in April 2014 to retain the child in the manner that he did, suggests that there has been any improvement to his ability to interact with others – including the child’s mother – in anything but a dysfunctional manner. The potential consequence for the child of continued exposure to the highly dysfunctional interpersonal relationships in which his father engages remains a further significant risk to the child having the opportunity to develop optimally as he approaches adolescence.

What are the child’s views about his care arrangements and what weight should be accorded to the same?

The child’s presentation to Ms M at the most recent interviews for the January 2015 Family Report are of significant concern. That a child of his age wet himself just prior to and in the course of the interviews demonstrates to me the significant level of anxiety with which he is asked to deal on those occasions his parents are present and when he is likely to be asked to be involved in providing information about his parenting arrangements.
His behaviour echoes in an uncanny fashion that previously exhibited by both N (the father’s other child) and J. I consider this and the other comments made by him to Ms M on this occasion likely demonstrate a growing awareness of the conflict between his parents’ households. He is also clearly aware that his father doesn’t want his mother to “hurt” him.

The child’s relationships with each of his parents, Mr S, J and Mr Olsen

Having observed his interactions with his parents in about mid-2007, Ms M concluded that the child had a warm and affectionate attachment to his mother and interacted with his father in a manner that indicated he was familiar to him.[27]
[27] Paragraphs 466 and 467, Family Report dated 31 October 2007.
In November 2011, Murphy J determined that, notwithstanding the father’s unilateral actions to retain him in his care on 22 October 2011, it appeared the child had a close and appropriate relationship with him.
The father considers that the child does not like Mr S. The 2012 Family Report records his claim that the child couldn’t stand him and says that he wanted him dead.[28] In speaking with Ms M at that time, the child referred to his father as “my other dad whose mean – not [Mr S].” Ms M records that the child was “adamant” that Mr S had not hurt him; he claimed that he was sometimes smacked – “only sometimes when I be naughty.”[29] Ms M considered that the child presented at ease with his mother and Mr S and that there were no indications he was fearful of Mr S.[30]
[28]         Paragraph 86, Family Report dated 27 September 2012.
[29]         Paragraph 164, Family Report dated 27 September 2012.
[30]         Paragraph 171, Family Report dated 27 September 2012.
I accept Ms M’s evidence, as outlined in the September 2012 Family Report, that the child then presented as having a close bond with his mother and as having a good relationship with Mr S. I also accept that he presented as having a bond with his father.[31]
[31] Paragraphs 196, Family Report dated 27 September 2012.
Ms M also records the child’s claims that his father smacks him on the bottom. He told Ms M that the father smacked him on his bum with his hand and that this hadn’t happened recently. When Ms M asked about discipline, the child referred to getting smacked on the bottom by the father.[32]
[32] Paragraph 170, Family Report dated 27 September 2012.
It was apparent from the father’s submissions that it may well be the case that, despite his assertions that the child has been physically abused in the mother’s household because he has allegedly been physically disciplined, he (the father) has continued to use physical discipline toward the child. That he is so prepared to minimise his actions in this regard whilst relying upon alleged historical assertions by the child that he has been physically disciplined in the mother’s household as the justification for disrupting the child’s parenting and school routine so significantly is a clear demonstration that he continues to fail to appreciate the adverse consequences and impacts for the child of his parenting decisions.
During his most recent interview with Ms M the child related that he would be sad and would miss his mother if she “lost him”. He also recounted that if he lost time with his father he would be very upset and would cry for two days.[33] I accept this is how he felt when he spoke with Ms M.
[33] Paragraph 129, Family Report dated 12 January 2015.
Whilst the child also expressed a wish to live with his father – because he was not “mean” to him when he did “bad stuff”, didn’t “growl” and his mother does and didn’t make him do a lot of “work” at home and his mother does – he also told Ms M he wanted to spend alternating weeks with his parents or, maybe, a week and one day with his father because he wanted to “even” the time up as he had spent more time with his mother.[34]
[34] Paragraphs 130 and 131, Family Report dated 12 January 2015.
Whilst I take into account the “wishes” that the child has expressed, I also accept Ms M’s evidence[35] about matters relevant to the weight to be accorded to such comments by a child of his age and his development.
[35] Paragraphs 177 and 178, Family Report dated 12 January 2015.

Likely effect on the child of any changes in his circumstances

The child’s mother has been his primary carer effectively since his birth. On two previous occasions (in September 2008 and June 2013) Orders which provided that he live primarily with his mother were made by consent. I consider that a significant change to this parenting regime – in the manner advocated for by the father – is highly likely to be detrimental for the child in both a short and long term sense. It will also significantly curtail his opportunity to form and develop a relationship with the child that his mother and Mr S are currently expecting.
In December 2014, the father told Ms M that the child has contact with a Ms A (with whom he has a work and personal relationship) and her parents. However, because the father determined to keep Ms A “well away” from the situation, she was not involved in the interviews conducted for the preparation of the most recent Family Report.
The father’s decision to ensure that Ms M did not have the opportunity to speak with Ms A means that I have no expert evidence about the nature or strength of the child’s relationship with her or her parents. I am unable to reach any conclusion about the likely effect on the child of a diminution in his opportunity to interact with these people.
The father is currently engaged in running a hospitality business in a location not far from his home. His evidence suggests that he is engaged in this activity from about 8:30 am to about 5.00 pm each Friday, Saturday and Sunday. The consequence for the child is that his opportunity to spend time with his father on non-school days has been significantly curtailed: according to the father, either the child accompanies him and spends the weekend days at or around the business or he is cared for by Mr Olsen’s household. It seemed to me that there may well be relatively many weekend occasions when the child’s opportunity to spend time with the father is restricted to a few hours on Friday afternoons after school and a few hours before bed on Sunday evenings.
Additionally, according to the child’s comments to Ms M during his most recent interview with her, the father’s current partner “takes away 2-3 nights” of his time with his father.[36]
[36] Paragraph 132, Family Report dated 12 January 2015.
This reality is, of course, relevant to any assessment of the likely impact upon the child of any order which diminished his opportunity to spend time and interact with the father.
The father submits that an order which saw the child live primarily with him would enable the child to spend more time with J. The mother acknowledges that her relationship with J is currently strained and that he has not spent time with her recently.
The child and J were assessed by Ms M as having had a strong bond when she prepared the 2007 Family Report. However she recorded in the April 2008 Family Report that they are “used to a degree of separation” as J was at school during the week and - at that time – with his father each alternate weekend. Subsequent changes to J’s primary care arrangements has meant that the interaction has diminished over time. Obviously, when J was living between his mother and Mr Olsen in a week about arrangement, he and the child spent significantly more time together than has recently been the case. This time diminished as a consequence of Mr Olsen’s decision to return to the terms of the July 2008 parenting Order, which provided that J spend significant time each fortnight in his mother’s care, and, more recently, has further diminished to the point where J’s time with the child has occurred only during the six or so occasions in the last six months or so when J has spent overnight time in the father’s care or the child has spent time in Mr Olsen’s care.
Whilst a consequence of the father and Mr Olsen’s decision not to abide the terms of the June 2008 parenting Order has been that the child and J have had an increased opportunity to spend time together in either Mr Olsen’s home or the father’s home, the opportunity for the boys to spend increased time together would arise if the parties (the mother and Mr Olsen) returned to complying with the terms of the existing parenting Order or at least agreeing to implement a parenting regime for J which would provide him with an opportunity to spend time in his mother’s care.
Even on Mr Olsen’s account – obtained from his most recent affidavit – it seems obvious to me that J is seeking out the opportunity to spend at least some time with his mother: he appears to have willingly accompanied his mother and spent sufficient time to have a drink and chat with her and also appeared receptive to the suggestion of spending time with her on a Sunday.
I accept that a decrease in the child’s opportunity to spend time with his father will have an adverse impact upon him given their observed close relationship. Absent my conclusion about the very significant risk of significant emotional harm to the child consequent upon continuing exposure to his father’s fixed belief that he is at risk in his mother’s household and the parental conflict this initiates, this impact would likely mitigate against any reduction in his opportunity to interact with his father.
However, I accept the evidence given by Ms M in her most recent family report and orally before me to the effect that, unfortunately for the child, the time has now come where the only way in which he can be shielded from parental conflict is to do exactly that.

Parental capacity, involvement in the child’s life, participation in decision-making about major long term issues relating to him, fulfilment of obligations to support him and attitude to him and the responsibilities of parenthood

The father has retained the child in his care contrary to the terms of operative Orders on two occasions. On each of these occasions he has determined not to send the child to school: for the entirety of the first period of retention and for a week of the second period of retention. This decision could hardly be seen to be beneficial for the child who has clearly struggled educationally. In fact, save for a determination to send him, without proper consultation and preparation, to attend a different school to that which he had previously attended, one struggles to consider an action that could have been more likely to cause the child significant upset and disruption.
Unfortunately for the child, during the six week period he was retained by his father in his care in early 2014, his father decided not to send him to G School (where he was enrolled and had attended since he commenced formal education) and, instead, unilaterally enrolled him at Q School. The consequence for the child of this decision is that he was not only removed from his mother’s primary care and placed in a situation where he had extremely limited communication – and no face-to-face time – with his mother, but he was also required to deal with a complete dislocation of his educational arrangements. The fact that the child suffers from educational difficulties – in the manner outlined in Exhibit 4 – only amplifies the likely impact of such a significant dislocation.
During his interview with Ms M, the father suggested that G School had suggested to him that the child be enrolled at Q School. However, it is apparent from his email to the school[37] that he decided to change the child’s school and asked G School to undertake that the child could return there once the matter was investigated by the Court. I do not accept the father’s evidence to the effect that he was only following advice given by the principal of G School when he changed the child’s school unilaterally. In the absence of evidence from the Principal, I do not accept that the Principal in fact provided such advice to the father. There is no mention of this in any document produced by Education Queensland received into evidence.
[37] Dated 20 May 2014.
The father says that, during the period he retained the child in his care, he (the child) spoke by telephone with his mother on one occasion. I accept the mother’s evidence that she was unsuccessful in her attempt to speak with the child by telephone on his birthday. Despite it falling during the period the father retained the child in his care, the child was not afforded the opportunity to spend time or communicate with his mother on Mother’s Day.
I am not persuaded that the father was acting to protect the child when he did nothing to ensure that the child maintained at least telephone communication with his mother during the six week period he was in his care. Rather, I consider the father’s failure to ensure that the child interacted in some way with his mother in this period is more reflective of the father’s underlying attitude toward the child’s relationship with his mother and her household: namely, that it is unimportant.
Additional support for such a conclusion can, I consider, be found in the father’s proposal to Ms M during the interviews for the January 2015 Family Report, at which time he proposed that there be a moratorium on the child spending time with his mother until there was an indication she had made changes and gained insight.[38] In the absence of a finding that interaction with his mother place the child at an unacceptable risk of harm, the implementation of such a proposal could only have significant detrimental impact upon the child as it would remove from him entirely (albeit for an undefined period of time) the opportunity to have any interaction or communication with the parent from whom he has historically received his primary care.
[38] Paragraph 72, Family Report dated 12 January 2015.
I accept that once the mother became aware the child was attending Q School she telephoned the Principal. She was told he was fine. She did not act to remove the child from that school at that time because she did not want to engage in a “tug-of-war” with the father over him. I consider her decision to refrain from acting in a manner which was likely to have placed the child in the middle of significant parental conflict is a demonstration of her capacity to place the need to protect him from such exposure above her own desire to have him return to her care.
I consider the mother’s decision that it was more appropriate to allow the Court to deal with the father’s retention of the child demonstrates a willingness to comply with appropriate processes. It is also generally reflective of broad compliance with the terms of existing Court Orders.
I do not accept the father’s evidence that the mother has acted to prevent the child from spending time with his maternal grandmother. Rather, I accept the evidence given by the mother, Mr S and the maternal grandmother denying such allegation. I am satisfied that any hiatus (a descriptor which may well overstate the true position) in the child’s opportunity to spend time and interact with his maternal grandmother has arisen as a consequence of competing demands on her time and not because the mother has acted to restrict her access to the child. It follows that I do not accept the suggestion implicit in the father’s case that he is the parent better placed to promote the child’s relationship with members of his extended maternal family.
I do not accept the father’s evidence that the maternal grandmother told him that the mother, Mr S and the child intend to move to Bundaberg to live if the home in which they currently live is sold. I consider it more likely than not that the father simply attempted to use such an allegation to his own benefit in these proceedings. I accept the evidence given by the mother and Mr S that, whilst they may have to move to another residence, they have no intention of leaving the general area in which they currently reside. It was clear that both regard the Sunshine Coast area as the place where they will continue to live in the future.
The father has financially supported the child when he is in his care. However, since about April 2014 he has not paid to the mother the child support he is assessed to pay. Whilst he acted quickly to ensure that the appropriate Government Department was made aware of the consequences of his unilateral decision to retain the child in his care in April 2014, he took no similar action when the child was returned to the mother after the June 2014 Recovery Order was made. His explanation to the effect that he did not take any steps to inform the appropriate authorities that the child was no longer in his primary care because he assumed the mother would do so is disingenuous.

I consider the father has deliberately decided not to lodge a tax return because he is aware that any refund payable to him will be “intercepted” and used by the Child Support Agency to meet his outstanding child support liability. This action by the father demonstrates an incapacity to place the child’s need for financial support above his need to ensure the mother does not receive additional money and support from him.
In 2007, the father alleged that the mother had mental health issues and was unstable when not taking medication.[39] Despite the contents of a report prepared by Dr H, psychiatrist, he continues to allege that she suffers from a mental illness and has previously been diagnosed with bipolar disorder. He clearly continues to believe that her parental capacity is impaired by this asserted mental illness. I am not in any way persuaded that this is the case.
[39] Paragraph 330, Family Report dated 31 October 2007.
According to the child’s comments to Ms M during the course of his interview for the most recent Family Report, the father continues to tell him that his mother is “sick”. During his cross-examination, the father struggled to accept that, by doing so, he may be causing the child some stress and/or anxiety. He appeared to fail to appreciate that it was likely the child may worry about his mother. He justified his decision to speak with the child in such a manner on the basis that it was necessary for the child to know “the truth”. The father conceded that telling the child his mother was “sick” might cause him some anxiety but justified his decision on the basis that he wanted to tell the truth and it was not the sort of fact one could “rosy up.”
The father’s preparedness to continue to tell the child that his mother is “sick” demonstrates an incapacity to appreciate the desirability of shielding him from the worry likely to be associated with receiving such information. I consider that, for the child at his age, the likely anxiety associated with having such information conveyed to him by the father is not an appropriate price to pay for receipt of “the truth” according to the father.
The father’s determination to ignore Dr H’s evidence and seek to rely only upon certain specific extracts of the report in isolation demonstrates an inability to move away from his previously expressed view that the mother suffers from a mental illness. As is the case with his belief about the existence of domestic violence in the mother’s household, the father seems incapable of reflecting upon and/or changing this view, even in circumstances where it is contradicted by professional opinion. In such a circumstance, I consider it more likely than not that the father will continue to expose the child to the expression of his opinion that the mother suffers from a mental illness. Continued exposure to such an opinion is, I consider, highly likely to distress the child, cause him confusion and, potentially, provide a basis upon which, as he ages, he may be influenced to discount his mother’s views.
I record that the 2007 Family Report notes that:
a)all three of the father’s significant relationships ended amidst allegations of domestic violence and applications for Domestic Violence Orders[40];
b)subpoenaed records associated with the father’s employment reflect a history of aggressive behaviour and lack of interpersonal skills and a theme of conflict and confrontation running through his dealings with agencies connected to the children[41].
[40] Paragraph 347, Family Report dated 31 October 2007.
[41] Paragraph 347, Family Report dated 31 October 2007.
Whilst the father had the support of Mr Olsen in the proceedings before me, I note that, at the time of the second Family Report – dated 30 April 2008 – Mr Olsen sought that J not be brought into contact with him. The subsequent consent order between the mother and Mr Olsen records their agreement about this. Despite this, Mr Olsen has permitted J to spend overnight time with the father and, on about 6 occasions in the last 6 months, the child has spent overnight time with J and Mr Olsen during his time with the father.
I am not persuaded by the argument that both men were simply following J’s wishes. I consider the father’s evidence about his knowing participation in non-compliance with the operative Order which restrained J’s parents from bringing him into contact with the father to be disingenuous and reflective of an overall approach to Orders that is, they are malleable, rather than static.
Whilst I accept Mr Olsen’s evidence that, when they met to discuss J’s time with her, the mother told him they should, in essence, not worry about the orders but leave matters in J’s hands so as not to place him under undue pressure, it is clear from his own evidence that there was no specific discussion between them at that time about the issue of J spending time with the father (Mr Potter). Additionally, it is clear that Mr Olsen continued to permit J to spend time with the father knowing his mother objected to this and that she insisted on the implementation of the operative clause of the 2008 Order which prevented this.
I consider it more likely than not that the father has actively acted to undermine the previously relatively co-operative co-parenting relationship which seemed to exist between the mother’s household and Mr Olsen’s household for a significant period after the 2008 Order was made. I accept Mr S’s evidence that prior to the most recent break-down of this relationship, the parties in the respective households were able to sit down – including over a beer – and sort matters about J out amongst themselves.
Unfortunately, more recently, Mr Olsen has unilaterally decided to enrol J at a particular high school without proper consultation with the mother and despite there being an order that his parents have equal shared parental responsibility in relation to major long-term issues relating to him. I can only express a sincere wish that, in J’s interests, those within the S and Olsen households work hard to return to their previously civil enough inter-relationship.
I accept Ms M’s evidence, contained within the September 2012 Family Report, that the mother presented as having endeavoured to include the father in important decisions about the child: for example a paediatrician’s appointment.[42] I further accept that the father’s decision to retain the child in his care in September 2011 appeared to have caused a fundamental breach in her trust of him. Obviously, his later determination to retain the child for six weeks in about April 2014 can only have served to further extinguish any remaining hopes for a rekindling of such trust.
[42] Paragraph 187, Family Report dated to 7 September 2012.
Whilst I accept Dr H’s evidence[43] to the effect that the mother has previously demonstrated an instability of interpersonal behaviour, a high degree of emotional volatility, impulsiveness, sensitivity to perceived rejection and a high level of interpersonal conflict, I note that the father entered into consent orders for the child to continue to live primarily with the mother after this report was prepared. Additionally, I consider that the mother appears to have been able to improve the manner in which she interacts with others since this report was prepared: for example, she and Mr Olsen were, for a relatively significant period of time in the circumstances of their co-parenting relationship, able to agree that J should spend more time in her care than was provided for in the 2008 consent order. Whilst things between them have now deteriorated again, I consider that this deterioration has been encouraged by the father’s actions in engaging with Mr Olsen.
[43] Contained in his report dated 21 August 2008.
In arriving at the conclusions I have, I take into account that, when speaking with Ms M in April 2008 (during the course of the preparation of the second Family Report), the mother expressed the view she was confident she and the father would “get things on track” such that the child would “always have both parents”.[44] That the mother has historically expressed such a view and has entered into consent orders which have provided the child with the opportunity to spend significant time with his father supports further the conclusion I have reached: namely that, absent the continuation of the father’s unfounded allegations that the child is at risk in her care and its associated risk to the child of continued exposure to the father’s unwaveringly belief to this effect, she would be supportive of the child having the opportunity to have an unrestricted relationship with his father.
[44] Paragraph 103, Family Report dated 30 April 2008.
I accept that the mother has remained the child’s primary carer and that she has ensured his needs have been met.

Is the father’s behaviour and/or approach to parenting the child likely to change in the foreseeable future?

The 2007 Family Report records Ms M’s conclusion that the father seemed focused on obtaining evidence against the mother[45] on the basis of a justification that he was trying to protect his children in a situation where he perceives “the system” had failed to do so.[46] She further concluded that the father was the “connection point” across the “inter-connected dispute” between the mother and Mr Olsen (J’s father)[47] and that it appeared the episodes of conflict primarily related back to him.[48] Ms M also considered that the difficulties between the mother and Mr Olsen had “magnified” since the father became allied with Mr Olsen.[49]
[45]         And the mother of his oldest child.
[46]         Paragraph 374, Family Report dated 31 October 2007.
[47]         Paragraph 393, Family Report dated 31 October 2007.
[48]         Paragraph 477, Family Report dated 31 October 2007.
[49]         Paragraph 478, Family Report dated 31 October 2007.
Given Mr Olsen’s involvement in the current dispute and his significant change of position – when compared to his attitude toward the father as recounted in the Family Report which preceded the 2008 consent orders restraining him and the mother from bringing J into contact with the father and the later improvement in the relationship between him (Mr Olsen) and the mother – there has seemingly been a repetition of the magnification of the difficulties between Mr Olsen and the mother as a result of the father’s rekindling of an alliance with and/or allegiance to Mr Olsen.
Additionally, as at 2007, Ms M concluded that the father did not present as having insight into the impact of his own behaviour, viewing his actions as justified.[50] Despite interventions he has undertaken over time, the father’s presentation at trial remained consistent with that which led Ms M to reach this conclusion – one which, I note, she affirmed in the September 2012 Family Report.[51] As he did in 2007, the father clearly viewed his actions in 2014 in retaining the child, failing to facilitate any communication of significance with the mother during this time and enrolling him in a different school as justified. Additionally, he had no apparent insight into the impact such decisions are highly likely to have had on the child in terms of a dislocation from the support of his mother’s primary care and from the familiarity of his school environment: matters which are highly likely to have caused him both confusion and destabilisation.
[50] Paragraph 396, Family Report dated 31 October 2007.
[51] Paragraph 175, Family Report dated 27 September 2012.
In September 2012, Ms M recorded that the father remained “adamant” that the child was at risk in his mother’s household and viewed him as needing his protection.[52] Nothing has changed.
[52] Paragraph 84, Family Report dated 27 September 2012.
Additionally, Ms M was then concerned to note that the father pressed the child during her interviews with him to disclose information about Mr S. I accept her evidence that this represented an emotional pressure on the child and unnecessarily exposed him to matters of conflict.[53]
[53] Paragraph 189, Family Report dated 27 September 2012.

The father’s attitude to existing Orders

The father was well aware of the term of the 2008 Order entered into by consent by the mother and Mr Olsen which restrained each of them from bringing J into contact with him.
The circumstances surrounding such an order are given context by reference to the contents of the 2007 Family Report in which Ms M expressed her opinion that during the August 2007 Family Report interviews J presented as fearful of the father, leading her to conclude from his reaction that he would not cope in an unsupervised session with him – she considered that a change in circumstances to where he was spending weekend time with the father would not work for him at that time.[54]
[54] Paragraph 450, Family Report dated 31 October 2007.
The third Family Report records that the father told Ms M that he had enrolled the child in the same soccer club J attended and that he noted that the 2008 orders do not “exclude” him seeing J, but provide that neither parent brings J into contact with him.[55] He maintained this position before me and sought to minimise his role in the facilitation of non-compliance with an existing Court order.
[55] Paragraph 45, Family Report dated 27 September 2012.
This attitude and the two previous occasions on which the father has failed to return the child to his mother’s care in compliance with the then operative parenting Order persuades me it is highly likely that, absent the imposition of supervision over the child’s time with him, the father will in the future again determine simply to ignore the terms of an order regulating the child’s parenting arrangements.

Whether it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the child

Having reflected on the previous proceedings between the child’s parents, and the likely impact upon the child of a continuation of litigation – whether immediately or at an indeterminate time in the future – I am left in no doubt whatsoever that in this case it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the child.
Unlike many others, the child’s parents have had the experience of attempting to implement the terms of previously agreed Orders. Whilst they have seemingly been able to abide the terms of these Orders for periods of time, I have concluded that the periods during which proceedings have not been brought are mere interludes in the father’s ongoing determination to ensure either that the child lives predominantly with him or, in circumstances where the child’s opportunity to interact and continue a relationship with Mr S is completely removed, the child lives for an equal amount of time with each of his parents.
I have concluded that the father’s determination to undermine and destabilise the child’s relationship with both his mother and Mr S remains unabated. His actions in taking the child to a medical practitioner in August 2014 demonstrates an ongoing willingness to expose the child to medical intervention in circumstances where the child himself seemingly had no recollection of any particular event occurring whilst he was in his mother’s care.
I am persuaded that such action, which occurred after the Court ordered the father to return the child to his mother’s care, amounts to a deliberate attempt to manufacture “evidence” intended to be supportive of his case that the child live primarily with him.
Additionally, the father’s approach to the issue of whether the child is at risk of harm in his mother’s care has now reached a point where he is prepared to rely upon an absence of complaint by the child as evidence that the child is too intimidated to make any complaint: as he candidly admitted during cross-examination, it does not matter now what the child says about whether he has suffered any injury from the mother or Mr S.
This matter has reached the point where the father is unable to accept the child’s positive assertions that nothing harmful happened to him whilst in the mother’s care. He is, I think, determined to conclude – irrespective of whether there is a complaint, an absence of complaint and, importantly, a positive assertion that there is nothing to complain about – that the child is at risk during his time with the mother.
There is nothing in the father’s behaviour or contained within his submissions made at the conclusion of the evidence to suggest that he has, in any way, reflected upon his behaviour. He appears as resolute now as he was in April 2014. The passage of time has not resulted in any diminution of his firm belief that his actions in failing to abide the terms of the consent order, removing the child unilaterally from his school and enrolling him unilaterally in a another school were entirely justified.
The father’s determination to withhold the child and retain him in his care, without affording to him the opportunity to spend time and/or communicate with his mother, for a period of approximately six weeks in mid-2014 arose in circumstances where he had previously been clearly and authoritatively informed about the possible consequences of such an action: during the course of the hearing on 9 November 2011, Murphy J said, during discourse with the mother:
Because I can tell you now – I can tell you now, that subject to any extra ordinary emergency if [the father] takes the child again he will be in jail, because he will be in contempt.
….
And I will be giving [the father] or warning about that in a moment.
…
Despite this clear admonition and clear explanation of the severity of the consequences for him if he determined to act unilaterally, the father acted to withhold the child, contrary to the terms of the operative Order, in mid-2014. As he had during his initial interviews with Ms M in 2007, the father continued to justify his actions during the course of the trial.

Parental dynamics

The father’s attitude toward the mother, as long ago as September 2007, can be seen from an email he sent to Mr Olsen at that time.[56] It is sufficient to note that its contents rebuked Mr Olsen, asserted that he “sanctioned” the mother’s “abuse” toward J and his (the father’s) children and expressed the view that “YOU DO NOT NEGOTIATE WITH CHILD ABUSERS” (reproduced as appearing in email).
[56] Paragraph 43, Family Report dated 30 April 2008.
At the time of the interviews for the 2007 Family Report, the father strongly maintained that the mother had been harming “the boys” (which included the child) whilst the mother, who insisted she had not harmed her sons, viewed him as behaving irrationally and in an excessively aggressive manner. At that time, Ms M considered that:
a)this “fundamental issue between them prevents them communicating and co-operating.”[57];
b)the degree of the father’s distrust prevented him from effectively communicating or co-operating with the mother;
c)the father presented as fighting against “them” (the mother and the mother of his oldest son) rather than able to consider working with them.[58]
d)the mother and father had demonstrated that they were unable to effectively communicate with each other such that there was no co-operation between them.[59]
[57]         Paragraph 371, Family Report dated 31 October 2007.
[58]         Paragraph 374, Family Report dated 31 October 2007.
[59]         Paragraph 475, Family Report dated 31 October 2007.
The 2008 Family Report records Ms M’s conclusions – which I accept – that, at that time, the “mother and father have demonstrated an inability to work together and an inability to effectively share parental responsibility.”[60] Further, in the third Family Report Ms M opined that the adults had “amply demonstrated” an inability to parent together.[61]
[60] Paragraph 110, Family Report dated 30 April 2008.
[61] Paragraph 173, Family Report dated 27 September 2012.

Such conclusions were reiterated by Ms M in the January 2015 family report where she restated her opinion that the child’s parents are not able to communicate effectively and present as unable to make joint decisions for him.[62]
[62] Paragraph 156, Family Report dated 12 January 2015.

Parental responsibility

When making a parenting order I am bound to apply a presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him. This presumption is rendered inapplicable by matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him.
The father has previously been convicted for assaulting the child’s half-brother, N, when he was about six weeks of age. Whilst he pled guilty to the charge, and received a suspended sentence of imprisonment, he has subsequently maintained that he was not responsible for the fractured leg which N sustained.
It is an accepted fact that, in the past, the father acted in a domestically violent manner toward the mother: the 2007 Family Report records that there is “clear evidence” of domestic violence between the father and mother, with “two particularly nasty incidents – in July 2006 and August 2007” and also a “clear trail of the cycle of domestic violence attached to their relationship.”[63]
[63] Paragraph 480, Family Report dated 31 October 2007.
The consequence of the above is that the presumption does not apply. Even if it did, I have no hesitation in concluding that the relationship between the child’s parents is such that it would not be in the child’s best interests for them to have equal shared parental responsibility for him.
As long ago as 2007, Ms M opined it was evident, at that time, that the father and mother were “unable to cooperate or communicate” and did not have a co-parenting relationship.[64] Whilst encompassing other parties as well as the child’s parents, the April 2008 Family Report records Ms M’s conclusion that:
The parents in this matter have continued to demonstrate that they are unable to effectively communicate or co-operate. These parents do not present as able to co- parent or to share parental responsibility. In this situation it seems that the least problematic outcome for the children would beef the parent they are living with two have sole parental responsibility. However, that parent should still ensure that relevant information about the child’s progress is relate on to the other parent.
[64] Paragraph 397, Family Report dated 31 October 2007.
One need only have regard to the fact that the mother told Ms M in December 2014 that she was not prepared to be in the same room as the father to conclude that nothing has changed in the intervening period and that any capacity for the child’s parents to communicate or cooperate in a manner necessary to make decisions jointly about major long term issues relating to him has long since evaporated.
Lest it be thought that the mother is the only party who has demonstrated an unwillingness to communicate and/or cooperate, it is uncontroversial that previous attempts at mediation between the parties failed to eventuate because the father would not accept the mother’s proposal that such process occur by way of “shuttle” mediation: instead, he insisted the parties should be present in the same room. His unwillingness to compromise about the manner in which the parties could meet to engage in a process designed to facilitate agreement and resolution about parenting issues is a clear demonstration of both his determination to seek to control the interactions between the parents and his unwillingness to compromise.
I accept Ms M’s evidence and opinions as contained within the most recent Family Report. In particular I record her assessment contained within par [156] of the same:
All the information collated for the current Family Report leads to an assessment that [the father] and [the mother] remain unable to co-parent. They are not able to communicate effectively and they present as unable to make joint decisions for [the child]. Currently they are parallel parenting in that each is parenting [the child] in their household according to their wishes and independently of what is happening in the other household. This leaves [the child] in the difficult position where he has to make adjustments as he moves between the households rather than his parents smoothing the way for him. It also places [the child] in a position where he is the conduit of information rather than the parents checking information with each other at an adult level.
Regard need only be had to the fact that, in her initial reports, Ms M assessed that the adults had demonstrated an inability to work together and an inability to share parental responsibility effectively. Whilst she was then referring to J’s father and his paternal grandparents as well as the mother and the father, such opinion remains relevant today and I accept it.
I accept Ms M’s assessment, as recorded in the April 2008 Family Report, that, at that time, the child’s parents did not present as able to negotiate equally.[65] Whilst it may well be that the “considerable power imbalance” which she regarded as evident at that time no longer exists, I am left with no doubt whatsoever that the child’s parents remain unable to negotiate matters relevant to him.
[65] Paragraph 167, Family Report dated 30 April 2008.
In summary, the contents of the four Family Reports in which the child has featured provide a clear evidentiary foundation for the conclusion – which some may describe as ‘blindingly obvious’ – that there is absolutely no prospect at all that the child’s parents will be able to communicate and co-operate sufficiently to make decisions jointly about major long terms issues relating to him. On the longitudinal evidence, any other conclusion would, in my opinion, be perverse.

What orders are in the child’s best interests?

I accept and place particular weight upon the contents of the most recent family report prepared by Ms M. Her long-standing involvement in this matter persuades me that particular weight should be given to the opinions she has expressed.
I consider that the child’s best interests will be met by an order which sees him continue to live with the mother. She is the parent from whom he has received his primary care thus far. I consider that she is also the parent who has demonstrated a greater capacity to support the child in his relationship with his father, than the father has demonstrated in supporting the child in his relationship with his mother.
As long ago as the April 2008 report, Ms M raised concern about the father’s ability to facilitate the other parent’s roles in his children’s lives. I am confident in concluding that, if the child were to live primarily with the father, the father would be unable to restrain himself from undermining the child’s relationship with the mother. He has already acted to inform the child that his mother is “sick” in circumstances where there is no objective basis for such assertion. He clearly thinks that the child is at risk in the mother’s care and clearly thinks the child should not have any relationship with Mr S into the future. One need only have regard to the particulars of the orders that he seeks to arrive at such conclusions.
I consider that, in stark contrast to the father’s actions, the mother demonstrated the capacity to focus upon the child’s interests and needs when she determined not simply to turn up at Q School and remove him. I accept that she acted as she did – not because she did not want the child to return to her primary care – in an attempt to shield the child from the confusion and the conflict which it is highly likely would have followed such action.
Additionally, the father’s actions in persisting to seek an order that the child attend at different schools whilst in the care of each of his parents is a clear manifestation of his inability to focus upon matters from the child’s perspective. That a parent with a child who is already struggling educationally would proffer such an order and justify it on the basis that it is no different to the child spending time in each of his parent’s households reveals a significant deficit in parenting capacity. The father could not see that the child would suffer educationally and socially if required to participate in such a regime. That he could not do so causes significant concern vis-a-vis his future ability to act so as to meet the child’s emotional and educational needs.
I am well persuaded that the father has demonstrated a capacity and willingness to act manipulatively to undermine the relationships which have existed over time between the child’s siblings’ parents: for example, as long ago as the interviews for the April 2008 Family Report, the mother told Ms M that the father had told her that Mr Olsen’s wife bought drugs when they were out one night, a matter which surprised the mother as she “thought [Ms Olsen] wasn’t like that.” The provision of this information can only have acted to undermine the relationship between the mother and Ms Olsen.
Additionally, I consider that he has inveigled his way into the more recent relationship between Mr Olsen’s household and the mother’s household, with the subsequent consequence that the previously cooperative enough relationship between them has now evaporated. He has, I consider, been able to influence Mr Olsen to the extent that he – a person who told Ms M during the preparation of the 2008 Family Report that the father had reacted with unnecessary force and displayed a lack of self-control in his work in a security position[66] and who sought and consented to an order preventing J’s parents from allowing him to come into contact with the father – has permitted J to spend overnight time with him.
[66] Paragraph 152, Family Report dated 30 April 2008.
That the father has done so in the context where Mr Olsen (and his parents) independently expressed concern to Ms M in April 2008 that the father’s then reconciliation with the mother may have been part of an overall scheme in which he may have been manipulating to create a situation whereby he “removed” her children from the mother, is a testament to and demonstration of his capacity for persuasion.
As Ms M identified in her previous reports, the father is the common denominator in the waxing and waning relationships between the adults with whom he interacts. He has historically been the “central person” in all of the disputes between adults associated with the care of the child and his siblings. There is no indication that anything has changed or that, in the future, he will be able to moderate his interactions.
The father clearly opposes any reduction in the child’s time with him. He points to the fact that, historically, the child has spent time with him for five nights per fortnight and half of the school holiday periods. In submitting that the child would be devastated if there was a significant or any reduction in the time they spend together, he emphasises that the child has a close and established relationship with him and loves him and enjoys the time they spend together.
Whilst I accept that it is much more likely than not that the child will suffer a sense of grief and loss if there is a reduction in the time he spends with his father into the future, I also accept the tenor of Ms M’s evidence that the long term consequences for the child of failing to take this course at this time are more significant and detrimental than any short-term effects are likely to be.
As noted above, I have reached the conclusion that the father’s behaviour and attitude in making ongoing allegations that the child is exposed to or at risk of domestic violence whilst in the mother’s care is more likely than not to continue into the future. There is, I consider, more than sufficient evidence to support the conclusion I have reached that the father is manipulative, disingenuous and has demonstrated an approach to parenting that is highly undermining of the child’s relationship with his mother.
I accept that it is more likely than not that as the child continues to age, his appreciation of his father’s attitude toward his mother will increase. He will, I consider, become more susceptible to his father’s influences with the likely consequence of instability. I have no hesitation in concluding that the father would support the child in any criticism he (the child) may express about his mother’s approach to parenting. Given the father’s past actions, I have no hesitation in also concluding that the father is likely to act to restrict the child’s time and interaction with the mother should such criticism be made.
Whilst I fully appreciate the undesirability of a long term supervision order, I record my acceptance of Ms M’s evidence that, in this particular case, every other permutation of co-parenting orders has been implemented without success. The child remains at significant risk of emotional harm if he continues to be exposed to the impacts of his father’s manipulative and undermining parenting. Absent supervision, he remains at risk of a repetition of his father’s previous determinations to act contrary to the terms of agreed orders and simply retain him in circumstances where there has been no justification for such an approach.
For these Reasons, I have reached the firm conclusion that the only way in which the child can be protected from the impacts of an ongoing cycle of conflict and manipulation is to restrict his time with the father to supervised time.

The father’s attitude to supervision

A perusal of the Reasons delivered by Murphy J on 3 February 2012 in relation to Applications for parenting orders for the father’s son, N, reveals that at that time the father expressed that, in the event orders were made imposing supervision over his time with his son N, he would not under any circumstances avail himself of that time.
His attitude, as recorded in paragraph 7 of the Reasons delivered that day, is “that is a measure to be taken usually for people who have been in jail for a long period of time. I am in no way an inmate in jail” – Murphy J records his evidence that he will not be treated in a similar manner.
Whilst it is, perhaps, unnecessary given the father’s evidence during cross-examination that he would attend at supervised time with the child if that was ordered, I echo the sentiment expressed by Murphy J[67]: “contrary to what the father asserted then, supervised time is by no means confined to circumstances in which a party “is in jail” or has been convicted of criminal offences.”
[67] Paragraph 38 of the Reasons for Judgment delivered 3 February 2012.
In this case, I have concluded that supervision of the father’s time with the child is the only option which is in the child’s best interests. It will enable the child to maintain a relationship with the father – albeit a more restricted one than he has previously enjoyed – whilst protecting him from the destabilising influence of his father’s manipulation and the likely significantly detrimental long-term impacts on him, as recounted by Ms M, of continued exposure to the conflict between his parents.
Given the father’s deliberate failure to lodge a tax return which would to his knowledge, result in an extinguishment of his child-support debt, the mother has been left to meet the costs associated with the child’s care absent the support of the father’s assessed child-support contribution. In such a circumstance, I consider it is in the child’s best interests that, until the child-support debt is extinguished, the father should meet all of the costs, save for the costs of intake sessions, associated with the child’s supervised time with him. In that way, I can be confident that the child will not suffer detriment because of a requirement that the mother divert financial resources used to support him to meeting supervision costs in circumstances where the father has determined not to meet his assessed obligation.
Any order for telephone communication between the child and the father is contra-indicated by the findings I have reached and outlined above. Unsupervised communication would provide the father with ample opportunity to seek to undermine the mother’s parenting of the child and, perhaps, attempt to influence him to act to remove himself from her care.
Whilst I have given consideration to not requiring the child’s mother to consult in any way with the father about decisions to be made in relation to long term issues relevant to the child, I have ultimately determined that it is in the child’s best interests for his father to be afforded an opportunity to provide input into such decisions. The orders I make will afford him that opportunity but will also accord to the mother the ultimate responsibility for making the decision. In that way, the father’s opinion about such issues can be taken into account.
I have also determined that an order requiring the mother to forward to the father a copy of the child’s school reports is an order which is in his best interests. In that way, the father will remain cognisant of the child’s progress at school and will be able to engage with him in a meaningful way about his education during their supervised time together.
Whilst it is usual to make a series of “standard” orders in relation to the provision of information by schools and medical practitioners to each parent, the history of this case and the conclusions I have reached about the potential for the father to manipulate the use of such information in a way that is harmful to the child persuades me that such orders are not in his best interests.
I consider that an order which accords to the mother sole parental responsibility for the child with the obligation to inquire of the father and seek his views about decisions relating to any major long term issues and to take his response into account when making such decisions is an order which is in the child’s best interests. In that way, the significant risk of the impact on the child of a highly likely parental impasse about decisions about major long term issues relating to him will be ameliorated and the significant possibility of future conflict between his parents arising out of the necessity to attempt to reach such decisions jointly will be eliminated. His father will be able to have input into decision to be made about the child, but the decision will ultimately be made by his mother, the parent with whom he has primarily lived throughout his life.

I certify that the preceding on hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 January 2015.

Associate:

Date: 30 January 2015

[2015] FamCA 26

30 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Res Judicata