Poynton and Poynton (No 2)

[2014] FamCA 817

FAMILY COURT OF AUSTRALIA

POYNTON & POYNTON (NO. 2) [2014] FamCA 817

FAMILY LAW – CHILDREN – Orders by Consent – Order that eldest child live with the mother – Order that mother have sole parental responsibility for the eldest child – Order that eldest child spend time with father in accordance with child’s wishes – Order that eldest child and youngest child spend time together and communicate with one another.

FAMILY LAW – CHILDREN – Orders by Determination – With whom youngest child shall live – With whom youngest child will spend time – With whom youngest child will communicate – Where parents have been enmeshed in a conflictual relationship – Allegations of family violence – Where the youngest child is not currently spending time with the mother and there is a strained relationship – Orders for a change of residence – Order that youngest child live with the mother – Order that child spend time with and communicate with the father – Where presumption of shared parental responsibility is rebutted in the circumstances of the case.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65L

APPLICANT: Ms Poynton

RESPONDENT: Mr Poynton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 642 of 2011

DATE DELIVERED: 26 September 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2, 3, 28, 29 & 30 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

Orders

Previous Parenting Orders

1. All previous parenting Orders in respect of the children E Poynton born … 1999 (‘E’) and B Poynton … born … 2001 (‘B’) be are discharged as and from this date.

Consent Parenting Orders relating to the child E

1. BY CONSENT Ms Poynton (‘the Mother’) shall have sole parental responsibility for E.

2. BY CONSENT E live with the Mother.

3. BY CONSENT E spend time with Mr Poynton (‘the Father’) in accordance with her wishes.

4. BY CONSENT E and B spend time with each other as follows:-

   a.subject to E’s work commitments, and E and B’s agreement, on Fridays at 4.30pm and Sundays on a time to be agreed; and

   b.E and B communicate with each other via email and telephone.

5. BY CONSENT the Mother and Father must facilitate the time as referred to in Order 5.

6. BY CONSENT the Father is to provide B a mobile telephone for the purpose of Order 6.

Determined Parenting Orders as to residence and parental responsibility relating the child B

1. The Mother have sole parental responsibility for B. 

2. Prior to making a significant decision about any such issue of parental responsibility the Mother shall:-

   a.      use her best endeavours to advise the Father in writing of the decision intended to be made;

   b.      seek the Father’s response in relation to thereto;

   c.      consider by reference to the best interests of B any such response prior to making any such decision; and

   d.      advise the Father in writing as soon as reasonably practicable of her ultimate decision.

3. B shall live with the Mother.

4. The mother is restrained by injunction from:-

   a.    allowing B to live in the same house as Mr C for a period of two weeks from the date of these Orders; and

   b.    allowing B to come into contact with Mr C for a period of two weeks from the date of these Order, unless it is recommended by the Family Therapist. 

Determined Parenting Orders as to time changeover, time and communication between and the child B and the father

1. Pursuant to s 65L(1)(b) of the Family Law Act 1975 (‘the Act’) so as to give effect to these Orders the Mother shall collect B from school and present him to the Family Consultant on the date these Orders are made for the purpose of the Family Consultant explaining the nature and effect of these Orders to B.

2. The parties will do all acts to enable B to communicate with the Father by the Father calling B’s telephone as follows:-

   a.      for the period up to 14 November 2014 the father shall have no telephone communication with B; and

   b.      thereafter, B shall have telephone communication with the Father each Tuesday, Thursday and Saturday at 4.00pm.

3. B will not spend any time with the Father from the date of these Orders until the Friday 14 November 2014.

4. Commencing from Friday 14 November 2014 B spend time with the Father as follows:-

   a.      During school term each alternate weekend from after school or 3.00 pm if a non-school day until start of school the following Monday;

   b.      During school term from 2015 onwards such each alternate weekend times to commence on the second Friday after the commencement of the school year and first Friday after the commencement of each of the mid-year school terms;

   c.      For the first seven (7) days of the mid-term school holiday periods;

   d.      A week about basis during the summer school holiday period subject to the Christmas Day arrangements set out elsewhere in these orders;

   e.      B to be returned to the care of the mother 3 (three) days before the commencement of the school term at the commencement of each year;

   f.       The Father is at liberty to communicate with B by sending cards, letters and gifts to him care of the Mother’s postal address after Friday 14 November 2014;

   g.      Notwithstanding any other provision in this Order, B will live with the mother:-

   i.On the mother’s birthday, if it falls on a non-school day from, 10.00 am until 4.00 pm and otherwise on school days from 5.00 pm until 8.00 pm;

   ii.As to Mother’s Day, from 5.00 pm on the Saturday immediately before Mother’s Day until the commencement of school the following Monday; 

   iii.On E’s birthday, from 10.00 am until 4 pm if a non-school day and from 5.00 pm until 8.00 pm if a school day;

   iv.From 3.00 pm Christmas Day until 5.00 pm Boxing Day in 2014 and each alternate year thereafter;

   v.From 5.00 pm on Christmas Eve until 3.00 pm Christmas Day in 2015 and each alternate year thereafter.

   h.Notwithstanding any other provision in this Order B shall spend time with the Father: -

   i.On the Father’s birthday, if it falls on a non-school day from 10.00 am until 4.00 pm and otherwise on school days from 5.00 pm until 8.00 pm;

   ii.As to Father’s Day, from 5.00 pm on the Saturday immediately before Father’s Day until the commencement of school the following Monday;

   iii.From 5.00 pm on Christmas Eve until 3.00 pm Christmas Day in 2014 and each alternate year thereafter; and

   iv.From 3.00 pm Christmas Day until 5.00 pm Boxing Day in 2015 and each alternate year thereafter.

   i.In the event the mother or father is not otherwise spending time with B on his birthday that parent will spend time with him for three (3) hours after school if the birthday is a school day or 9.00 am to 12.00 noon on his birthday, if it falls on a weekend or non-school day.

   j.When B is spending time with the Father he shall have telephone contact with the Mother each Monday and Thursday at 8.00 pm.

   k.Other time as agreed between the parties.

Generally

1. For the purpose of changeover, unless otherwise agreed, the Father will collect B from the Mother’s house or school (whichever is the appropriate place given the Order) at the commencement of time and the Mother will collect B from the Father’s home at the conclusion of time.

2. The parties shall ensure that B remains enrolled at N High School until the end of the 2014 school year or such earlier time as the Principals of N High School and Y High School jointly recommend, after which time the Mother may enrol B at Y High School.

3. Neither party shall denigrate the other party or members of their family nor permit any other person to do so in the presence or hearing of either E or B.

4. BY CONSENT neither the mother nor the father shall physically discipline B and each shall ensure that no other person shall physically discipline B.

5. BY CONSENT the parties, be and are restrained from raising or discussing with or in the presence of B at any time prior to him attaining eighteen years the evidence subject of these proceedings.

6. BY DETERMINATION and BY WAY OF INTERIM ORDER;

   a.    the father is restrained from approaching or contacting the child at home or at school or otherwise as and from 10.00 am on 26 September 2014 until 14 November 2014; and

   b.    leave is granted to either parent or the Independent Children's Lawyer to apply in respect of this Order on the giving of 24 hours’ notice to the other parties and the Court.

7. Each party shall advise the other as soon as practicable of any significant medical needs or concerns involving B.

8. The mother (and any other parties as deemed appropriate by the counsellor) shall attend counselling with B at Z Psychology (or if that group are unable to assist, such other counsellor as is recommended by Dr D) on an ongoing basis at such frequency and intervals as recommended by the counsellor and further abide by any reasonable directions as be made by the counsellor as he/she considers necessary to facilitate the counselling for B.

9. As soon as is reasonably practicable the Mother, B and Mr C shall attend “family counselling” on an ongoing basis at such frequency and intervals as recommended by the facilitator of such counselling and further abide by any directions as be made by that person as he/she considers necessary for the purpose of B’s transition to live with the Mother.

10. The Mother be permitted to provide any treating psychologist or counsellor that B may attend with copies of Dr D’s reports dated 19 June 2012 and 17 June 2014 and when available this order and the reasons for decision for the orders.

11. BY CONSENT the Mother shall facilitate the appropriate management and treatment of B’s allergies.

12. The Father is authorised:-

    a.      to contact B’s school about B and to obtain (at his own expense) copies of any school reports, photographs and newsletters in relation to B; and

    b.      to contact any medical practitioner or associated professional, including any counsellor who treats B about B.

13. The parties be and are restrained from providing any document prepared for the purpose of litigation to any disciplinary tribunal (however so called) without first seeking leave of the Court.

14. Pursuant to s 65DA(2) and s 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15. All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

16. Following the expiration of the appeal period, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

17. The appointment of the Independent Children’s Lawyer’s is discharged upon the expiration of the appeal period in respect of these orders or the hearing of the appeal.

It is certified

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Notations

1. The Court notes the formal undertaking given by Mr C on 30 July 2014 that he will not to physically discipline B nor threaten to physically discipline B.

2. The Court directed the Independent Children’s Lawyer to inform B of that undertaking.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Poynton & Poynton 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 HOBART

FILE NUMBER: HBC 642 of 2011

Ms Poynton

Applicant

And

Mr Poynton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Sometimes parents are so caught up in their own lives (including anger, animosity, bitterness, self-righteousness and conflict) that they lose sight of and damage the emotional and psychological health of their children.

2. In some of these families, even when the parents are shown what damage they are inflicting on their child or children and the pathways to avoid or mitigate such damage, they fail to act and they continue that behaviour with the consequential emotional damage to their child or children.

3. This is such a case.    

4. The child B celebrates his 13^th birthday in September 2014.  He is undertaking his first year at high school and is commencing that difficult period of adolescence where he is transitioning from being a child to becoming an adult.  It is a time that he should be wholeheartedly supported by his parents, Ms Poynton (‘the mother’) and Mr Poynton (‘the father’).  However, for B this is not the case. 

5. The child’s parents separated some years ago and the mother has partnered with Mr C.  The father is obsessed with Mr C and these adult men have been in conflict since 2011.  Each of the parents and their supporters blame the other parent and his or her supporters. The father and the mother’s partner intensely dislike each other and the parents dislike each other. 

6. It is a volatile mixture which has maintained the high level of conflict for over three years.

7. The father detests the mother.  He told the Single Expert that he would not “piss on her if she was on fire”.  He continues to adhere to that view, irrespective of the damage it causes B.  The father has kept the child away from the mother and his sister.  Sadly the father has been aided and abetted in this enterprise by B’s paternal grandparents, who ought to know better and who ought to support their grandchildren in having a relationship with both parents.  The father has taken no meaningful steps to address that separation despite being informed over at least two years that it was having and adverse impact upon B.

8. Mr C (the mother’s partner) has been aggressive and abusive towards the father and in earlier times towards B.  The mother’s partner has inflamed the conflict by verbal abuse of the father, giving him ‘the bird’ doing ‘wheelies’ in the street and endeavouring to intimidate the father.  Mr C did not succeed in intimidation of the father but he has prolonged the conflict.

9. The mother has facilitated some time between the elder child of the parties, E, and her paternal grandparents, but has not tried too hard.

10. The father and the mother’s partner separately have each used technology to collect audio and visual records to fuel their conflict, regardless of the detrimental impact on the children.    

11. The child B lives with his father.  Sadly, B has little time or communication with his mother or sister, with whom he shares a close and loving relationship.

12. Sadly, E has no meaningful relationship with her father and at this time she seeks no such relationship with him. E is aged 15 years.

13. These proceedings are about the parenting arrangements for the child B.

14. A summary of the conflict is provided in the evidence of Dr D (‘the Single Expert’).

15. When the Single Expert first met the children in 2012 she described them as being:-[1]

    [[B]] was good humoured and relaxed and moving happily between the parties, making arrangement with his father, mother and sister for different activities.  [E] was reserved around her father but had a strong sibling attachment to her brother.

    [1] Paragraph 20 Single Expert -  report June 2014.

16. Yet her evidence after seeing B in May 2014 was:-[2]

    [[B]] already has a chronic anxiety disorder [emphasis added] that is worsening through these proceedings.  He is socially isolated, in some respects.  He is not having the benefit of a female role model at the moment, in terms of maternal influence or his sibling relationship, so the absence of all of those things place increasing importance on school and influence of his friends – their influences over him.  He’s gravitating towards BMX and skate park in the [local] area, which, as – can be a very healthy activity for a boy of his age, but also can place him in – at risk, in terms of antisocial behaviour in those areas and, with increasing independence, it places him at increased risk of getting involved in those sorts of activities. 

    [2] Transcript of Evidence of Dr D of 2 July 2014, page 39 line 7.

17. I accept the evidence of the Single Expert that the aggression and confrontational behaviour of the adults has been an emotional burden endured by B.

18. Of Mr C the Single Expert said:-[3]

    ... [The mother’s partner’s] responses still showed features of anti-social personality traits, grandiosity, and tendency towards verbal aggression. His responses reflect that he feels resilient in the face of stress, and that he has an extraverted interpersonal style. His anger profile indicated that he is more likely to express anger outwardly towards others, than to supress anger and direct it towards himself.

    [3] Paragraph 86 Single Expert - report July 2012.

19. In respect of the father, given my assessment of his evidence and that of the other witnesses, which is described later in these reasons, I find that he has inculcated B with his (the father’s) obsessive dislike of the mother’s partner and of the mother’s relationship with him.  The Single Expert observed:-[4]

    102.Unfortunately, [the fathers] obsession with [the mother’s partner], albeit grounded in reality-based concerns, has psychologically harmed his children. Both of the children have been drawn in a situation where they have had to choose between their parents, and been operationalised as informants by [the father] with the assistance of his [then partner]. [The father] completely lacks insight regarding how harmful this process has been.

    …

    104.… His [the father’s] interpersonal style may be described as domineering and over-controlling. His profile is indicative of an individual who has a strong need to control others and expects respect and admiration in return. His profile reflects he is likely to have little tolerance for people who disagree with his plans and desires.

    [4] Single Expert report July 2012.

20. The Single Expert hoped that her reports would assist the mother and father to understand the impact of their behaviour on the children.  In an effort to resolve the conflict and to provide relief for both of the children, interim consent orders were made in May of 2013 to enable the rehabilitation of the relationship between the parents and the children.  That endeavour failed.

21. Unsurprisingly, the father asserted that the blame for that outcome lay entirely with the mother and her partner.

22. Another endeavour was made during the course of this hearing in July 2014.  That endeavour likewise failed. 

23. The parents are aware that the child B runs the risk of the possibility of early interaction with the police and/or the criminal justice system, maladaptive coping strategies in terms of drug and alcohol and self-harm.  That fact has not altered their behaviour.

24. The options open to the Court are limited and are all high risk.  They include:-

    a.    Leaving the child in the current circumstances of which the Single Expert says cannot be sustained given the significant detrimental impact on the child’s psychological health 

    b.    Ongoing endeavours to establish contact between the child, his mother and his sister.  This is in circumstances where the father, given his inflexible views of the mother and her partner, will undermine B’s contact with the mother and his sister.  Given that the mother will continue in her relationship with her partner, and as a consequence this course is likely to fail.

    c.    Taking the step of changing the child’s primary residence by moving him from his father’s care to that of his mother.  In the context of B’s age and maturity, there is a strong risk that the child would not accept that outcome.  The evidence of the Single Expert is that this approach can only work if it has the support of both parents.  It is unlikely to have the support of the father.

1. B was closely aligned to his sister E and wants a sibling relationship with her as she does with him.  The mother was B’s primary attachment figure and I accept the evidence of Single Expert that this relationship needs to be restored.

2. For ease of reading by the parties, I have placed this summary at the commencement of the reasons, although it was considered and concluded at the end of the determination process.  

THE ISSUES

1. At the commencement of the hearing on 2 July 2014, the parties and the Independent Children's Lawyer agreed that the mother should have sole parental responsibility for E and that E spend time with the father as she alone determines.  Given the circumstances, including the age and maturity of E, consent orders were made to that effect.  These included specific orders for E and B to spend time and communicate with each other.  I have repeated those orders in the orders following these reasons for the convenience of the parties so that all parenting orders are contained in one document.

2. The primary issues relate to the child B and in particular:-

   a.where he should reside;

   b.who should have parental responsibility for him;

   c.his interaction, if any, with the mother’s partner; and

   d.the time he spends with the other parent and the extent and nature of any communication.

3. There are numerous issues of fact and a fundamental issue as to how orders can be structured to minimise further psychological trauma to the child and to enable him to have a relationship with both of his parents and his sister.

4. The Independent Children’s Lawyer correctly submitted that there were ten findings which would assist in the determination of these proceedings namely:-

   a.The weight to be attributed to the evidence of the Single Expert;

   b.The views of the child and the weight to be given to those views;

   c.The nature of the relationship between the parents and the child, including the parent’s attitude to the child in respect to parenting responsibilities;

   d.The separation of siblings on the basis that there were consent orders that B live with the mother and the approach adopted by the father;

   e.The father’s attitude to B’s relationship with the mother and E, the importance of those relationships and the father’s preparedness to facilitate and encourage those relationships;

   f.The mother’s attitude to the child’s concerns surrounding Mr C;

   g.The physical and psychological stress of moving the child from an environment which is known to be one of uncertainty including one which he may resist, the emotional legacy of separating the siblings and the impact of their emotional and psychological well-being;

   h.The orders which are most likely to lead to the child having a relationship with his sister and both of his parents;

   i.The orders least likely to lead to further litigation; and

   j.The practicability of imposing orders with which the child may refuse to comply with.

5. At the conclusion of the evidence the mother sought almost identical orders to those sought by the Independent Children's Lawyer. The difference between the two was that the Independent Children's Lawyer recommended a moratorium on the time the child spends with the father to the amount of four weeks and the mother sought a longer period of time.

6. The Independent Children's Lawyer recommended and submitted that the court should make orders set out in Exhibit “ICL18”, which are:- 

   a.The mother have sole parental responsibility for B, subject to her keeping the father informed and seeking his views in respect of significant issues;

   b.The child live with the mother;

   c.A changeover of residence immediately upon the making of the orders, with a s 65L Order to require a Family Consultant to help facilitate the changeover process. The Independent Children's Lawyer and mother sought orders that the father collect the child from school on the day the orders are made and bring him to a counsellor;

   d.A moratorium on time with the father;   

   e.The child spend time with the father for half of the school holidays and each alternate weekend from 6.00pm Friday until 4.00pm the following Sunday; 

   f.Orders in relation to special occasions such as Christmas, Easter and birthdays;[5] 

   g.There be a period immediately after the Orders that the child have only limited telephone communication with the father;

   h.There be alternate weekend time, regular communication, half school holidays, special occasions such as birthdays, Christmas and the like, plus changeovers;

   i.The child remain at his present school until the end of 2014;

   j.Injunctions regarding physical discipline, non denigration, and discussing the proceedings with the child; and

   k.Counselling, family therapy, treatment of allergies, access to education and health information and the like.   

   [5] Mother’s outline of case – Exhibit ICL1.

7. The father sought orders that B live with him and that he have sole parental responsibility.  He sought orders that the child spends time with the mother for half of the gazetted school holidays and alternate weekends from 6.00 pm Friday afternoon until 4.00 pm Sunday.  He likewise sought orders for special occasions such as Easter, Christmas, birthdays and the like.  The orders that the father sought are set out in Exhibit “ICL1”.[6]

   [6] Pages 2 and 3.

8. At the conclusion of the hearing the father submitted that the orders needed to be varied by deleting orders 5, 6, and 7, that is that E spend time with the father on gazetted school holidays, that B spend time with the mother on gazetted school holidays, and that E spend time with the father during school term.  The reason for that was quite clear in that final consent orders had been made in regard to E at the commencement of the hearing.

9. The father then amended his application to seek orders that B spends time with the mother from Friday to Sunday on the first and third weekend of every month and other times as agreed.  He amended order 4 noting that order 7 was no longer applicable. 

10. He suggested that changeover occur at agreed locations (order 12) and that communication between the parties be via text message.

BACKGROUND

1. Both the mother and father were born in 1973 and are aged 41.  The commenced their relationship in about 1992 and married in 1995.

2. As indicated earlier, E was born in 1999 and B in 2001. B suffers from multiple and severe allergies.

3. There was no issue that the mother was the primary carer of the children at least in their early years and from the date of separation until August 2011.

4. The mother is employed full time as a public servant and the father operates his own business.  

5. The father and mother separated in October 2009.  The father moved to the downstairs part of the parties’ home and the mother remained upstairs.

6. The father moved out of the home on 29 November 2009.  The father continued to base his business from the matrimonial home.  Sometime after that time the father commenced an intimate relationship with Ms X and he commenced living with her.  She had the care of a child, H, who also lived with them.

7. Following separation B had emotional difficulties although the parents were in disagreement as to the cause.  In 2010 B was taken to see Ms L, a psychologist.

8. The mother commenced an intimate relationship with Mr C in January 2011. Mr C has an extensive criminal history of which the father was aware.  The father objected to the relationship between the mother and Mr C and engaged the children in his views about Mr C and his criminal history.

9. Included in Mr C’s history was that on 22 April 2010 a police family violence order was made against Mr C in favour of his then intimate partner.[7]  Mr C was accused of threatening and controlling behaviour at the time that that relationship was failing or had failed.

   [7] Exhibits ICL7 and ICL8.

10. In July 2011 there was conflict between the parties and conflict about the former matrimonial home.  The mother complained that the household was intimidated by the behaviour of the father and the father complained that the child B was scared of the mother’s partner and that he [the father] had been threatened by the mother’s partner.[8]

    [8] Exhibit ICL11 - report 29 July 2011.

11. On 16 July 2011 Mr C sent an abusive email to the father.[9]  

    [9] Exhibit F4.

12. The conflict escalated and on 2 August 2011 the mother asked her partner to collect the children from school and the father was at the school for other reasons.  There was a verbal conflict between the father and the mother’s partner.  The police were called and the father took the children into his care, with the consent of the mother, who believed it was to be for a week.

13. The father retained the children for a lengthier period contrary to the mother’s wishes.  He suggested mediation and a week about arrangement.[10]

    [10] Annexure A to mother’s affidavit filed 22 August 2011.

14. In mid August 2011 the mother sought the return of the children and the father retained them contrary to the mother’s wishes.  The children did not attend school for up to six weeks and spent a school vacation with the father.  In terms of the child B (at least) this had an impact upon his academic progress that year.[11]

    [11] Exhibit ICL2, page 102.

15. The mother commenced proceedings in the then Federal Magistrate’s Court and the first return date was 10 October 2011.

16. On 9 September 2011 the father made a report to police about the mother’s relationship with Mr C and the father’s concerns, inter alia that the mother’s “moral standards are slipping”.  No police action was taken.[12]

    [12] Exhibit ICL10 - police report 9 September 2011.

17. On 10 October 2011 the Federal Magistrate ordered a short family report. That was undertaken with the Family Consultant noting in her report:[13]

    [B] expressed as struggling to accept the new living arrangement at his mother’s home; with a step-father who uses inappropriate methods of discipline and is sharing his home with two young children.  He does not mind the older child … who visits the home but does not live there

    [13] Exhibit ICL2, pages 42 to 44.

18. Following this report consent orders were made in the Federal Magistrate’s Court on 17 October 2011 and week about parenting arrangements were put into place.  Other orders were made including an order that the mother ensure Mr C does not discipline the children.

19. Over this period of time B said that Mr C had threatened to hit him with a stick. The mother’s partner concedes that he made a threat to physically discipline the child with a stick.[14]

    [14] Affidavit of father filed 20 May 2013 and affidavit in answer of Mr C filed 13 June 2014

20. The conflict continued.  The father operated his business out of the home in which the mother and her partner lived.  There was a dispute about furniture and telecommunications connections and various other complaints.  Generally the behaviour complained about was petty, pedantic and childish and served only to adversely impact the children caught in the vortex of this catastrophe.[15]

    [15] Exhibit ICL 11 – reports 6 October 2011, 6 December 2011, 3 January 2012, 2 March 2012, 17 March 2012, 26 October 2012, 21 February 201318 March 201319 and April 2013.

21. Over the period from August 2011 until May 2013 I have determined that the father prevented and minimised the time B spent with the mother and undermined their otherwise strong relationship.

22. I also find that the mother persisted with her relationship with Mr C and persisted in being defensive of his confrontational behaviour.    

23. An Independent Children’s Lawyer was appointed and in December 2011 the mother sought further interlocutory orders.

24. The week about arrangements did not work for the child and orders were made on 16 February 2012 that B spend time with the mother each Wednesday and Friday provided her partner was not present at those times.

25. On 19 March 2012 an interim restraint order was made by Mr C in relation to Ms X.[16]

    [16] Exhibit ICL6.

26. The following day an interim determination was made in the Federal Magistrates Court (as it then was) that C spend time with the mother, there be telephone communication and the matter be listed for final hearing in September 2012.  A single expert report was ordered from the Single Expert and it was subsequently released in July 2012.

27. A restraint order was made in the Magistrates Court against the mother’s partner in favour of the father on 12 April 2012.  There were alleged breaches of that restraint order in July 2012.  In relation to one of those incidents, no evidence was tendered and the claim was dismissed. In relation to the second incident the mother’s partner pleaded guilty and a conviction was recorded.[17]  In the second complaint the facts to which Mr C pleaded guilty were:-[18]

    On Monday 2 July 2012, at approximately 3.20pm [Mr [C]] was inside the Commonwealth Law Courts in Davey Street waiting for [the mother] to finish a court hearing between her and [the father].  [Mr [C]] was sitting at the rear of the foyer at the bottom of the stairs.  As [the father] approached the bottom of the stairs, [Mr [C]] said to [the father] something similar to ‘your nothing but scum’.

    [17] Exhibit ICL5.

    [18] Exhibit ICL9.

28. The mother’s partner asserted to the police that he had said to the father, “who are you calling scum”.[19]

    [19] Ibid.

29. In May and July 2012 the mother filed contravention applications and the proceedings were transferred to the Family Court.  In October 2012 all outstanding contravention applications were dismissed and in December 2012 trial directions were ordered. 

30. The parties were directed to meet with Mr P to see if he could resolve the conflict.  The parties did so but the conflict remained intractable.  The parties met with Mr P in November 2012, February 2013 and April 2013.

31. The proceedings were listed in the Family Court for hearing in mid 2013.  On 20 May 2013 the parties claimed to have resolved parenting matters on an interim basis in the hope that it would avoid the necessity of a defended hearing. 

32. Those consent orders provided that the parties have equal shared parental responsibility for both children, that E live with the mother and that B live with the father.

33. There were arrangements for each child to spend time with the non-resident parent and to engage Mr P to provide family therapy to try to resume the time between the children and their non-resident parent.

34. By June 2013 B’s time with his mother and sister had to all intents and purposes ceased.  In June 2013, E stopped spending time with her father as per the orders.  There has been very limited time between the children and the other respective parent since that time.

35. On 20 July 2013 the mother’s partner placed an abusive and lengthy email message on his Facebook page which was directed at the father.[20]

    [20] Exhibit F2.

36. The experiment to try to solve the conflict had failed.

37. An updated report was obtained from the Single Expert and when it was released in June 2014, it raised serious concerns about B’s emotional health.

38. The final hearing of these proceedings commenced on 2 July 2014.  As previously discussed, in terms of E, final orders were made by consent.  They provided that she live with the mother and there be an endeavour to restore the communication and time between the mother, E and B.

39. Such was the concern arising from the reports and oral evidence of the Single Expert that the proceedings were adjourned part heard for about four weeks so that B could spend some time with the mother and his sister.  In these reasons I have found that the father did not support the contact or the orders during this time.

40. The hearing was concluded during the week commencing 28 July 2014.

41. The Independent Children’s Lawyer tendered a ‘bundle book’ to which I have referred elsewhere and which contained:-

    a.school reports for the children;

    b.emails to the parties from the Independent Children’s Lawyer in October 2013 and emails from the mother in May and June 2014 in relation to E’s enrolments;

    c.the application for enrolment form for B for 2014;

    d.the Family Consultant’s Memorandum to Court of October 2011;

    e.report of Ms T of February 2012;

    f.notice to admit facts by ICL dated 8 May 2013;

    g.report of Dr S of November 2012;

    h.advice from U Medical Surgery of October 2012;

    i.report of Ms T of May 2012 and June 2012;

    j.report of Mr O of May 2012;

    k.report of Ms G of November 2012;

    l.letter from the Independent Children’s Lawyer to the parties dated November 2013; and

    m.a notice to admit facts by the applicant and an email from Ms R dated 30 June 2014.

42. In these reasons unless it is clear to the contrary any assertion of fact is to be regarded as a finding of fact.

THE LAW

1. When determining orders the approach is governed by Part VII of the Act. The objects of Part VII of the Act and the principles underlying them are set out in s 60B.

2. Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case), a Court exercising jurisdiction under that Act may make such parenting orders as it considers appropriate.

3. The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.

4. If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, the Court must then consider the children spending substantial and significant time with each parent.  In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable.  If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

5. These proceedings were commenced before 7 June 2012. As a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.

WITNESSES

The Single Expert

1. Dr Dl was appointed as the Single Expert by order made April 2012.  She has provided three reports which are in evidence, namely her:-

   a.July 2012 report (‘first report’) which was contained in her affidavit filed 17 July 2012. 

   b.June 2014 report (‘second report’) which was contained in her affidavit filed 17 June.

   c.18 July 2018 report (‘third report’) which was contained in her affidavit sworn the same date.

2. No serious issue was taken as to the Single Expert’s qualifications.  She is both a clinical psychologist and forensic psychologist.  She was cross-examined by the father as to the difference between her qualifications and that of Mr P, however, the father took no issue in relation to her qualifications.  I am satisfied that she is qualified to provide the reports in evidence referred to in these reasons.

3. After the trial commenced on 2 July 2014 the mother sought to rely upon a report of Ms W who had prepared a psychological report with regard to the father.  In that context the Single Expert was asked whether the information contained in that report caused her to vary her view in relation to the father. 

4. The Single Expert said she formed an impression that Ms W provided the father with a brief period of psychological counselling in relation to family law matters and the contents of these notes do not cause her to change any recommendations or evaluations in relation to the father in these proceedings. 

5. It remained her opinion that the father did not suffer from an “Axis 1” major mental illness, but rather his difficulties within the family court system setting appear to be related to his personality and how he copes with stress”.[21]

   [21] Paragraph 9 July 2014 Report.

1. The Single Expert reiterated that he has consistently presented as quite obsessed and fixated with respect to the mother’s partner and has lacked flexibility in working with the mother with regard to access arrangements.

2. The parties had completed cross-examination of the Single Expert in early July 2014.  A copy of the transcript of her evidence was made available to each of the parties.  Neither of the parties sought to further cross-examine the Single Expert including in respect of the third report.

3. In the first report the Single Expert expressed:-

   133.… there is a need to protect the children from harm in both homes … .

   134.… the current conflicts and associated stressors are having a negative impact on the parenting of both parties.

   135.Both [the father] and [the mother] require guidance from the children’s treating psychologist regarding how to best provide for their current needs. In my opinion they both have the capacity to provide for the children’s needs, however the stress of the current situation is diminishing those capacities.

   136.[B] wishes to live one week off/one week on with each parent, on the condition that he has no contact with [the mother’s partner]. This is clearly not possible as [the mother] and [her partner] live together.

   …

   138.The children are of an age and developmental level where their wishes should be given wait [sic] in determining the outcome of these proceedings.

   139.The children’s primary attachment is to their mother, who has been the most consistent caregiver since they were born. Since the separation, the children initially enjoyed times with their father, [his partner] and [her daughter]. Things took a negative turn last year when [the father] retained the children. [B] has become more closely aligned to his father as the result of this, whereas [E] is now avoiding her father and is aligned with her mother. The relationship between [the father] and [the mother’s partner] is hostile, and becoming increasingly dangerous in terms of the potential for explosive physical violence between them. I see no signs that they could ever have a civil relationship. In the spirit of the Family Law Act (1975, Commonwealth) it is my opinion that efforts should be made for both parents to have a meaningful relationship with both children when it is safe to do so.

   …

   143.At this time, I see no healthier option than for [B] to reside primarily with his father, and [E] to reside primarily with her mother while the other issues are worked on in therapy.

4. In her second report the Single Expert observed that it was in relation to the children’s wishes with respect to parenting and contact and she expressed concern over the anxiety exhibited by B, observing:-[22]

   17.Court stresses my dad [the father] … we don’t have any money because of the Court bills …  If I say I don’t want any contact with [E] and Mum [the mother] will Court be over?  If I say yes to contact will this mean another two years of fighting?

   [22] June 2014 report.

5. I have referred to the psychological condition of the child B elsewhere in these reasons and note and accept the evidence of the Single Expert about the need to encourage the parties not to put barriers in place to prevent the children from having a meaningful relationship with either parent.

6. In recent times the Single Expert recommended that if the father was unable to facilitate improvement in the child’s estrangement situation (with his mother and sister) then consideration may need to be given to returning him to the mother’s primary care.  In observing this she noted that the father believes that B would run away if placed in contact with the mother’s partner.

7. In cross-examination the Single Expert was asked about comments made by the child in the first report where he expressed that Mr C:-

   32.… lies, steals stuff, breaks Dad’s stuff, steals Dad’s identify, hurt my Dad and threatened [Ms X].

8. The Single Expert said that these comments were inevitably made because of discussions at the paternal home.  I accept and adopt that assessment.

9. The Single Expert said that despite having little or no contact with the mother’s partner for many years, the child’s fears had grown and that consequence was likely to have arisen in the father’s home.

10. Concerningly, she was of the view, which I accept, that the child’s mental health had deteriorated between 2012 and 2014.  This can be contrasted with her evidence that E was better protected from the conflict by the mother.  E is currently seeing a counsellor and it is the evidence of the Single Expert that this has assisted E in managing the stress. 

11. The Single Expert said that B needs ongoing therapy to assist him.  Given that evidence I propose to make such an order.

12. In her second report the Single Expert observed that B had a lack of balance between the households.  The Single Expert expressed concern as to the extent of the obsession by the father with the mother’s partner, she says (and she did not resile from this during cross examination):-[23]

    102.Unfortunately, [the father’s] obsession with Mr [C], albeit grounded in reality-based concerns, has psychologically harmed his children.  Both of the children have been drawn into a situation where they have to choose between their parents, and been operationalised as informants by [the father] with the assistance of his [then partner].  [The father] completely lacks insight regarding how harmful this process has been.  Although at one level he has been trying to protect his children from Mr [C’s] alleged criminal behaviour, in doing so [the father] has harmed his children psychologically by relentlessly questioning them about their mother and [her partner’s] activities, and preventing them from having meaningful contact with their mother while in his care, most seriously for a period of three months last year.  In my clinical opinion, [the father’s] concerns regarding Mr [C] do not justify this behaviour.

    [23] Paragraph 102 of the first report.

13. I have set out earlier the concerns of the Single Expert in relation to the father’s interpersonal style.[24]  She says that the father is domineering and over-controlling.  That assessment reflected my observation of him giving evidence, reading his affidavit material and the numerous police reports.

    [24] Paragraph 104 of the first report.

14. I accept the assessment of the Single Expert that the child B cannot express the way he really feels if it is contrary to the views of the father.  The father’s behaviour and poor communication compromises his ability to jointly parent. I again refer to the comments made by the father to the Single Expert in 2012, when he said:-[25]

    108.I have no contact with her [the mother], I wouldn’t piss on her if she was on fire.  When I have tried to talk to her she just lies, so what’s the point? …

    [25] Ibid at paragraph 108.

15. As to the mother the Single Expert assessed her as having a strong tendency to internalise anger and direct it towards herself rather than others.  The impact of the powerful men in her life (in terms of the father and Mr C) is evidence of the accuracy of that assessment.  This assessment was also confirmed by psychometric tests undertaken by the mother, which show limitations in her assertiveness and a tendency by her to be passive in her personal relationships.

16. The Single Expert expressed the view that the child needs his mother to be actively involved in his life but whilst he loves and respects his father he will have access to the father’s views.

17. The Single Expert concluded that the integration process, which was set in place last year failed and that the mother clearly has the capacity to parent the child.

18. The Single Expert said that the child’s mental health status is in crisis. I accept her evidence that B is at risk of psychological damage if constructive steps are not taken.

19. When asked about the mother’s partner not being present, the Single Expert conceded that the mother and E are living in an intact family in which Mr C and his two children were a part and it was unreasonable to expect that relationship to be broken up.

20. In questions from the father the Single Expert observed that there has been a negative influence, that the child has been aware of the father’s view for some time and that the child’s anxiety has been in place for more than two years.

21. It was also put to the Single Expert, by the father, that E’s views were likely to have been coached.  The Single Expert said that the views expressed were of E and were her own.

22. The Single Expert was concerned that B seemed isolated at N High School and was concerned about his engagement at the skate park.  She was also strongly of the view that ‘no time’ with the mother was not an option, given her assessment of the child’s mental health.  The child would, however, need to maintain his activities such as scouts and other activities.

23. I accept the evidence of the Single Expert.  She has undertaken a long assessment of the child B over a number of years, her qualifications were not challenged and I generally accept the fact upon which her conclusions were based.  

The mother

1. The mother gave evidence in accordance with her affidavits filed 22 August 2011, 20 December 2011, 27 January 2012 and 8 May 2014.  In her last affidavit the mother said that the reference to text messages was inadvertently left out of the body of the affidavit.  She said that paragraph 37 should have the following reading attached to it:-

   I have sent many text messages to the respondent and annexed hereto and marked with the letter “N” are copies of some of those messages.

2. The mother deposed that material contained in her case outline was correct although she reserved her right to change the position regarding parenting once the evidence had been completed.  The mother tendered her case outline.[26]

   [26] Exhibit ICL 1- Mother’s case outline filed 18 June 2014.

3. In relation to the events following the adjournment of the hearing on 3 July 2014 and the interim orders made that day, the mother said that both children attended the paternal grandparent’s home on Friday 4 July 2014 but that E had expressed concerns about one or both of the paternal grandparents raising issues about her spending time with the father.  The mother expressed some resistance to her spending time with B at that home.[27]

   [27] Given the evidence of the paternal grandmother I can understand reluctance of E and the mother.

4. On Sunday 6 July 2014 the mother, B and E went to the movies and the mother said that this went well.

5. On Wednesday 9 July 2014 the mother said that B attended at a personal event and it went well.  She said that discussions occurred between the children about meeting at the skate centre on the following Friday.

6. On Thursday 10 July 2014 the mother encouraged E to spend time with Ms T and her father and E complied.

7. On Friday 11 July 2014 the mother said a series of text messages were sent to B and the father by both the mother and E trying to make arrangements for time to be spent at the skate centre.  Those text messages were tendered in evidence, namely:-

   Exhibit M2 – messages from the mother’s phone to B;

   Exhibit M3 – messages from the mother’s phone to the father; and

   Exhibit M4 – messages from E’s phone to B and, on one occasion, to the paternal grandmother.

8. Despite the texts sent to B and to the father, E received text message in the following form, apparently from the paternal grandmother on 11 July 2014:-[28]

   4.52pm[B] is here, where are you?

   [28] Exhibit M4.

9. E replied to her paternal grandmother and then received a further text:-

   6.28pmTell him to check his phone, I text him several times and called him as sell

   What has that got to do with it.  The court ordered you to spend Friday afternoons with [C] at my house.  See you next Friday.

10. I am satisfied that these messages were given to B and that an artificial environment was created to inhibit or prevent the child spending time with his mother and his sister.  I am satisfied this occurred with the knowledge of the father and with the participation of the paternal grandmother.

11. On Sunday 13 July 2014 the mother, E and B went to the movies.  The father cross-examined the mother in relation to that event as E had apparently arranged a sleep-over with friends.  It is clear that the father had detailed knowledge of what occurred on that day and I am satisfied, given the background, that the father interrogated B in relation to that event.

12. The mother attended with Mr F, a psychologist, on 14 July 2014.  B did not attend and the mother spoke with Mr F for about forty minutes.

13. The mother gave evidence that on 14 July 2014 she went to hospital and spent more than a day there.  She sent messages to B and to the father over that day and the next.  She received no reply.  I am satisfied that the father interfered with that communication between the mother and the child and that this is an example of the father failing to promote the relationship between the child and the mother.

14. Arrangements had endeavoured to be made for a different venue on 18 July 2014.  It did not happen.  On Sunday 20 July 2014 the movie arrangements did not go ahead.  Given the later evidence, I am satisfied that the father inhibited that contact. 

15. On Monday 21 July 2014, there was a conference with the Independent Children’s Lawyer and the children spent time together on Friday 25 July 2014 and Sunday 27 July 2014.

16. The mother’s evidence in her affidavits describes that she was the primary carer of the children, which appears not to be in serious issue up to at least August 2011.  In any event given her evidence and the other evidence in these proceedings, I accept that this is the case.

17. The mother says that disciplining in the home is a joint responsibility and that there is no corporal punishment and she had discussions with her partner in that regard.  Given the history of these parties I accept that the mother will not permit discipline of B by her partner. I accept her evidence to that end.

18. The mother gave evidence of an event when she went to see B at the paternal grandparent’s home and where E decided not to come with her.  There was clearly a miscommunication.  However, the father terminated the time between the mother and B after a short period of time and I accept her evidence that he was verbally abusive to her and he endeavoured to intimidate her including, for example, the use of bad language.  Given the evidence of the paternal grandmother and the father I accept the mother’s evidence of this event.

19. When asked about how the orders she proposed would operate if she was successful, the mother said she would involve psychologists and social workers.  However, she had not thought through the arrangements for high school.  She had not approached the child’s teachers at his current high school nor had she approached the high school to which she was proposing to send him.

20. When asked about how she would manage with regard to the child’s fear of her partner she prevaricated.  It was clear from the evidence of the mother and Mr C that he will remain in the house. 

21. The mother is committed to her partner and treats that relationship as being at the same level as that of her children.

22. In some ways she was an apologist for her partner and claimed that it would not have mattered with whom she had a relationship as the father would find something else.  At some levels that excuses Mr C’s amplification of the interfamily conflict.  The mother was also at times protective of her partner.  An example of this was the evidence in respect of the mouth guard incident, where her oral evidence differed from that in her affidavit.[29]

    [29] Paragraph 29 affidavit of mother 11 May 2012.

23. The mother said she cannot afford to keep the home if her partner was not with her.  The effect of her evidence would be that B would just need to “fit in”. I do not accept that it is not possible for the mother’s partner to be away from the home for at least a few weeks.

24. At some levels the mother has, over the last twelve or eighteen months, withdrawn from the child B.  However, having read the report of the single expert, she is coming back now and endeavouring to meet his needs.  The mother has clearly struggled with the confrontation and aggression of the father.  She has a desire to provide a home for the child but is not prepared to change the circumstances in which she lives; it will be a matter for the child to adjust to her life rather than vice versa.  Any meaningful endeavour to try and put in place a break with just the mother, E and B were deflected by the mother.

25. I accept the mother’s evidence of the father’s fixation and undermining of the relationship between her and the child.   

26. I am cautious about the mother’s evidence.  She clearly loves B and wants to resume her previous role in caring for him.  However, she is intimidated by the father and likely to be controlled to some level by her partner.

27. I am satisfied that she tries to be truthful but from time to time colours her evidence to support the evidence of Mr C. 

The mother’s partner, Mr C

1. Mr C gave evidence in terms of his affidavits filed 11 January 2013 and 13 June 2014. 

2. The mother’s partner conceded that he sent the material contained in Exhibit F2 and when asked about its meaning he initially prevaricated.  He was asked whether he would apologise and did so but only after some pressing by the Independent Children’s Lawyer and not in a convincing way.

3. The mother’s partner said that E had told him the father had said “Mr [C] is a bad person who will go to gaol”.  This clearly upset Mr C and he has focused on it.

4. He lives in the same house as the mother and his two younger children, aged seven and six, live there a significant part of the time. His elder son, aged 16, visits on an alternate weekend arrangement. The parenting arrangements with these children are informal.

5. When the mother’s partner returned on day four of the hearing he said that he had removed the Facebook post from his Facebook page.[30]  When questioned about his reaction to B misbehaving, he said he had not made enquiries about how to deal with it but said he will leave that to the mother acknowledging that “I know if I lost my temper [the mother] would lose contact with [the child]”.  I accept that he is likely to keep his temper given the history of this matter.

   [30] Exhibit F2.

6. The mother’s partner said that he does not intend to “right the perceived wrongs” that the objective from his perspective is to help.  Given Mr C’s temper and his verbal and written abuse and demeaning of the father, I am troubled as to the veracity of that evidence.  There was evidence of the mother’s partner sending private emails to a friend demeaning and/or abusing the father.[31]  Mr C also acknowledged that he sent a text on 16 July 2011.[32]

   [31] Exhibit F3.

   [32] Exhibit F4.

7. The mother’s partner believes that his loss of employment arose by reason of the father contacting or having others contact his employers.  There is suspicion in that respect; however, there is no admissible evidence to that end.  The father denies that he took steps to undermine Mr C’s employment.

8. Mr C asserted that his conflict with the father only arises out of his reaction to the father.  I do not believe him and I accept that he has inflamed the conflict, particularly given that I accept some of the evidence of Ms X as to some of the earlier incidents and the incidents of the mother’s partner being aggressive, rude and offensive between 2011 and January 2013.

9. When the father and Mr C met they took an instant and virulent dislike to each other and each engaged in aggressive and combative behaviour.

10. Each of them endeavoured to take the high ground and blame the other.  Each of them engaged in recording events and amplifying the conflict. 

11. The events described in the incident referred to in Exhibit ICL9 and the Facebook post which is exhibit F2 are examples of the conflict that existed between the father and the mother’s partner for which each contributed in significant measure.

1. I assess the evidence of the mother’s partner as being at times unreliable and self-serving.  He is strongly aligned to the mother’s cause and diminishes his culpability in context of the conflict.

The father

1. The father gave evidence in terms of his affidavits filed 10 October 2011, 10 February 2012 and 3 March 2014. 

2. I have determined that his evidence is at times unreliable and self serving. When facing evidence as to his behaviour he at times prevaricates and from time to time answers questions with questions.  He takes little or no responsibility for the awful circumstances in which the child B finds himself.

3. An example of the father’s troubling evidence can be seen in terms of the arrangements for the child to see his sister and mother between 3 July 2014 and the resumption of the hearing on 28 July 2014. 

4. The arrangements for the child to spend time with his sister on Friday 11 July 2014 went awry.  The father had the capacity, knowledge and opportunity to assist and facilitate this time.  He was aware of the concerns expressed by the Single Expert in both her written reports and her oral evidence, yet he did not encourage or facilitate that time.  It was not important to him despite his claims to the contrary.  His explanation as to what happened was unsatisfactory and I did not believe him.  I am satisfied that the father, in these circumstances, was content for the child not to spend time with his sister.

5. Again his approach was on display the following week when the mother sent a text to the child and to the father informing them that she was in hospital for a few days and she provided the name of the hospital, the ward and the room number.  The father’s explanation as to why he did not even enquire as to the nature of the mother’s illness or take the child to see the mother, was risible.

6. The following Sunday he facilitated time for the child to go to a cousin’s birthday but made no effort to arrange for him to see his mother and/or sister as was ordered by the Court.

7. I find that the father does not support the child in seeing his mother.  Some of his evidence is based on fact but it is twisted and fashioned in a way to meet the outcomes to which he perceives.  Examples of this are his evidence about informing his children about Mr C’s criminal history, keeping the children from their primary carer in August 2011, the nonsense argument which he pursued through this Court and the litany of wasteful complaints he made to Tasmania police.  The father is an unreliable historian.

8. The father endeavours to parent through orders.  If the arrangements do not meet the orders then they will not be allowed to continue.  An example of this was in July 2012 when there was clearly a mistake or confusion between the solicitors but the mother was spending time with B at the paternal grandparent’s home. 

9. The father and the paternal grandmother ended that time for no real reason other that it did not comply with the orders.  This is in circumstances where I am satisfied given the social science evidence that the child was very anxious to see the mother.  To make matters worse the father was verbally abusive to the mother.

10. The father’s evidence as to these events was unsatisfactory.  It is clear that he was supported by his mother in this endeavour to isolate the child from the mother and minimise the time the child had with the mother.

11. The father says he has now formed an intimate relationship with a person called Ms Q.  This partner did not provide evidence in these proceedings, despite that relationship commencing prior to Christmas 2013 and the father spending time at her house and she spending time at the father’s house.

12. The father asserted that he does not spend significant time at her house because of his concern for B.  I do not believe him given his prevarication when cross examined in this area and given that the child had complained to the Single Expert[33] about the time the father was spending away from him.  The father said he addressed the problem by talking to the child.

    [33] Paragraph 15 of the June 2014 report.

13. Some of the evidence of the father in relation to the child B was contradictory.  He said that the child needed fixed and determined arrangements and he needs to be involved to ensure these are in place. Yet in terms of the arrangements over the three weeks in the middle of the hearing the father says that at times he left the child to his own devices.  His evidence in this regard was incongruent.

14. The father tendered a series of emails and letters between 11 March 2014 and 21 May 2014 in relation to what he said were offers by him for the mother to see the child.[34]  These emails and letters need to be seen in context.  In the first letter (apparently drafted by the father’s then solicitor) the father suggested that the mother see the child (in an unrestricted way) by:-[35]

    … Conversely I am requesting [the mother] organise a friendly & non-pressured environment in which [the child] can enjoy exclusive time with his mother and sister on 22 March 2014 - 10.00am to 4.00pm.

    [34] Exhibit F8

    [35] Ibid.

15. The father said that he really didn’t mean 10.00 am to 4.00 pm but sometime between those hours.

16. I am troubled by this evidence at a number of levels.  The first being that in his affidavit filed 3 March 2014 (and presumably served a few days later) the father set out that mother had suggested a meeting with the child by email dated 7 January 2014 in very similar terms, which was rejected.[36]

    [36] Paragraph 21.

17. The mother suggested that the child come to a family day at a park on Saturday 18 January 2014 and she used the term “a friendly and non-pressurised environment”.

18. The father claims he showed that email to the child and the father alleged that the child responded in his presence and in the paternal grandmother’s presence:-[37]

    She is “fucked in the face, Dad” and walked off.

    [37] Ibid.

19. The issues that arise for the father in terms of this are that he said, when endeavouring to explain why times had fallen over in July 2014, that the child wanted a structured life, things organised.  Yet here he was offering unstructured time in March 2014.

20. The father said that the child had refused time with the mother and his sister in February 2014 but then he offers time again and complains that it was not taken up in circumstances where the mother had suggested counselling.  Given the responses of the child to which the father alluded in paragraph 21 and in paragraph 19 of his March 2014 affidavit, counselling seems to have been an entirely appropriate suggestion.

21. In addition, when the paternal grandmother was cross-examined about this event she had no recollection of the child using that poor language and given her evidence about E when she met her earlier in July 2014, I am satisfied that she is likely to remember such a remark by B. 

22. I am satisfied that it is likely that the response set out by the father in paragraph 21 of his March 2014 affidavit in relation to the alleged response of the child was fabricated.

23. When B was living with the father and Ms X, I am satisfied with the evidence of Ms X that she was the primary carer of the child.  I do not accept the father’s evidence that it was more of a friendship basis.

24. Another troubling example was the response of the child following the failure of the father’s relationship with Ms X and the impact on the child which was noted by the single expert[38].  B is likely to have adopted the father’s view of Ms X at that time.  The father’s evidence that he encouraged a relationship and kept it open was untruthful. The father’s explanation about the reasons the child adopted that view was implausible. 

    [38] Ibid.

25. An example about the father’s fixation about orders was the events of July 2014.  E had tried to arrange with B to go to a different place.  She telephoned B, left messages and sent text messages.  Text messages were also sent to the father.  Despite this communication the child was left at his grandmother’s house and there was implied criticism of the parties’ daughter for not being available for dinner that night.

26. When asked to compare his comment to the Single Expert in 2012[39] and his present position, the father delayed and prevaricated in his answer.  I am satisfied that his poisonous attitude to the mother has not changed.

    [39]Paragraph 108 of the first report.

27. The father was cross-examined about the numerous video and audio recordings of the children being interviewed.[40]  The father reflected that this may have been inappropriate but his response was muted and unpersuasive.

    [40] Ibid.

28. The father expresses the rhetoric that the child needs a relationship with his mother but does not in practice meet that expression, and given the evidence is unlikely to do so.  He is blindly determined to get his own way, irrespective of the outcome. 

29. When asked to find ways to resolve the question he is closed to any solutions other than those of the existing status quo.  In his affidavit of 3 March 2014, the father said he did not discourage the child’s relationship with the mother and his sister. 

30. The father has not provided a Christmas present or Christmas card or birthday present or birthday card for E over the last twelve months.

31. The father is at times confrontational.  He gave evidence in relation to the report prepared by the family consultant in October 2011.  He adopted a confrontational approach to the Child Inclusive Conference.  This was after he had retained the children for months and in circumstance where he allegedly sought mediation.

32. The father does not accept that B had any emotional issues prior to the arrival of the mother’s partner.  Yet the father concedes the mother took the child to see a counsellor in 2010. In fairness the father now concedes that the child has difficult psychological issues and that it is getting worse.

33. The father acknowledged that he discussed his strong personal views about Mr C in the presence of the child but said this was accidental.  I do not believe him.  The father gathered the children around him in early 2011 and demanded that Mr C and/or the mother set out details of his (Mr C’s) criminal history.  The father was not constrained in relation to engaging the children in that history.  B’s comments about Ms X, after she and the father separated, is indicative of his unconstrained behaviour in the presence of the child.  Other examples are the comments of the child in respect to the mother’s partner which almost inevitably came from the father.[41]

    [41] Paragraph 32.

34. The father says he has sheltered the child from the conflict with the mother’s partner.  He clearly has not.  The Single Expert suggested in her report that the father apologise to E.[42]  The father has chosen not to do so.

    [42] Ibid at paragraph 129.

35. The father complained that B does not like attending sessions although it is clear that the father engages in those sessions himself and uses them for his own purposes and has, at least on one occasion, limited the communication by the child.[43]

    [43] Ibid at paragraph 31.

36. The Single Expert undertook some character analysis of the father and found that he had a strong tendency towards … “verbal aggression, and elements of personality that are somewhat grandiose and impulsive”.[44]

    [44] Ibid at paragraph 104.

37. The evidence certainly supported those assessments.  She said that:-[45]

    His interpersonal style may be described as domineering and over-controlling.  His profile is indicative of an individual who has a strong need to control others and expects respect and admiration in return.  His profile reflects that he is likely to have little tolerance of people who disagree with his plans and his desires.

    [45] Ibid.

38. The Single Expert went on to say:-[46]

    His needs to be in control of relationships and probably taxes the endurance of those that are close to him.

    [46] Ibid at paragraph 105.

39. I am satisfied that is a fair assessment.

40. The father will do whatever it takes to prevent the child B from having any meaningful contact with the mother unless Mr C is out of the light, and even then it is likely that he will continue to isolate the mother and prevent time between the child and E.

41. His evidence is seriously impeached and I have treated it with great care.

The paternal grandmother, Mrs PP

1. Mrs PP is the children’s paternal grandmother (‘the paternal grandmother’) and she gave evidence contained in her affidavit filed 20 May 2013. 

2. The paternal grandmother’s evidence was supportive of the father and it was clear from her forceful demeanour and evidence that she is strongly aligned with the father and aligned with his cause.

3. In July 2012, there was a mix up in respect of some arrangements for the mother to bring E to the paternal grandmother’s house and for B to be there.  E declined to attend.  The mother attended and had brought a Christmas present for B. It was at that time a rare interaction between mother and son.  The mother and child interacted well according to the father.  According to the paternal grandmother they talked to each other like strangers.  I do not believe her. The father said that the paternal grandmother was very upset that the mother was there with B and without E and arranged for a call to be made to him for him to come to pick up B.

4. The paternal grandmother could give no sensible or meaningful explanation as to why she would break up the time the mother was spending with the child.  The mother was, after all, the person she described as like a daughter to her.  The paternal grandmother was frankly difficult and upset by that arrangement.

5. The paternal grandmother said she was happy to facilitate time between B and the mother.  Given the evidence, this was frankly untruthful.

6. From the text message sent to E on 11 July 2014, referred to earlier, the dismissive character of her evidence of the mother as a carer and her allegations of poor communication between the mother and B.  It is clear that she expected matters to operate strictly in accordance with the orders and that she sees little value in that parent child relationship.

7. The paternal grandmother says she talks civilly with the mother and she was ‘like a daughter to her’.  She said that she and the mother got on well and there were no troubles at changeover.  Her evidence and scathing appraisal of the mother is, however, the antithesis of this assertion of civility and parent child friendship.

8. The paternal grandmother went on to strongly assert her role in informing B of the possible engagement of the mother to Mr C.  She was determined to provide this information to the child irrespective of the mother’s views.

9. The sense of entitlement of the paternal grandmother started early after the relationship breakup.  There was an interaction between the mother and the paternal grandmother at the mother’s home when the paternal grandmother said she was “going to leave”, the mother agreed that she should go and the paternal grandmother then, despite the mother’s clear request, declined to do so.  That was hardly civil and polite. 

10. Her description of E in the care of the mother was demeaning and seemed vindictive.  I am satisfied that she aids and abets her son in endeavouring to estrange B from his mother and his sister.

11. The paternal grandmother’s evidence was demeaning of the role of the mother and she asserted that she (with an emphasis on she) and the mother were the primary carers of the children during the marriage.  She does not support the mother’s relationship with B. 

12. The paternal grandmother does not accept that the child has any emotional or psychological issues.  She says he is in good emotional and psychological health.  I do not accept that evidence.

13. The paternal grandmother’s evidence is unreliable.

The father’s former partner, Ms X

1. Ms X gave evidence as set out in her affidavit filed 20 May 2013.  She was in a relationship with the father from shortly after his separation from the mother in 2009 until about January 2013.

2. Ms X was cross-examined in relation to her affidavit.  She provided significant evidence as to the anger of the mother’s partner and provided oral evidence as to her role in parenting B.

3. Her evidence is partisan and is framed to assist the father.  Whilst it is seen through that light I am satisfied that she has generally endeavoured to give accurate evidence of what she saw and heard of the conflict over those times. I generally find her evidence reliable.

Mr P

1. Mr P is a psychologist who gave evidence in accordance with his affidavit filed 9 May 2013.  That affidavit was read into evidence and it contained two reports, one dated 5 February 2013 and the other 15 April 2013.

2. In addition, the Independent Children’s Lawyer tendered a letter dated 22 November 2012 from Mr P addressed to the parents[47] and a letter from the Independent Children’s Lawyer to Mr P dated 18 July 2014 inviting him to re-engage with the children.[48]

   [47] Exhibit ICL16.

   [48] Exhibit ICL17.

3. In his February 2013 report Mr P observed that in his meeting with the children they appeared co-operative and interested in their circumstances.  He observed that both the children were open and B was eager to the possibility of seeing the other parent.  He expressed the view, at that time, that it was important for the children to have time together.

4. In his report of 15 April 2013 he observed:-

   The children were to have time with each other.  It was expected that they would spend alternate weekends with each parent and each weekend with each other.  [B] spoke positively about the possibility of being involved with Mr [C’s] children, but it was made clear that, certainly, initially, there be no contact with Mr [C] or his children.  [E] did not feel there was a need to do any preparatory work before she had time with the father.  Yet there were no expectations that the arrangements would be made, or indeed they would see each other.

5. Mr P suggested a slow reintegration and agreed that the arrangements for the meeting with the mother’s partner at an event in July 2013 could have been better organised bearing in mind the number of people who were present.

6. There was no issue about Mr P’s qualifications and there was no serious challenge to his evidence. I generally accept it as being reliable and professional.

ADDITIONAL FACTS AND FINDINGS

1. Given the evidence of all of the parties I am confident that if B remains in the father’s house the father will continue to undermine or poison his relationship with the mother and E. 

2. Given the impact of the threat of corporal punishment and the mother’s partner’s undertaking to this Court, I am satisfied that it is unlikely that he will undertake or threaten corporal punishment in the mother’s home.

3. I accept that the mother’s partner will absent himself within the house as much as possible if the child is returned to the mother’s care.  I intend to make that promise more forceful for an initial short period of time.

4. The mother’s partner is clearly a strong personality and is supportive of the mother.  He has engaged in significant adversarial contact with the father and I am not convinced that he was frank in giving his evidence given the answers he gave in cross-examination in particular when he prevaricated in respect of questions about the email, discipline and the like.

5. The Single Expert observed that the father was obsessive about the mother’s partner (and there was some basis towards his complaints) but he has not managed to overcome that obsession and I am satisfied that this obsession has built up the child’s fears in terms of Mr C.

6. Examples of that behaviour are scattered through these reasons.

7. In October 2011 in a report from a hospital,[49] B described thoughts of anxiety but said that he is happy to live with his mother but did not like his mother’s partner, Mr C.  The child alleged, at that time, that his mother’s partner had threatened to hit him with a stick, but does not believe the mother’s partner would actually do this and denied that Mr C ever physically abused him.

   [49] Annexure B to affidavit of the father filed 10 February 2012.

1. The mother’s partner gave a formal undertaking to the Court that he would not threaten to physically discipline or physically discipline the child.  The Independent Children’s Lawyer was directed to inform the child of that circumstance.

2. The risk is that by doing something, that may fail.  Whereas by doing nothing, that will risk the child’s emotional health.  I am left with the certainty of the current arrangements in terms of its detrimental impact on the child and the uncertainty of the proposed change.

3. In her first report[66] the Single Expert said that the child was primarily attached to his mother.  However, the scenario recommended by the Independent Children’s Lawyer, if it works, will mean that the child has a relationship with both parents and his siblings.

   [66] Paragraph 139.

The remaining s 60CC factors

1. Many of the relevant s 60CC factors have been dealt with earlier in these reasons. I will go though each of them and I have considered all of those factors in the light of the issues both separately and cumulatively. Logically, in the circumstances of the child B, I considered the place of residence first, particularly given the appalling level of communication between his parents. From there I considered time, communication and parental responsibility, and on each such consideration was undertaken in the light of the findings, circumstances and factors.

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

1. It is the view of both parents that the child has a meaningful relationship with the other. Despite the child wishing to see his mother (and sister) that has not occurred. He has not regularly seen the mother since August 2011.

2. The father contends that the orders he seeks (which are in essence a continuation of the present circumstances) will enable that relationship. It has not occurred in the past and, given my findings about the father, it will inevitably fail into the future.

3. The father has not promoted the relationship and that approach is unlikely to change, particularly given the history following the May 2013 and 3 July 2014 orders.  The father projects or inculcates thechild with the image that the mother’s household is a danger to him.  The approach by the father is such that, without intervention, the future relationship between the child and his mother is unlikely to be meaningful, despite the desires and assurances of the parents.  I have otherwise dealt with this earlier.

Section 60CC(2)(b) the need to protect the child

1. Each parent is responsible to protect the child from abuse neglect or family violence.

2. I accept that the mother’s partner threatened to physically discipline the child some years ago.

3. In his submissions the father the father conceded:-[67]

   … the father no longer considers it necessary to seek protective orders in relation to either child, except for changeovers to occur at [a] Police Station as a means to limit the possibility of conflict between the Father and the Mother or her partner. [The single expert] noted in her report that the relationship between the Mother’s partner and the Father was becoming increasingly dangerous in terms of the potential for physical violence between them.

   [67] Exhibit ICL 1 – page 20.

4. Given the orders to be made by me, the undertaking provided by Mr C, the age and maturity of thechild and the close watch each parent will maintain on the child, I am therefore satisfied that the child is not at an unacceptable risk of violence from Mr C.

5. The ongoing conflict between these parents and Mr C presents a risk to the emotional health of the child and, given the evidence of the single expert, leaving him in the care of the father is likely to exacerbate that risk 

6. Given the evidence, I am satisfied that the least worst option is that recommended by the Single Expert and propounded by the mother and the Independent Children's Lawyer.  I have otherwise dealt with this earlier.

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

1. When these reasons are published B will be aged 13 and generally his views would have been almost determinative (as was the case for his sister).

2. The child wants to continue living with the father, and those views have been strongly asserted by him, and he wants to spend time with the mother, but absent the mother’s partner.

3. I have discussed the child’s views in the context of the concerns raised by the single expert elsewhere in these reasons.  I have given great weight to those views, but in this case they are not determinative.  I have otherwise dealt with this earlier.

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

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. I have discussed this earlier in the reasons.  The important people in the child’s life are his parents, his sister and his paternal grandparents.  The relationships on his paternal side have been nurtured since August 2011 but those on the maternal side have been diminished, the circumstances about which I have discussed above.

2. The mother was the child’s primary carer until August 2011. The child continues to want a relationship with the mother and his sister. I repeat the concerns I have about the father’s approach in that regard.  The child has not spent regular time with the mother since August 2011 and I accept that it is difficult to assess how that relationship will progress if there is to be a change of residence.  The child wants a relationship, but whether it happens in the context of the orders proposed is problematic. 

3. I accept the submission by Independent Children’s Lawyer that the mother has tried to maintain telephone contact with the child and sent him text messages on significant days.  I accept that most of her attempts to speak to the child on the father’s phone are unanswered and texts messages are not responded to, including texts asking for his sister to talk with the child.  The events in July 2014 are further evidence of this approach.

4. I have otherwise dealt with this earlier.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. I have generally dealt with this earlier.

2. This includes my acceptance that the mother’s partner threatened B and E with corporal punishment and that B became scared of the mother’s partner. 

3. I accept that since the siblings have been split they have become polarised with their parents.

4. I accept that the mother has encouraged E to spend some time with her paternal grandmother, at least in recent times. 

5. On the evidence before me it is clear that the mother gently encourages E to have a relationship with the father and paternal grandparents but is not determined or particularly effective in that regard.

6. I accept the evidence of the mother that B sent her a card for her birthday and that he obtained it from his own pocket money and that she did not receive Christmas cards or Mother’s Day cards from him.

7. I accept that the mother has endeavoured to promote the relationship between the children with the father including through counselling.

8. I believe the father has a demonstrated a capacity to undermine such relationships.  An example of his approach was shown during the hearing in relation to his malicious or manipulative complaint to the single expert in relation to the safety of E.  

9. In May and June of 2012 the father was interviewed by the Single Expert and she reported the following disclosure by the father:-[68]

   96.In addition, [the father] expressed that he was concerned that [E] may have been sexually ‘touched’ by one of Mr [C’s] alleged acquaintances who is a convicted paedophile [emphasis added].  I was not presented with any evidence during my enquiries that [E] had been sexually abused.

   [68] Ibid at paragraph 96.

10. This is a very serious allegation and warranted a full investigation.  It is an allegation that his daughter was sexually abused by a convicted paedophile and that access to that child was facilitated by the mother’s partner.

11. What then happened?

12. The Single Expert was not cross-examined by the father as to the veracity of that part of her report.  The mother asked the father about that serious allegation and the father retreated from what he now asserted that he told the Single Expert.

13. The father now claims that the Single Expert had ‘misinterpreted’ what he said.  He now says that there was no suggestion that E had been touched.  He now says that the person about whom he was concerned about was not a ‘convicted paedophile’ [emphasis added].  The father said that he had been told by two or three people that this person (apparently aged about 26) had had sex with a person under age (presumably under 18).  The father provided no context as to the ages at the time of the alleged event.

14. Despite his asserted concern, over the two years following that allegation (in whichever way it came out) the father did not:-

    ·Provide evidence that he endeavoured to investigate, obtain statements or affidavits from those who had told him about the alleged under-aged sex and the consequential risk to his daughter. He was legally represented at that time and for some years afterwards; 

    ·Make enquiries of or complaints to the police (given that he was a regular contributor to their workload);

    ·Raise these concerns with child protection authorities;

    ·Warn the mother, with whom the child was living, by providing her with the name of this alleged paedophile; and

    ·Raise his concern with the mother, other than through the report. 

15. Finally, on 2 July 2014 he asked this Court to make orders that E live with the mother, and as a consequence of this, the mother’s partner.  The father did not raise this alleged concern as an issue for this Court when the consent order was being considered.

16. Putting aside my concern about the truthfulness of the father’s statement to the single expert and the evidence he provided to this Court, allegations such as this are serious and need to be treated seriously by courts and the community.  The father has at least made a serious complaint but took no meaningful steps to pursue the allegations to protect his daughter.

17. The father is not willing and has shown no ability to facilitate and encourage the close and continuing relationship between the child, his sister and the mother.  

Section S60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)          either of his or her parents; or

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

1. The Independent Children's Lawyer rightly contends that his and the mother’s proposals see significant change in the child’s living arrangement with the inherent risk that it is untested.

2. The father contends that the child will either refuse to go or will run away from the mother’s home, if he believes that the mother’s partner is going to be there.  That is a possible outcome, and one to which I have had significant regard.  As I have said elsewhere I have put in place some processes which may ameliorate this concern.

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

1. No written submissions were made in this respect.  I have had regard to it in terms of the child’s school and the proposed school.  Given the significant change I have required that the child attend his current school until the conclusion of 2014.

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

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. In her first report the Single Expert was guarded in her views as to the capacity of the parties to meet the child’s needs, particularly his emotional needs, she said:-

   135.Both [parents] require guidance from the children’s treating psychologist regarding how to best provide for their current needs. In my opinion they both have the capacity to provide for the children’s needs, however the stress of the current situation is diminishing those capacities.

2. Given the evidence of the Single Expert in her second and third reports and her oral evidence, to which I have referred earlier in these reasons, I am not satisfied that the father is able to meet the child’s emotional needs.  He has facilitated the deterioration of the emotional wellbeing of the child in continuing the conflict, by failing to enable the child’s time with his mother and sister.

3. The mother can be criticised to some extent but she is at least open to address some of these issues, including through counselling. 

4. The father submitted that in the orders he proposes the emotional needs of the child will be met.  I reject that submission.

S60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. As to the question of the age and maturity of the child, he is aged 13.  He has lived primarily with his father since August 2011 and expresses a dislike of Mr C.  I have considered that earlier in these reasons, particularly having regard to the more recent evidence of the Single Expert.

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

1. I have extensively dealt with this earlier in these reasons, and I re-iterate those remarks.

2. The father submitted that the single expert’s opinion was that the parents love their children and the parents take the responsibilities of parenting seriously, and quotes selectively from the first report. The single expert said in full:-

   134.The parents love their children. Ms [X] loves both of the children. Both parents take the responsibilities of parenting seriously. However, the current conflicts and associated stressors are having a negative impact on the parenting of both parties.

3. I accept that evidence subject to the qualifications.  I also accept the submission made by the mother that the father’s fixated hostility to her and her partner, Mr C, has impinged on his responsibility of parenthood and reflects a poor attitude to the child B in that, he is not having a relationship with his mother.  I accept her submission.

4. I accept that the child is being psychologically harmed by the present impasse and that each parent has contributed to that impasse.

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

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i)     the order is a final order; or

(ii)   the making of the order was contested by a person;

1. I have discussed family violence elsewhere in these reason and the various family violence orders.  I have had regard to those matters in respect of this determination.

2. The father submitted that:-

   the previous evidence of statements consistent with possible family violence made in these proceedings are relevant only for historical context. The Father does not suggest there is an unacceptable risk to either child at the present time in spending substantial and significant time with the Mother. 

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

1. These proceedings were commenced in 2011.  Despite numerous orders and endeavours, the situation for B has become worse.

2. The father submitted that the orders he seeks are those least likely to lead to the institution of further proceedings in relation to the child.  He is perhaps correct, but in the circumstances that the child finds himself, I would not conclude that that is in his best interests

3. The mother says of the orders sought by the father are but a repeat of those made in May 2013, which have failed.  She says that the child’s opinions are unchanged towards her partner and that, given it is unlikely that the father will promote any relationship with Mr C, it is highly likely that the orders he seeks will again fail and potentially lead to further proceedings.  This may also be correct.

4. If the mother, the father and Mr C continue to abrogate their responsibilities to the child (and to his sister) the only way litigation will end is when these children attain the age of 18 years.

5. If the child is left in the care of his father there is likely to be more court intervention as his emotional health continues to deteriorate.  If the child is moved and it is unsuccessful, that in itself may lead to the need for more litigation.  Either way this risk cannot be obviated.  However, there needs to be an end to this litigation which has been ongoing since August 2011.

Section 60CC(4) without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

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

1. Nothing new arises out of the consideration of the matters in s 60CC(4) and for that matter s 60CC(4A) which has not already been discussed in detail in these reasons. I again reiterate those facts set out above.

2. The father submitted that the mother has failed to take the opportunity to spend time and communicate with the child.  Given the earlier findings, I reject that submission.

3. The father submitted in his case outline that the mother had not paid child support for the child.  The mother’s evidence was that this was not the case.  There is evidence, which I accept, that the father was previously in arrears of child support and filed or lodged a new financial assessment that resulted in the mother not receiving financial support for E and being liable to in terms of B.  It was yet another field of conflict.  I accept that the mother paid some schools fees for the child up until 2013. 

4. The mother has tried to arrange communication and time between herself, E and B and this has not been facilitated.

5. The Independent Children’s Lawyer submitted that there had been no communication between either parent on schools for 2014 and that at one time the father moved house and refused to communicate where he was living.

The Presumption

1. The impact of s 61DA of the Act and its interaction with s 65D and s 65DAA create something of a ‘chicken and egg’ consequence, particularly in circumstances such as this. Given the history and findings, equal shared parental responsibility would not be in the child’s best interest but consideration of parental responsibility must logically follow a determination of residence.

1. To overcome this conundrum I will first consider the presumption having regard to s 61DA of the Act. This section provides for a presumption of equal shared parental responsibility when making parenting orders:-

   Section 61DA

   (1) When making aparenting orderin relation to achild, thecourtmust apply a presumption that it is in the bestinterestsof thechildfor thechild'sparentsto have equal sharedparentalresponsibilityfor thechild.

   (2) The presumption does not apply if there are reasonable grounds to believe that aparentof thechild(or a person who lives with aparentof thechild) has engaged in:

   (a) abuseof thechildor anotherchildwho, at the time, was amemberof theparent's family (or that other person's family); or

   (b) family violence.

   (3)When thecourtis making an interim order, the presumption applies unless thecourtconsiders that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies thecourtthat it would not be in the bestinterestsof thechildfor thechild'sparentsto have equal sharedparental responsibilityfor thechild.

1. Clearly in some circumstances it is in the child’s best interests for the parents to have equal shared parental responsibility. 

2. In this case given the factors including:-

   a.there is evidence that at least Mr C may have been involved in family violence, given his threat to physically discipline the child B;

   b.other comments made by me as to family violence; and

   c.primarily that given the evidence set out above I am satisfied that it is not in the best interest of the child for his parents to have equal shared parental responsibility.

3. As a consequence there should be no order as to equal shared parental responsibility.

Residence

1. The father’s case set out that he sought orders that the child B live with him.  He based this on the expressed views of the child and the father’s ongoing concerns about the child’s fear and dislike of the mother’s partner.

2. The father submitted that the child will refuse to go and that if he is ordered to do so he will likely run away from the mother’s home.

3. In seeking her orders the mother says violence was not an issue, and even if it was it is no longer the case.  She acknowledges that the transition for the child will not be easy and that there will need to be significant steps, particularly counselling.  In addition she supports a moratorium on time between the child and the father.

4. The mother rightly contends that until recently she was the child’s primary carer.  She further submitted that the father’s contention that the child would run away is indicative that the father in unlikely to support a relationship between the child and his mother and sister.  I accept these submissions of the mother.

5. I also accept that if the child lives with the mother it is likely that his relationships with his paternal grandmother and paternal relatives would continue.

6. The Independent Children’s Lawyer submitted that the child should live with the mother.  As indicated above, I have determined that the living arrangements for the child should change and that he should live with the mother.  Given the evidence and the conclusions I have come to, as set out in these reasons, including the need for a relationship between the child and his sister, I agree that the residence arrangements should change to meet the best interests of the child.  Ultimately, the decision is one which is the least detrimental option for the child.

7. In an effort to ensure that these orders work, I will make the orders similar to those suggested by the Independent Children’s Lawyer, including those pursuant to s 65L of the Act. I will provide a moratorium on the child seeing the father for a period after the date of the orders to enable the child to settle into the home of the mother.

8. As to the initial change over, the Independent Children's Lawyer and the mother submitted that the changeover of the date of residence should occur on the day the orders are made, given the history of the parties and their conflict I agree.

9. In addition the Independent Children's Lawyer and the mother sought orders that a Family Consultant help facilitate that changeover.  I likewise agree and I have made that order.  In advance of delivering these reasons I have arranged, through my associate, for copies of the Single Expert’s reports and the transcript of her evidence be made available to the Senior Family Consultants - Child Dispute Services Hobart Manager and that a Family Consultant be available to see the child on the day these reasons are delivered.    

10. The Independent Children's Lawyer and the mother submitted that the father should collect the child from school that day.  However, my assessment of the father is that he will have great emotional difficulty managing the outcome of these proceedings and given the history to which I have referred earlier, the father is likely to visit those emotions on the child.  As such I will be ordering the mother to collect him. She will be ordered to do so in the absence of Mr C.  Further, I will deliver these reasons on Friday 26 September 2014 so that the child has the third term school holiday to settle in to the mother’s home.  I will make orders keeping the mother’s parter out of the home until the Friday before the child returns to school.  I make it clear to the mother that I expect that any commitment or activities that the child has planned over that period should go ahead.  It is my hope that the mother takes time away from work over that short two week period, to help the child manage the change. 

11. I raised with the mother during the hearing whether she was able to provide a period of time when her partner was not at her home.  She gave a series of reasons why that could not occur, some of which had substance and some of which did not.

12. This change is going to be difficult enough for the child, the mother and E.  There is no reason why Mr C cannot keep away from the home for a short period of time whilst the counselling starts and to enable an easier settling in for the child.  It is my hope that the explanation of the undertaking given by the mother’s partner and together with a moderated changeover will assist the child in coping with these orders.

13. To that end I will retrain the mother from allowing her partner to reside at the home in which she and the child will reside for a period of two weeks and restrain her from bringing the child into contact with her partner over that period unless recommended by the Family therapist.  In this respect I do not find that Mr C constitutes an unacceptable risk to the child.  The whole purpose of this injunction is to make the changeover less traumatic for the child.

14. Both the Independent Children's Lawyer and mother sought a moratorium of time between the child and the father following changeover, particularly given the evidence of the single expert.  I have accepted that that approach may assist in implementing the change.  The Independent Children's Lawyer suggested about four weeks, and the mother sought a longer period.

15. I have put in place a moratorium in respect of time and communication between the father and the child from the date of the orders until 14 November 2014.  

16. The 30 July 2014 formal undertaking given to the Court by Mr C, in respect of discipline and threats of discipline. The explanation of the meaning of that undertaking to the child by the Independent Children's Lawyer. Further, I intend to exclude the mother’s partner from the mother’s home for the first two weeks after changeover. The Order (pursuant to s 65L of the Act) requesting a Family Consultant to explain the orders to the child.

Time and communication

1. Once the moratorium period with respect to the time between the father and the child has elapsed and the child has, hopefully, settled into the mother’s home, it will be important and necessary that the relationship between the child and the father is restored.  The Independent Children's Lawyer and the mother submitted a structure of time and communication orders.  Given the findings and application of them to the law, as set out earlier, I have adopted those to enable the continuation of the relationship between the child and the father. 

2. Those orders permit regular telephone communication.  The orders provide regular time during school term and over the school holiday periods.  They deal with special days such as Christmas, birthdays and the like.  They permit the sending of cards letters and gifts. 

3. The father was concerned about changeover, as with the mother and Independent Children's Lawyer.  Given the orders I have put in place and the undertaking given by the mother’s partner, I have rejected the concept of changeover at a police station and adopted the Independent Children's Lawyer approach at the parties’ respective homes.  The child is at an age where he can easily move from home to car without assistance.

4. The orders I have put in place will enable the relationship between the father and the child to continue and hopefully flourish.  It provides scope to enable flexibility should the parties agree.

Parental Responsibility

1. Section 61DA of the Act sets out the presumption of equal shared parental responsibility subject to subsection 2, which provides that the presumption does not apply if there are reasonable grounds to believe that, as in this case the father has abused the child or has perpetrated family violence. In this case, findings have been made and the presumption does not apply.

2. The threat by the father’s partner to the child was such as would rebut the presumption.  In addition the single expert noted the conduct to which the child was exposed, when she said:-[69]

   39.Child abuse has been described (e.g., Behura, 2011) as all forms of ill-treatment resulting in actual or potential harm to a child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power. In my opinion, all of the adults involved in this matter are responsible for contributing to the psychological harm of [E] and [[B]]. by the continuation of their current conflictual behaviour, and failure to protect the children from these issues.

   [69]First report – paragraph 39

3. The Act provides a definition of violence at the time these proceedings commenced for which the conflict between the parties probably amounted to violence in relation to the child:-[70]

   family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
   

   [70] Section 4 of the Family Law Act 1975 (Cth).

   Note:     A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

4. Further given the evidence referred to above and the s 60CC factors to which I have eluded and made comment and having regard to the absolute inability of these parties to effectively communicate since early 2011, it is clear that an order for equal parental responsibility cannot work.

5. The Independent Children's Lawyer submitted in his case outline:-[71]

   …. the parents relationship is marked by severe levels of conflict, distrust and dysfunction and, prima facie, counter indicates capacity for collaborative or cooperative parenting. The present “toxic” relationship has subsisted for over 3 years.

   However, despite the above, the Independent Children’s Lawyer acknowledges that to shut one parent out of the consultation over decisions in respect of major long-term issues for that child is one which the Court ought to do with great caution (See Runcon v Raine (2008) FamC 837 at Paragraphs 36 to 38).  If the Court determined that there ought not be shared parental responsibility the proposal of the Independent Children’s Lawyer would at least allow the non-residential parent to have some information as to decisions which are to be made in respect of the children with the opportunity to provide constructive input into directions.

   [71] Exhibit ICL1.

6. The father also acknowledged that shared parental responsibility could not work, albeit in the context of the child living with him.  The father submitted:-[72]

   The Father’s position is that the relationship between the parents has broken down to such an extent that they are no longer able to communicate with one another in the children’s best interests and he accordingly seeks orders that each parent have sole parental responsibility for the child that lives with them.

   [72]Ibid. - page 18.

7. As I have determined that the child is to live with the mother, the only workable option is that she has sole parental responsibility.  I will, however, require her to communicate with the father and consider his views.

8. Further, the change which is to take place in his life will be enormous for the child.  As such, I will not permit the mother to change his school arrangements until 2015.  That way the child may have some degree of stability over the period of the change.

9. Finally in terms of parental responsibility I have given the father permission to access the child’s school and health records without the necessity of the mother’s consent.

Other orders

1. The parties and Independent Children's Lawyer agreed to the making of consent orders relating to the prohibition on physical discipline of the child B, discussion in his presence relating to these proceedings, management of his allergies and provision of reports to any disciplinary tribunal without leave of the Court and counselling.  Given the evidence and circumstances outlined in these reasons, I have made those orders.  Although, I have slightly adapted them to meet the outcome as to parenting time which I have determined insofar as it related to the child.

2. It was not absolutory clear whether the parties had agreed to a non denigration order, but given the history I have determined that such an order ought to be made.

3. I have discussed the moratorium earlier in these reasons and, given the history set out above, I am concerned about the practicalities of the changeover of residence of the child.  To that end the orders are to be made on 26 September 2014 and I am aware that that is the first day of the third mid-year Tasmanian school holiday break.  I have structured the delivery of these reasons and the making of these orders around that date.

4. These proceedings are listed for the making of orders at 10.00am on Friday 26 September 2014.  To assist and facilitate the changeover, I have taken the unusual step of arranging for these reasons to be published at 9.00 am and copies provided at that time by electronic means to the Independent Children’s Lawyer and the Manager, Child Dispute Services.

5. This will enable steps to be taken by Child Dispute Services to have available a family consultant to assist in the implementation of the orders.  It will enable the Independent Children’s Lawyer to understand the orders and the reasons upon which they are based, and for him to assist these unrepresented parties in understanding what is happening when the orders are made at 10.00 am on that day. 

6. It is my expectation that the Independent Children’s Lawyer will, once the orders are made, inform the mother that she is to collect the child from school and have the child meet with a family consultant.  He can also inform her of the restrictions on her pertaining to Mr C.  The Independent Children’s Lawyer can inform the father of the orders and the injunction restraining him from approaching or contacting the child for that period of time. 

7. When the orders are actually made the family consultant will be available later that day when the mother collects the child and brings him to the Court.   

8. The parties will be given a copy of the published reasons at 10.00 am and I will ask my court officer to hand a sealed copy of these orders to each of the parties and the Independent Children’s Lawyer at that time.

9. The purpose of adopting this course is to inform the parties as I have set out above and to prevent possible interference by the father in the changeover process. I am conscious of the provisions of Division 12A of Part VII of the Act, which sets out a number of principles including the obligation on a court to consider the impact of the conduct of the proceedings on the child. This should apply to the safety and well-being of a child when orders are made which have an impact on the child. For the same reasons I have put in place a temporary injunction in support of the moratorium which was raised during the hearing.

10. Given that no specific notice had been given in respect of this injunction, combined with the impact of the change of parenting on the child, I intend to give leave for the parties and the Independent Children’s Lawyer to have the matter restored before me on short notice at any time during that moratorium period.

11. For these reasons I propose to make the orders set out herein.

I certify that the preceding three hundred and seventy four (374) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 September 2014.

Associate:       

Date:  26 September 2014