REILLY & SULLY
[2019] FamCA 605
•28 August 2019
FAMILY COURT OF AUSTRALIA
| REILLY & SULLY | [2019] FamCA 605 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Relocation – Where the mother and father each seek sole parental responsibility for the child and for the child to live with them – Where in the alternative the father seeks a shared care arrangement – Where the mother seeks that the child have no contact with the father and that she be permitted to relocate with the child interstate – Where a shared care arrangement would not be appropriate given the parties’ highly acrimonious relationship – Where the child’s relationship with the mother would likely be lost if the child was placed in the sole care of the father – Orders made for the mother to have sole parental responsibility and for the child to spend time with the father as specified – Orders made to permit the mother to relocate the child’s residence interstate FAMILY LAW – COSTS – Where the Independent Children’s Lawyer sought an order for costs against the father– Where the financial circumstances of the father were strained – Where it would not be just to make an order for costs – Application dismissed |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 Goode & Goode (2006) FLC 93-286 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Reilly |
| RESPONDENT: | Mr Sully |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5651 | of | 2013 |
| DATE DELIVERED: | 28 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 11 - 15 March 2019 |
| REPRESENTATION |
| COUNSEL FOR THE APPLICANT: | Mr Blank |
| SOLICITOR FOR THE APPLICANT: | Phoenix Legal Consultancy |
| FOR THE RESPONDENT: | Mr Sully in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The following parenting orders are made in relation to the child, B (“the child”) born … 2008.
All previous parenting orders are discharged.
Parental Responsibility
The mother shall have the sole parental responsibility for the child.
Live With
The child shall live with the mother.
Relocation
The mother is permitted to relocate the child’s residence to Adelaide, South Australia.
Spend Time
The child shall spend time with the father as follows:
(6.1)Prior to the mother relocating the child’s residence to Adelaide from 12.00 noon to 5.00 pm each alternate Saturday (commencing on 7 September 2019) supervised by N Contact Centre;
(6.2)After the mother relocates the child’s residence to Adelaide:
(6.2.1)the child shall spend no time with the father for two (2) calendar months;
(6.2.2)at the conclusion of the two (2) calendar month period the child shall spend supervised time with the father once every two (2) calendar months for a period of five (5) hours as agreed, and if not agreed, the first Saturday every second month from 12.00 noon to 5.00 pm;
(6.2.3)the supervision in these orders is to be provided by a children’s contact centre or private supervision agency as agreed between the parties and if not agreed, as nominated by the mother, and all arrangements for, and the costs of, the supervision are to be paid by the father;
(6.2.4)if the father wishes to take up his supervised time with the child, he must notify the mother seven (7) days in advance by email, and if such notification is not made, then the visit shall not occur;
(6.2.5)the child spending supervised time with the father in accordance with these orders is to occur until the child is 14 years of age;
(6.2.6)upon the child attaining 14 years of age, the child spend time with the father in Adelaide as agreed between the parties.
During any time the child spends supervised time with the father in accordance with Order 6, the father is restrained by injunction pursuant to section 68B of the Family Law Act 1975 (Cth) from:
(7.1)denigrating the mother; or
(7.2)whispering to the child; or
(7.3)questioning the child about the mother; or
(7.4)discussing with the child any allegation that the mother has harmed or mistreated the child.
To effect Order 7, that:
(8.1)in the event that the father does any act described in Order 7, the children’s contact centre or private supervision agency is to immediately end the visit in progress and return the child to the care of her mother; and
(8.2)any children’s contact centre or private supervision agency supervising the father’s time with the child from time to time is to be provided a copy of these orders.
If the child leaves the mother’s care and attempts to or does spend time with the father otherwise than in accordance with these orders, then the parenting arrangements for the child to spend time with the father as provided by Order 6 are suspended for a period of two (2) months.
Health
Within 30 days of the mother relocating to Adelaide with the child, the mother is to do all acts and things to obtain a mental health plan from a general medical practitioner for the child and a referral for the child to attend on a child and adolescent psychiatrist or psychologist to provide therapeutic support for the child in the implementation of these orders.
Within 14 days of Order 10, the mother is to do all acts and things for the child to attend on the child and adolescent psychiatrist or psychologist, and to follow any reasonable recommendations of the child and adolescent psychiatrist or psychologist, including the frequency and duration of visits, and for as long as the child and adolescent psychiatrist or psychologist recommends.
The mother is to provide any child and adolescent psychiatrist or psychologist that the child attends from time to time under Order 11 with copies of the two expert reports of Associate Professor D dated 26 February 2016 and 22 June 2018.
The mother is to notify the father of any serious illness or hospitalisation requiring surgery for the child.
School
The mother shall do all acts and things to ensure that whatever school the child attends from time to time provides the father with copies of the child’s school reports.
Communication
The mother and father communicate by way of email or text message only for the purpose of making parenting arrangements for the child.
The parties shall keep each other informed of their respective residential and email addresses and telephone numbers and any change to the same is to be advised to the other party within seven (7) days of any such change.
Restraints
Other than as provided for in these orders, the father is restrained by injunction pursuant to section 68B of the Family Law Act 1975 (Cth) from:
(17.1)communicating with the child in any way;
(17.2)going within 200 metres of the child;
(17.3)going within 200 metres of any place where the child resides; and
(17.4)going within 200 metres of the child’s school.
Noting that Orders 17.1 to 17.4 are for the personal protection of the child and that these injunctions are suspended during the periods when the child and the father spend supervised time together under Order 6.
Costs
All costs applications by the Independent Children’s Lawyer be dismissed.
All outstanding applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reilly & Sully has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5651 of 2013
| Ms Reilly |
Applicant
And
| Mr Sully |
Respondent
REASONS FOR JUDGMENT
Introduction
B (“the child”) is eleven years of age. Her parents are Mr Sully (“the father”) and Ms Reilly (“the mother”).
Final parenting orders were made by consent on 16 March 2016. In summary, those orders provided for the mother to have sole parental responsibility for the child, for the child to live with her and for the child to spend time with her father on alternate weekends from after school Friday until before school Monday, as well as times specified for special days and school holidays. There were also certain restraining orders. Both parents now seek to have changes made to those parenting arrangements.
Applications
The mother seeks orders which would provide for her to retain sole parental responsibility for the child, for the child to live with her and for there to be no contact between the child and the father. She seeks an order that she be permitted to relocate the child’s residence to Adelaide or any other place within Australia. The mother also seeks certain restraints against the father and that he pay her costs on an indemnity basis.
The form of the orders sought by the mother as contained in her Initiating Application filed on 30 May 2017 is Annexure “A” to these Reasons.
On the other hand, the father seeks what might be described as alternative sets of orders. His primary position is that he seeks the following final orders:
·that he have sole parental responsibility for the child;
·that the child live with him;
·that the child spend time with the mother as agreed between the parties in writing; and
·certain orders as specified for changeover, the parents keeping one another informed of details, various restraints; and that the mother pay his costs.
The father also seeks an alternate set of final orders, expressed to be contingent upon the Court finding that the child is not at risk of physical danger in the care of the mother. Such alternate orders include the following:
·that the child spend one half of her time with each of the father and the mother so that she would live with the father in alternate two week periods as follows. In Week 1 from after school Friday until the commencement of school on Monday and from the commencement of school on Wednesday until the conclusion of school on Friday. In Week 2 from the commencement of school on Monday until the commencement of school on Wednesday, as well as one half of all school holidays;
·mirror orders for the child to live with the mother;
·time for each parent on special days as specified; and
·orders with respect to telephone communication with each parent.
The father seeks that these orders be put in place initially as interim orders for three months at the end of which the Court would determine whether to make the interim orders as final orders.
The form of the orders sought by the father in his Further Amended Response to Initiating Application filed in Court on 12 March 2019 is Annexure “B” to these reasons.
The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:
·that the mother have sole parental responsibility for the child;
·that the child live with the mother;
·that the mother be permitted to relocate the child’s residence to Adelaide, either at the end of Term 2, 2019 or after the end of Term 4, 2019.
·that the father spend time with B prior to the mother relocating the child’s residence to Adelaide initially for a month, once every two weeks for four hours supervised by N Contact Centre and after one month once per calendar month for a period of four hours supervised by N Contact Centre;
·upon the mother and child relocating to Adelaide the father spend no time with the child for a period of two months and after that period once every two calendar months for three hours, such time to be supervised at a children’s contact centre or private supervision agency;
·such supervision to continue until the child attains 14 years of age, at which point the child spend time with the father in Adelaide as agreed between the parents;
·various restraining orders;
·various medical orders including assistance from a psychiatrist or psychologist;
·provision by the mother to the father of copies of the child’s school reports;
·notification to the father of any serious health matter;
·provision by one parent to the other of all relevant personal details; and
·certain orders with respect to costs.
A copy of the orders sought by the ICL is Annexure “C” to these reasons.
Background
The background is as follows.
In March 2007 the parents commenced their relationship.
In 2008 B was born.
In September 2012 the parents separated on a final basis.
On 16 April 2014 interim orders were made in the Federal Circuit Court by Judge Walker that B spend half the school holidays with her father and commencing the first week of each school term that B live with the father on a two week cycle as follows:
·From after school Thursday to before school Monday in week 1; and
·From after school Thursday to before school Friday in week 2.
On 20 June 2014 an ICL was appointed.
On 30 January 2015 final parenting orders were made by Judge Walker including orders that:
·All previous orders be discharged;
·The mother have sole parental responsibility for B;
·The child live with the mother;
·The child spend time with the father on alternate weekends from after school on Friday to 6.00 pm Sunday; and
·The child spend one week of the June/July school holidays and one week in the Christmas school holidays with the father.
On 26 February 2015 the ICL filed a Notice of Appeal against orders made on 30 January 2015. By consent, on 30 June 2015 the Full Court of the Family Court of Australia set aside the orders made on 30 January 2015. The matter was remitted and transferred to the Family Court.
On 16 March 2016 orders were made by consent to the following effect:
·All current orders were discharged;
·The mother have sole parental responsibility for B;
·The child live with the mother;
·The child spend time with the father on alternate weekends from after school Friday to before school Monday, as well as on certain special days as specified;
·The child spend time with the father for the first week of the June/July school holidays;
·The child spend time with the father for two consecutive weeks after Christmas;
·The father was restrained from attending the child’s school other than when he collects and delivers the child pursuant to these orders or parent/teacher appointments.
On 16 March 2016 the parties entered into a binding child support agreement in which they agreed to equally share the cost of school fees and related expenses, out of pocket medical expenses and extra-curricular activities on top of the administrative assessment.
By June 2016 the father was making it clear in his correspondence with the mother that he did not accept the parenting arrangements in the March 2016 consent orders.
Between August and December 2016 there were many occasions when the father retained B for extra time to which he was not entitled under the orders.
The mother said that on 21 September 2016 the father approached her and B and they had the following conversation in front of B:
[Father]:You’re a bad mother, you are unbalanced, your parents didn’t teach you how to be a good parent, you get aggressive and then you cry. You bashed me and you’ve hit B and you’ll do it again.
[Mother]:Stop this [Mr Sully]
[Father]:You got your orders by deception and B is suffering having to live with you and your mental problems. Look at you. Look at you.
[Mother]:Stop this or the police will come
[Father]:B I know it’s very hard to live with [Ms Reilly] and you are very brave and courageous to survive this.
The father conceded that he said this but did not concede that he said this within the child’s hearing. He also said that this reflected the view he had of the mother at the time.
B told the father that on 12 November 2016, the weekend of the mother’s 50th birthday, B had written “[the mother] is cruel to B” in big letters across the lounge room wall at her mother’s home with a permanent marker.
On 14 December 2016 the father attended B’s school for parent/teacher night. The mother was shocked and distressed by this because Order 7 of the 16 March 2016 orders restrained the father “from attending the child’s school or being within 100 metres of the perimeter of the school, except when he collects the child on a Friday or Monday pursuant to these orders, or he attends the school for a parent/teacher appointment outside normal school hours, or by a written invitation from the mother”. The father’s explanation for his attendance was that he was attending a parent/teacher appointment.
In December 2016 the mother and B travelled to Adelaide. The maternal grandmother said that while in Adelaide, B refused to refer to her mother as “mum” and called her “[the mother]”, “she” or “…”. I accept this.
On 9 January 2017 the father collected B from the mother at 9.00 am for a 15 night holiday. B was to be returned to the mother’s care on 24 January 2017 at 1.00 pm. The father failed to return B to the mother on this date and retained her for an additional six nights. On 28 January 2017 the mother filed a police report at Suburb P Police Station. The father returned B to school on 30 January 2017.
On 8 February 2017 the mother held B by her wrist and arm. She said this was to restrain B from running off. B tried to pull away and she told her mother that it hurt her wrist. B has made much of this, complaining to the father that when the mother takes her out she holds her wrist like a handcuff as though B is her prisoner.
On 10 February 2017 B completed therapy with Ms O.
On 23 March 2017 B ran away down the road as the mother was farewelling friends. The mother caught up with her and had to restrain her by holding her upper arms. As they walked up stairs B tried to go back down and the mother blocked her using her body.
Ms G, a long-time friend of the mother whose daughter has been in the same class as B, said that on 31 March 2017 the father spoke to her at B’s then school. She said that the father pushed his face very close to her face and said “You need to stop physically abusing my daughter”.
Ms G said she was shocked and replied that she did not know what he was talking about and denied that she had abused B. Ms G said that the father again told her to stop physically abusing B and that again she told him she had not done this. She said that the father turned to B who had been present during this incident and said “She did. Didn’t she.” Ms G said that B hesitated, made eye contact with her and nodded her head in agreement. Ms G said that the child looked very uncomfortable and scared.
The father agreed that he had raised this matter with Ms G. He said that B had gone into detail about Ms G taking her by her wrists and throwing her back against the mother causing B injury to her wrists and shoulder. It is clear that the father believed what the child told him.
On 4 April 2017, that is, approximately two and a half weeks later, the father took B to Dr X and his notes recorded that three weeks ago Ms G grabbed B by the left wrist and yanked her shoulder and wrist – that she still had a sore shoulder. The doctor’s notes also recorded that the previous week the mother had grabbed B by her wrists and dragged her up several stairs.
As counsel for the ICL suggested to the father during cross-examination, the child made no complaint to any person at her school about this alleged abuse by Ms G. I must say I prefer Ms G’s denial to the father’s allegations about this matter. In my view, it is more likely than not that the child embellished whatever happened between Ms G and herself for the purpose of seeking favour with the father.
The father had retained the child in his care rather than returning her to the mother on 3 April 2017 as required by the Court orders. He did not return her until 5 April 2017.
The mother subsequently took B to visit her parents in Adelaide for the Easter 2017 school holidays. She was to make the child available to the father on the Easter weekend but she failed to do so. She caused her solicitors to write to the father on 10 April 2017 to inform him that she would be bringing proceedings against him for contravening the Court orders and that she was not prepared to make the child available over the Easter weekend because she was fearful that he would not return her to the mother for the remaining week of the school holidays. I shall refer to this matter again below.
On 1 May 2017 the father did not return B to the mother as required by the Court orders.
On 14 May 2017 B gave the father a Mother’s Day card on which she wrote the following:
Dear Daddy, whishing you a very happy mother’s day. Thank you for being a lovely mum fore me, and thank you for caring about me. with all the love a daughter gives her mum, from B xxxx (as per the original)
On 18 May 2017 orders were made which suspended the father’s time with the child pending further order. The father was restrained from communicating with the child in any way and from going within 200 metres of the child, the place where the child resides or the child’s school. It was noted that these orders were for the personal protection of B. A Recovery Order was issued for the return of B to her mother’s care.
At 11.00 pm on 18 May 2017 police officers from Suburb Q Police Station entered the father’s property to recover B. B refused to go with the officers. She was removed from the father’s home and carried to the mother’s car by police.
On 21 May 2017 B said to the mother: “We had a lovely Mother’s Day. I made Daddy breakfast in bed and gave him a Mother’s Day present because he is my Mother”.
Also on 21 May 2017 the mother said that she saw the father standing in the laneway near her home, holding a puppy and looking up at B’s bedroom. The father denied his presence there but I prefer the mother’s evidence about this. The mother called the police. The police attended but were unable to locate the father.
On 28 May 2017 the mother left B in the car while going into a shop to buy fruit. When the mother returned to the vehicle B was not in the car. The mother called the police. She telephoned the father but there was no answer. The police attended the father’s house and informed the mother that B was with her father and that she had disclosed to them that the mother had pinned her down and tried to suffocate her on the previous day. The father said that B arrived at his home in the worst state of trauma he had ever seen a child. He said that she alleged that the mother had cruelly punished, starved, physically and psychologically harmed and tortured her for the last ten days since 18 May 2017.
The father said that on 29 May 2017 B said the following to him:
Because, I just can’t live with her. On Saturday morning the 27th May I was on the couch reading a book and [the mother] came out. And she grabbed the book from me and threw it down on the table. Then got her hand and pinned me down on the sofa couch and said, “Get me some biscuits.” And then when I said, “You get them yourself” she got her hand and she pressed it on my chest and it felt like I was suffocating. And it was like her hand was going into my body and squeezing my lungs. Like I couldn’t breath! [sic] I don’t know how long it lasted, twenty, thirty seconds it just, it seemed like forever. And then, I managed to slip out from underneath her. And so her hand was just on my arm and I then slipped away from that and I ran into my room. And then as soon as I closed the door I flopped down on my bed and I breathed really hard and I started crying.
The father further said that B told him also on 29 May 2017 that the mother grabbed her by the wrist and threw her against a wall following her interview with Dr D.
The mother denied that she assaulted B.
On 30 May 2017 the mother made a report to the Department of Family and Community Services regarding school absences, the recent recovery and the restraining orders.
On 1 June 2017 B was returned to the mother’s care at 8.00 pm that evening by police car.
The father said that on 15 July 2017 he and B had a conversation to the following effect:
[B]:Daddy my life is lonely and terrible without you, please tell the judge I just want to live with you.
[Father]:If you could have the family back together again would you be happy? Would you like that?
[B]:No [the mother] would wreck it in a day. No please no I can’t be with her.
[Father]:You need to be with [the mother] for some of the time.
[B]:No she’s not a nice person. The only person she cares about is herself. I hate her. I love you and I just want to be with you. I never want to live with her for another minute. I want [the mother] to go to gaol for what she’s done to me then I don’t have to worry about her hurting me again.
The father said that later that day he had a conversation with B to the following effect:
[B]:She asked me what I was doing and I said I was writing a story about a dog and as I was saying dog she cut me off and started talking about yoga and herself.
[Father]:You’ve told me before that she’s never interested in what you do or say so why did you begin trying to answering [sic] her?
[B]:I knew she’d cut me off and talk about herself and I thought I’d see how long it took this time. I didn’t even finish one sentence. She is the cruellest most horrible person I know.
On 21 July 2017 interim orders were made for B to live with her mother and spend supervised time with her father for five hours each Saturday. Additional supervised time was ordered for specific dates.
On 30 July 2017 the father arrived at the mother’s home and approached the mother and B before the supervisor arrived.
The father said that on 30 September 2017 B said to him “I don’t feel pain anymore, I just feel hollow”.
In the week commencing 16 October 2017 B had an allergic reaction to a tick bite.
On 29 December 2017 B and her mother travelled to Adelaide to visit the maternal family.
In January 2018 B was enrolled at Suburb C Public School.
On 12 February 2018 an order was made for the father to enter into a good behaviour bond as a result of a finding of a contravention of a Court order without reasonable excuse.
On 13 February 2018 the father attended a parent information night for years five and six at Suburb C Public School at approximately 7.00 pm. The mother called the police.
On 3 March 2018 the mother and B travelled to Adelaide to attend a wedding.
In May 2018 the mother asked the father to request a copy of B’s health fund card. The father replied suggesting that he attend upon each facility that B attends for medical and dental treatment rather than providing the mother with a card.
In August 2018 the mother spoke to Ms R, the Deputy Principal of B’s school, about B’s behaviour and informed her that the court case was approaching.
The mother said that on 26 August 2018 B said to her in relation to spending supervised time with her father:
It’s embarrassing and why does it have to be supervised anyway. I want to spend more time with dad. It’s up to you. Why won’t you let me? I love him more. I miss my room and the things we do together. I’ve missed years of my life with him. You won’t even let me go to my home. I want to see my room.
The mother said that in this same conversation B later said:
But it’s up to you. You asked for those orders. Everyone thinks men are violent and women are lovely, but it’s not fair. Everyone thinks daddy is bad but he’s not, he’s a great father.
On 27 August 2018 B travelled to her father’s home instead of attending school. Her mother had delivered her to school in the morning and B subsequently walked to her father’s house. At 2.47 pm the father called the mother to inform her that he had taken B back to school and that she had walked to his house earlier that day. The father said that this was the day that B’s mouse died. He said that he had a conversation with B with words to the effect:
[B]:When she takes me out she holds my wrist like a handcuff, like I’m her prisoner.
[Father]:When does she do that?
[B]:All the time Daddy, she’s done it for ages
[Father]:When was the last time?
[B]:Yesterday she did it when we were out yesterday, she does it all the time like this! So people will think she’s holding my hand but it’s not my hand it’s my wrist and she squeezes it hard and it hurts and I can see she enjoys hurting me and no one is there to stop her and I can’t tell anyone.
On 28 August 2018 the police conducted a welfare check on B at the mother’s household at the request of the father.
On 3 September 2018 the mother contacted the Domestic Violence Liaison Officer at Suburb Q Police Station so that the police might be alerted if there were further complaints.
On 27 September 2018 the ICL sent an email to N Contact Centre following the release of a contact report. The email included the following paragraph:
If the father questions the child about the mother or denigrates the mother or there are whispered conversations, it is my view that the supervisor should intervene and father [sic] should be warned that the [sic] if the behaviour persists the visit will be terminated.
On 26 October 2018 B said to her teacher that the mother had taken away photographs of the father and that she had physically assaulted her on many occasions including kicking her, shaking her and screaming at her.
On 29 October 2018 the matter was listed for final hearing for five days commencing on 11 March 2019.
At the end of 2018 B was appointed as a school leader for 2019.
The mother said that on 22 December 2018 B said the following:
“I want to live with my Dad, but your court orders say I can’t. I won’t go to Adelaide. You don’t care about me you just want to meet some guy and go to live in Mexico”; and
“I hate my life, I have this horrible feeling inside all the time, even when I am happy. I want to kill myself. I want to get out of this life. The kids at school search Dad on the internet and one day someone will find out about the police and my life will be even worse. I want to kill myself. I hate being me”.
On 30 December 2018 the mother and B travelled to Adelaide.
The father said that on 19 January 2019 B said to him words to the effect:
Every time [the mother] takes me to Adelaide, [Ms S] (B’s Grandmother. B refers to her as [Ms S]) talks to me about [the mother]. She’s been doing it for ages and did it a lot this summer holidays. She always keeps telling me [the mother] is a good person. I told her that is not my experience of her. But [Ms S] keeps at it all the time insisting to me that [the mother] is nice. I say, not to me she’s not. [Ms S] gets angry because she doesn’t like the truth and she yells at me. She’s big and she frightens me.
Credit
The Mother
The mother was forthright and responsive in her answers to questions during cross-examination. She was thoughtful and focused and gave every impression of a witness who was endeavouring to be co-operative and informative.
I had the impression that being in the witness stand and being cross-examined was quite stressful for her. This would appear to be consistent with observations by Dr D that from time to time the mother has manifested symptoms of anxiety.
I thought the mother was a good witness and regard her to have been truthful.
Ms G
Ms G is a volunteer yoga teacher at B’s previous school, the T School. Her daughter and B were in the same class when B attended that school. The mother and Ms G have been acquainted for approximately 12 years.
Ms G was responsive and I regard her to be a truthful witness.
Ms S Reilly
Ms S Reilly is the mother’s mother. She resides at Suburb U near Adelaide in South Australia and was cross-examined by telephone.
Ms S Reilly was responsive, forthright and made concessions. I had the impression that she thought carefully about her answers to questions and gave a measured response. She was polite and respectful towards the father during his cross-examination of her. It appeared to me that prior to the time when the parties separated, Ms S Reilly and the father were likely to have had a good relationship.
I am confident that Mr S Reilly was being truthful in her evidence.
The Father
The father had considerable difficulty with the process of cross-examination. Notwithstanding the fact that I informed him about the importance of listening carefully to questions and providing a responsive answer to the Court, he was unable to do this on most occasions. He was loquacious and garrulous. No matter how simple and clear the question was, the father appeared not to be able to refrain from using it as an opportunity to embark on lengthy and often quite detailed discourse which presumably he perceived would favour his case. Many times I stopped him during the discourse and reminded him of the importance of listening carefully to the question and providing a responsive answer. This did not appear to assist because on almost every occasion my efforts were met by the same behaviour from him.
As a consequence of the father’s approach to this, the process of his cross-examination by both counsel became drawn out and more time-consuming than the Court would have expected.
This is not to suggest that the father was untruthful because I regard him to be a truthful witness. But his lack of focus was a matter which has caused me concern.
Ms V
Ms V is the father’s bookkeeper. Ms V was responsive to questions during cross-examination although initially somewhat too expansive.
But when I pointed this out to her she became focused and forthright.
I regard her to be a witness of the truth.
Dr N
Dr N is the father’s treating psychiatrist. Dr N was professional and co-operative and I have no hesitation in accepting him as a witness of the truth.
His professional opinion about the father was different from that of Dr D.
I shall refer again to his evidence below.
Associate Professor D
Dr D is the Chapter 15 single expert appointed to prepare a report on relevant matters in these proceedings.
I shall refer in detail to Dr D’s evidence during the course of these reasons.
Where I refer to her evidence it can be taken that I accept such.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode & Goode (2006) FLC 93-286 and the High Court cases of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her.
As indicated above, pursuant to final parenting orders made on 16 March 2016 the mother has the sole parental responsibility for B. The mother wishes to retain this. As also indicated above, the father also seeks that he have the sole parental responsibility for the child.
In my view, in all the circumstances, it would not be in B’s best interests for her parents to have joint parental responsibility for her. Neither parent considers this to be appropriate. They have a very poor relationship characterised by conflict, poor communication and litigation about B’s parenting arrangements now over a long period.
As Dr D has observed, the conflict between the parents has continued and even intensified in spite of consent orders. She said that it would appear that there is minimal capacity on the part of the father to co-operate and forge a co-parenting relationship with the mother. Dr D said that it appears that the mother has been willing to try and establish a co-parenting relationship with the father. My own view is that while this might have been the case in the past the mother now has no confidence whatsoever that she could achieve even a very basic level of co-parenting with the father. Dr D said there is very little, and probably no, prospect for cooperative parenting.
In these difficult circumstances, in my view, it will be in B’s best interests for one or other of her parents to have sole parental responsibility for her. I shall refer to this again below.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.
Sub-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
B informed Dr D that she did not like the current parenting arrangement and wanted to be living with her father full-time and “never see Mum: I don’t like her; she doesn’t love me as a mother should. Dad loves me as a dad should and as a mother should; he teaches me things. If I didn’t have him I’d be a completely different person”. She did not know why her time with the father had been made supervised.
Dr D said that B is so “intensely triangulated” and so aligned with her father that it would be difficult to place weight on what she says.
I accept Dr D’s opinion that the child is so aligned with her father that this Court would not place much weight on what she has said.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The child has a complex relationship with each of her parents. Dr D described B as having a “triangulated” relationship between her parents so that she does not have a normal attachment relationship with either of them. Dr D explained that triangulation is a pathological process which is observed in families whereby the child becomes the means by which conflict is played out between the parents. Dr D explained that the parents are not fighting directly with each other but they do the fighting through the child. She said that children caught in such circumstances can be quite damaged by this.
Dr D said that the father is not sensitive to the issues of triangulation and alienation. She said that he is severely undermining of the relationship between the mother and the child and that this has been the case for some years. Dr D said that the father seeks to alienate the child from the mother and for the child to maintain a tight alliance with him. She said that the father has difficulty seeing the child as a separate individual and displays marked psychological fusion or merger with her so that he assesses her needs more in terms of his own needs and feelings.
Dr D said that the history provided by the mother suggests that B is comfortable in her care and that they enjoy a positive relationship when the child is not in proximity to the father. Dr D said that this accorded with her observation of B during the interview where she said that the child appeared very comfortable and at ease with her mother. Dr D said that the child’s demeanour only changed at the end of the day after she had spent time with her father. The change referred to by Dr D was that when the mother returned to the interview room to collect B, as they walked away, B pulled away from her mother’s embrace and walked rather stiffly beside her. Dr D indicated that that was the only time that day that B had shown any difficulty in interacting with her mother.
Tendered into the evidence were four handmade cards which the mother said were given to her by B. Three were wishing the mother a Happy Mother’s Day including for 2018. These included the greetings “I love you so much with lots of love from B” and “…you are the best mother in the world all my love and lagh [sic] B”. The other card wished the mother a Happy Birthday noting that the mother was 52 and including “I still love you to bits…Happy Birthday again and lots of love from your loving daughter B xx”.
The father appeared to have some difficulty accepting the authenticity of these cards. I have no reason not to accept the mother’s evidence that she received each of these cards from B.
Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
As indicated above, since the January 2015 orders of the Federal Circuit Court the mother has had sole parental responsibility for the child. Accordingly, the mother has made the major decisions about the child since that time and the father has not done this. There is no question that the father has taken every opportunity available to him to spend time and to communicate with the child. In fact, as indicated above, he has taken it upon himself on occasions to retain the child in his care rather than returning her to her mother’s care as required by Court orders.
Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father is well behind in his payments of child support. The mother has had to bear almost the entire financial responsibility to support the child.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr D was very clear in her opinion about the likely effect on the child of relocating to Adelaide. Dr D said as follows. B would be likely to experience profound anger and grief if she was unable to see her father. There were two likely possible outcomes of such a move. The happiest outcome would be one in which the child would experience so much relief that an end would have been brought to the conflict between her parents and that she would be personally out of “the line of fire” between her parents, that she would sense that she was better off and would settle into a new life in Adelaide. But the other possibility is that the child would become so enraged and bereft as a consequence of having been removed from ready access to her father that she would fight with her mother and not be able to adjust to her new residence and life. The ultimate outcome might be that the child’s relationship with her mother would end and there would be no alternative to her living with her father.
On the other hand if the child was to live primarily with the father, Dr D thought that in time she would lose her relationship with the mother.
Sub-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.
If the child’s residence was relocated to Adelaide clearly this would have significant practical consequences for her. Time spent between the child and her father would have to be undertaken either in Adelaide which would involve the father travelling from Sydney, or in Sydney which would involve the child travelling from Adelaide. There are some real difficulties with this including costs of travel. Neither parent has any abundance of available funds. The father appears to be impecunious at the present time and this would appear to severely limit his capacity to be able to visit Adelaide to spend time with the child. On the other hand, as indicated above, the mother is in financial difficulty and bears the brunt of the costs of the child. It is unlikely that she would have much money to be able to fund the costs of her and the child travelling to Sydney.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The Father
There is a difference of opinion between Dr D and Dr N about whether the father has a personality disorder. On the one hand Dr N, who has been treating the father since 2015, has the view that the father does not manifest narcissistic personality traits and does not have symptoms which would satisfy the criteria necessary for diagnosis of any personality disorder pursuant to the requirements of the DSM-5.
Dr D, in her report dated 23 February 2016, opined that the father’s personality attributes constitute a personality disorder. She said that he has marked narcissistic personality traits, including what she described as the characteristic trait of lack of empathy which she said is a problem in terms of parenting capacity. She said that it is the ability of a parent to understand empathically and to give priority to a child’s needs and to accept and be prepared to address their own intrinsic characteristics that bear critically on parenting capacity. She said that the critical variable is the level of disturbance in parenting and that the father has significant limitations in parenting capacity. Dr N disagreed that the father has a lack of empathy.
I am more inclined to accept Dr D’s diagnosis of the father than Dr N’s opinion that the father does not manifest any narcissistic personality traits. It is true that Dr N has seen the father on many more occasions than Dr D. But Dr D has read many more accounts of the father’s behaviour including in affidavits and in the contact supervision reports than Dr N has. And she has had the opportunity of interviewing the mother and child whereas Dr N has not done this. Dr N also conceded that he had not read the father’s affidavit, which, it is clear, Dr D has done.
At the end of the day, as it were, what seems to be most relevant for the purpose of these proceedings, in my view, is not whether the father has a personality disorder but rather, what his capacity is as a parent to B. Dr D has assessed this in a very careful, detailed way. Dr N has not assessed this at all.
Dr D described what she considered to be a limitation on the father’s parenting capacity. She said that he relates to the child from the point of view of his own needs, wishes and feelings and is less able to relate accurately to her needs and wishes. She said that he tends to see difficulties as located outside of himself or in others with a lesser capacity to see or accept his own failings. Dr D said that parents with prominent narcissistic attributes may go to great lengths to control their child’s environment, to create the perfect child in the perfect life. But she said that the child is treated as an extension of the parent so that the parent lacks the capacity to understand that the child’s needs and feelings may be different, especially in regard to the other parent and the tendency to grandiosity manifests as a certainty about what is best for the child. She said that these issues are readily apparent with the father.
Dr D said that the father’s difficulties manifest in a further and related issue which is the father’s relational style. As indicated above, she said that this features prominent triangulation, which is particularly apparent in how he deals with the conflict between himself and the mother. She said that triangulation involves avoiding direct person to person conflict resolution and instead implicates the child; that is, the father conveys that he is expressing the child’s wishes when in fact they are his own. Dr D said that this is of concern because eventually a young child may not be able to distinguish between her own feelings and ideas and those which have been projected onto her by the parent. The triangulation is the positioning of the child between her parents and the conflict is detoured through her with the result that she bears the brunt of it. Dr D said that metaphorically speaking, this is like pushing the child into “the line of fire” between the parents.
Dr D said that high conflict and triangulation are included as amongst the most damaging aspects of parenting disputes and that such children are likely to develop anxiety and involve both internalising and externalising problems, as well as suffering from not learning more adaptive modes of conflict resolution.
Dr D indicated in her later report and during cross-examination that the father’s narcissistic personality traits remain evident. She said that among the difficulties which impair the father’s parenting capacity not only being lack of empathy and the capacity to prioritise the needs of the child above his own needs, is a tendency to understand the child as an extension of himself rather than as a separate individual.
Dr D said that the father’s mental health has deteriorated since her earlier assessment of him. She said that he now presents as agitated and preoccupied and that his thought processes are at times quite fragmented. Dr D explained fragmentation in this context as the process by which she observed the father’s thoughts to “tumble out and without being well organised”. She said that she thought that the father was suffering from a combination of trauma and depression. She said that she had the impression that things were not working very well in the father’s life and that he was not very happy.
In relation to the reports by N Contact Centre about the time spent between the father and child supervised by them, Dr D said that the father’s behaviour, although she thought this had become “toned down”, still showed him to be undermining of the mother’s role and her relationship with the child. She said that the father continued to demonstrate a seductive, and what she described as being “a hot house”, approach which she explained in terms of their relationship being so special. She said their relationship was one in which everything that they do is special and that in this context the relationship between the mother and child is a lesser relationship.
She said that amongst those things that occur is that the father encourages the child to make complaints about her mother. When the child of her own volition makes criticisms of her mother the father does not criticise this from any objective perspective which encourages the child to continue such criticisms. For example, Dr D said that when the child says such things as that she is not being fed properly by her mother or that she is being neglected by her mother or that she has to cook her own meals, instead of the father questioning these matters and considering that the assertions do not seem plausible, he simply endorses them. Dr D said that this is very undermining of the mother. Dr D said that the father’s response to the child’s allegations against the mother is always to be sympathetic or to question the child in a way which shows that he accepts that what she says is correct. Dr D said that the child provides such information about her mother to the father because the child has learned that she will achieve that response from her father.
Dr D said that this is not good for the child’s mental health because the child, in doing this, is distorting reality. Dr D also said that there is danger for the child in receiving such a distorted view of the relationships with her parents. That is, that the relationship between herself and her father is perceived by her to be special or perfect and she would develop the unrealistic expectation that other relationships should be that special or that perfect. Dr D said that the child sees the mother as neglectful, incompetent and abusive which damages the child’s sense of herself. Dr D said that this is because children identify with the same sex parent. She said that if the child sees the same sex parent as being incompetent and terribly lacking in comparison with the other parent, possibly even abusive, that is internalising a way of understanding an image of herself (and it is a negative image).
The Mother
Dr D said that the mother has a good understanding of the child’s needs in all aspects and displays a good capacity to meet the child’s needs in all respects. Dr D said that when taking account of the severe stress involved in both the continuing conflict between the parents and these proceedings, the mother is coping quite well. Dr D said that the mother is not clinically depressed and the degree of her stress and anxiety is proportionate to her circumstances. Dr D also said that the mother remains insightful in relation to her own and the child’s difficulties and appears to be motivated to do what she can to improve her functioning and that of the child.
Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
As indicated above, B was appointed a school leader for 2019.
Dr D said that B presented at interview as being mature for her age and was articulate and confident.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother has demonstrated an appropriate attitude to the responsibilities of parenthood in relation to most aspects of her parental duty. But as indicated above, during the Easter school holidays in 2017 she held over the child during a weekend when B was to spend time with her father in accordance with the then existing Court orders. The mother said that she did this because she was fearful that if she did not withhold the child, then the father would simply not return her which would mean that the remaining school holiday period which the child was to spend with her under the Court orders would be frustrated. The father took great exception to this apparent breach of the Court orders. He said that he and the child were looking forward to this weekend in particular and had many plans which were thwarted by the mother’s recalcitrance. Amongst other things he and B had planned to go to the Royal Easter Show to inspect the dog exhibitions apparently because the father had been discussing with B the likelihood that he would purchase a Jack Russell puppy for her.
In other respects the mother appears to have demonstrated an appropriate attitude to the responsibilities of parenthood.
By way of contrast, the mother’s apparent single departure from the requirements of the Court orders has been well overtaken by the father’s lack of respect for the Court orders. As indicated above, he simply did not follow the orders in January 2017 but retained B in his care notwithstanding that he knew the orders required her to be returned. Furthermore, a similar disrespect for the Court orders was exhibited by him when he repeated this behaviour in April 2017. I have referred above to the father’s failure to adequately provide financially for the child.
Dr D said in her report that if the mother’s account can be relied upon, the father’s shortcomings in terms of his attitude to the responsibilities of parenthood suggests that he has difficulty in prioritising the child’s needs above his own feelings of antipathy towards the mother. I accept on the basis of the evidence now before the Court that this is a serious deficiency in his parenting.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
Dr D reported that the mother is aware of the impact on B of exposure to family violence and severe inter-parental conflict, and that the mother does her best to protect B from this.
Dr D said that the father has limited insight and understanding of the impact of his behaviour on the child who is triangulated or alienated. She said that he continually exposes B to severe conflict, seeks to alienate her from her mother and consistently triangulates her into the inter-parental conflict.
Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;
There is no current family violence order.
Sub-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
These parents have been litigating about the parenting arrangements for the child now for many years. It is difficult, therefore, to know what order might be least likely to lead to the institution of further parenting proceedings.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The Principal of B’s school informed Dr D that B is making good progress in all respects at school. She is happy there and has friends there.
The father’s proposal
As indicated above, the father seeks orders to the effect that he have sole parental responsibility for the child, that she live with him and spend time with the mother as agreed between the parents. But during the course of the hearing the father appeared to be pressing for his alternative orders, namely an equal time arrangement. This alternative set of orders is to the effect that if the Court found that the child would not be at risk in her mother’s care then the parents should care for her on an equal time basis for approximately three months. The father also seeks that such time between the child and him would be unsupervised. At the end of three months the father would ask the Court to hear from each of the parties, take evidence and determine whether that situation should continue. The father also seeks sole parental responsibility for the child as indicated above.
Dr D said that the difficulty about such a proposal is that it talks about time but it does not talk about the process. She said that if the father continued to relate to the child by treating her as an extension of himself, treating their relationship as special and far superior to that which the child has with the mother and continuing to undermine the mother, then such would be very undesirable.
Dr D said that if it was possible for the father to alter the way that he related to the child such an arrangement might be possible. But she went on to say that there has not been any evidence at all that the father has any insight into his behaviour and its effects on the child. In fact quite the opposite, namely, that he thinks that he can offer the child a very special relationship and the best that the mother can offer the child is incompetence and abuse. Dr D said that she thought that this was the father’s belief and that it would not change.
Dr D said that the likely outcome of such a course would be that the child’s relationship with the mother would be completely undermined and that the child would lose that relationship. Dr D said that this could create enormous conflict for the child and have enormous ramifications for her in the long-term. One such ramification could be that the child might see herself in the process of the father criticising the mother. Another risk, as indicated above, would be that as a consequence of his narcissistic personality traits, the father lacks empathy for the child’s needs so that he would have difficulty separating out her needs from his own needs. Dr D said that therefore he would not be responding to the child’s needs but rather her needs become an extension of his own needs.
Dr D said that another risk would be if the child continued to be exposed to the father’s relationship with her that she would be at a risk of being drawn into a form of co-narcissism. Dr D explained that this would mean the continuation of their special bond as two special people who mirror each other’s perfection. Dr D said that such a situation would make it difficult for the child to have balanced relationships. I understand Dr D to mean that this would be because of the distorted view of relationships which the child would have as a consequence of being in such a special and perfect relationship with her father.
The mother’s proposal
As indicated above, the mother proposes that she would continue to have the sole parental responsibility for the child, the child would live with her and she would relocate the child’s residence to Adelaide. The mother also proposes that there would be no time spent between the child and her father.
Before I move on to note actual risk to B in the mother’s proposal I need to consider the father’s allegations that the mother is violent and abusive towards the child. His affidavit is replete with things which he says the child has said by way of complaints against her mother.
I have referred to some of these complaints in the ‘Background’ section of the Reasons. An example is B’s complaint that on numerous occasions her mother has held her by the wrists like a handcuff or used her body to block the child. In my view, the mother’s account of these incidents, namely, that she needed to do these things in an endeavour to control the child who at the time was misbehaving in such a way that there was a risk to her safety, is much more plausible. As counsel for the ICL submitted there was no objective evidence such as bruising or some other evidence to support a conclusion that the mother was acting in an abusive manner towards the child. It is true that the doctor recorded the child’s complaint but in my view this does not take the matter any further.
The child also made the complaint about the mother’s behaviour towards her and her demand for B to get her some biscuits. I find myself unable to accept the accuracy of the child’s account about this. I have a similar view in relation to B’s complaint about the mother’s behaviour involving a glass of rosè.
In my view, the state of the evidence in relation to complaints by the child to the father, even viewing them collectively, does not permit a finding that the mother presents as an unacceptable risk to the child. In my view, it is more than likely that the child has embellished what occurred because, as Dr D has said, the father has encouraged the child to make complaints about the mother to him and to other persons.
Turning now to the likely risks in the mother’s proposal to relocate the child to Adelaide and that she would spend no time with the father. Dr D said that the risk to the child in this would be that B would be likely to experience profound anger and grief if she was unable to see her father. Dr D said that it was impossible to be certain about what the outcome of such orders would be. She said that one possibility, and the happiest outcome, would be that the child would experience so much relief that conflict between her parents would largely end and that she would be “out of the line of fire” as it were between them. So the child’s perception of this might well be that she would be better off for those reasons. Dr D said that the other possibility would be that the child would be so enraged and bereft that she would fight with her mother and not be able to adjust to such a situation. The ultimate risk in that would be that her relationship with her mother would end.
Dr D said that if the mother was permitted to relocate the child’s residence to Adelaide she would recommend a period of between one and two months during which time there would be no contact between the child and her father. Dr D said that this would maximise the chances of the situation stabilising. She said that in circumstances where there would be so much upheaval for the child, and at the same time if she also had to deal with her father’s feelings (because he would also be angry and bereft), this would be too much for the child and she would therefore be feeling an enormous pull to be reunited with her father. Dr D recommended that the period of no contact not be longer than two months because she said that it is very significant for a child to lose a parent.
Relocation
The mother is finding it difficult to make ends meet in Sydney. Her business is going well but she has financial difficulties. Most of the money she received from the property settlement has been used to pay legal costs although a modest sum did remain. She has now extinguished this and her savings. The father pays approximately $8 per week in child support. The parties have a child support agreement under the provisions of which the father is required to pay one half of the child’s school fees and expenses. But he is in arrears in an amount exceeding $3,400. The mother took out a personal loan for $11,700 to pay her rent to 31 March 2019. She said that she would be unable to pay rent after this date.
The mother’s parents have a loving relationship with the child. The child has often spent time with them during holidays, the most recent visit having been March 2018 when the child attended her cousin’s wedding. The child was happy during this visit although there had been some difficulties during previous visits.
The mother proposes to live with her parents in Adelaide. They have invited the mother and child to reside with them at their home at Suburb U, a suburb of Adelaide. They would be able to support the mother in caring for the child. Their support in particular would enable the mother to endeavour to establish a yoga instruction business similar to that which she has established in Sydney. The mother’s parents’ home would offer the mother and child a bedroom each. Suburb U offers four primary schools and one high school. There are several sporting clubs, including netball which B has been involved with in Sydney. There is also a dance school within a ten minute drive.
The mother’s sister, Ms W, lives nearby and would also be available to assist.
It would appear that it is unlikely that the father would be able to relocate his residence to Adelaide. My understanding is that his professional connections are primarily in Sydney. Accordingly, if the child’s residence was to be relocated to Adelaide, time between her and her father would either be spent in Adelaide or in Sydney. Clearly there would be practical implications if the child’s residence was to be relocated to Adelaide. This would obviously impose real limitations on the child’s opportunity to maintain a meaningful relationship with the father.
Primary Considerations
I return to the primary considerations.
As indicated above, the first of the primary considerations is the benefit to the child of having a meaningful relationship with each of her parents.
As Dr D has observed, ordinarily children benefit from having a meaningful relationship with each of their parents. But Dr D goes on to express the caveat that when inter-parental conflict is sustained and Court orders cannot contain the situation, there comes a point when the risks to the child remaining in the “line of fire”, as it were, outweigh the benefits of sustaining a connection with both parents. Dr D said that things appear to have reached the point in this family’s circumstances where endeavouring to provide an opportunity for B to have a meaningful relationship with her father has left her, as Dr D has called it, “in the line of fire” between her parents. Dr D said that this is damaging for the child.
As also indicated above, the second of the primary considerations is what might be called the protective consideration, that is, protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As indicated above, this consideration is to be given greater weight than the “meaningful relationship” consideration.
It is clear that whatever decision the Court makes about the parenting arrangements for this child involves risk.
Firstly, if the Court was to accede to the father’s proposal for B to be resident with him most of the time, or even one half of the time, this would expose her to risk. As indicated above, Dr D describes this as exposure of the child to considerable risk of psychological and emotional harm as a consequence of being consistently triangulated into the conflict between her parents and being alienated from her mother in the process. Dr D described this as being mostly due to the father’s manner of relating to the child. As Dr D has indicated, this situation of triangulation and alienation has prevailed now for a number of years.
Dr D said that on the father’s proposal, there is a considerable risk to B of becoming inducted into what she describes as “co-narcissism”. She said that this is likely because what she describes as “narcissistic injuries that the father has suffered” have intensified his needs for “mirroring” and “merger” which she said can lead to a reversal of the parenting relationship. She said that children in these circumstances may accommodate to a narcissistic parent, more especially when that parent is decompensated, that is, a child may become the compliant approving audience the parent needs (reverse mirroring); the child is seen as an extension of the parent (merger) and may come to identify with the parent, adopting the same characteristics. She said that such children often become depressed or anxious. Dr D said that these psychological processes described by her are much in evidence in the relationship between the child and her father.
In addition, Dr D said that of considerable concern is the manner in which the father relates to the child during the five hours a week of supervised contact. She said that this includes much emphasis on closeness and affection and exchanges of gifts, flowers and cards which generally involve love hearts and repeated expressions of love. She said that meals often involve fine dining and special rituals and almost have the quality of courtship. The impression she has is that the father is intent on seducing the child, not in a sexual sense, but in the sense of winning her over and securing her love and loyalty to the exclusion of her mother. She said that the risk in this is that the child is acquiring a highly idealised view of her father and a severely devalued view of her mother.
Also it would be very likely that there would be a continuation of B making false allegations of abusive behaviour by the mother with all that has gone along with these.
Dr D said that in promoting rejection of the mother, the father is, in effect, damaging the child’s emerging female identity. She said that when a child is alienated from a same sex parent then damage is done to the child’s identity because identification with the same-sex parent is an essential aspect of the sense of self. Accordingly, Dr D said that to the extent that the rejected parent comes to be regarded as bad or deficient, then the child’s emergent female identity becomes similarly damaged.
Dr D went on to say that the primary attachment relationships of a child are the templates that determine their intimate relationships in adult life. She said that in presenting the child with a highly idealised experience of their relationship, the father is promoting in the child a view and an expectation that is unlikely to assist her in developing appropriate views of intimacy in her adult life.
In my view, all this represents a serious parenting deficiency in the father and a serious risk for the child.
On the other hand, if the Court was to continue the child’s primary residence with the mother and permit the mother to relocate the child’s residence to Adelaide, then the scenarios postulated by Dr D, with their accompanying risk, would be likely to eventuate. This would involve the child being likely to experience grief and anger at the loss of ready access to her father, being required to leave her school where she is doing well and leave her friends and much of what has become familiar to her in life. But as indicated above, Dr D said that the child might experience such relief from being removed from the ongoing hostility and conflict between her parents, that she would quickly settle and commit herself to her new life, including a new school, making new friends and, developing her relationships with her maternal grandparents and other relatives.
The other possibility is that the change might involve such a strong sense of loss for the child that she might not settle but rather engage in (rebellious, obstructive, argumentative and disruptive) behaviour with her mother to the point where their relationship would be lost and she would move to live with her father and experience all the problems associated with that.
Conclusion
I accept Dr D’s opinion that the conflict between B’s parents is causing serious psychological and emotional harm to this child. The conflict has been ongoing. Previous Court orders have been unable to contain it.
I also accept Dr D’s opinion that the approach to date of making Court orders with the objective of providing an opportunity for B to have a meaningful relationship with her father has had the clearly undesirable effect of leaving the child vulnerable to psychological harm.
If orders were made along the lines of either of the father’s proposed parenting arrangements, I am satisfied that not only would the psychological damage to the child continue but things would probably inexorably grind to a point where she had no relationship with her mother. Dr D has also said that for B to lose her same-sex parent would be likely to damage her emerging female identity.
On the other hand, I accept that it is far from certain that if the Court was to order the child to live with the mother and permit the mother to relocate the child’s residence to Adelaide, the child would accept this change, settle down and adapt to a different environment, particularly without opportunity for the frequent and regular time to spend with her father with which she has familiarity.
In my view, for all the reasons referred to above, it is in the child’s best interests to offer her this opportunity, which would offer relief from the ongoing pervasive conflict and hostility between her parents which has caused her so much damage.
I do not propose to repeat the pros and cons as these have been discussed above. If the child was to fail to settle, then some other parenting arrangement will almost certainly have to be considered.
Having arrived at this position I am not persuaded to the mother’s view that it would be in B’s best interests to have no contact with her father. I accept Dr D’s opinion that for a child to lose her relationship with a parent would be a tragedy. The ICL submitted that relocating to Adelaide would cause huge change for B as discussed above and for her not to have any prospect of spending time with her father would be a further risk because it could push her to run away or engage in other risk-taking behaviour. I accept the ICL’s submission that it would therefore be in B’s best interests to be able to spend some time with her father on a supervised basis.
For all these reasons, in my view, the child’s best interests will be served by a proposal similar to that urged by the ICL and I propose to make orders similar to such proposal.
Restraints
As indicated above the ICL seeks orders for various restraints against the father which it is submitted would serve the welfare of the child. Such orders would restrain the father, other than would be provided pursuant to orders, from communication with the child or going within 200 metres of the child, the child’s residence or the child’s school.
The father is opposed to any restraints.
In my view, such orders would be in the interests of the child. It will be important for the child to have appropriate opportunity to settle in her new home and environment. The father has shown himself to be capable of turning up to the child’s school even where this appeared to be inconsistent with Court orders. In my view, any repetition of such behaviour could be most unsettling for B.
I propose to make restraining orders to serve the welfare of the child.
Costs
The ICL seeks an order to the effect that the father pay the ICL’s costs in the amount of $7294,40.
The father has not been wholly unsuccessful. In my view, he appears to be in quite strained financial circumstances. He will also sustain costs of travelling to Adelaide to spend time with the child.
In all the circumstances, in my view, it would not be just to make a costs order against the father. Accordingly, the costs application by the ICL will be dismissed.
The ICL also sought an order that the father pay the sum of $2,700 towards Dr D’s costs. But I take a similar view and propose to dismiss that application.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 28 August 2019.
Associate:
Date: 28 August 2019
ANNEXURE “A”
Orders Sought by the Mother
Children's Orders
That the following orders of 16 March 2016 are discharged: 1.4, 5, 6, 7, and 8.
That the child B (born … 2008) live with the Mother and there be no contact with the Father.
Relocation
That the Mother and the child B . (born … 2008) be permitted to relocate and reside in Adelaide or any other place within the Commonwealth of Australia
Injunctions
That the Father is restrained by injunction from;
1. communicating with the child in any way, including but not limited to electronic communication;
2. going within 200 metres of the child;
3. going within 200 metres of any place where the child resides;
4. going within 200 metres of the child's school;
That the Father pay the Mother's costs on an indemnity basis.
ANNEXURE “B”
Orders Sought by the Father
That the mother’s Initiating Application filed 30 May 2017 be dismissed.
That the Orders made 21 July 2017 be discharged.
That Orders 2 to 9 of the Orders made 16 March 2016 be discharged.
That the Father have sole parental responsibility for the child B,born … 2008 (“B”).
That B live with the Father.
That B spend time with the Mother as agreed between the parties in writing.
Changeover shall occur at school or otherwise the parent who has the care of B shall deliver her to the other parent at the conclusion of the period in which B is in their care.
That the Father and the Mother shall keep the other informed of their residential address, email address and contact telephone numbers, including landline telephone numbers, mobile telephone numbers and changes to the same within 48 hours.
That the Mother be restrained by way of injunction from physically disciplining the child in any way.
That the Mother be restrained by way of injunction from consuming alcohol during periods in which B is in her care to the extent it would cause her to exceed the blood alcohol content which would prohibit her from legally driving a motor vehicle.
That the Mother be restrained by way of injunction from leaving B unattended in a motor vehicle.
That the Mother pay the father’s costs of and incidental to this application.
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If the Court finds that B is not at risk of physical danger as follows:
“Alternate Final Orders”
That the child B spend 50% of her time with her Father and 50% of her time with her Mother as follows:
A.That the said child live with the Father as follows:-
(i)In alternate weeks from after school on Friday until the commencement of school on Monday and from the commencement of school on Wednesday until the conclusion of school on Friday in Week 1.
(ii)In alternate weeks from the commencement of school on Monday until the commencement of school on Wednesday in Week 2.
(iii)For one half of all of the said child’s school holiday periods being for the first half in odd numbered years commencing 2019 and for the second half in even numbered years commencing 2020 save that, unless otherwise agreed, that from 10am on the first full day to 10am on the 7th full day (the “Initial Period”) the said child will live with the Father and the Mother equally as agreed, or if not agreed then the child will live with the Father for the first 3 days and then with the Mother for the second 3 days of the Initial Period.
(iv)From 12 noon on Christmas Eve until 2.00pmm on Christmas Day in alternate years commencing 2019.
(v)From 2.00pm on Christmas Day until 7pm on Boxing Day in alternate years commencing 2020.
(vi)In the event that Father’s Day does not occur on a date when the said child is living with the Father pursuant to orders (i) and (iii) above, from 4pm on the Saturday prior to Father’s Day until commencement of school on the Monday following Father’s Day.
(vii)In the event that the Father’s birthday on 27 July does not occur on a date when the said child is living with the Father pursuant to orders (i), (ii) and (iii) above, from 3.00pm on the 26th July until 10.00am or commencement of school (as the case may be) on 28 July each year.
(viii)In the event that the child’s birthday does not occur on the date when the child is living with the Father pursuant to orders (i), (ii) and (iii) above, for a period as agreed between the parties or failing agreement then for a period of six (6) hours as agreed between the parties and in the event of no agreement as to times then from 1.30pm until 7.30pm.
B.That the said child live with the Mother as follows:-
(i)In alternate weeks from after school on Friday until the commencement of school on Monday and from the commencement of school on Wednesday until the conclusion of school on Friday in Week 2.
(ii)In alternate weeks from the commencement of school on Monday until the commencement of school on Wednesday in Week 1.
(iii)For one half of all of the said child’s school holiday periods being for the first half in even numbered years commencing 2020 and for the second half in odd numbered years commencing 2019 save that, unless otherwise agreed, that from 1.00am on the first full day to 10.00am on the 7th full day (the “Initial Period”) the said child will live with the Father and the Mother equally as agreed, or if not agreed then the child will live with the Father for the first 3 days and then with the Mother for the second 3 days of the Initial Period.
(iv)From 12 noon on Christmas Eve until 2.00pm on Christmas Day in alternate years commencing 2020.
(v)From 2.00pm on Christmas Day until 7.00pm on Boxing Day in alternate years commencing 2019.
(vi)In the event that Mother’s Day does not occur on a date when the said child is living with the Mother pursuant to orders (i) and (iii) above, from 4.00pm on the Saturday prior to Mother’s Day until commencement of school on the Monday following Mother’s Day.
(vii)In the event that the Mother’s birthday on 10 November does not occur on a date when the said child is living with the mother pursuant to orders (i), (ii) and (iii) above, from 3.00pm on 9 November until 10.00am or commencement of school (as the case may be) on 11 November each year.
(viii)In the event that the child’s birthday does not occur on the date when the child is living with the Mother pursuant to orders (i), (ii) and (iii) above, for a period as agreed between the parties or failing agreement then for a period of six (6) hours as agreed between the parties and in the event of no agreement as to times then from 1.30pm until 7.30pm.
C. (i)In each alternate year commencing 2019 (for the Father) and 2020 (for the Mother) and regardless of the date of the child’s actual birthday the Father and the Mother respectively, shall be entitled to arrange a birthday party for child on a date being the actual birthday of the child or within 7 days before or after that date (the “Child’s Birthday Party”) and shall inform the other parent of that intention not less than 7 days prior to the child’s actual birthday (the Birthday Party Notice”).
(ii)In the event that the other parent does not receive a Birthday Party Notice then the other parent will, without affecting the other parent’s right to arrange a birthday party the following year, be entitled to arrange the Child’s Birthday Party and shall give not less than 5 days’ notice to the other parent.
(iii)In the case of either order (i) or (ii) above the other parent shall be invited to attend the Child’s Birthday Party including such activities as are arranged in association therewith and the other parent shall not arrange an event on or within 14 days before or after the actual birthday of the child, which may diminish the attendance of invitees to the said birthday party.
C.That each parent have telephone contact with B 3 times per week during the periods that B is with the other parent.
Interim Orders”
Pending Final orders-
That at conclusion of evidence and final submissions the proceedings be adjourned part heard for 3 months (the “Adjourned Period”).
That during the Adjourned Period interim orders be made in the same terms as the Alternate Final Orders above in order to assess whether those interim orders ought to be made as final orders.
That the parties be granted leave to file updating affidavits in relation to the Adjourned Period not later than 7 days prior to the adjourned date.
That cross examination on the adjourned date be limited to the material in the updating affidavits and any further submissions be limited to matters in the updating affidavits and any cross examination in relation to those updating affidavits.
ANNEXURE “C”
Orders sought by the Independent Children’s Lawyer
That all previous parenting orders are discharged.
That the mother have sole parental responsibility for the child B, born … 2008 ("B").
That B live with the mother.
That the mother be permitted to relocate the residence of the child to Adelaide, South Australia either:
4.1 At the end of term 2, 2019, or
4.2 After the end of term 4, 2019.
That the father spend time with B as follows:
5.1 Prior to the mother relocating B's residence to Adelaide:
5.1.1 For a period of 1 month, once every 2 weeks for a period of 4 hours on a Saturday from 1 pm to 5pm, supervised by N Contact Centre
5.1.2 After the period of 1 month in order 6.1.1, once per calendar month as agreed and if no agreement, the middle Saturday of each month for a period of 4 hours from 1 pm to 5pm, supervised by N Contact Centre.
5.2 On the mother relocating the child's residence to Adelaide, with all time to occur in Adelaide:
5.2.1 The father spend no time with B for a period of 2 calendar months ("the moratorium period")
5.2.2. At the conclusion of the moratorium period, supervised time once every 2 calendar months, for a period of 3 hours as agreed, and if not agreed, the first Saturday every second month, from 1 pm to 4pm.
5.3 That the supervision in these orders is to be provided for by a children's contact centre or private supervision agency as agreed between the parties and if not agreed, as nominated by the mother, and all arrangements for and the costs of the supervision are to be paid for by the father.
5.4 That if the father wishes to take up his supervised time with B, he must notify the mother 7 days in advance by email, and if such notification is not made, then the visit shall not occur.
5.5 That B spending supervised time with the father in accordance with these orders is to occur until B is aged 14 years of age.
5.6 That on B attaining 14 years of age, that B spend time with the father in Adelaide as agreed between the parties.
That during any time B spends supervised time visits with the father in accordance with order 5, the father is restrained by injunction pursuant to section 68B of the FamilyLaw Act 1975 from:
6.1 Denigrating the mother, or
6.2 Whispering to B, or
6.3 Questioning B about the mother, or
6.4 Discussing with B any allegation that the mother has harmed or mistreated B.
That to effect order 6, that:
7.1 In the event that the father does any act described in paragraph 6, the Children's Contact Centre or private supervision agency is to immediately end the visit in progress and return B to the care of her mother.
7.2 Any Children's Contact Centre of private supervision agency supervising the father's time with B from time to time is to be provided a copy of these orders.
If B leaves the mother's care and attempts to or does spend time with the father, otherwise than in accordance with these orders, then the parenting arrangements for B to spend time with the father as provided by order 5 are suspended for a period of 2 months.
That within 30 days of the mother relocating to Adelaide with B, the mother is to do all acts and things to obtain a mental health plan from a General Practitioner for B and a referral for B to attend on a child and adolescent psychiatrist or psychologist to provide therapeutic support for B in the implementation of these orders.
Within 14 days of order 9, the mother is to do all acts and things for B to attend on the child and adolescent psychiatrist or psychologist, and to follow any reasonable recommendations of the child and adolescent psychiatrist or psychologist, including the frequency and duration of visits, and for as long as the child and adolescent psychiatrist or psychologist recommends.
That the mother is to provide any child and adolescent psychiatrist or psychologist that B attends from time to time under order 10 with copies of the 2 expert reports of Associate Professor D, dated 26 February 2016 and 22 June 2018.
That the mother do all acts and things to ensure that whatever school B attends from time to time provides the father with copies of B's school reports.
That the mother is to notify the father of any serious illness or hospitalisation requiring surgery for B.
That the mother and father communicate by way or email or text message only for the purpose of making parenting arrangements for B.
The parties shall keep each other informed of their respective residential and email addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
That other than as provided for in these orders, the father is restrained by injunction pursuant to section 68B of the Family Law Act 1975 from:
16.1 Communicating with B in any way;
16.2 Going within 200 metres of B;
16.3 Going within 200 metres of any place where B resides; and
16.4 Going within 200 metres of B's school.
Noting that the orders 16.1 to 16.4 are for the personal protection of B and that these injunctions are suspended during the periods when B and the father spend supervised time together under order 5.
That the father within 30 days of this order pay the sum of $2,700.00 to the Legal Aid NSW as his contribution to Associate Professor D's professional costs for preparation and attendance at the final hearing, NOTING that an order was made on 12 February 2018 for the father to contribute to those costs.
That the father within 30 days of the date of this order pay the sum of $7,294.40 to the Legal Aid NSW as his contribution to the Independent Children's Lawyer's professional costs.
That the (sic) That pursuant to s 62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
That all outstanding applications are dismissed.
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