Robertson and Robertson

[2008] FamCA 497

FAMILY COURT OF AUSTRALIA

ROBERTSON & ROBERTSON [2008] FamCA 497

FAMILY LAW – CHILDREN – Best interests – Whether child’s best interests would be met by living with mother or father – Orders made for child to live with mother and spend time with father – Child to attend upon psychologist for confidential counselling

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Robertson

RESPONDENT: Ms Robertson

FILE NUMBER: BRF 2595 of 2006

DATE DELIVERED: 30 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 26, 27, 28 and 29 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers

SOLICITOR FOR THE APPLICANT: Family Law Solutions

COUNSEL FOR THE RESPONDENT: Ms Harris

SOLICITOR FOR THE RESPONDENT: Cartledge Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Drysdale

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

ORDERS

IT IS ORDERED BY CONSENT OF THE PARTIES AND THE INDEPENDENT CHILDREN’S LAWYER

Parental responsibility

1. The mother and the father have equal shared parental responsibility for … born … January 1995 (the child).

Consultation as to parental responsibility

1. The mother and the father consult in relation to the major long term decisions concerning the child by email or mediation at a Family Relationship Centre or with a Family Dispute Resolution Practitioner.

Child’s confidential counselling with Mr J

1. The mother and the father jointly arrange for the child to attend confidential counselling with Mr J, psychologist, in respect of which:

   (a)neither the mother nor the father is to attend or participate in such counselling nor initiate communication with or provide documents to Mr J;

   (b)neither the mother nor the father is to question the child concerning such counselling;

   (c)the mother and the father are to contribute equally to the costs of such counselling.

2. The independent children’s lawyer as soon as possible provide Mr J with a copy of these orders and a copy of the reasons for judgment with a letter explaining the effect of the orders.

AND IT IS FURTHER ORDERED

Child to attend once with Mr T for orders to be explained

1. The independent children’s lawyer as soon as possible provide a letter to Mr T, psychologist, enclosing a copy of these orders and a copy of the reasons for judgment, and arrange for the child to attend upon Mr T, for one session, with a request to Mr T to explain the effect of the orders to the child.

2. Neither the mother nor the father is to attend or participate in the child’s session with Mr T, nor question the child concerning anything passing between the child and Mr T during that session.

AND IT FURTHER ORDERED

Child to live with the mother

1. The child is to live with the mother.

Child’s time with the father

1. Unless otherwise agreed in writing (which may be by email or text), the child is to spend time with the father:

   (a)during school terms, on alternate weekends from after school on Friday until before school on Monday, to commence on the second weekend after the child’s session with Mr T; and

   (b)during the gazetted school holiday periods, to commence in the September/October 2008 school holidays, the first half in or commencing in 2008 and the even years and the second half in or commencing in 2009 and the odd years.

2. Unless otherwise agreed in writing (which may be by email or text), the child’s alternate weekends with the father are to resume on the first weekend after the commencement of each school term, regardless of whether the child has been with the mother or the father during the second half of any school holiday period.

Changeover – school term

1. Unless otherwise agreed in writing (which may be by email or text), in relation to the child’s alternate weekends with the father during school terms he is to collect the child from school on Friday afternoon at the school finishing time and deliver the child to school on Monday morning one half hour before the school commencement time.

Changeover – school holidays

1. In relation to the child’s school holiday periods:

   (a)unless otherwise agreed in writing (which may be by email or text), the mother or her nominee is to deliver the child to the father or his nominee at the … Cinema at the commencement of the child’s holiday time with the father and the father or his nominee is to return the child to the mother or her nominee to the same location at the conclusion of the child’s holiday time with the father;

   (b)       unless otherwise agreed in writing (which may be by email or text):

   (i)when the child’s holiday time with the father is in the first half of a school holiday period the changeover occur at 9am on the first full day of the school holiday period and conclude at 9am on the middle day (or if there is no middle day, the day after the mid point) of the school holiday period;

   (ii)when the child’s holiday time with the father is in the second half of a school holiday period the changeover occur at 9am on the middle day (or if there is no middle day, the day after the mid point) of the school holiday period and conclude at 9am on the last day of the school holiday period.

Father’s attendance at child’s school and other activities

1. The father may attend:

   (a)       at the child’s school for all occasions usually attended by parents;

   (b)       at any concert or venue at which the child may be performing;

   (c)at any scheduled school or other extra curricular activity or commitment involving the child usually attended by parents;

   and on all such occasions may speak with and interact with the child.

Inclusion of Ms C

1. The father may include Ms C and members of his and her families and their friends while the child spends time with the father or attends any of the occasions or activities referred to above.

Mother to keep father informed of child’s scheduled school and other extra curricular activities and commitments

1. The mother must keep the father informed in writing (which may be by email or text), of all of the child’s scheduled school and other extra curricular activities and commitments, by regular periodic communication (for example weekly in advance, or monthly in advance).

Father must ensure child attends all scheduled school and other extra curricular activities and commitments

1. The father, at all times the child spends with him, must ensure that the child promptly is delivered to and collected from all of the child’s scheduled school and other extra curricular activities and commitments.

Communication – father and child

1. The father may communicate with the child by telephone, email or text at reasonable times.

Special days

1. Unless otherwise agreed in writing (which may be by email or text):

   (a)in the years in which Christmas Day falls during the child’s school holiday time with the mother the child is to spend time with the father on Christmas Day from 12 noon until 7pm;

   (b)in the years in which Christmas Day falls during the child’s school holiday time with the father the child is to spend time with the mother on Christmas Day from 12 noon until 7pm;

   (c)if Mother’s Day falls when the child is with the father, if during alternate weekend time it cease at 9am on Mother’s Day and if during school holiday time the child is to spend time with the mother on Mother’s Day from 9am until 5pm;

   (d)if Father’s Day falls when the child is with the mother, the child is to spend time with the father on Father’s Day from 9am until 5pm;

   (e)in any year in which the child’s birthday falls when the child is with the mother, the child is to spend time with the father on the child’s birthday from 12 noon until 7pm;

   (f)in any year in which the child’s birthday falls when the child is with the father, the child is to spend time with the mother on the child’s birthday from 12 noon until 7pm;

   (g)in any year in which the father’s birthday falls when the child is with the mother, she must use her best endeavours to arrange with the father for the child to spend two hours with the father on the father’s birthday;

   (h)in any year in which the mother’s birthday falls when the child is with the father, he must use his best endeavours to arrange with the mother for the child to spend two hours with the mother on the mother’s birthday.

The child’s brother S

1. The mother and the father may, if the child’s brother S wishes, involve S in the child’s time spent with each of them.

AND IT IS FURTHER ORDERED

Non denigration

1. The mother and the father must not denigrate each other to or in the presence or hearing of the child.

Restriction on child’s attendance on health practitioners

1. The mother and the father must not arrange for the child to attend upon any psychologist, other than Mr J and Mr T as provided in these orders, nor any counsellor, social worker, psychiatrist or like practitioner other than pursuant to a written referral by a general medical practitioner, and must provide to the other party immediately a copy of any such written referral by any such general medical practitioner.

Child’s health practitioners must be provided with a copy of these orders

1. The mother and the father must provide a copy of these orders to any general or specialist medical practitioner or other health practitioner treating the child.

Child’s clothing apparel and items for time spent with the father

1. The mother must ensure that the child has with him all clothing apparel and items which he may be likely to require during the time the child spends with the father, including in relation to the child’s scheduled school and other extra curricular activities and commitments.

Information

1. The mother and the father must keep each other informed in writing (which may be by email or text) as to his and her residential address, landline telephone number (if any) and mobile telephone number (if any).

2. The mother and the father must keep each other informed in writing (which  may be by email or text) as to:

   (a)       the name address and telephone number of the child’s school; and

   (b)the name address and telephone number of any treating medical health or other professional practitioner, hospital or clinic the child may attend.

3. The mother and the father must notify each other as soon as possible of any serious accident or illness concerning the child.

Authorisation

1. The mother and the father must authorise the child’s school and any treating medical health or other professional practitioner, hospital or clinic the child may attend to provide to each other such reports and other information concerning the child as he/she may seek in writing from any such institution or practitioner at his/her cost, provided that this order is sufficient authority for that purpose without further authorisation.

Mother’s compliance

1. The mother must comply strictly with these orders provided that if the child should be required or invited to be interstate or otherwise absent from the Sunshine Coast area for a performance or other activity at a time which pursuant to these orders the child is to spend with the father she may request the father in writing (which may be by email or text) to agree to an equivalent period of substitute time for the child to spend with the father, such substitute time to be nominated by the mother.

Discharge of all prior orders

1. All prior orders concerning the child are discharged.

Dismissal of all other applications

1. All other applications concerning the child are dismissed.

Liberty to apply

1. The parties may apply by arrangement with the Associate if any of these orders should be unclear or confusion arise as to their interpretation or if ancillary orders may be required, provided that the approach to the Associate be in writing and on notice to the other party and the independent children’s lawyer.

Independent children’s lawyer

1. Otherwise, the independent children’s lawyer is discharged.

Particulars of obligations

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2595 of 2006

MR ROBERTSON

Applicant

And

MS ROBERTSON

Respondent

REASONS FOR JUDGMENT

Background

1. The child, born in January 1995, is the second son of Ms Robertson (the mother) and Mr Robertson (the father).   He is 13 years.  He attends M School in Year 8, having been accepted into a special interest class for gifted students.  His full sibling S, 21 years, attends university in Brisbane.

2. The parties separated in October 2002 and divorced in October 2005.  They had experienced an earlier temporary separation between mid October 2000 and Christmas 2000.

3. The child lives with the mother at B in the Sunshine Coast area.  She has not repartnered. 

4. The father lives with his partner Ms C at H, also in the Sunshine Coast area.  The father and Ms C’s relationship has subsisted now for about five years.  The child has not met Ms C, although she has been present on a few scheduled changeover occasions in recent times.

5. Since the final separation, the child has spent very little time with the father. 

6. In December 2000, during the parties’ temporary separation, an agreement had been reached for S and the child to stay with the father on one weekend in each month.  However, the parties then reconciled. 

7. After the final separation, between October 2002 and early/mid 2003 the father saw the child by visiting him at the mother’s home.  The mother then put a stop to this, on the basis that she feared for her safety and the child’s safety.  The mother says that on the occasion of the last visit in early/mid 2003 the father said that unless she complied with his demands relating to “both children and property matters” he would commit suicide.  The father denies this, his account being that on that occasion he said to the mother “Life wouldn’t be worth living if I can’t see my children”, because he was trying to convey to the mother “how important it was for me to see the children”.  The father had been to the child’s school on two occasions in early 2003, because “it was the only way I could see [the child]”.  However, the police had been telephoned by the school.

8. There was then no or very little contact between the child and the father between the occasion of the last visit in early/mid 2003 and orders made in the Federal Magistrates Court in February 2006.  The father says this was because the mother would not permit the child to see him and was under threat that if he went to the mother’s home she would telephone the police.  The mother says that throughout this time she was fearful of the father because of previous threatening conduct by him towards her.

9. The father’s application by which these proceedings were commenced was not filed until November 2005.  He describes that between early/mid 2003 and November 2005 he had approached the Sunshine Coast Contact Centre, but was told he needed a Court order; endeavoured to arrange a mediation through what he described as the “Attorney-General’s Dispute Resolution Centre”, but the mother twice refused to attend; sought a Legal Aid Conference, which the mother arranged but “still would not agree to me seeing [the child]”; participated in mediation in July and August 2005, but without success; and reported to the Department of Child Safety a concern he had that the mother may be “psychologically abusing” the child, after S had told him that the child was “sleeping in his mother’s bed”.  After the failed mediation in July and August 2005, the father said that by that stage “I felt I had exhausted all avenues to obtain [the mother’s] agreement to me seeing [the child] so I commenced proceedings in the court on 24 November 2005”.

10. The mother’s account is that she made genuine effort in early 2004 to arrange for the child to see the father at the Sunshine Coast Contact Centre, but the centre refused because there was no Court order in place. Further, according to the mother, the coordinator of the centre had told her that she did not feel that the father was “suited” for the contact centre service.  By this stage, according to the mother, the child had commenced to express strong views that he did not wish to see the father nor have anything to do with him.

11. In April 2005, before the unsuccessful mediation in July and August 2005, the mother had taken the child to the father’s home, apparently on the advice of both her solicitor at the time, and the person who had chaired the Legal Aid Conference, the advice being that “It might settle matters if [the child] was afforded an opportunity to express his feelings directly to his father”.  The mother says that on the occasion of the visit in April 2005 the child “told his father that he did not want to see him and did not want to be forced to see him, and that he would hate him even more if he was forced to go with him”. 

12. The father’s account of this incident is that at about 4pm on a day in April 2005 there was a knock at the door.  He opened it to see the child standing there, with the mother behind him.  The child said to the father, on his opening the door “I don’t like you, I don’t want to go with you.  If you try and make me go with you, I will hate you.  If you make me go to court I will hate you”.  The father says that he said “[child] I would never make you do anything you don’t want to do” at which the mother and the child “turned around and walked off”.

13. In June 2005, the mother again visited the father at his home, this time with her sister.  The mother says she made the visit because she was “anxious to attempt to resolve matters”.  The father says that on this occasion the mother said to him “I want you to be reasonable.  I don’t want this to go to court”, to which he responded that he did not want to discuss the matter with her but in the circumstances would attend mediation.  This then led to the mediation in July and August 2005 which failed to result in any agreement for the child to see or spend time with the father. The parties did however manage to reach agreement that in relation to the child they would communicate by text message.

14. There are mutual allegations of family violence and drug use, detailed in the parties’ material.  The mother says that at the time of the parties’ marriage, 1982, “We both used illicit drugs”.  The mother says she has not used illicit drugs since then, but the father was a “heavy habitual user of marijuana and speed”.  The father says that he has not used speed since before the parties’ marriage and has not used marijuana since a few weeks after the parties’ final separation.

Notice of child abuse

1. In November 2006, the mother caused to be filed a Notice of Child Abuse or Family Violence.  In essence, it contains allegations by the mother against the father of the use of internet pornography including “gay porn and child porn” between 1998 and 2002 with the father “masturbating in front of the computer”, witnessed by the child, causing him distress, including a nightmare or nightmares in which the child imagined “a penis being stuck up his bum”, with the consequence that when the child was required to attend contact with the father “he would have panic attacks and vomit”, and other alleged matters.

2. The notice contains also a history of steps taken by the mother in relation to these alleged matters.

Notifications to the Department of Child Safety

1. The father made notifications to the Department of Child Safety in early 2005 relating to the mother’s care of the child, and in August 2005 relating to an allegation that the child (then 10½ years) was sleeping in the mother’s bed.

1. The mother made a notification to the Department of Child Safety in August 2006 in relation to the subject matter of the Notice of Child Abuse or Family Violence.

The history of the proceedings

1. Orders were made in the Federal Magistrates Court on 3 February, 9 June, 12 July, 7 September and 10 October 2006.  There is no useful purpose in referring to those orders in detail, save to observe that interim consent orders were made on 3 February 2006 for the child to live with the mother and have contact with the father at all such times as may be agreed but failing agreement on alternate weekends at the Sunshine Coast Contact Centre; and an independent children’s lawyer was appointed. Later, pursuant to orders made on 7 September 2006, the independent children’s lawyer arranged for the child to have confidential counselling with Mr J, child and adolescent psychologist.  The matter was transferred to this Court on 10 October 2006.

2. Trial dates were allocated for commencement on 10 July 2007.  However, no judge was available to hear the matter.  Barry J, the list judge, made interim consent orders that the child attend upon Mr T, clinical psychologist, for reportable therapeutic counselling, and allocated fresh trial dates for four days in September 2007. 

3. On 10 September 2007, the matter was listed before me.  The parties sought that the trial dates be vacated to enable the reportable therapeutic counselling with Mr T to continue.  By that date, Mr T had had one session with each of the mother and the father, and four sessions with the child. In a report dated 8 September 2007 he said that although the child consistently had told Mr T he did not want to see the father, in Mr T’s view the child’s negatively held perceptions and views of the father were superficial, that he did not find the child to be a particularly mature 12 year old, that in his professional view it was very important for the child to have a relationship with the father, that despite the child’s protestations he “does need to know and have a relationship with his father”, that contact “does need to occur” and that “the contact and visitation process should, at least initially, include therapeutic input and review”.  In these circumstances, despite opposition by Ms Buckland, the independent children’s lawyer, I vacated the trial dates, fixed fresh trial dates for four days to commence on 26 February 2008 and made interim orders for a comprehensive program for the child to continue to attend upon Mr T on specified dates in September, October and November 2007 and for the child to spend time with the father at all times as may be agreed but not less than specified dates in September, October and November 2007. A procedural order was made listing the matter on 6 December 2007 in relation to Christmas holiday arrangements and further necessary directions if final consent orders could not be made on 6 December 2007.

4. The orders which I made on 10 September 2007 relating to the child spending time with the father had provided for changeover at the H Post Office at the commencement of time and the B Post Office at the conclusion of time.

5. On 6 December 2007, the matter not having settled, further orders were made for the child to spend time with the father in December 2007 and in January and February 2008, changeover to be at the foyer of the shopping centre Cinema. 

6. On 13 December 2007, further matters were dealt with, to which presently I need not refer, and further trial directions were made.

7. After final trial directions made on 15 February 2008, the matter proceeded to hearing on the allocated dates.

Contact since the commencement of the proceedings

1. As noted already, the father commenced these proceedings in November 2005.

2. On 10 February 2006, pursuant to the interim consent orders made on 3 February 2006 to which I have referred, the father attended for intake at the Sunshine Coast Contact Centre, and on 7 April 2006 the mother attended for intake.  On 30 April 2006, the child and the father spent supervised time with each other at the contact centre.  According to a chronology prepared by the independent children’s lawyer, contact at the contact centre occurred again on 20 May, 3 June, 18 June, 9 July, 16 July (uncertain), 12 August, 27 August, 10 September, 17 September, 24 September and 22 October 2006, which appears to be the last contact at the contact centre before the father received a letter on or about 31 October 2006 advising him that the centre no longer would entertain contact.  According to the chronology, on several of the occasions at the contact centre the child either asked to leave early or the intended time was shortened for one reason or another.  Further, there are gaps in the sequence of the ordered contact, which was intended to occur on alternate weekends, variously explained in the chronology and the evidence.

3. Between October 2006 and September 2007, it appears that the child did not spend any time with the father other than at Mr T’s rooms between July and September 2007, as recorded in his report 8 September 2007.

4. Then, despite the orders which I made on 10 September 2007, and further on 6 December 2007, it appears that the child spent very little time with the father. Indeed, on the evidence on two occasions the child ran away within ten minutes or so of the contact time starting. On one of those occasions he went to the maternal grandparents’ home, and on another occasion to the local police station.  Indeed 24 February 2008, the Sunday before the trial, was one of these occasions.

5. Thus, despite several interim orders since the commencement of the proceedings in November 2005 for the child to spend time with the father, these orders, for the most part, have had limited success.

6. It is neither useful nor necessary to refer to the parties’ evidence, set out in detail in their affidavits, as to their respective versions of what happened on each occasion of failed contact pursuant to the various interim orders.  It is sufficient to note that the father’s case is that the mother has sabotaged the orders, by instilling in the child her own view that the father presents a danger to him, or that she would prefer the child not to see him, so that the child’s own sabotage of the orders is the mother’s fault, by the child wishing to please her; and that the mother’s case is that, despite her own best efforts, as at the time of the trial she had been unable successfully to encourage the child to wish to see the father, and so to spend time with him, even Court ordered time.

Principles

Children’s best interests paramount

1. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

1. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of 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;

and that the principles underlying the objects are that, unless it would be contrary to a child’s 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).

Determining what is in a child’s best interests

1. Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.

2. The primary considerations 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.

1. The additional considerations are too numerous to set out.  However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

1. Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.

2. Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time 

1. Under s 65DAA of the Act, 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 consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and

   ·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

1. Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·days that fall on weekends and holidays; and

   ·days that do not fall on weekends and holidays;

   and:

   ·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

   ·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

1. Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:

   ·how far apart the parents live from each other; and

   ·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

   ·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   ·the impact that an arrangement of that kind would have on the child; and

   ·such other matters as the Court considers relevant.

Prior parenting plans

1. Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

1. The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

1. Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The parties’ and the independent children’s lawyer’s proposals

1. In November 2005, the father had sought that the child live with the mother and spend time with him on alternate weekends, half of the school holidays and special days. 

2. By March 2006, the father had amended his application to seek that the child live with him and spend time with the mother as may be agreed but, “in particular”, supervised time at the Sunshine Coast Contact Centre on one day in each week for two hours. 

3. By April 2007, the father had further amended his application to seek that, for the period of two months after an order be made that the child live with him, the child not spend time with the mother or communicate with her, and subsequently that he spend time with her supervised at the Sunshine Coast Contact Centre on one day in each weekend for two hours, with the further provision that after six months the independent children’s lawyer obtain an updated family report in relation to the child spending unsupervised time with the mother.  In addition, the father sought an injunction restraining the mother from approaching, contacting or attempting to contact the father, the child and the father’s partner, Ms C. 

4. By the time final submissions were made on 29 February 2008, the father proposed, by way of Dr Sayers’s written submissions (first page), that the child live with the father, he have sole responsibility for all long term decisions touching upon the child’s care welfare and development, that for the first six months after any final order that the child live with the father the child spend time with the mother only “in a supervised environment” and that subsequently the child spend substantial and significant time with the mother, namely on alternate weekends from Friday after school to Monday before school, and for half of the gazetted school holiday periods; or in the alternative, if the Court should decide that the child’s best interests would be met by an order that he live with the mother, the child spend substantial and significant time with the father, in the reverse order, namely alternate weekends with the father from Friday after school to Monday before school, and for half of the gazetted school holiday periods.

5. In February 2006, the mother, by her response, had sought that the child live with her, there be joint parental responsibility, and the child spend time with the father as may be agreed but failing agreement on alternate weekends for one hour at the Sunshine Coast Contact Centre. 

6. By April 2007, the mother had amended her response to seek that she have sole parental responsibility and that the child spend such time with the father as may be ordered by the Court.

7. At the commencement of the trial, the mother sought two modifications (by reference to her summary of argument) namely that the child spend time with and communicate with the father as may be agreed between the parties, and that the mother facilitate the child’s attendance upon Mr J “with respect to issues pertaining to his relationship with his father, for such period as Mr [J] deems appropriate”, the parties to share equally Mr J’s costs.

8. Mr J, it will be recalled, had been the child’s confidential counsellor, appointed initially pursuant to orders made in the Federal Magistrates Court.

9. By the time final submissions were made on 29 February 2008, the mother proposed, by way of a document handed up (which I have marked annexure A to Ms Harris’s written submissions, and which document I have requested be attached to the record of proceedings) that the child live with her, the parties have equal shared parental responsibility for him, the parties consult in relation to the major long term decisions by email or mediation at a Family Relationship Centre or with a Family Dispute Resolution Practitioner, the child spend time with the father at such times as may be agreed but failing agreement on alternate Sundays for three hours from 1pm to 4pm and on special days, if the child should express a wish to spend further time with the father the mother do all things necessary to give effect to that wish, the child attend upon Mr J for confidential counselling in respect of certain matters specified in the proposal and other matters set out in that document to which I need not presently refer.

10. The independent children’s lawyer proposed on 29 February 2008 that the Court should make orders reflecting “one of two potential regimes”, being either that the child live with the father, with orders relating to the time he spends with the mother, but with a quarantine period “in the region of three to four months” of the child not spending time with the mother, progressing to an eventual regime of alternate weekends and half school holidays with the mother, or, that in conjunction with confidential counselling the child live with the mother, and spend time with the father on alternate weekends from after school Friday to before school Monday and for half of the school holiday periods, but with the proviso that in the event that the child does not spend time with the father as ordered there be orders in accordance with the first regime to come into effect.

11. During argument, Mr Drysdale of Counsel, for the independent children’s lawyer, made clear in relation to the second of the “two potential regimes” that in the independent children’s lawyer’s proposal there not be any “staggered introduction” to the time which the child should spend with the father; and in relation to the proviso to the second regime that it be either self executing after say, six months, or if need be the subject of a further Court order.

Consent orders

1. After discussion, the following orders were agreed by consent between Dr Sayers, Ms Harris and Mr Drysdale:

   1The mother and the father have equal shared parental responsibility for [the child] .

   2The mother and the father consult in relation to the major long term decisions concerning [the child] by email or mediation at a Family Relationship Centre or with a Family Dispute Resolution Practitioner.

   3The mother and the father jointly arrange for [the child] to attend confidential counselling with Mr [J] in respect of which:

(a)neither the mother nor the father attend or participate in such counselling nor initiate communication with or provide documents to Mr [J];

(b)neither the mother nor the father question [the child] concerning such counselling;

(c)the mother and the father contribute equally to the costs of such counselling.

4The independent children’s lawyer provide Mr [J] with a copy of the final orders and a copy of the reasons for judgment with a letter explaining the effect of the orders.

1. I am satisfied that the consent orders are in the child’s best interests, and thus should be made.

2. In annexure A to Ms Harris’s written submissions, the mother sought also an order that Mr J be at liberty to communicate with the parties in respect of any matter which he may consider “vital” to his counselling role, but that he not do so without the child’s consent.

3. This was opposed by Dr Sayers and Mr Drysdale, on the basis that such an order potentially would vitiate “the whole point” of confidential counselling, and would or may serve to deprive the child of a safe, discreet, confidential place where he “need not have any reservation about what he says or where it is going to go”.

1. During argument on this point, the question was raised if the order sought by the mother not be made, as to Mr J’s ability to notify the parties or relevant authorities if the child should confide or show signs of depression or suicide. 

2. It was noted that Mr J is a professional person who, no doubt, would notify the Department of Child Safety and/or the Queensland Youth Mental Health Service if such information was given to him by the child or such signs be shown by him.  However, by the end of argument, this aspect of the matter was unresolved.

3. In my view, it is preferable not to make the order sought, because of the nature of confidential counselling.  Further, as a psychologist, Mr J will be aware of the appropriate notification steps to be taken if the circumstances referred to should arise.

4. Underlying the parties’ and the independent children’s lawyer’s consent orders is the following written agreement provided on 29 February 2008 (which document I have requested also be attached to the record of proceedings):

   1The parties agree that the evidence before the Court relevant to family violence is sufficient for the Court:

   (i)to be satisfied on reasonable grounds that the parents of the child have engaged in family violence [s 61DA(2)];

   (ii)to not apply the presumption of equal shared parental responsibility [s  61DA(1)].

   33The parties agree that notwithstanding that the presumption in s 61DA(1) does not apply, nonetheless it is appropriate that the parents exercise equal shared parental responsibility.

   34The parties agree that although an order for equal shared parental responsibility is appropriate, an order for equal time is inappropriate. [s 65DAA(1)]

5. The parties did not reach agreement, in relation to s 65DAA(2), that an order for substantial and significant time with each parent would be inappropriate, or not in the child’s best interests, thus leaving this for my determination.

The evidence

1. It is convenient to refer to the evidence of the parties and their witnesses, and the independent children’s lawyer and her witnesses, to the extent necessary, when dealing with the statutory matters.

2. In short compass, the father relied upon evidence by himself and his partner Ms C. The mother relied upon evidence by herself, her mother and her psychiatrist Dr W.  The independent children’s lawyer relied upon evidence by Dr M, psychiatrist, Mr Y, social worker, Mr T, psychologist, Dr O, general practitioner and Ms R, a former teacher of the child.  In addition, the parties and the independent children’s lawyer relied upon the documents in ex 4 (the agreed bundle of documents) comprising some 215 pages, being mostly documents produced pursuant to subpoenae.  The evidence comprised also some 12 other discrete documents or bundles of documents.

3. In the father’s case, he and Ms C were cross examined.  In the mother’s case, she, her mother and Dr W were cross examined.  In the independent children’s lawyer’s case, Dr M, Mr Y, Mr T and Dr O were cross examined.

4. It is impossible, in a case such as this, expressly to refer in detail to all of the evidence.  Rather, I will refer to selected parts of it.  By adopting this course, it ought not be inferred, if I should not refer to the evidence of any witness, or to particular parts of it, that I have not had regard to all of the evidence in considering the matter.

The statutory matters

Parental responsibility

1. I have mentioned already that I am satisfied an order for equal shared parental responsibility is in the child’s best interests.  In particular, I am satisfied that despite the parties’ own differences and history of family violence and other matters, there is no reason to think that they would be unable to consult in relation to the major long term issues concerning the child by email or mediation at a Family Relationship Centre or with a Family Dispute Resolution Practitioner to achieve the objectives stated in s 65DAC.

The child’s best interests
Section 60CC(2) - the primary considerations

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

1. The child has a meaningful relationship with the mother. 

2. However, Mr Drysdale of Counsel, for the independent children’s lawyer, asked Dr M whether she had formed the view that there was “enmeshment” between the child and the mother.  Dr M responded “Yes, I thought they were particularly close”. Dr M then described, in generic terms, that is, not specifically in relation to the child, that “enmeshment” is “an attachment that  goes beyond normal attachment in that it has some effect on stifling the child’s capacity for individuation”; that it has “the potential to be harmful”; that it “distracts the child from his normal developmental tasks and impedes his maturation”; and that it has the potential also to “impair the child’s adult relationships”.  She said that such a child “could perhaps fail to separate adequately from his mother”.  Dr M was asked whether there were any factors “in this case” which would make it problematic if the child is not to see his father and were to “continue with his enmeshed relationship with his mother”, in response to which she said “The likelihood is that he probably espouses his mother’s very negative views about the father and that would have adverse impacts for him”. 

3. Later, in response to questions put by Ms Harris of Counsel, for the mother, Dr M acknowledged that in her report, 5 July 2006, whilst she had described the relationship between the child and the mother as “particularly close”, she had not used the term “enmeshment”, explaining however “I have to say my impression was of enmeshment”.

4. The child does not, presently, have a meaningful relationship with the father. 

5. On the evidence, this may be because of inability by the mother to promote that relationship; or it may be because of repugnance in the child of the father, the child having reported to the mother (according to the mother and others) that he witnessed the father downloading pornographic material and masturbating in front of a computer.

6. Dr M said in her report, 5 July 2006, “It is my impression that despite [the child’s] reserve and detachment from his father if he were to see more of him their relationship would improve”.

7. I have referred earlier in these reasons to Mr T’s first report, 8 September 2007, to the effect that in his view, despite the child’s protestations, he “does need to know and have a relationship with his father”.  In his second report, 24 February 2008, Mr T made similar observations, including “It does appear [the child] can, if he wishes, be relaxed and comfortable with his father”, that on occasions during the sessions with Mr T “[the child] laughed and made several positive, good-natured comments towards his father” and “appeared to be enjoying himself”, to the effect that in his view it is possible for the child to have a meaningful relationship with the father.  Mr T concluded in his second report that he had observed the child “to be relaxed and animated” and that he had “engaged in enjoyable discussions” with the father. 

8. Mr Y said in his report, 12 February 2007, that the father “has something to offer [the child] as a parent”.  Mr Y concluded in his report that “the point of no return is fast approaching” in relation to “sensible options” for the child’s parenting, in particular, for the father to have a meaningful role in the child’s life.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. There is no evidence that currently the child would be subjected to physical harm or physical abuse, neglect or family violence in either the mother’s or the father’s households.

2. The father conceded, in evidence, that during his relationship with the mother he had used adult heterosexual downloaded internet pornography, but said that his use “never involved child pornography or anything with a fetish”, being limited to “still photographs not movies”.  He said to Dr M, at interview in mid 2006, that he “still uses” downloaded pornography and that he has “an interest in vintage graphics and the art of the nude”, as well as “advanced dungeons and dragons”.  Ms C, the father’s partner, said she had seen the father “view erotic artworks” on the internet but “It is nothing you wouldn’t see in an art gallery or library”.

3. There is no expert evidence that the father’s interest in such matters has the effect of any need to protect the child from psychological harm.

4. I have referred already to Dr M’s evidence of potential harm which can arise from enmeshed relationships, and that in the child’s case, if he were not to see the father and to continue in his enmeshed relationship with the mother “The likelihood is that he probably espouses his mother’s very negative views about the father and that would have adverse impacts for him”. 

Section 60CC(3) – the additional considerations

The child’s views

1. The child repeatedly and consistently has stated that he does not want to see the father or have anything to do with him. 

2. The evidence of the child’s consistent and strongly expressed views are too numerous to set out.  I will therefore not refer to all of them.  However, poignant examples, one for each of the last three calendar years, are contained in an email from the child’s confidential counsellor Mr J to the independent children’s lawyer 5 December 2006 (annexure Z to the father’s affidavit); a letter in the child’s hand 30 August 2007 (part of annexure ZE to the father’s affidavit); and a statement by the child to the father whilst in a session with Mr T on 19 February 2008 to the effect that he had “everything” to lose if he should be required to live with the father.

3. However, despite these strong and consistent views expressed by the child, there is evidence by Dr M, Mr T and Mr Y, to which I have referred already, of the child on occasions responding positively to the father when with him, despite defiance or ambivalence before seeing him.  Mr Y described the process he observed as “tantalisingly positive” followed by a “shut out”.  Dr M described, in relation to the child’s statements of not wishing to see the father, but then enjoying his company that “I think he can genuinely have both feelings”. Mr T also made observation as to equivocation.  He said that the child appears to be “stuck” in the conflict between his parents, and that on one occasion after being observed as “relaxed and animated” with the father, the child “has later commented he felt he said too much during a ‘relaxed and fun’ appointment”.

4. I have referred already to Dr M’s evidence of the likelihood that the child “probably espouses his mother’s very negative views about the father”.  

5. Mr T said in his first report, when the child was 12 years, that “at times” he had found the child to be “quite immature for his age” and “I do not find [the child] to be a particularly mature 12 year old”.

6. During the progress of the matter, the child made application, through the mother, to meet with me so that he could make clear to me his strong objection to seeing the father.  I declined that proposal, for reasons then given, in particular that there was ample opportunity by way of the various reports and other material for me to know of and consider the child’s views.

The nature of the child’s relationships

1. I have sufficiently canvassed the nature of the child’s relationships with the mother and the father. 

2. The child has a strong relationship with the maternal grandmother, and her husband, the maternal grandfather. 

3. According to reports and information from the child’s primary school, the B Primary School, whilst at that school he had a “small circle of friends” with whom he interacted normally.

4. At the time of the trial, the child had just commenced Year 8 at the M School (February 2008) with effect that evidence as to his peer group interaction was not available.

5. The child was still very young when his brother S left home.  Although S, 21 years, lives in Brisbane, there is evidence of at least some interaction between the child and S.  S however had his own difficulties as a teenager, including his own involvement in the conflict between the mother and the father. 

6. At an early stage, there was discussion as to whether S would be a suitable person to facilitate growth in the relationship between the child and the father.  However, the view was accepted, generally, that S should not be required to be involved in such process, because of his own fragility having regard to the parental conflict which he experienced.  Thus, the notion of S becoming a facilitator for the development of the relationship between the child and the father, or indeed a supervisor for that purpose, was negated.

Willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent

1. The adjournment of the trial in September 2007 was based not only upon the observations and recommendations in Mr T’s first report, 8 September 2007, but also because of Mr Y’s observations in his report, 12 February 2007, that “the point of no return is fast approaching” in relation to “sensible options” for the child’s parenting, in particular, for the father to have a meaningful role in the child’s life.  The orders which I made on 10 September 2007, and indeed subsequently on 6 December 2007, it was hoped, would result in progress in the child’s willingness to spend time with the father.  Whether the failure of the regimes put in place on 10 September 2007 and 6 December 2007 may have been the mother’s fault by her unwillingness or inability to encourage the child to see the father and to enjoy his company, or may have been because of the child’s own expressed views, to which I have referred, or the sheer weight for the child of the parties’ own continuing conflict, is difficult to determine.

2. What is not difficult to determine however is that the mother appears to have a genuine belief that the child would be better off without the father in his life.  Thus, whilst as at the time of the trial the mother overtly had “facilitated” the regimes ordered, in so far as, for example, physically she had taken the child to the changeover venues, I have a doubt, despite her protestations to the contrary, that genuinely she has urged upon the child that to spend time with the father would be to his benefit, and positively encouraged that benefit, without qualification.

3. The father’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother is also doubtful.  According to Mr T’s second report, at a session in February 2008 after several reasonably successful sessions of interaction between the child and the father, guided by Mr T, the father challenged the child that he did not want to see him “turn into someone who tells lies and gets away with things if you can”, adding “I know that’s what you’ve been taught.  She [the mother] tells lies all the time”, to which the child responded “Well I don’t, and that doesn’t mean I do”.  The father defended his challenge to the child on the basis that he needs parental discipline and guidance.  However, to tell the child that the mother “tells lies all the time” is not conducive of confidence in his ability to encourage in the child a close relationship with the mother.  Rather, such disparagement may have the tendency of effect, perhaps intended, of casting doubt in the child’s mind as to the mother’s character, or her quality as a person, such that the child should be suspicious of what she tells him.

4. On 29 February 2008, the last day of the trial, I ordered, by consent, but at my prompting, that until further order the child spend time with the father on alternate Sundays for four hours between 1pm and 5pm, commencing on Sunday 9 March 2008, and that unless otherwise agreed in writing the mother or her nominee deliver the child to the father or his nominee at the shopping centre Cinema at the commencement of those times and the father or his nominee return the child to the mother or her nominee to the same location at the conclusion of those times.

5. In part, in making that consent order, I had in mind that the parties may have learned from the trial experience the importance for the child of each of them positively showing him willingness and ability to facilitate and encourage a close and continuing relationship with the other parent, in the hope of success of that interim regime, where the former interim regimes put in place by the orders made on 10 September 2007 and on 6 December 2007 had failed.

6. However, my judgment is delivered on the basis of the evidence as it stood at the conclusion of the trial on 29 February 2008, without information as to the success or otherwise of that regime ordered by consent.

The likely effect of change

1. A change of residence for the child to commence living with the father, plainly, would have the effect of cessation of his living with the mother, with whom he has lived for all of his life, and a move away from the mother who, for all of his life, has been his primary carer.  The mother, tirelessly, works to have the child attend dance and singing activities, to which I will refer in more detail below, and the child is accustomed to the mother’s tireless involvement in this aspect of his life, which plainly is important to him. 

2. Dr M said, if the child should be forced by a Court order to live with the father, such that his own views are not given effect, as to the prospect that the child may “take to his heels like he’s done” [running away] “I certainly think that’s a possibility, perhaps even a probability”.  (The child, as I have mentioned earlier, on two recent occasions ran away from contact with the father, within ten minutes or so of the commencement of contact). Dr M said further that if there be an “edict” that the child must live with the father, it is “quite likely that such an edict would be followed by disturbed behaviour”, or a “sabotage of some sort”.

3. When asked squarely what effect a change of residence to the father’s household would have on the child, Dr M said:

   I think he’d probably be devastated at the beginning and I find the outcome hard to predict, frankly. As I say, with a younger child one could anticipate that over time things would improve with the father, but I couldn’t say that with confidence in this case.  It may be that he would experience very considerable distress which did not abate.

4. Dr M further said, in response to a question as to whether there would be some potential for the child to feel “oppressed by the family law system” if orders were made that were against his wishes:

   Yes, that was one of the aspects of alienation that I mentioned earlier.  It’s possible that he may feel alienated against society in general as represented by an authoritative body such as the Court.

Practical difficulty and expense

1. The proximity of the parties’ homes has the effect that this did not arise as a significant matter.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

1. The father’s capacity to provide for the child’s needs, including his emotional and intellectual needs, is untested, there being now such a long period between the parties’ final separation in 2002, when the child was only 7 years, and now. 

2. The father, to his credit, wishes to be active in the child’s life and to involve him in a wider variety of outdoor sporting activities than presently engaged in by the child, but has shown awareness also of the child’s love of dancing and singing, at which, it appears, he is well accomplished. The father however, as yet, has not attended any (or many) of the child’s concerts. This may be explicable to date because of ongoing conflict between the father and the mother.

3. I have referred to the father’s challenging exchange with the child, in a session with Mr T in February 2008.  On the one hand, this may be capable of being seen as the father lacking capacity to provide for the child’s needs, the subject matter of the father’s words to the child (“She tells lies all the time”) being provocative and a statement against the mother, the person who to date has been the child’s primary carer. On the other hand, however, with the exception possibly of the words just mentioned, this particular exchange may be capable of being viewed as the father having the capacity to deal firmly with the child when parental “straight talking” may be required as to the child’s own honesty. 

1. In relation to the child’s “oppositional” conduct towards the father, Dr M, importantly I think, accepted a proposition put to her by Mr Drysdale of Counsel, for the independent children’s lawyer, that an oppositional or rebellious relationship between a child of 13 years and a parent does not make the relationship any less important, and that resolution of the rebelliousness can be highly significant for the child’s later adult development.  Thus, the father’s capacity to challenge the child’s oppositional conduct towards him, or “rebelliousness” against him, is to be regarded as a positive capacity, in my view, although the father needs to learn to challenge the child in relation to his developmental needs without disparagement of the mother.

2. The mother’s capacity to provide for the child’s day to day needs, to encourage his love of song and dance and selflessly to drive him to his many song and dance and other extra curricular activities is not doubted.

3. The mother, however, in my view, lacks the capacity to provide for the child’s need for strong parental authority over him and, in particular, his need to have his father involved in his life, to which need I have referred already, based upon evidence to which I have referred already, in particular that of Mr T that the child “does need to know and have a relationship with his father” and that it is very important for the child to have a relationship with his father.  To some extent, the mother’s lack of capacity to recognise the child’s need in this regard may be a feature of her dislike of the father, her view that the child would be better off without the father in his life, her own conflict with the father or the “enmeshment” which Dr M described.

4. The evidence to which I have referred of Mr T, Dr M and Mr Y is striking in its uniformity that the child can, and does, respond warmly to the father and engage with him, on occasions, but that on other occasions there is “shut out” (Mr Y’s expression).  Dr M’s evidence that the child “probably espouses his mother’s very negative views about the father” was clearly expressed.

5. As to the child’s intellectual needs, there is staggering evidence of the child’s absenteeism from school, while he was at the B Primary School, of some 313 days absence between January 2000 and March 2006, averaging over the 6 years (2000-2005 inclusive) about 50 days or 10 school weeks in each of those years, or one quarter of each of those school years.  Mr Drysdale’s submissions refer to an average of more than 11 weeks per year.  Mr Drysdale’s oral submissions, by a combination of the relevant documents in ex 4 and ex 10, referred to 428 days absence throughout the full period 2000-2007.  The child’s school records show “illness” for most of the absent days with others variously “unexplained” or “other”.  The mother, by hand notations on ex 13, after reference to her diary, as to absences in the 2007 year, explained several absences as relating to dance lessons, dance exams and dance performances.  On any view, however, the degree of absenteeism is of concern, despite the circumstance that the child at primary school appeared to get on well at school with a small peer group and was achieving relatively well.

The child’s maturity, sex, lifestyle and background

1. Mr T said in his first report, when the child was 12 years, that “at times” he had found the child to be “quite immature for his age”, and “I do not find [the child] to be a particularly mature 12 year old”. 

2. Ms R, the child’s Year 6 school teacher in 2006 at the B Primary School, described him as “well adjusted”, amongst other favourable observations.

3. I have mentioned that currently the child is in Year 8 at the M School in a special interest class for gifted students. 

4. In a letter dated 29 November 2007 from the mother’s solicitors to the father’s solicitors, mention was made of the child’s acceptance into “an academic class” for the commencement of Year 8 in 2008, the class being for gifted students “[the child] being gifted in maths”.  An earlier letter from the M School to the mother 7 September 2007 refers to the child’s acceptance into the “special interest” class for gifted students as being based upon his having achieved an “excellent standard”.

5. A media article concerning the child appeared in 2007, and showed a happy picture of the child in a dance pose.  The article included that the child had “narrowly missed” two “highly prized theatre roles”, namely “a lead role as […]” and “a lead role in the […] production of […]”.  The article bears setting out:

   [text of article omitted]

6. More recently, the child danced with a professional troupe in late 2007, and in January 2008 attended, by invitation, a week of training with the Australian Ballet.

7. On any view, it appears that the child is a gifted young performer.  He attends the … Dance Centre, in the Sunshine Coast area, and several dance and song training sessions in Brisbane.

8. It remains to be seen whether the child may choose dance and song as his career, or whether his interest in these activities may subside.

9. In addition to his dance and song interests, the child participates in extra curricular sporting activities.

10. It is relevant, under this subheading, to refer to the child’s attendances with Dr O, general practitioner, who referred in both documentary and oral evidence to the child suffering from “anxiety and stress related symptomatology” including nightmares, tension headaches and sleep disturbance, which Dr O said related to “stress and anxiety secondary to current legal and family court proceedings regarding custody”.

11. In his oral evidence and cross examination, there was much reference to Dr O’s clinical notes (ex 4, Part 12) as to the child’s anxiety, nightmares and disturbed sleep, including that the child is “very worried about his father taking him away” (ex 4, p 125); and to Mr J’s beneficial confidential counselling of the child, which commenced initially upon Dr O’s referral. 

12. However, I do not find it necessary to refer in more detail to Dr O’s involvement with the child, nor his medical evidence concerning him.

13. It is sufficient, I think, to observe that much of Dr O’s evidence concerning the child relates to the conflict between his parents, sufficiently canvassed already.

The parties’ attitude to the child and to the responsibilities of parenthood

1. The child is fortunate in that each of his parents is interested in his welfare and willing to assume the responsibilities of parenthood towards him.

2. In relation to s 60CC(4)(a), the father and the mother both are endeavouring to fulfil their responsibilities as a parent to the child, to participate in decisions concerning him, to spend time with him and to communicate with him.

3. In relation to s 60CC(4)(b), I have referred sufficiently already to the matter of whether the mother has facilitated or failed to facilitate the father spending time with the child and communicating with him. It would appear that to date the mother has tended unilaterally to make the decisions concerning the child.

4. In relation to s 60CC(4)(c), the mother has alleged, and maintains, that the father has not paid and is not paying adequate child support for the child. However, the father relied upon his child support history, annexure A to his affidavit in response, showing nil child support owing as at the time of the trial.

Family violence or family violence orders

1. The father and the mother, in their respective affidavit material, mutually alleged acts of violence during their marriage and relationship.  However, as they are no longer married or in a relationship, I do not find it necessary to canvass this evidence, or to make findings in relation to the several allegations made. 

2. At an early stage of their conflict, the parties each sought a protection order against the other.  Final protection orders however were not made, the applications being withdrawn.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings concerning the child

1. It is not possible to predict, with any accuracy, the or any order which would be least likely to lead to further proceedings concerning the child. 

2. If I should order that the child live with the mother and spend time with the father, and that does not occur, the father may be likely to bring contravention or contempt proceedings against the mother.

3. If I should order that the child live with the father and spend time with the mother, the child may be likely to run away, according to Dr M’s evidence, so that further proceedings may be necessary. 

Other relevant facts and circumstances

The notice of abuse and notifications to the Department

1. In the particular circumstances of the case I do not find it necessary or desirable to make any findings in relation to the subject matter of the notice of abuse nor the subject matter of the notifications to the Department.

Quarantine period

1. Dr M referred to the “orthodox” view that if I should decide that the child’s best interests would be met by living with the father, so as to effect a transfer of residence, a quarantine period of the child not seeing the mother would be recommended.  She said however that this is a “very vexed question” and that if there be such a quarantine period in her view “a couple of months” would be appropriate.  However, when told of the circumstances of the child running away from the father on two recent contact occasions, within ten minutes or so of the commencement of contact, she agreed that if the child is to live with the father, a period of six months quarantine from seeing the mother may be more appropriate.

2. There is also the circumstance however that even if such a quarantine period be imposed, the child may not abide it.   At 13 years, he is capable of returning himself to the mother’s home and of refusing to live at the father’s home.

Male role model

1. Presently, it does not appear that the child has a male role model in his life.  The father is keen for the child to pursue more outdoor sporting activities to balance his indoor dance and song activities. I have referred already to evidence of the child responding positively to the father on occasions.  At 13 years, there is little doubt that he would benefit by having in his life a male role model.

Mother’s psychiatric history

1. In March 2000, the mother was admitted to the psychiatric ward of the … Hospital, where she was detained under the Mental Health Act (Qld).  The period of her hospitalisation was about three weeks.  Her psychiatrist, Dr W, provided an affidavit and was cross examined, in particular as to whether the mother had experienced a psychotic episode leading to her hospitalisation and detention.  The events leading to the mother’s hospitalisation and detention are now old and do not require determination.  It is sufficient to observe that Dr W said, in his oral evidence, that the mother still attends upon him and that in his opinion “In DSM 4 terms you’d describe it as an adjustment disorder” adding that she is continuing to respond to situations relating to the break up of the marriage, the child not wanting to spend time with the father, and other matters.  Thus, importantly, Dr W said “She doesn’t seem to have any problems in any other area of her life”.  Dr W was cross examined at length as to the extent of his knowledge as to the mother’s past use of illicit drugs, and other background matters.  However, there was no indication in Dr W’s evidence that, for any psychiatric reason, the child ought be placed away from her care.  In making this observation, I am cognisant that Dr W is the mother’s treating psychiatrist and was not in any sense an expert witness.  However, Dr M performed psychiatric assessment in relation to the mother, the father and the child, and in relation to the mother concluded:

   [The mother] has been diagnosed with post traumatic stress disorder and also with a condition characterised by agitation, some mood elevation and depressive features which settled after 3 weeks in hospital.  As noted she did present with a somewhat confused history and some initial agitation.  The diagnosis is unclear and at the time of my assessment she did not present with a psychiatric disorder although her history was somewhat unclear and inconsistent.

2. It is not necessary for me to set out all of the matters in either Dr W’s or Dr M’s evidence as to the mother’s mental state. The evidence is very detailed.  Although I have not referred to all of it, I have taken all of it into account.

Mr T – “quieten the noise”

1. Mr T, in his oral evidence, referred to the need to “quieten the noise” around the child, meaning I think that the Court proceedings concerning him need to come to an end, and the conflict around him between his parents needs to be minimised.

Equal time

1. Section 65DAA(1) of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, then I must consider whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each of the child’s parents.

2. In Goode & Goode (2006) FLC 93-286, the Full Court said (par 64) that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider positively the making of an equal time order.

3. Thus, it is incumbent upon me first to consider whether the child spending equal time with each of the parents would be in his best interests, approaching that consideration positively.

4. The parties and the independent children’s lawyer have agreed, in the particular circumstances of this case, that an equal time order would be inappropriate and not in the child’s best interests.

5. However, that does not lessen the statutory burden upon me to consider an equal time order, and to consider it positively.

6. For my part, having considered positively whether an order for the child to spend equal time with each of his parents would be in his best interests, I have determined that it would not, based upon my analysis of the s 60CC matters, set out above. In particular, the child for all of his life has lived with the mother; primarily he is attached to her; since the parties’ final separation he has seen little of the father and has expressed strong views not to see him nor to spend time with him. There is also evidence as to strong and continuing conflict between the parties which would tend to indicate that an equal time arrangement may be difficult to maintain.

Reasonable practicability

1. Having regard to my conclusion above it is not necessary for me to consider whether an equal time order would be reasonably practicable.

Substantial and significant time

1. Section 65DAA(2) of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, but I do not make an equal time order, then I must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and reasonable practicable, and if it is, consider making an order for the child to spend substantial and significant time with each of the child’s parents.

2. I have referred above to Goode & Goode (par 64) as to the need to consider positively the making of an equal time order in relation to s 65DAA(1). The Full Court went on to say that the same applies to s 65DAA(2).

3. Thus, it is incumbent upon me to consider whether the child spending substantial and significant time with each of his parents would be in his best interests, approaching that consideration positively.

4. Section 65DAA(3) provides that, for the purposes of s 65DAA(2), a child will be taken to spend “substantial and significant time” with a parent only if the time the child spends with the parent includes both days that fall on weekends and holidays, and days that do not fall on weekends or holidays; the time the child spends with the parent allows the parent to be involved in the child’s daily routine and the occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

5. Having considered positively whether an order for the child to spend substantial and significant time with each of his parents would be in his best interests, I have determined that it would, based upon my analysis of the s 60CC matters, set out above, and will set out below my determination of the incidence of that time.

Reasonable practicability

1. Having regard to the matters in s 65DAA(5), I am satisfied also that an order that the child spend substantial and significant time with each of his parents is reasonably practicable. In particular, the parties live within reasonable proximity to each other; whilst the parties at the time of the trial had not successfully implemented an arrangement for the child to spend substantial and significant time with the other, there were indications at the trial of future capacity to do so; although the parties have problems communicating with each other and have experienced difficulties in implementing an arrangement for the child to spend substantial and significant time with the other, it is to be hoped that the trial experience will assist their future capacity to communicate and resolve difficulties; whilst the impact of a substantial and significant time order on the child will depend much upon both of the parties, again it is to be hoped that the trial experience will assist them to eliminate or minimise any adverse impact.

The submissions

1. Counsel helpfully provided extensive written and oral submissions.  It is not necessary to record them, as they are available in both written and transcript form.

2. It is sufficient to observe that the submissions made supported the parties’ final proposals as already set out above.

The decision

1. It is significant that the child has lived with the mother for all of his life and not lived with the father since the parties’ final separation, which occurred nearly 6 years ago, when the child was only 7 years, he now being 13 years.

2. It is significant also that the child consistently has expressed strong views not to live with or spend time with the father.  However, having regard to the matters to which I have referred concerning his expressed views, they should be given little weight. 

3. It is very significant, having regard to the primary considerations, that there is benefit to the child in having a meaningful relationship with both of his parents; and that in neither household, presently, is there a need to protect him from physical harm.  It is also very significant however, and of concern, that the child has with his mother a relationship which Dr M described as enmeshed, with the potential for harm which she described.

4. On the other hand, it is significant that if the child should be ordered to live with the father, he may run away.  Dr M said that in her view this is “certainly a possibility, perhaps even a probability”.  It is not to the point I think to consider that the child can be forced to live with the father by physical police enforcement of a Court order, and perhaps thus repeatedly be returned to the father’s household on each or any occasion of running away, particularly as the boy is 13 years.

5. It was suggested that, if the child were told plainly, perhaps by Mr J or Mr T, that the Court had decided that it is in his best interests to live with the father there is every prospect that he would accept the Court’s decision.  However, on all of the evidence the child appears to be strong willed.  Moreover, it is important to have regard to Dr M’s evidence that if the child were ordered to live with the father the outcome would be “hard to predict” and “It may be that he would experience very considerable distress which did not abate”.

1. Having regard to all of the evidence, the submissions, the objects of the Act, the principles underlying it and the statutory matters I am required to consider, as analysed above, in my view it would be contrary to the child’s best interests, and thus not in his best interests, to order that he live with the father. In my view, to so order would risk chaos in his life, which presently with the mother is well ordered. Further, emotionally the child is aligned with the mother who for his whole life has been his principal carer. In my view, the child’s best interests would be met by living with the mother and spending substantial and significant time with the father, in particular on alternate weekends from Friday after school to Monday before school and for half of the gazetted school holiday periods. This barely meets the definition of substantial and significant time, there being only the Fridays after school and the Mondays before school as amounting to non holiday weekday time. However, as Dr Sayers has described in his submissions (see at pars 1(d) and 3) that this amount of time is substantial and significant time I will not cavil with it. Although there is minimal non holiday weekday time, it seems at least technically to be sufficient to meet the definition of substantial and significant time. The alternate weekend and half holiday time coincides also with the father’s alternative proposal, put by Dr Sayers, and also the second of the “two potential regimes” proposed by Mr Drysdale for the independent children’s lawyer. Independently of those proposals, I am satisfied that the times mentioned are in the child’s best interests.

2. In coming to these conclusions, I have taken into account, in particular, Mr T’s evidence that the child “does need to know and have a relationship with his father”; Dr M’s evidence that the child “probably espouses his mother’s very negative views about the father”; that the mother appears to have a genuine belief that the child would be better off without the father in his life; that, at least at the time of the trial, the mother had failed to instil in the child any positive view that for him to spend time with the father would benefit him; and other adverse evidence concerning the mother to which I need not further make specific reference.

3. However, as I have said, I have concluded that for the child to be ordered to live with the father, at this stage, would risk chaos in his life, to be avoided, in my view, as not being in his best interests.

4. Mr Drysdale made clear during argument that in the independent children’s lawyer’s proposal and submission there not be any “staggered” introduction to the time which the child should spend with the father.  I accept that submission, particularly because, when the child is away from the mother, he has shown interest in the father, and it will be important for the child to have his increased time away from the mother, and with the father, sooner rather than later, to explore that interest and so build his relationship with the father which Dr M, Mr T and Mr Y said is capable of being built, and also because a non staggered introduction will allow the child as quickly as possible to identify with his new routine.  Also, Mr Y’s evidence that “the point of no return is fast approaching” indicates that a firm and non staggered introduction may be preferable.

5. As to the independent children’s lawyer’s proposal of a proviso that in the event that the child does not spend time with the father as ordered there be orders in accordance with the first regime to come into effect, that is, that the child live with the father and spend time with the mother, but not for a quarantine period of “in the region of three to four months” progressing to an eventual regime of alternate weekends and half holidays with the mother, I do not accept that such a proviso would be in the child’s best interests, based upon the same reasoning as above.  Certainly, in my view it would be inappropriate for any such proviso to be self executing, as the Court would need to hear evidence as to the reasons for any failure of the orders.  Further, in my view it also would be inappropriate to provide that such a default proviso come into effect by way of a future Court order because such would not achieve finality in the proceedings. In this regard, I have considered making the proposed orders as interim orders only, to be brought back in six or twelve months for further consideration if the child should not successfully be spending time with the father, however, as earlier noted, there is evidence by Mr T of the need to “quieten the noise” around the child, meaning I think that the Court proceedings concerning him need to come to an end and the conflict around him between his parents minimised.  Thus, the child himself needs finality to the proceedings and cessation of the conflict surrounding him.

6. Mr T in my view has played a vital role in the small progress which has been made in achieving the child to be “relaxed and animated” with the father.  It is thus appropriate that Mr T be engaged to explain to the child the orders which I propose to make, before their commencement, and I will frame the orders accordingly.

7. The June/July 2008 school holidays commenced last Saturday, two days ago.  The orders I propose to make reflect this also.

8. Otherwise the orders reflect matters which I also consider to be in the child’s best interests and which at the trial largely were not the subject of controversy.

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate: 

Date: