Seales and Pacillo

[2014] FamCA 1159

FAMILY COURT OF AUSTRALIA

SEALES & PACILLO [2014] FamCA 1159

FAMILY LAW – CHILDREN – Final parenting – where this is the third set of parenting proceedings – where the child and the father have a strained relationship – where the child is 15 and exercises great autonomy – where the child expresses very strong wishes – where the child has expressed these wishes for several years – where the mother has previously contravened orders – where it is in the child’s best interests to make an order that is least likely to lead to the institution of further proceedings – where no order for parental responsibility is made – where orders made are subject to the child’s wishes – the best interests of the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 65DAC

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286

McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) Fam LR 518

APPLICANT: Ms Seales

RESPONDENT: Mr Pacillo

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 4189 of 2008

DATE DELIVERED: 19 December 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 8, 9, 10 July, 31 October & 28 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyers

Orders

1. All previous Orders in respect of L born … 1999 (“the child”) are discharged.

2. The child is to live with either of his parents in accordance with his wishes.

3. The child is to spend time with and communicate with each parent in accordance with his wishes.

4. The party with whom the child resides from time to time shall ensure the child continues to receive psychological assistance.

5. The parties shall communicate with each other by SMS text message or email regarding the child.

6. Each party shall maintain an active mobile telephone and shall ensure that the telephone has credit, is charged and switched on between 8:00am and 6:00pm each day.

7. Each party shall advise the other party of any change in that party’s mobile telephone number within 24 hours of any change occurring.

8. The mother shall notify the father of any medical treatment the child receives, while in the mother’s care, within two hours of the child receiving medical treatment.

9. The father shall notify the mother of any medical treatment the child receives, while in the father’s care, within two hours of the child receiving medical treatment.

10. Each party is restrained from denigrating the other party within the presence or hearing of the child and shall remove the child from within the presence or hearing of any third party who denigrates the other party.

11. Each party is authorised to obtain information from the child’s school and any treating medical professional regarding the child.

12. Each party is restrained from discussing these proceedings or any of the evidence in these proceedings with the child.

IT IS ORDERED BY CONSENT:

1. Each party is restrained from permitting or causing the child to operate a motor vehicle without the child first obtaining a license permitting the child to operate the motor vehicle.

2. Each party will enforce a strict curfew on the child of 10:00pm on evenings before School.

3. The mother is restrained from consuming alcohol at any time when the child is in the mother’s care.

4. The father is restrained from consuming alcohol at any time when the child is in the father’s care.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seales & Pacillo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4189 of 2008

Ms Seales

Applicant

And

Mr Pacillo

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the child L, who is 15.  L is the only child of parents who separated prior to his birth.  They have fought over the child for the whole of his life and it would appear that the child is now bearing the scars of that conflict in that he is exhibiting difficult adolescent behaviour, which at times places himself at risk.

2. L has lived with his mother for all of his life and has been for some time estranged from his father

3. Following the hearing in July 2014, which was the third set of parenting proceedings concerning the child, the matter was adjourned for three months.  Interim Orders were made in a final effort to see whether it was possible to rekindle the child’s relationship with his father.  Although the child saw his father on two occasions during that period and the two exchanged many text messages, the child does not want orders providing for him to spend time with or communicate with the father.

4. The father seeks orders that he have sole parental responsibility for the child, that the child live with him and spend defined time with the mother.  The mother seeks orders that she have sole parental responsibility for the child, that he live with her and that no order be made for the child to spend time with his father.  The Independent Children’s Lawyer says that it is in the child’s best interest for there to be no orders made for the allocation of parental responsibility, in respect of where the child should live or how much time he should spend with each of his parents, and that where he lives and who he spends time with should be subject to the child’s wishes.  

5. All parties agree that certain orders should be made for the provision of services to the child, and restraining the parents from certain actions which would be harmful to the child.

6. The question for me to determine is whether either of the suite of orders sought by the parents or any other orders, including the proposal of the Independent Children’s Lawyer are in the child’s best interests.

Background

1. L, who is 15, was born in 1999.  His parents are Ms Seales, who is 49, and Mr Pacillo, who is 47.  The parents formed a relationship in the mid-1990s and lived together for a couple of years but had ceased living together by the time Ms Seales was pregnant with the child.

2. L has at all times lived with Ms Seales and his maternal grandmother.  Ms Seales moved from Sydney in around 2003 to Region D when the child was four.  Mr Pacillo has remained living in Western Sydney.

3. Orders in relation to the child were first made in May 2000.  The current proceedings are the third contested parenting proceedings between the parents, and there have also been numerous contravention proceedings between 2003 and 2012, brought by the father against the mother, many of which have been found proved.

4. The most recent parenting Orders were made in September 2010 and, other than variations to a couple of the Orders following the proved contraventions, the September 2010 Orders govern the parenting arrangements for the child.

5. Under these Orders, the mother has sole parental responsibility for the child and he lives with her.  The Orders provide for the child to spend time with his father on alternate weekends during school terms from 10.00 am Saturday, or at the conclusion of the child’s sport if at a later time, to 6.00 pm Sunday, or the conclusion of the child’s sport if at a later time.  The Orders also provide for the child to spend time with his father during half of the school holidays and on special days and also provide for communication between the child and his father.

6. For a number of years the child lived with his mother and spent time with his father in accordance with the Orders. It also appears that the child progressed well socially and academically. However, the parents remained locked in dispute with each other and the child was virtually constantly exposed to their high level of conflict and denigration of each other.

7. The mother has contravened the Orders on many occasions since they were made and, in particular, has not made the child available to the father for the purposes of them spending time together on both weekends and in school holidays.  The Orders so far as they relate to the child’s time with his father have not been operative since March 2012.

8. L’s relationship with his father up until this time was said to have been positive and there is no evidence of any particular incident which triggered a change in attitude in either the child or his mother in relation to compliance with the Orders.  However, police records indicate that in April 2012, when the police were called to the mother’s home, the mother showed police text messages and referred to calls over the previous two weeks from the father in relation to seeing the child.  She also said that the child did not wish to spend time with his father the previous weekend and this had made the father angry.  Police records indicate that they viewed the messages that the father had sent and there were no threats contained in them.  Police observed also that the mother was heavily intoxicated at the time of this call and were also concerned about her behaviour due to possible mental illness.

9. The mother commenced these proceedings in July 2012 in the Federal Magistrates Court, as it then was.

10. Initially when the child commenced high school in 2012 he was doing well and was described in his school reports as having adapted well to high school and to the workload expected in the selective class he was placed in.  By semester two of Year 7 his performance at school had deteriorated and the semester was described as a disappointing one in which there was a gradual decline in effort.  It was noted in those reports that despite having a great deal of ability, the child needed to focus to achieve his full and high academic achievement.  By October 2012, he had been moved from a selective class to a lower academic class and was on a monitoring program due to him having developed disruptive behaviour.

11. L was suspended on a number of occasions in 2013 and also in 2014.  The child also had frequent and prolonged absences from school particularly in 2013.  His first semester report, for example, recorded 48 total absences from school, only 13 of which were explained.

12. In January 2013 police were called to the mother’s house and she informed them that the child, who was 13, had received abusive and threatening messages from the father.  The mother is described in police records as having demanded that police provide the child with an Apprehended Violence Order against the father, claiming that the father had been threatening to him.  The police listened to a recorded phone message and noted, while the father was hostile towards the child, he did not threaten the child and his hostility was in response to abuse from the child.  Police also noted that during the recording the mother could be heard urging the child to abuse his father as well as “guiding the conversation”.

13. On 15 March 2013 the child, who was 13, attended a party.  Although the mother claims that she did not consent to the child attending the party and that he had sneaked out of the house, the child’s witness statement made to police, indicates that he was taken to the party by the mother of some of his friends at 8.30 pm.  Alcohol was available at the party and the child was seriously assaulted by being punched in the mouth and lost consciousness.  the child was hospitalised and required significant dental treatment.

14. There are also indications that the child has been sexually active since 14.

15. Police records indicate that the child has come to police attention potentially as an offender.  In February 2014 police were involved in a reported incident that involving ongoing conflict between the child and another young person.

16. Sometime in early 2014, when the child was 14, he acquired a large tattoo across his chest, ironically bearing the words “family forever”.  The mother gave conflicting evidence as to whether she consented to him being tattooed, but ultimately she appears to have agreed on the basis that all the child’s friends had tattoos and it meant so much to him.

17. On 25 March 2014 police attended the mother’s home as she had contacted them stating that she intended harming herself.  Ambulance officers also attended.  Police records indicate that the maternal grandmother at the home told police that the mother had drunk a large amount of wine throughout the night.  The mother told ambulance officers that she had been hit in the hand with an axe by her 14 year old son, that is the child, who police observed was asleep at the time.  The maternal grandmother told police that this incident had not occurred.  The police observed a small scratch inconsistent with an axe injury on the mother’s hand, and the mother was taken by ambulance to a mental health facility as a voluntary patient.  There is no further evidence in relation to the outcome of the mother being taken to the mental health facility, nor is there any current information concerning the mother’s current mental health status.

18. On 14 May 2014 the child was a passenger in a car driven by an unlicensed youth.  Police records indicate that the child was the owner of the car being driven which the mother says she sold to the child.

19. By the time the hearing commenced in July 2014 the child’s school performance had deteriorated significantly and there were further frequent absences from school, which the school report associated with his poor performance.  During the three month adjournment the child was suspended on a number of occasions and ultimately the school indicated that it was not prepared to have the child return due to his violent behaviour and that he would need to explore alternative school or employment options.  At the time of final submissions the child was neither engaged in school or employment, though he was engaging with a psychologist who was providing cognitive behavioural therapy to address his anger issues, related to his school exclusion.

20. On 2 September 2014 the child was seriously injured in an accident at a gym and the top portion of his finger was severed.  The father and the father’s adult son visited the child in hospital on that day.  The father also spent an entire day with the child at the hospital on the following day.  The father observed that the child had acquired some more tattoos in recent months. It appears that the visits on both days went well and the child interacted well with his father.

21. L gave his father his mobile phone number during the hospital visit and for a short time there was some positive communication between the two via text message.  the child told the Independent Children’s Lawyer that he felt positive about the visits with his father when he was in hospital and text message communication that he initiated with his father on Father’s Day.  the child also told the Independent Children’s Lawyer that he was not interested in participating in any of the programs that were available to assist children reconnecting with estranged parents.

22. The text messages between the father and the child were initially amicable and some of the topics in the exchange were the possibility of the child’s return to school and the progress of the child’s recovery from his injury.  In other messages the child expresses some nostalgia about his extended paternal family, such as the enjoyment of his paternal grandmother’s cooking.  After a week of amicable text messages the child did not contact the father for about one week.  There was then a short interchange of messages for a day and then a further week without contact.

23. The father then initiated contact again on 26 September to which the child responded:

    You know what? Get the hint, buzz off. It’s obvious you didn’t understand what my wishes are.  I don’t have to make anything up to you, old man, I’m my own person, my wishes are clear, and if you’d like me to spell it out for you, here it is, go away, I don’t want you texting me, calling me, and sure as hell don’t come and see me, I don’t want to hear from you.  Give up, it’s time to move on.

24. There were further attempts by the father to make contact in which he makes negative comments about the mother’s family. the child persistently says in messages to his father that he does not want to visit him or see him.  In another message the child said:

    Your (sic) the one who is behaving foolishly, You had your shot, A legitimate chance of building a genuine relationship with me, but you blew it, I should have known you were the same.

25. Immediately before the resumed hearing, the child initiated contact again via text message seeking his father’s help in arranging a return to school. The tone of this message was once again amicable and conciliatory.

family consultant’s evidence

1. When the parties and the child were interviewed by a Family Consultant in June 2013, the child told the Family Consultant that he “really wouldn’t be very happy” and had “no idea what (he’d) honestly do” if required to spend time with his father.  He said that he knew that Judges’ Orders had to be obeyed, but he did not think he would cope and would feel very stressed, if required to spend time with his father. There were no formal observations undertaken of the interaction between the father and the child as the father did not wish for this to occur.

2. The Family Consultant concluded that it was not his recommendation that the child be subject to orders that provide for him to spend time with or communicate with the father.  The Family Consultant attached particular weight to the views expressed by the child, which were consistent with the views expressed in early March 2013.  Under cross-examination the Family Consultant remained of this view.

3. It appeared that the Family Consultant may not have known the full extent of the current difficulties in the child’s life, especially as the report was completed a year prior to the hearing.  The Family Consultant was asked about whether there would be any change in his opinion on the basis that there were serious deficits in the mother’s parenting capacity as evidenced by the behavioural difficulties and problems that the child had experienced in the last 18 months or so.  He was also cross-examined, particularly by the father, about whether his opinion would change if a number of the matters told to him by the mother were incorrect.  The Family Consultant conceded that his opinion may change if matters such as the mothers drug use, assessment of the child’s school performance and mother’s criminal history were shown to be untrue, but said that the difficulty was that there was no viable alternative being proposed for the child’s care.  The Family Consultant said that if there were real concerns about the mother’s care and no viable proposal then the only alternative may be for the Department of Family and Community Services to become involved.

4. The father, up until the second day of the hearing, had not proposed that the child live with him.  The father then changed his position and sought orders that the child live with him. However, as the Family Consultant had foreshadowed that the only alternative, if the mother’s care were found to be inadequate, was a notification to and involvement of Community Services, which he thought would be unlikely to happen, I asked some questions of the Family Consultant about his assessment of the father’s capacity to meet the child’s needs.  The Family Consultant said that it was untested and he could not give a clear view as the father had never had full time care of the child and that the main difficulty he saw was with problems that may arise in requiring a 15 year old to do something he did not want to do.

5. Overall, the Family Consultant remained of the view that it was best for the child to continue living with his mother and for no order in relation to time with his father to be made. He was concerned that as it did not appear that the child was able to maintain a relationship with both parents, it was likely that any requirement for the child to spend time with or communicate with the father would increase the levels of stress he experiences, which would likely lead to increased difficulties in other areas of his life. For this reason the Family Consultant described the benefits to the child of having a break from the extremely high levels of conflict and what he described as the “seemingly unrelenting dispute” that he has been subjected to.  In his report the Family Consultant said “involving a child in or exposing them to high levels of parental conflict is associated with poorer long-term outcomes for the child’s development and well-being.”  This opinion of the Family Consultant was unchallenged.

1. The Independent Children’s Lawyer proposed interim orders which were made, provided for the child to remain living with his mother who was to exercise sole parental responsibility for him. Under these orders the child was to be given the opportunity to make contact with his father through the Independent Children’s Lawyer and to be provided with the opportunity to participate in a program designed to rekindle his relationship with his father and provide him with therapeutic support. There were no orders made in relation to the child spending time with or communicating with his father, so that the child was to be able to initiate such contact himself without any pressure from his maternal family. The mother was also required to undergo a mental health assessment, and obtain information about and show a willingness to participate in a program relating to parenting adolescents.

The law and discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting. The objects are to ensure that the best interests of children are met in particular ways. Of particular relevance in this case are the following objects:-

   (a)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

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential.

2. The principles underlying the objects include:

   (a)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

   (b)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

   (c)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Should the Court make an Order in respect of parental responsibility?

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for that child.  Under her proposed orders the Independent Children’s Lawyer does not seek that any order be made for parental responsibility with the result that each parent would continue to exercise parental responsibility.  Each of the parents seeks the allocation of sole parental responsibility for the child to him or her self on a final basis.

2. In Goode & Goode[1] the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  The Court held that in the former, as there is no court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [1] (2006) FLC 93-286

3. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence, or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for them (s 61DA(4)).  It is the position of each of the parents and the Independent Children’s Lawyer that it would not be in the child’s best interests for the parents to equally share parental responsibility for him.

4. The evidence shows that the parents have been incapable of communicating respectfully with each other at even the most basic level throughout the whole of the child’s life.  As noted, there have been three sets of parenting proceedings, six contravention proceedings and even throughout the adjourned period the parents continued through messages to each other and via the Independent Children’s Lawyer to denigrate each other.  I am satisfied that the parents are incapable of consulting with one another or taking into account each other’s wishes in relation to any decision concerning the child’s care and welfare.  This evidence rebuts the presumption of shared parental responsibility.

5. So far as the allocation of parental responsibility and other parenting orders are concerned, the Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What Order is in the best interests of the child?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [3] (2007) Fam LR 518

   [4] [2006] FamCA 994

3. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic)”. I am of the view that a meaningful relationship with both parents will be of some advantage to the child.

4. The father’s proposal is for orders which provide for the child to live with him and spend defined time each alternate weekend, half school holidays and special days with his mother.  These orders will promote the child having a meaningful relationship with each of his parents.

5. The Independent Children’s Lawyers proposes that no order be made in relation to where the child should live or that if such an order is made, that it should be subject to the child’s wishes. The Independent Children’s Lawyer and the mother also propose that there be no specific orders for the child to communicate with or spend time with his father.  The father’s submissions rely strongly on this consideration and the fact that the child has for the last two years been denied of the benefit of a meaningful relationship with him.  The father has consistently opposed the proposal that no orders be made and submitted this would be detrimental to the child.  

6. Interim Orders as proposed by the Independent Children’s Lawyer were made when the matter was adjourned for three months from July to October 2014.  The purpose of making no order for time and communication with the father during the adjourned period was to allow the child to have a break from the conflict between his parents, to communicate with or spend time with his father if he chose to without parental influence, and to provide the child with various therapeutic services to assist him in rebuilding the relationship with his father. This is also the rationale for the Independent Children’s lawyer seeking no order or that such time be “subject to the child’s wishes” on a final basis.

7. To some extent the purpose of the interim orders was achieved, as during the adjournment the father did spend some time with the child, and communicated with him in accordance with the child’s wishes, rather than pursuant to court orders.  the child informed the Independent Children’s Lawyer that he felt positive about his father’s visits to him in hospital and contact with the father, which the child had himself initiated.

8. In my view, the evidence also demonstrates that the child may continue to seek a relationship with his father in the future in the absence of court orders.  The most recent communication between the child and his father was initiated by the child sending a text message after a period of 24 days without contact and in circumstances where the child had most recently indicated that he did not wish to see his father.  On that date, 23 October 2014, the child sent the following text message:

   Look dad I know we’re not on the best of terms at the moment but I need your help, I am trying to actually get back to school and they’re being very biased I know you’re good with these things so if you could maybe give me a call when you’re free and I’ll tell you what’s going on? Just whenever you’re free no rush. It’s okay if you don’t want to.

9. L has consistently expressed the view that he does not want orders in place requiring him to spend time with or communicate with his father. The child’s actions indicate that he is not opposed to doing so and he has even initiated that contact himself and found it a positive experience in the absence of court orders.  In these circumstances, it will not necessarily be the case, as the father submits, that if no orders are made about the child spending time with or communicating with his father that the child will not receive the benefit of having a meaningful relationship with each of his parents. Indeed, it appears that it will be more likely that he will have a relationship with his father when there are no orders in place.

10. In my view, the second primary consideration, the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence is particularly significant in this matter.

11. The Family Consultant is of the view which was not challenged and which I accept, that the child’s difficulties are a result of his life long exposure to parental conflict.

12. I am also of the view that the child has been harmed by being subjected to neglect by his mother as a result of her extremely lax form of parenting during his adolescent years.  The mother, who has had sole care of the child in recent years, has not been able to ensure that the child regularly attended school, which has been to his significant detriment, especially as he was an academically gifted child when he commenced high school.  She has also not exercised appropriate supervision or established boundaries so that the child has been involved in activities inappropriate for his age, such as attending parties at which alcohol has been served, acquiring numerous tattoos, being provided with a car when he is not of an age to legally drive and attending a gym where he was seriously injured apparently in the course of body-building.  the child was seriously assaulted at the age of 13 at the party at which alcohol was served, has come to the attention of police, and has been indefinitely suspended from school, all of which has been to his detriment.

13. The father’s position to a large degree is based upon the need to protect the child from harm associated with the mother’s neglect.  The Independent Children’s Lawyer also submitted that there are significant risks to the child should he continue to remain living with his mother.  I am of the view that the child has been exposed to extreme conflict between his parents, has been neglected in his mother’s care and there is some risk of harm in the future should his current circumstances continue.  However, in recent times the child has engaged with a psychologist and the mother has consented to orders that this therapy continue and that she impose a curfew on the child and not allow him to drive a motor vehicle, unless licensed.  These measures should assist in some way to reduce the risks associated with the mother’s parenting.  

14. An order requiring the child to live with his mother, as sought by her, when there are significant concerns about his safety is in my view, less protective than the Independent Children’s Lawyer’s proposal that the child make his own choice as to where he lives under an order to that effect or no order. If the child is not required to live with his mother at least will have the option of living with his father in the event he feels unsafe in his mother’s home.

15. It is possible, especially in light of the child’s recent text messages to his father and recognition that his father may assist him, that the child may choose to reside with his father. This option would be available to him under the orders proposed by the Independent Children’s Lawyer or the alternate proposal that no order be made in relation to residence.

16. The father’s proposal is that the child immediately live with him.  At the time that the interim orders were made there were concerns about the need for some therapeutic intervention to assist the child re-establish his relationship with his father.  However, the child was positive about spending time with his father and the content of the text messages shows that the relationship had sufficient strength that it was rekindled without therapeutic intervention which was, in any event, resisted by the child.  In these circumstances, the concern about the need for therapeutic intervention is no longer, in my view, of great concern.

17. L has held strong views for some years that he does not wish to be required to see his father and has been parented in such a way that he has not been required to do anything against his wishes.  As a result of this parenting, both parents have been incapable of requiring the child do something that he does not want to do, from at least the age of 13.  In my view, if orders require the child to live with his father at this stage, in all likelihood, the child will resist them.  This will result in a much greater risk of harm, particularly physical harm, if he were, for example, to leave his father’s home. The father was unable to propose how he could physically require the child to move to or remain living in his home.

18. Section 60CC(3) sets out additional considerations, a number of which are not applicable in this case, and I will refer to those which are relevant.

L’s views

1. L had consistently expressed strong views that he wished to live with his mother and not spend any time with or communicate with his father up until the interim orders were made.  During the adjourned period the child continued to express the view to the Independent Children’s Lawyer that he wished to determine all matters relating to his parenting and did not want any court orders.

2. I agree with the submission of the Independent Children’s Lawyer and the father that the child’s views should not be determinative, and I am also concerned that the basis of those views is likely to have been heavily influenced by the mother.  I also agree that the child is still only 15, and is accustomed to making decisions for himself which are demonstrably not necessarily in his best interests.

3. Although I am clearly of the view that there are real concerns about the parenting style in which the child has been given great autonomy, I am also mindful that there are real practical issues in requiring a child of 15 to comply with orders that are contrary to his views. For this reason I attach significant weight to the child’s views.

L’s relationships

1. It is the uncontested opinion of the Family Consultant that the child and the father previously had a positive relationship, but it is now a very strained one.  In my view, the child’s positive attitude in relation to the time he recently spent with his father and the communication he initiated indicates that despite the current strained circumstances the positive relationship remains.

2. L indicated a close relationship with his mother to the Family Consultant.

3. The Family Consultant was also of the opinion which was not challenged, that it did not appear possible for the child to be able to enjoy a relationship with both of his parents.

4. The proposal of the Independent Children’s Lawyer for no orders to be made about the person with whom the child should live and spend time with, and the father’s proposal, both give the child an opportunity to develop further a relationship with his father.  

5. The mother’s proposal for the child to live with her and spend time with his father in accordance with his wishes, may also appear to suggest that the child’s relationship with his father could further develop under this proposal.  However, I accept the Family Consultant’s evidence, that it did not appear possible for the child to be able to enjoy a relationship with both of his parents.  The mother has demonstrated when the child was younger through her repeated contraventions that she had real difficulties in tolerating the child having a relationship with his father when living with her.

6. The references in the child’s recent text messages to extended family members, such as his paternal grandmother indicate in my view, the strength of the relationship with the extended paternal family, even though there has been little contact for many years.

Parental involvement

1. The mother has had sole parental responsibility for the child in recent years so the father has been unable to participate in making decisions about major long-term issues. Although there were Orders in place for the child to spend time with and communicate with the child this did not occur for a number of years at a critical time in the child’s development. The father was determined to pursue this contact through the bringing of contravention applications which further entrenched the conflict with the mother. The mother effectively obstructed the operation of the Orders by allowing the child to have too much autonomy in relation to time with and communication with his father. It is however to the mother’s credit that during the adjournment she informed the father of the child’s injury and to the father’s credit that he immediately visited the child in hospital and continued to communicate with the child.

Likely effect of change in the child’s circumstances

1. The likely effect of any change in the child’s circumstances is a significant issue in this matter.  Under the Independent Children’s Lawyer’s proposal the child’s circumstances will only change if he chooses for that to occur.  If the result is that the child feels adversely affected by that change then he can choose whether or not to continue with it.

2. The father’s proposal that the child live with him involves a dramatic change in the child’s circumstances.  I am of the view that given his current strong expression of views and the style of parenting to which he has been exposed in recent years, even if the child were able to be physically transferred to his father’s home, he would leave either immediately or as soon as any conflict with his father arose.  As is indicated by the time spent together and text messages between the child and his father in the period of the adjournment, the child can quickly change his mind and his attitude toward a relationship with his father.  Within a week of positive messages the child sought no contact with his father and maintained this position for a month. the child then initiated contact and sought his father’s assistance.  

1. The father has had no experience in parenting the child and it is likely that there would be a difficult period of adjustment where the child may change his mind and leave his father’s home.  If he were unable to return to his mother’s home, (which is the likely position given the mother’s extremely precarious position if she were to contravene Court Orders again), the likely outcome is that the child would become homeless. Given his current behavioural problems, it is also likely that he would not reengage with school and many of his life circumstances would deteriorate even further.  

2. There would, however, in my view, possibly be some positive changes for the child if he were to reside with his father.  Although, it is unlikely that the child would remain in his father’s home if he were ordered to live there, he would be exposed to a different type of parenting in his father’s home. Although the father may overestimate his own parenting capacity and seems to think that strictness is the most admirable parenting quality, the child has not been well served by the lax parenting in his mother’s home and may improve with a different parenting style.  However, the child’s behaviour has significantly deteriorated in the last couple of years and it may be some time and require a great deal of assistance before he is performing as he was in the past, even with improved parenting.

3. I am of the view that even though the child’s relationship with his mother is dysfunctional, it is a close relationship and the likely impact of living with his father after being raised by his mother his entire life would be detrimental to the child’s psychological well-being.

Practical difficulty and expense in spending time with non-residential parent

1. There would be no practical difficulties and particular expense under the orders proposed by the Independent Children’s Lawyer in spending time with the non-residential parent. the child could simply make the arrangements with this parent for that to occur.  

2. On the father’s proposal, the mother would be required to collect and return the child at the commencement and conclusion of all periods of time together at Suburb C railway station. This appears quite onerous for the mother and is not in my view, age appropriate. The reality would be that the child would do the travelling himself which would be quite onerous on him. It is unclear why the father is not prepared to do at least half of the travel considering that he is the only one with a driver’s licence.

Capacity of parents and others to provide for the child’s needs

1. The capacity of each parent to provide for the child’s needs is also another significant matter in this case.  The Independent Children’s Lawyer has serious concerns about the mother’s capacity to function properly as a parent and for that reason sought an interim order that the Department of Family and Community Services be invited to intervene in these proceedings.  I share those concerns as well as concerns about the mother’s inability to ensure that the child is properly attending school and did invite the Department to intervene.  Unsurprisingly, having regard to the child’s age, the Department did not intervene.

2. As previously indicated, I am of the view that the mother has not shown a satisfactory capacity to meet the child’s needs.  I was concerned that her incapacity may arise from a mental condition or disorder as the mother had been previously diagnosed as having a borderline personality disorder which was described as “fitting with drug abuse, alcohol abuse and history of self-mutilation”. However, the report containing that diagnosis was extremely old (January 1998), and although I ordered that the mother undergo a mental health assessment during the adjournment, she failed to do so.  It would appear on the basis of police reports that make numerous references to the mother’s intoxication when police attended her home from time to time, that there are also concerns about the mother’s alcohol misuse, but I am not assisted by any further evidence in relation to this issue.

3. As also previously indicated, I am of the view that there is a connection between the mother’s incapacity to meet the child’s needs and the deterioration in his behaviour and involvement in dangerous activities as she has been the parent solely responsible for him in recent years.

4. Each of the parents has also shown an incapacity to provide for the child’s psychological need to be protected from the high levels of parental conflict. The evidence raises the concern of the child having been psychologically harmed from being subjected to the extreme levels of conflict between his parents.  I attach weight to the Family Consultant’s evidence that such exposure is associated with poorer long-term outcomes for children’s development and well-being. The parents have demonstrated that they are incapable of communicating with one another without conflict, to which the child has been on many occasions subjected.  Any order, or the absence of orders which results in the least contact between the parents will reduce the potential for this conflict and be in the child’s best interests.

5. The father’s proposed orders involve him being the parent who will be responsible for meeting the child’s day-to-day and long-term needs.  I accept the Family Consultant’s opinion that the father’s parenting capacity is untested and as I have previously indicated, his own views about his capacity to ensure that the child will be compliant with his directions is in my view naive and overstated.

Maturity, sex, lifestyle and background

1. As previously indicated, in my view, the child’s age and the way in which he has been raised, especially by his mother in recent years, which has involved a great deal of autonomy for the child, is a relevant consideration.  Although, in my opinion the child has not been well served by this form of parenting, the practical reality is that he is a physically mature 15 year old who has clear views about his own life circumstances and cannot practically be required to comply with orders about where he lives and who he spends time with.

2. The only cultural issue that specifically arises is that the child is of Italian heritage on his father’s side and it appears he shared a relationship with his grandmother and an exposure to and enjoyment of time with his family.  This factor must be given some consideration.  The immediate effect of the orders the father seeks would be to allow the child to enjoy time with his extended family. It is also possible that the child may choose to initiate contact with his paternal family as he did on one occasion in 2013. However, having regard to the balance of the best interests factors and my view about the likelihood of the child to comply with such orders the father seeks, this is not a consideration of great significance.

Attitude towards the child and the responsibilities of parenthood

1. The attitude towards the child and responsibilities of parenthood demonstrated by each parent is another significant matter in these proceedings.  I agree with the characterisation by the Independent Children’s Lawyer of the lack of responsibility towards parenthood indicated by each of the parents.  The mother appears to want a relationship with the child that is more akin to a friend and allow him to do what he wishes, rather than provide parental guidance, and the father is fixed on casting blame against the mother, rather than focusing on the child.  I have no reason not to accept that each of the parents love the child, but the way in which they have engaged in conflict between themselves has not been child-focused.

Order least likely to lead to the institution of further proceedings

1. The final matter, which is one of great importance, is that I am of the view that it is preferable to make an order least likely to lead to the institution of further proceedings in relation to the child.  As is clear from these Reasons, the parents have been involved in litigation in relation to the child for all of his life.  I have grave concerns that the mother may not comply with orders that see the child residing with his father and which only allow for her to spend time with him on alternate weekends.  If these orders are made, in light of the child’s age and the parenting he is used to, the child is likely to do whatever he wishes. In light of the father’s readiness to engage in proceedings he will almost certainly institute further contravention proceedings in these circumstances.

Conclusion

1. In coming to a decision about Orders that are in the child’s best interests, I must balance the various factors to which I have referred.  In my view, having regard in particular to the two primary considerations and to the child’s views, the parents’ capacities and attitude and that it is preferable to make an order least likely to lead to the institution of further proceedings, the orders proposed by the Independent Children’s Lawyer, and those agreed to by the parents are in the best interests of the child.  

2. It is a practical reality that the child at age 15 and given his background, will make his own decisions about where he lives and how much time he spends with the other parent.  In my view, it is in his best interests to allow him at this stage to continue to make those decisions in a way in which ensures that all options are available to him.

3. So far as parental responsibility is concerned, as it is not clear where the child will live, it would be inappropriate to allocate parental responsibility to one parent solely. Accordingly, I make no order regarding parental responsibility, so each parent will continue to exercise it separately.

4. For these reasons I make the orders set out at the forefront of this judgement.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 December 2014.

Legal Associate: 

Date:  19 December 2014.