SEARS & ABBOTT

[2015] FamCA 638

FAMILY COURT OF AUSTRALIA

SEARS & ABBOTT [2015] FamCA 638

FAMILY LAW – PRACTICE & PROCEDURE – Where the respondent father withdrew from the proceedings – Where the father was afforded procedural fairness and it was appropriate for the trial to proceed in his absence

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where the child has a meaningful relationship with the mother and she is the child’s primary attachment figure – Where there has been a marked deterioration in the child’s relationship with the father and the child was opposed to spending time with him – Where there is a need to protect the child from physical or psychological harm through his subjection or exposure to abuse by the father –  Where the father’s parenting capacity betrays an inability or an unwillingness to prioritise the child’s best interests above his own – Where it is uncontroversial the child should live with the mother – Where no injunction made restraining the mother’s ability to relocate her residence with the child – Father restrained from approaching the mother’s residence and the child’s school – Where the child and father may communicate in writing if they desire  

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply since there are reasonable grounds to believe the father engaged in abuse of the child and in family violence in respect of the mother – Where civil communication between the parties is all but impossible – Mother to have sole parental responsibility – Where whether and how the child spends time with the father shall be determined by the mother as an incident of her sole parental responsibility for the child

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 62B, 65AA, 65DA, 65DAA, 65DAC, 65D, 68B

Allesch v Maunz (2000) 203 CLR 172
AMS v AIF (1999) 199 CLR 160
Cales & Cales (2010) FLC 93-459
Malcolm & Monroe (2011) FLC 93-460
Sampson v Hartnett (No.10) (2007) FLC 93-350
Taylor v Taylor (1979) 143 CLR 1
U v U (2002) 211 CLR 238

APPLICANT: Ms Sears

RESPONDENT: Mr Abbott

INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

FILE NUMBER: NCC 1771 of 2008

DATE DELIVERED: 29 July 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 29 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: O’Hearn Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms O’Rourke

Orders

1.All former orders relating to the child B, born … 2005, (“the child”) are discharged.

2.The mother shall have sole parental responsibility for the child.

3.The child shall live with the mother.

4.Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

a.The mother’ residence; and

b.Any school attended by the child.

5.Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

a.By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to Father’s Day and the child’s birthday; and

b.By the mother promptly sending to the father:

i.Written acknowledgement of receipt of the father’s written communication; and

ii.Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

6.Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

7.Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

8.The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

9.Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address and mobile telephone number.

10.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11.The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

12.Otherwise:

a.The Amended Initiating Application filed on 29 April 2015 is dismissed;

b.The Response to Initiating Application filed on 21 November 2014 is dismissed;

c.The Application-Contravention filed on 26 May 2014 is dismissed; and

d.Any and all outstanding applications are dismissed.

NOTATION

A.These orders intentionally make no provision for the child to spend time with the father. Whether and, if so, how the child spends time with the father shall be determined by the mother as an incident of her sole parental responsibility for the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sears & Abbott 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 NEWCASTLE

FILE NUMBER: NCC 1771 of 2008

Ms Sears

Applicant

And

Mr Abbott

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.The proceedings before the court concern a dispute between the applicant mother and respondent father over their child, who is now nine years of age. 

2.The parties’ dispute went to all aspects of the child’s care, including the allocation of parental responsibility for him, with whom he should reside, and with whom and how he should spend time and communicate. 

3.The father belatedly withdrew from the proceedings and so the matter proceeded to trial on an undefended basis with the Independent Children’s Lawyer supporting the mother’s proposal in all material respects. 

Proposals and Evidence

4.The mother moved on her Amended Initiating Application filed on 29 April 2015. She expressly abandoned her application for some orders but, essentially, she sought sole parental responsibility for the child, for the child to live with her, and for no orders to be made making any express provision for the child to spend time or communicate with the father. Inferentially, she expected that any future interaction between the child and the father would be decided by her as an incident of her sole parental responsibility for the child. Her proposal was supported by the Independent Children’s Lawyer. 

5.In support of her application, the mother relied upon:

a)her affidavit filed on 11 June 2015;

b)the affidavit of her husband filed on 11 June 2015; and

c)the Family Report dated 12 March 2015. 

6.The mother was not required for cross-examination by the Independent Children’s Lawyer and the Family Consultant was not required for cross-examination by either the mother or the Independent Children's Lawyer. 

Procedural Fairness

7.The mother commenced these proceedings in October 2014. 

8.The father filed his Response in November 2014 and appeared in the company of his legal representative before the Federal Circuit Court in December 2014, when the proceedings were transferred to this Court. 

9.The father subsequently attended the Family Report interview with the Family Consultant in March 2015 and he thereafter again appeared with his counsel before this Court in April 2015, when the proceedings were fixed for trial in July 2015. 

10.

Thereafter, the father’s former solicitor filed a Notice of Ceasing to Act in

June 2015 and the father failed to file any affidavit evidence in readiness for the trial, in breach of the procedural orders made in April 2015.

11.The father failed to appear for trial on 6 July 2015 and, after the trial was adjourned for several weeks, failed to appear again on 29 July 2015. 

12.I draw the obvious inference that the father has decided to withdraw from these proceedings, as is his prerogative. However, the Court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4). The father was afforded procedural fairness and he eschewed the opportunity to be heard. It was appropriate for the trial to proceed in his absence.

Background

13.The parties commenced a relationship in 2005, were married in 2006, and separated on a final basis in 2007. They divorced in 2008. 

14.The only child of their relationship was born in 2005. 

15.Previous proceedings between the parties were concluded before the Federal Magistrates Court (as the Federal Circuit Court then was) in August 2011. The orders then made provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend alternate weekends and part of school holidays with the father. 

16.The mother commenced these proceedings in October 2014, during the period of operation of an interim apprehended violence order against the father, which afforded the mother and the child protection from him. 

17.In December 2014, the proceedings were transferred to this Court. The matter was listed for trial once the Family Report was prepared and released. Despite the orders of August 2011 still being operative, the child has not spent any time with the father since September 2013, following an alleged assault of the child by the father. 

Legal Principles

18.Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

19.When invited to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

20.When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

21.The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence.

22.In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

23.If parental responsibility for the child is allocated in some other way then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration. 

24.This case has an undercurrent of dispute between the parties about the mother’s desire to relocate with the child from NSW to South Australia, which clearly has the potential to perpetuate the child’s estrangement from the father. Until the time of his withdrawal from these proceedings, the father railed against the mother’s proposed relocation. 

25.In U v U (2002) 211 CLR 238, the High Court noted that the parent wishing to relocate with a child bears no onus of proving the existence of compelling reasons for the relocation. Nor does the parent who desires that there be no change of residential location bear any onus of proving the existence of compelling reasons for that decision (see Malcolm & Monroe (2011) FLC 93-460 at [83]). However, the parties’ reasons for their proposed relocation and immobility should be explored in evidence and appraised, which process will inform the inquiry about whether the relocation is a proper exercise of parental responsibility (see U v U at 285-286; Malcolm & Monroe at [81], [83]).

26.The mother is just as entitled as the father to live in the place of her choice.  The Court has power to make injunctive orders regarding the location of the child’s residence (s 68B) but such an order should only be made cautiously (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). That is because parents enjoy a higher measure of freedom of movement which is not lost by reason only of their status as parents. They have as much residential freedom as is compatible with their obligations pertaining to the child (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210, 223-224, 231-232; Sampson & Hartnett(No.10) (2007) FLC 93-350). Only when the welfare of the child would be adversely affected should a parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interests (see U v U at 262).

Child’s Best Interests

Section 60CC(2)(a)

27.The child, undoubtedly, has a meaningful relationship with the mother from which he derives enormous benefit. The Family Consultant observed the child together with the mother, his sibling, and the mother’s husband. The Family Consultant concluded the child appeared to have a close and loving relationship with the mother and saw the child was demonstrably affectionate towards the mother, her husband and his sibling. The Family Consultant considered that the mother was the child’s primary attachment figure, which evidence I accept.

28.Unfortunately, the child’s relationship with the father does not fall into the same category. There has been a marked deterioration in their filial relationship.

29.The child’s opposition to interaction with the father has caused the mother some concern. She arranged for the child to consult with his school counsellor.  The school counsellor was so concerned about the child’s relationship with the father that she felt impelled to make a mandatory report about the child to the NSW Department of Family and Community Services (“the Department”).  The school counsellor also submitted a written report to the school principal about the child. In March 2014, the school counsellor wrote to the mother’s medical general practitioner suggesting the child be referred to a psychologist. The mother and her general practitioner acted upon that advice and the child was referred to see a psychologist, whom he has since consulted.

30.The father remonstrated against the cessation of his interaction with the child, including by his attendances at the child’s school. In May 2014, the father attended the child’s school and the mother was compelled to seek assistance from two teachers to escort her and the child back to her car. There was a scene between the father and the teachers, by which the child was understandably distressed. Regrettably, it was necessary for the police to be summoned to intercede in the incident.

31.Although the child has not seen the father at all since September 2013, the child did speak with the father briefly over the telephone on or about Christmas Day 2014, but the Family Consultant reported that since that time the child has refused further attempts to cajole his communication with the father. 

32.When the father attended upon the Family Consultant for interview in March 2015 his consultation did not involve an observation session with the child. The child refused to participate in such an observation session with the father, though that refusal was apparently not communicated to the father. The child told the Family Consultant that it would be useless to try and convince him to see his father as he had already made up his mind that he would refuse to cooperate. The child told the Family Consultant he would not like to speak with the father on the phone at the moment, but he may change his mind as gets older. He furthermore said he would not oppose his receipt of cards and gifts from the father on special occasions, but he did not want to feel impelled to send letters in return. 

33.The Family Consultant reported as follows:

From a developmental perspective, the child’s presentation is precisely what would be expected of a boy of his age and experience, particularly if his reports of the father’s behaviour are an accurate recall of the events that have occurred to date.

34.The Family Consultant reported that in her opinion the child did not feel close to the father and was fearful of him. 

35.The evidence clearly demonstrated the child’s deteriorated relationship with the father presently affords him no benefit at all, though the reason for the deterioration of that relationship was a live issue in the proceedings. The father reported to the Family Consultant that, in his opinion, the mother was attempting to alienate him and the child, and further, that the school and the school counsellor were complicit in that process. The mother refuted that allegation to the Family Consultant and suggested the child’s estrangement from the father was as a consequence of the child’s own experiences. 

36.On that issue, the Family Consultant opined, without contradiction:

The family consultant’s view is that the child’s current presentation is far more likely to be attributable to realistic estrangement than to parental alienation and that the child’s relationship with the father has been well and truly fractured.  Despite several attempts over the past 18 months to remedy this situation by means of counselling the child continues to reject the father on the basis that the father lied about hitting him.  The child’s position is that he is both very angry with his father and is fearful of being placed in a position where he could get hurt again if ordered to spend time with the father. 

37.The Family Consultant also opined:

It would appear that all avenues have been exhausted with regard to using counselling to repair the relationship between father and child.  It is suggested that it is time for the counselling to end, at least for the child. 

38.In the absence of the father, none of that evidence was the subject of any dispute and I therefore accept it. The conclusion is almost inevitable that little can now be done to retrieve the child’s relationship with the father – at least in the near future.

Section 60CC(2)(b)

39.Family violence was an issue in these proceedings, as was child abuse. I will deal with those issues sequentially. 

40.Family violence punctuated the parties’ relationship, both before and after their separation.

41.The Family Consultant reported the father previously conceded having physically assaulted the mother and being verbally abusive towards her during their relationship. The mother adduced evidence of several aggressive incidents between the parties during the course of their relationship, including on one occasion when the father punched her in the mouth, causing a tooth to puncture her lip.

42.After the parties’ separation, their relationship remained fractious. As an example, in June 2014, when the mother collected the child from school, she was followed by the father in his motor vehicle. The father was following the mother’s car, sounding his horn repeatedly. The father caused his car to come alongside the mother’s at a set of traffic lights and unpleasant profanities were exchanged between the parties. The mother contended she told the father to go away but the father called her a “fucking whore”. Needless to say, the child, who was witness to that event, must have been extremely upset. 

43.As a consequence of that incident, the mother drove to the maternal grandmother’s home and called the police who thereafter interviewed both her and the child. An interim apprehended violence order was taken out by the police on the mother’s behalf to protect her and the child from the father, but the application for the apprehended violence order was later heard and dismissed by the Newcastle Local Court in October 2014. Whether or not there were good grounds for the issue of an apprehended violence order is beside the point. The evidence uncontroversially established that, as recently as a few months ago, the parties were unable to communicate without overt violence and hostility, notwithstanding the presence of their child. 

44.The issue of the child abuse in these proceedings is also concerning. For some time the child reported to the mother that the father continued to physically discipline him, despite the orders made by the Federal Magistrates Court in August 2011 restraining use of corporal punishment.

45.However, the complaints of the child escalated in September 2013 when he reported to his school assistant principal that the father had punched him at a go-kart track the weekend before. The assistant principal noted the child’s forehead was bruised and she gave him an icepack. The mother was then summoned to the school to collect the child and take him to a doctor. The child then reported to the doctor what he had told the assistant principal, namely the father had punched him, and so a report was then made to police. The child made the same report to the police and the police then took out an apprehended violence order on behalf of the child against the father. The father was also charged with “Assault occasioning actual bodily harm”. The father defended both the criminal prosecution and the application for the apprehended violence order, his defence of which resulted in the child being cross-examined in the State Magistrates Court for many hours. The hearing in the State court began in January 2014 but was not concluded until March 2014, at which time both the charge and the apprehended violence order application were dismissed. 

46.The father’s perception, with which he regaled the Family Consultant, was that the child had lied and the fabrication was exposed by his successful defence of those proceedings in the State court. Conversely, the mother’s perception was that the prosecution was unable to discharge the criminal burden of proof in respect of the prosecution. The father is misconceived if he believes the dismissal of the assault charge equates to a finding of his innocence. It simply means the prosecution was unable to prove its case beyond reasonable doubt.  Whilst his presumption of innocence remains undisturbed, the finding of the criminal court does not preclude this Court from making any finding on the same factual circumstances on the lesser civil standard of proof. 

47.Importantly, it was common ground the child consistently and adamantly maintained he was punched by his father. He independently reported that allegation to the assistant school principal, a doctor, and the police. According to the Family Consultant, the mother strongly believes the father poses an unacceptable risk of harm to the child. The Family Consultant concluded the child’s reports and his presentation supported the mother’s belief.

48.It is unnecessary to make any factual findings about the incident, particularly in the absence of the father, but the evidence is sufficient to establish that there is a need to protect the child from physical or psychological harm he would suffer from being subjected or exposed to abuse by the father. 

49.There is also sufficient evidence to find that any orders that required continuing personal interaction between the parties would expose the mother to an unacceptable risk of family violence. 

Section 60CC(3)

50.Regrettably, the father’s tendency to hostility has not been confined to the mother and child. According to the evidence of the Family Consultant, the father’s behaviour is perceived by the child’s school staff as being aggressive and rude. The father allegedly routinely recorded conversations and interactions with school staff, even when the school staff asked him directly to refrain from doing so.

51.The conflict that has enveloped the family has spilled into all areas of the child’s life. He has been interviewed by police, he has been required to give evidence against the father in proceedings before the State Magistrate Court, he has attended upon the school counsellor, he has attended upon a separate psychologist, and he was interviewed by the Family Consultant. The Family Consultant made clear the child had had enough of such interventions in his life and wanted respite from the conflict. Whilst ever the father remains a staple in the child’s life, the evidence suggests that conflict will also remain part of his life.

52.The father seems to have misconceived the focus of attention in these proceedings. Rather than acknowledging the child’s best interests are the paramount consideration, at times, the father has demonstrated his self-interest outflanks the child’s best interests.

53.In an attempt to broker some sort of compromise in the past, the mother suggested that the child spend supervised time with the father. The father originally indicated a willingness to accept supervision but then sent a letter through his solicitor to the mother advising he had reconsidered that option and he refused to participate. The Family Consultant expressly asked the father why he had reversed his decision to participate in a supervised time arrangement with the child and the father said he was simply acting on legal advice at the time. He relied upon such advice rather than his paternal intuition about what would best serve the child’s interests. 

54.The father related to the Family Consultant things he had been told by the child’s counsellor, including the counsellor’s opinion that very little could be done to repair the relationship between him and the child. The father also revealed to the Family Consultant that staff had Unifam previously told him the child hated him and was resistant to seeing him, even under supervision. The father, in the face of that advice, told the Family Consultant he firmly believed that if the child were to be put into the same room as him then the child would “do a 180” and “get over it”. Suffice to say, nobody but the father thought the imbroglio between him and the child would be so easily overcome.

55.The father was well aware of the mother’s proposal to relocate with the child to South Australia. He told the Family Consultant that if the mother was permitted to proceed with that relocation he will:

Not be seeking any orders to spend time with the child or for any form of communication (including cards, presents or letters) because if she gets to relocate it doesn’t really matter.

56.Such a concession indicates the father’s thought process: If he does not have his way, he is not prepared to participate in the child’s care arrangements and is prepared to forsake the child. Clearly, such an attitude is inimical to a well-developed parenting capacity because it betrays an inability or an unwillingness to prioritise the child’s best interests ahead of his own. 

57.The Family Consultant said of the father, and I accept:

He seemed to have little empathy for the child and seemed less focused on the child’s needs and wishes than on his own needs at this time. 

58.The Family Consultant also said:

The father’s behaviour demonstrates a concerning loss of empathy for the child as well as a significant lack of insight into how his actions have continued to impact on the child. 

59.The Family Consultant reported she did not share the father’s view that the child would readily adapt to any orders requiring the reversal of his residence and for him to instead live with the father. In fact, the Family Consultant said she would go so far as to say the father appeared ill-equipped to deal with the child’s needs. I accept that evidence. 

60.Dealing then with the mother’s proposal to relocate her residence with the child, her husband has been living in South Australia since early January 2015.  Her husband works for the public service and it was not his choice to be posted to South Australia. The move was obligatory. The mother has remained with the child and her other children in NSW pending resolution of the dispute. She commendably abstained from unilaterally relocating over the past six months without the imprimatur of the Court. However, her situation is becoming dire. She wants to re-unify her family by moving herself, the child and her other children to South Australia.

61.The father told the Family Consultant he regarded the mother’s proposed relocation as being linked to the concept of “parental alienation” and it was part of the mother’s plan to ensure he no longer has any relationship with the child. 

62.I do not accept that characterisation of the mother’s conduct. I do not doubt that may be the father’s honest perception, but his perception does not correlate with the objective facts. The Family Consultant observed that the imposition of any order restraining the mother’s relocation could have potentially adverse psychological sequelae for the child, in that he may feel a sense of responsibility for the mother’s unwanted predicament in being confined to the Newcastle region as a consequence of the Court’s perception of his need to retain a relationship with the father. The Family Consultant observed the child is already angry with the father and such a perception held by the child would only compound the situation, making it even more unlikely the relationship between the child and father could ever be restored in the future. That theory was posited only as a possibility by the Family Consultant, but it is nonetheless additional evidence that militates in favour of the mother’s proposed relocation.

63.Historically, the father has been derelict in his payment of child support to the mother, which has hampered her ability to financially sustain herself in the Newcastle area. Although the Family Consultant observed the father had recently cleared the significant child support debt, the mother’s financial circumstances will clearly be more favourable if she, her husband, the child, and the mother’s other children can share a common household in South Australia. It will be much more economical for them to sustain one rather than two separate households. 

64.The child’s placement in the mother’s household is secure and loving. The Family Consultant observed the child has a very close relationship with his sister and, although the Family Consultant did not observe the child with the most recent addition to the mother’s family, because the mother was only pregnant at the time of the Family Report interviews, there is no reason to think other than that the child feels similarly close to his second sibling. The Family Consultant observed the child got along very well with the mother’s husband, since he has known the child since he was a toddler. 

Conclusions

65.I am satisfied the presumption of equal shared parental responsibility in respect of the child does not apply, since there are reasonable grounds to believe the father has engaged in abuse of the child and family violence in respect of the mother. Consequently, s 61DA(2) of the Act is engaged.

66.Even if that were not so, I am satisfied the fractious nature of the relationship between the parties is such as to make the prospect of their civil communication all but impossible. Section 65DAC of the Act dictates the manner in which persons vested with equal shared parental responsibility for a child must interact. Such an order requires them to consult one another in relation to decisions about “major long-term issues” in the child’s life and to make a genuine effort to come to a joint decision about such issues. Such a statutory obligation could not be satisfactorily observed by the parties, having regard to the evidence adduced in these proceedings.

67.As a consequence, even if the findings pursuant to s 61DA(2) had not been made, I could not be satisfied it would be in the child’s best interests to allocate equal shared parental responsibility for him to the parties. It is inevitable that one of the parents must have exclusive parental responsibility for the child and, since it is inevitable the child must live with the mother, so it is inevitable that she must have sole parental responsibility for him.

68.For completeness, it should be observed the Family Consultant reported that the parties both agreed they could not share parental responsibility and that previous attempts by them to share parental responsibility had “failed dismally leading to further conflict”. It was the recommendation of the Family Consultant for the mother to have sole parental responsibility for the child and I adopt that evidence as being correct. 

69.Since equal shared parental responsibility is not allocated to the parents of the child, s 65DAA of the Act is not engaged. It is not necessary for me to consider the statutorily preferred care arrangements for the child, which are now at large.

70.It is uncontroversial that the child must live with the mother. Of course, an order providing for the child to live with the mother does not dictate where the mother and the child should live. As I have already remarked, that has been an underlying dispute in these proceedings.

71.For reasons set out in the jurisprudence to which I have already referred, the decision about where the mother and the child should live should be a decision for the mother alone, pursuant to the exercise of her parental responsibility for the child. There is no warrant to impose an injunction restraining the mother’s prerogative to relocate her residence with the child to another place. 

72.That, therefore, leaves for consideration the manner in which, if at all, the child should spend time with the father. The recommendation of the Family Consultant was that any time the child spends with the father should be by arrangement with the mother. In other words, the Family Consultant perceived it should be a matter of agreement between the parties. I disagree. I accept the proposal of the mother, supported by the Independent Children's Lawyer, that any interaction by the child with the father should be a decision for the mother in the exercise of her sole parental responsibility for the child. Although, on the evidence, it is highly unlikely the child will have any interaction at all with the father for the foreseeable future, that situation may not always prevail. When the child is older, the mother may perceive he has sufficient maturity to re-engage with the father in some way. She should make that decision. 

73.In order to thwart the father’s frustration of these orders, it is my intention to impose an injunction, pursuant to s 68B of the Act, which will preclude him from attending at or near the mother’s residence or any school attended by the child.

74.Although I have concluded the child’s best interests requires that the mother make any decision about whether or not if and how the child will interact with the father, it is my intention to make an order which imposes a regime which allows for written communication between the child and the father. I have already adverted to the observations of the Family Consultant about how the child was not averse to receiving written communication from the father, albeit that the child did not envisage he would want to respond. In view of the fact it is highly unlikely the child and the father will have any personal interaction in the foreseeable future, the preservation of the filial link between them by way of occasional written communication is one avenue by which the child may more easily later decide to reconnect with the father, if he is so disposed.  

75.The remaining orders I intend to make are self-explanatory and, in my view, entirely reasonable.

76.The mother sensibly abandoned her application for proposed Orders 4 and 5 in her Amended Initiating Application, which dealt with the manner in which the child might continue to receive counselling.

77.The mother also abandoned her proposed order for an embargo upon the child being exposed to denigration between the parties but, in my view, such an injunction should still be imposed. 

78.The mother abandoned her application for an order requiring the parties to keep each other appraised of their contact details, but I intend to make an order of that sort. Such an order will not require the parties to stay in touch, but will at least provide them with an avenue of communication should the need arise. 

79.The mother abandoned her application for an order requiring the parties to authorise their respective receipt of school reports and photographs from the child’s school but, given I have been persuaded to grant her sole parental responsibility for the child, the absence of an order to that effect would deprive the father of all future information about the child’s academic progress. I therefore consider it appropriate to make an order that enables the father to procure such information should he so desire. 

80.The mother also abandoned her application for any restriction upon the father, insofar as it regulated his activity on the internet. As counsel for the mother sensibly recognised, that is an issue already covered by s 121 of the Act and I do not intend to do anything further in that regard.

81.Although not so far mentioned, the father filed an Application-Contravention on 26 May 2014. It has not yet been heard and determined because, over the last 12 months, the father, if not expressly then certainly inferentially, acknowledged there was no need to determine it. It was better to determine the substantive parenting proceedings, since the evidence he would adduce in support of his contravention application was evidence which was important and influential in the determination of the substantive parenting proceedings. I have already referred to the circumstances in which the child has not been interacting with the father since September 2013, despite the continuing operation of orders made in August 2011 which provide otherwise. The father has clearly abandoned the proceedings and it is my intention to make a further order dismissing his contravention application for want of prosecution.

82.For those reasons, I make the following orders. 

I certify that the preceding eighty two (82) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 29 July 2015.

Associate:

Date:  4 August 2015