Sheffield and Oakes

FAMILY COURT OF AUSTRALIA

SHEFFIELD & OAKES

[2013] FamCA 183

FAMILY LAW – CHILDREN – Allegations of sexual abuse from 2003 – father chose not to pursue those claims in 2006 and settled defended court proceedings with the children to remain in the mother’s primary care – ongoing conflict and litigation between parties – elder child estranged from mother - younger child (15 years old) estranged from the father - whether child at risk in the unsupervised care of the mother – strong views expressed by child – allegations of coaching by mother – no specific orders in respect of the younger child and the father.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A) and 87

Heath v Hemming (No 2) [2011] FamCA 749

APPLICANT:

Mr Sheffield

RESPONDENT:

Ms Oakes

FILE NUMBER:

HBC

2007

DATE DELIVERED:

26 March 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

19 March 2012, 4, 6, 7 & 8 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Fitgerald in 2012 and the applicant in person in 2013

SOLICITOR FOR THE APPLICANT:

Fitzgerald & Browne in 2012

COUNSEL FOR THE RESPONDENT:

Mr Mason on direct brief

SOLICITOR FOR THE RESPONDENT:

Orders

All previous parenting orders regarding S Oakes-Sheffield born … April 1997 (“the child”) are vacated.
Ms Oakes (“the mother”) have sole parental responsibility for the child, excluding any exclusive responsibility to change the child’s name.
The child shall live with the mother.
The mother be permitted to enrol the child at N School, O Town in Tasmania.
The child shall spend such time and communicate in such way with Mr Sheffield (“the father”) as the child shall decide.
The father is permitted make enquires of the child’s teachers and receive copies of his school reports, subject to the child’s consent.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that nothing in these orders shall prevent the father from sending letters, cards and presents to the child.
All other extant applications (other than costs applications – which are to be made in accordance with the rules) be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

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

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 97/2007

Mr Sheffield

Applicant

And

Ms Oakes

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Oakes and Mr Sheffield have two children, B (aged seventeen almost eighteen) and the child (aged fifteen almost sixteen). These parents have engaged in various forms of adversarial litigation over these now young adults since early 2004.
The parents were in an intimate relationship for a number of years, that relationship ended in 1999. The children have been primarily cared for by the mother from their respective births and in her primary care from 1999 to 2004.
Since 2003 or 2003 the father has alleged that the mother; had sexually assaulted him at the start of their relationship; and further that she sexually abused one or both of the children after separation. At various times and to different degrees over many years the father has reported those complaints to the police and child welfare authorities.
In early 2004 the father says he was unhappy with the responses of authorities to his complaints and as such retained the children after a contact visit. He retained the children for a period of at least sixteen days. The children did not go to school during that time. One of the children was eventually reunited with the mother; the other child was retained for a further period by the father. In April 2004 interim orders were made that the children live primarily in the mother’s care and spend time with the father.
Since that time there has been almost constant family law litigation between the parties in one form or another. Fortunately for B the fights over him in this Court and the Federal Magistrates Court are coming to an end, not because the parties have run out of zeal in their bitter litigious disputes, but because B is soon to turn eighteen and the Family Courts Family Law jurisdiction expires.

THE ISSUES

The application to be determined by me related to whether the child, who is almost sixteen, lives primarily with his mother (with her having sole parental responsibility) or whether he lives primarily with his father (with his father having sole parental responsibility) and various proposals in between these two poles.
The child has not spent any time with his father since July 2011, (a period of about 20 months). The child has since at least 2010 expressed a strong desire initially to spend less time with his father and then to spend no time with his father. The child’s strongly expressed present view is that; he live with his mother and spends no time with the father. The father contends that these are not the real views of the child but a reflection of the views of the mother. The child has said that he would ‘run away’ if forced to live with his father. Notwithstanding this strong view, the father seeks an order forcing this young adult to live with him.
The father says that the child is at risk of sexual abuse in the unsupervised care of the mother.
The mother seeks orders that:-
·all existing parenting orders regarding the child be vacated and that she have sole parental responsibility for him;
·the child be permitted to attend N School in O Town (the mother to meet the cost of school fees, uniforms etc);
·the father be at liberty to attend parent/teacher interviews with respect to the child by arrangement and be kept up to date with the child’s educational progress;
·both parties be restrained from commencing contravention proceedings without leave of the Family Court;
·monies held in a solicitor’s trust account be accounted to the mother pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) ; and
·there be orders as to costs. The costs application is not determined in the substantive hearing. It will be a matter for the parties to make such application once the reasons are delivered.
The father seeks orders that the child lives with him and spends time and communicates with the mother as agreed between the child and the mother. In amplification to this the father indicated at the commencement of trial that if the child wished to spend alternate weekends and half of all school holidays with the mother (half supervised) he could.
In the alternative the father seeks orders that if the child continues to live with the mother that the child spend regular time with the father each alternate weekend and half of all school holidays.
In addition the father sought orders that he should have sole parental responsibility in relation to the education of the child and otherwise that there be equal shared parental responsibility.
At the commencement of the hearing there were some discussions about orders in regard to an elder child, B, who was born in September 1995 and who attains the age of 18 years later this year. I informed the parties that I would not be making any further orders in relation to B.
The mother had initially sought a departure application in relation to some child support assessments. However, she did not proceed with or press that application.
The mother sought to rely on some evidence of lay witnesses (relatives of the children) who had been called from Queensland. Having regard the material and without making a finding on the veracity or otherwise of that material, I refused the mother leave both to rely on that material and call those witnesses to give oral evidence.
B sought counselling in 2012 and sought privacy and confidentiality in relation to that counselling. The father issued a subpoena to that counselling organisation to produce the records of the discussions between B and the counsellor/counsellors. The father had anticipated that B may have made some admissions during that counselling, however, B strongly objected to the release of that confidential information. I refused permission for the father to have access to that information and directed that his counselling file be returned to the counselling organisation unopened. I gave reasons for that determination at that time.
In relation to the child one of the issues are whether his strongly expressed views (that he does not wish to spend time with the father; live with the father or have communication with the father) are those of the child or of the mother and what weight should be given to the child’s views. Unsurprisingly I have given significant weight to those views.
The father continued to raise allegations of alleged sexual abuse which he said occurred in about 2003. This must be seen in the context that these proceedings were listed for a final hearing before Bennett J in September 2006 at which time both parties were represented and the father did not press his concerns at that time. At the start of that hearing the father and mother sought consent orders to the effect that both of the children live with the mother and spend time regular time with the father. There were no orders for supervision.
Even up to the continuation of the hearing in early February 2013 the father continued to assert that the child was at risk of sexual abuse in the unsupervised care of the mother but at the same time contended that the child could spend unsupervised time with the mother. This oxymoron was presumably on the basis that the child would not be at risk because the child would be living primarily with the father.
The question is whether orders should be made for this child to either live with or spend time with the father. The other significant question is whether there should be an order for sole parental responsibility for one parent or the other or equal shared parental responsibility in some form.

BACKGROUND

The father is aged 48. He has been in a relationship with Ms C since at least early 2003. There is one child of that relationship, J who is aged about nine. B had been living with the father since mid 2009 and has had no effective or meaningful relationship with the mother or the child.
The mother is aged 46. The child primarily lives with her and has not spent any meaningful time with the father since July 2011.
Proceedings commenced in early 2004 when recovery orders were made on the motion of the mother. An Independent Children’s Lawyer was appointed. A report was obtained from a clinical psychologist and a psychiatrist. With the constancy of litigation, the funding by the Legal Aid Commission for an Independent Children’s lawyer was exhausted years ago.
Evidence was obtained from Dr G (a specialist in the field of autism and who was a therapeutic provider for the child) in relation to whether the child was autistic. The father refuses to accept the diagnosis of autism, and this has been an area of conflict between the parents. In July 2005 the proceedings were transferred from the Federal Magistrates Court to the Family Court. An unsuccessful application was made by the father in 2006 to dismiss the then Independent Children’s Lawyer. The father was ordered to pay the Independent Children’s Lawyer’s costs.
The proceedings were listed for trial in September 2006 and at the commencement or during that final hearing consent (final parenting) orders were made by Bennett J. Her Honour directed that the father meets with Dr G to enable the father to be informed about the child’s diagnosis.
In April 2007 there was a contravention application by the father, part of that was dismissed and in part established. The mother entered into a bond to comply with orders and some compensatory time was put in place.
In 2009, B decided to live with the father and commenced to do so. He continues to live in the father’s household.
In March 2010 there were further contravention proceedings and the mother was found to have contravened orders. She was required to enter into a bond and was ordered to pay the father’s legal costs.
In April 2010 the father filed proceedings in the Federal Magistrates Court and a family report was ordered. Eventually reports were prepared by family consultants in 2010 and 2011.
In 2011 the mother was found to have further breached orders.
In July 2011 the child declined to spend time with the father and has not spent any meaningful time with him subsequently.
In October 2011 the proceedings in the Federal Magistrates Court were transferred to the Family Court. These proceedings were then listed for final hearing before me in March 2012. On the first day of that hearing the father gave evidence of what he said was a disclosure by B (in his presence) of the alleged 2003 sexual abuse of him by the mother. In March 2012 I was informed that the alleged disclosure was the subject of police investigations. These proceedings were adjourned pending the outcome of the police investigation.
These proceedings were subsequently listed for finalisation of the hearing in February 2013.
The Family Consultant, Ms D, said in her report dated 2 May 2011:-
46.[B] and [the child] are two young men who have been severely disadvantaged by the relentless acrimony between their two parents over many years.
…
50.This is not a family where children have simply been ‘alienated’ from one other by the other parent, even though the boys have been exposed to very negative views that each parent holds about the other. The boys have had a physical and psychological opportunity to develop independent relationships with both parents. Both children live primarily with their mother. Any problems in the current relationship with [B] are not resolved by his ‘alignment’ with the father or due to the father’s persistent negative views of her. Similarly, the boys have always had regular time with their father and [B’s] independent relationship with him has resulted in [B’s] choice to live at the father’s home. Both boys had the opportunity to develop sound positive relationship with their father based on their interaction. [B] stated that [the child] has been the favourite at the father’s home. Yet the relationship between [the child] and the father is not a warm or rewarding one. Indeed it was seen at recent additional time pursued by [the father] due to the contraventions by the mother, has been detrimental to his relationship with [the child]. Time spent with a particular parent needs to be of benefit and preferably enjoyable for children or a successful or long-lasting or close relationship with the parent [sic] and child will fail to develop. Unfortunately this appears now to be the case with [the child] and his father.
For the reasons set out below I accept the evidence of Ms D and it, in essence, summarises the terrible situation which these young adults find themselves. Despite almost a decade of litigation the parties continue to ventilate their personal acrimony through the Court and without regard to the ongoing and continuing detriment to their children.
The father’s failure to accept B’s request not to pursue an examination of his (B’s) personal counselling is but one of many examples of this form of behaviour.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is shown from the evidence.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.
Section 60B of the Act sets out the objects and underlying principles to make sure that the child’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.
In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.
In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part VII of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-
87.    Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:
(i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i.    Whether an order for equal time is in The child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii.   Whether an order for substantial and significant time would be in The child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and The child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

I have considered and adopt the pathway suggested by Kent J.
The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in the abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

THE PREVIOUS LITIGATION

The parties separated in 1999, about two years after the birth of the younger child. Serious issues began to develop early in 2003 when the father says he began to fear that the children were the subject of sexual abuse by the mother. He reported a conversation or (on his evidence) two conversations to child protection authorities. The following year, 2004, the father was not satisfied with the response from the police and from child protection authorities and took his own steps by removing the children from the primary care of the mother, on his evidence this was for a period of sixteen days. The police became involved and one of the children was returned to the mother and the other left with the father. This unsatisfactory arrangement continued until an interim order was made in the Federal Magistrates Court in April 2004 that both the children be returned to the care of the mother.
There was high conflict litigation between the parties until the matter came on for hearing before Justice Bennett in September 2006. Up to this time the father had asserted that the children were at risk of sexual abuse in the unsupervised care of the mother. There was an issue between the parties as to whether the younger child had autism or autism type symptoms. The mother was strongly of the belief that this was the case and the father was of the belief that it was not.
Bennett J made an order as follows:-
Within three (3) months the father attend personally upon [Dr G] … for the purpose of consulting with [Dr G] as to the important meaning of the assessment of [Dr G] set down in his report dated 6 January 2005 together with the assessment of data provided by [Ms P], senior psychologist of [Q Medical Centre] such attendance to be at a mutually convenient time for the father and [Dr G] within the stated period, of three months, and to the expense of the father.
It was clear at that time that the allegations of sexual abuse were treated as being ‘in the past’ and it must have been that the father accepted that the children were not at unacceptable risk in the unsupervised care of the mother.
Her Honour instructed the father to see Dr G for the purpose of understanding the importance and meaning of Dr G’s assessment as to the child’s health.
Within a few months the children were withheld from the father over, inter alia, concerns about the father’s understanding of the child’s autism. The matter came back before Justice Bennett in 2007.
The conflict between these parties continued to the extent that in mid 2009 the elder child, B, voted with his feet and went to live with the father. He has had no meaningful relationship with the mother or the child since that time. The mother acquiesced to B’s decision to live with the father. There was continuing conflict after that date as to the time that the child spent with the father. The mother was found to have contravened the orders and the issue of the child’s autism continued to rage between the parties and affected the schooling of the child at T School.
Some two years after B voted with his feet, the child voted with his feet. The father was unable and unwilling to accept the child’s wishes. The father commenced enforcement proceedings which then led to these proceedings which were heard over a period of five days.
The very issues which were to be determined in September 2006 were before me, that is whether the child was at risk of sexual abuse in the unsupervised care of his mother (despite him being in her unsupervised care since April 2004 and there being no new allegations of sexual abuse by the father since December 2003).
The father continues to believe that the diagnosis of Dr G is in error and challenged Dr G therapeutic assessment. The father adduced no medical evidence to impeach the diagnosis of Dr G and in fact such medical evidence as the father had obtained (from a Mr E) supported the diagnosis of Dr G. The father’s misguided method to undermine that diagnosis, was to challenge the way in which it was obtained.
These children have endured conflict over almost the whole of their respective childhoods. The litigation has continued by the parents, almost unabated with point scoring and re-arguing of issues, without regard to its impact on these children. The damage has been done. As a consequence B is estranged from his mother and brother and the child estranged from his father and his brother.
During the hearing there was constant finger pointing, each party against the other. The New Shorter Oxford English Dictionary,[1] defines a parent as:-
A person who holds the position or exercises the functions of such parent, a protector, a guardian.
[1] The New Shorter Oxford Dictionary, 1993 Clarendon Press Oxford UK.
Such has been the conflict between these parties over such an extended period, each of these so called parents need to consider whether they can reasonably say they have parented these children.

THE FATHER

The father had originally been sworn to give evidence on 19 March 2012. His affidavit of 1 March 2012 was read into evidence together with the annexures.[2] In chief the father said he had seen the child at school events in the last twelve months or so but had not spoken to him. The child has not been in his father’s care and his observations of him were from a distance.
[2] Those annexures were removed from the affidavit and had been retained as Exhibit F4.
Such is the father’s determination to ‘win’ he brushes aside the concerns of the children. An example of this, as I briefly mentioned earlier, was when the father endeavoured to gain access to B’s engagement with a Sexual Assault Unit to which he was referred after an alleged disclosure to the father in March 2012. B, who was under eighteen, filed a notice of objection to anyone having access to that material because he said it was private and confidential to him. The father blamed B’s maternal grandmother for encouraging him to preserve this confidentiality.
The father, notwithstanding the objections of B (who lives in the father’s household) required that the material be made available to him for the purpose of the litigation. In itself it was a powerful indication of the father’s lack of regard for the well being of B.
When presented with the form which was in B’s hand-writing (I accept the mother’s evidence in that regard) the father dissembled in terms of that evidence and asserted he could not recognise it as being in the hand writing of B. This young adult has lived with the father for almost four years, and the father declined to recognise the handwriting. The father’s evidence was patent nonsense and was untrue. The father was prepared to be untruthful to avoid evidence which was contrary to his asserted position.
The father says that the views expressed by the child were not his own but rather a repeat of the views of the mother. However, when cross-examined as to the views of B in the Family Reports:-[3]
19.… [B] said that he realised [the child] was unhappy spending time at their father’s home.
…
22.… he [B] said he did not know what would be the best for his brother [the child] given that the current arrangement was causing him unhappiness.
[3] Ms F report 16 July 2010 exhibit M3 at paragraphs 19 and 22.
This was not evidence to which the father could legitimately assert that B had been ‘coached’ by the mother but still the father did not accept that circumstance.
This behaviour by the father seriously undermines the credibility of his evidence.
In relation to the allegations of sexual assault, in the report of Ms D dated 2 May 2011 she observed, at paragraph 42, about that allegation:-
…I [B] deny those claims, I say they are not true. He said that [the father] and he only talk about the sexual abuse ‘because he [the father] keeps bringing it up’.
B was asked by the family consultant whether he thought that the child was at risk of sexual abuse living with their mother. He laughed and said ‘no’ and added ‘I live there, I would have noticed’.[4] He stated he tells [the father] that ‘there is no need to worry’[5] and he acknowledge that [the father’s] continued allegations have frustrated him. The father denied that was the case and questioned whether it was an accurate recording by Ms D.
[4] At paragraph 42 of the Family Report dated 2 May 2011.
[5] Ibid.
The father was cross-examined in relation to four possible instances in 2010 and 2011 when the child ran away. The first was at the Harvey Norman car park in O Town, the second was at McDonald’s, the third was when the child allegedly ran away to some friend’s home and the final was in July 2011 since which time the father has not spent any meaningful time with the child.
In relation to the first McDonald’s event, the father says that the mother dropped the child off in the car park. The child did not approach the father but began to walk away. The father stopped the child. On his evidence he was about to cross the road and the father said he moved the child back to the car. The child refused to get into the car and the father said he ‘gently’ forced him into the car. The father’s description of his behaviour to the child does not survive close analysis. The father uses dismissive language and asserted that the police, who were called by the child later that evening, chastised the child for calling them. I do not accept the father’s sanitised version of this event. The child did not want to go with the father and the father would not accept this reality and forced the child to abide his [the father’s] will.
In relation to the second McDonald’s incident where the child walked to the Police Station to avoid spending time with the father, the father’s evidence of his exchange between himself and Sergeant G at the police station in July 2011 is, in part either reconstructed or fabricated. The father says that it was the police officer who was somewhat aggressive and that he, the father was quiet and restrained.
The child had walked to the police station and the father attended some time later. Sergeant G observed that the child ‘seemed legitimately scared of the prospect’ of speaking to the father. The police evidence, which I accept, was that the child was frightened.
I accept that the father said to the police, at that time ‘I can force him, I’m his father’. The father prevaricated in terms of this evidence; however, given what happened some months before where the child was forced into a car, it is clear the child’s concern was based on some history. The father’s evidence in regard to these events was significantly coloured by his view of it and I prefer the evidence of the police to that of the father.
The father was determined that the child spend the ordered time with him, irrespective of the views of the child and evidence contradicting the father’s perception of the events was dismissed, demeaned or diminished by the father, whether that evidence be of the mother, the child, B, the Family Consultant or a police officer. The father has fixed views which are not easily changed or even deflected.
I find that the father was angry, aggressive and demanding of the police officer on that day in July 2011.
The father said he expected the child to be delivered to him inside the McDonald’s restaurant, his evidence in this respect was unreliable, self serving and he shows little or no empathy for the child or his views. The father asserted in affidavit evidence and other evidence that the mother did not deliver the child to McDonald’s in July 2011 because the mother let the child out in the car park.
The circumstances on that day were clearly that the mother delivered the child to McDonald’s (in accordance with arrangements that had been put in place) and left the child at the McDonald’s car park where the father’s partner and child were in their car and the father was inside McDonald’s. The father asserted to police and others that the mother had ‘contravened the order because she did not bring the child inside’. That was an example of his obfuscation or prevarication. The mother dropped off the child as she was required to do. The father said he didn’t see the child arriving (which may or may not be true having regard to my concerns about the veracity of the father’s evidence) but the father knew that the child had been delivered to McDonald’s as his partner made a telephone call to him and informed him.
The father made adverse or implicitly adverse comments about the children’s maternal grandmother in circumstances where B regarded her as a significant adult in his life. The father’s criticism of her continues notwithstanding that the Family Consultant had observed the close nature of that relationship. Keeping in character, the father blamed the maternal grandmother for discussing the case with B (where it is clear from reports of what B said it was the father who discussed the conflict) and the father made it clear that he was concerned that the child would be at risk in the maternal grandmother’s home. The father used the ‘rhetoric’ that he supported the relationship but it is clear that he did not do so. He obfuscated in relation to that evidence.
The father attempted to justify his position without acknowledging in any meaningful way the importance of the relationship between B and his maternal grandmother. He thought little of that relationship, despite its importance to B. It was evidence of the father’s self focus rather than child focus.
It terms of evidence the examples above, are but a small sample of the father’s obfuscation and prevarication when giving evidence. On a number of occasions during the giving of his evidence the father indicated that he had done ‘nothing wrong’ and that the mother was wholly to blame for the circumstances in which the children found themselves.
The father took no responsibility for the continual and constant conflict which these children have had to endure. It was indicative of his lack of empathy and his determination to win. He took regular opportunities to make disparaging remarks about the mother and his perception of her behaviour.
Sadly this behaviour seems to, at some levels, impact on the evidence of his partner Ms C.
The father went to the police in July 2011 (shortly after the child had decided he did not wish to spend time with the father) and made a report.[6] In that, police record that the father expressed concern that B was going to live with his grandmother. This police report asserts that the father claims that the child was having sexual relations with the mother. When asked about this in cross-examination, the father again obfuscated in respect of his answers.
[6] Police report 201145413 Exhibit M16.
The father was cross-examined by counsel for the mother in relation to what disclosures he made about the alleged sexual abuse of the children, the father’s success in contravention applications and findings that the mother’s evidence was unreliable to the Child Support Agency. The father prevaricated in terms of his evidence. He would not concede that he had that particular material but he said that many documents had been forwarded. I am not satisfied that he was frank in giving this evidence.
The father has for years complained that the child has not suffered from the medical condition which Dr G observed. Yet the father commissioned his own report and in that report which concluded that the child was most likely to have the condition referred to by Dr G. The father, in his evidence, made it clear that he did not seek to rely upon this report, understandably in the circumstances. He complained that the Reporter had exceeded his terms of reference. It was another example of evidence being provided which was different to the fixed view of the father to which the father would not accept and then complained about the reporter.
When the child avoided spending time with the father in July 2011 and sought refuge in a police station, the father asserted that the mother had misled him by not telling him where the child was in a text that he sent to her. He asserted the mother had spoken to the police officer at 5.00pm. That was not the evidence of the police officer, the police officer could not recall when the call was made except it was after the child arrived at the police station and he could not recall whether he was on the telephone to the mother when the father arrived or not.
On balance I prefer the evidence of the mother. However, it makes little difference to the child’s determined view that he did not want to spend time with the father and that had been his view for some time.

MS C

Ms C gave evidence in accordance with her affidavits sworn March 2012 and January 2013.
In her first affidavit she set out the background of her relationship, their child, the father’s interaction with the children and their interaction with the children. She says they have not seen the child since June 2011. She briefly discusses the events July 2011, the McDonald’s car park incident.

In her second affidavit of 21 January 2013 Ms C discusses the incident in the back of the car in 2003. She says she suggested reporting the incident to child protection. She otherwise supported the father’s versions of what he said he saw. In terms of the alleged disclosure by B in 2012 she says she was in the car travelling with the father and B to Hobart when the matter was back in Court. She says that when they stopped for a break B asked to speak with the father alone. B and the father went to the police station and went back in the morning. She says B was booked in to make a full statement on the Thursday as he did not have time.
The allegations have been an area of discussion in the father's household for many years and in that respect I note the evidence of B. As such I am concerned that the memory of Ms C may well have been driven by the changes in memory in relation to the father, of which I have dealt with elsewhere. Her evidence is partisan and I have concerns about the accuracy of that evidence and reconstruction of the events from many years before.

SERGEANT G

Sergeant G swore an affidavit on 8 November 2011 which was filed on behalf of the mother and read into evidence. His full account of what occurred on that date was contained in police report of 8 July 2011.[7]
[7] Exhibit M18.
I accept the evidence of Sergeant G. He was frank and clear and balanced in the way he dealt with this difficult issue which unexpectedly presented itself at the Police Station.
The father’s criticism of the police were unwarranted and I am satisfied the father was aggressive and determined that the child would come with him, irrespective of the views of the child. Sergeant G adopted a careful and caring approach, for this then fourteen year old child.

Ms H

Ms H was formerly the principal of T School which the child attends and continues to attend. Her employment ceased with that school at the end of 2011. She observed no signs of autism in the child although she said she became aware of the diagnosis in term 1 of the 2011 school year. She has not seen the child since the end of 2011.
Ms H is of the view that the child is settled in school and ought not to change schools. There is no indication that she has had any recent conversations with the child in relation to these views as to the changing of schools.

Ms K

Ms K is the current principal of T School and she provided an affidavit sworn 21 January 2013. Her evidence was that the child is going well at school, getting good results and is a good athlete. She said, from her observations, the child has excellent a circle of friends and gets on well with teachers and the students at the school.
She observed no symptoms of the child’s disability and expressed the view that he required no special assistance. She considered it detrimental to the child to change schools although she had not asked him about this. I accept her evidence as being her observations albeit it that she has not spoken to the child about changing schools. I generally accept her evidence.

DR G

Dr G’s curriculum vita was not challenged and it was impressive.
Dr G prepared a report on 6 January 2005 and concluded that the child had been diagnosed, at that time, as having high functioning autism. He was provided with a copy of the report of Dr L and it did not alter his views in relation to the diagnosis.
Dr G gave evidence in the proceedings before Bennett J in September 2006. He also had a meeting, before that evidence, with the mother and a meeting subsequent to that evidence, with the father.
In her order made 27 September 2006 Bennett J ordered that the father attend personally upon Dr G for the purpose of consulting with him as to the meaning of Dr G’s assessment. The father complied with that order, however, he continued in his belief that the doctor has misdiagnosed the condition of the child.
Dr G reported to the Court by letter dated 9 November 2006[8] that:-
…The discussion was fairly robust. [The father] informed us of the outcome of the legal proceedings and provided us with a copy of the Court Order.
He also had a number of grievances. He felt that he had been excluded from the assessment process and that he had been presented with selected information. He further indicated that he felt that if we were presented with more appropriate information, that the diagnosis would be different. In addition, he feels that the diagnosis has now been used, inappropriately, to limit [the child’s] schooling and in attempts to limit his contact with his father.
[8] Exhibit M21.
Dr G went on to say:-[9]
Without any change in diagnostic opinion on our part, we discussed these issues at some length. They attempted to discuss the feeling about [the child] and offered to see the father again should he wish.
[9] Ibid.
The father had obtained a further expert report in relation to the child but it did not accord with the father’s view of the child and was not made available by the father to Dr G. Dr G said that having regard to the further information provided, he was not in a position to change his diagnosis although he said it was open for a fresh consideration to be put in place having regard to the passage of time (eight years). He did not in any way resile from his assessment and that of his team. I accept his evidence and his assessment.
The father was concerned that Dr G had prepared a one sided report. The evidence of Dr G was that he was aware of these orders and that his assessment was based on the history taken from the mother but that was in the context of a broader enquiry. He said that it would have helped had the father been open to dealing with the diagnosis but he was not. Dr G described the diagnosis as a ‘hidden handicap which is becoming better recognised in the community’.
Dr G was employed to do this assessment by the child’s general practitioner. It was a therapeutic report. I accept his evidence and I accept his qualifications.

Ms M

At the commencement of hearing there was an issue as to whether the affidavit material of Ms M ought to be allowed to be read, subject to weight. The first report of Ms M was contained in her affidavit of 15 February 2012. It was purported to be an affidavit of a treating psychologist, dated 10 January 2012.
I allowed that affidavit to be read subject to weight and it was asserted that it reflected the therapeutic treatment of the child. The mother filed a second affidavit of Ms M 9 March 2012 which contained a report from Ms M dated 8 March 2012.
Paragraph 1 of that report contained views of the child which I allowed to be admitted as evidence, subject to weight (if any).
Paragraphs numbers 2 and 3 were an endeavour by the mother to obtain expert evidence other than via a single expert. Having regard to the submissions made by the father I rejected paragraphs 2 and 3 and the mother did not seek to read paragraph 4.
There was no issue made of Ms M’s qualifications and I accept that she is a qualified psychologist and she has provided therapeutic services to the child.
At paragraph 1 of her report of 8 March 2012 Ms M reported that the child said to her that he will not go back to his father and he would ‘run away’. The child said if that was the case he would be ‘uncomfortable, depressed, scared all the time and would not make the most of my life and more’.
These statements were consistent with the reports and assessment of Ms D, the Family Consultant. I accept that such statements were made
Ms M gave short evidence as to the circumstances subsequent to her affidavit. She had seen the child on about twelve occasions over 2012, the last time being on 23 November 2012. She said that the child had said to her on a number of occasions he wanted to go to N School and explained that the curriculum of that school better met his needs.
The evidence of Ms M was that the child wanted to go to N School because the curriculum better met his needs. There is evidence that he is studying Japanese and that this is available at his present school. The child’s wish to attend N School has been the subject of discussion since prior to July 2011. There will no doubt be some adverse impacts in changing school, if it is the wishes of this young man to further his education there seems no reason why he ought not to attend the school which best meets his curriculum objectives.
Ms M has treated the child for some time. She observed of him, in his first report, that he had a strong sense of helplessness and did not want to see his father. She said that after the child stopped seeing his father he had been more positive about his life and his situation. He smiled more during sessions and spoke more freely about his life. He was able to give more eye contact and appeared happier in general.
Ms M, a therapeutic treater of this young man, considered that he was at risk of emotional difficulties and is suffering depression. He is still learning to be assertive. She accepted his diagnosis of autism.
She concluded, having treated him for some time, that spending time with his father would place an unacceptable level of emotional pressure on the child and would be highly likely to lead to the child’s depression.
I accept her evidence.

FAMILY CONSULTANT – MS D

Ms D (“the Family Consultant”) has had the opportunity to prepare a number reports in relation to these children. She prepared:-
a.a short report dated 22 September 2006;
b.a family report dated 2 May 2011;
c.a third family report dated 25 June 2012.
The father was critical of the qualifications of the Family Consultant. I am satisfied that the Family Consultant is an experienced psychologist who has trained as a psychologist and worked with child adolescent psychology counselling, mediated in the Family Court in various forms for about thirty years. I reject the father’s criticism of the Family Consultant.
In her second report the Family Consultant recommended that an order be made that B live with his father from time to time, being B’s expressed views. That recommendation was put into place.
The Family Consultant recommended that the child continue to live with his mother and the child have time with his father as agreed between them from time to time. This was not put into place and the father continued to require the child to spend time with him, despite the child’s expressed wishes.
The Family Consultant suggested that there should be no order for equal shared parental responsibility because of the parental conflict.
In her second report the Family Consultant asked the child about what he wanted the Court to know. The child made it very clear that he did not wish to continue going to see his father.[10] As I indicated earlier, the Family Consultant, in that report, concluded at paragraph 46:-
[B] and [the child] are two young men who have been severely disadvantaged by the relentless acrimony between their two parents for many years.
[10] At paragraphs 37, 38 and 39 of the Second Family Report.
I can only but agree.
The family consultant observed that it was unacceptable that the sexual abuse allegations should continue having regard to the events in the past. She observed, quite rightly:-
47.… This issue (sexual abuse) has been the subject of examination, by Child Services, by the Police, and reviewed by [Dr L], and was part of the previous court proceedings. Nothing was regarded as substantiated. [The father] claims that [B] has made more recent disclosures; [B] denies this. Even if [the father] is truthful regarding what [B] told him, he needs to consider the impact on the boys of his continued pursuit of this issue. If [B] has misled [the father] and there has been no abuse, [the father’s] continual espousal of such behaviour would be damaging of the boys. If [B] is currently choosing to mislead others and there was an abusive behaviour [the father] is not respecting [B’s] control of this issue. [B] and [the child] are now young men not children. They are at an age where they will make decisions for and about themselves. They will not appreciate further and relentless pursuit of an issue that involves them and their mother. It appears that [the father] continues to pursue the allegation as an issue against the mother rather than as an issue for the benefit of his sons. Alternatively it is indicative of a level of rigid obsessional behaviour that might be of diagnostic importance to psychological dysfunctions.
Again, I can only but agree.
In her final report the Family Consultant again asked the child of his views. He was so determined that if a court order were put in place that he live with the father he said “I could refuse to go, I could run away”. This is perhaps not an idle threat. There are up to three instances of the child running away at or prior to July 2011. The father needed to force the child into a car.
The Family Consultant was of the view that these were the views of the child, and that he was not the subject of coaching as asserted by the father. I accept that assessment.
The Family Consultant described the child as a pleasant, honest and earnest young man who was willing to co-operate. She said that his assertion that he would not comply with a court order was significant for a child such as him. She said it is likely that the child and B will be able to reform some kind of relationship once the litigation ends.[11]
[11] Third Family Report at paragraph 16.
In terms of the impact of the change of residence, the Family Consultant said that the worst possible outcome in terms of any possibility of a relationship between the father and the child would be if the Court endeavoured to force him to go back. She said it would be psychologically damaging to the child.
When pressed on this she said if he did not run away he could completely shut down and feel helpless and that was a real concern as he could take out that helplessness on himself.
The Family Consultant was cross-examined in relation to the child’s willingness to spend time with the father the previous weekend before contact ceased in July 2011. The evidence of the Family Consultant was that there was a build up to this determination by the child and that the father was not in tune with the views of the child. The father was aware that the child was not happy spending time with him and yet insisted and demanded that time be kept and enforced those times, irrespective of the impact on the child.
This was evidence of a highly experienced family counsellor who has seen children over a significant period of time. Her evidence should be given great weight and I do so.

THE MOTHER

The mother relied upon her affidavit filed 13 May 2012 which was read into evidence. She tendered school reports for the child for 2012 and provided evidence that he had been accepted into N School for the 2013 year. The curriculum for the school includes study of the Japanese language.
The mother gave evidence in relation to her interaction with the school, particularly through 2011. The mother initially asserted that she had a reasonable relationship with the school and then, after cross-examination, conceded that it was not good. An examination of the school records[12] showed that the mother’s relationship with the school was poor and at times poisonous. In regard to that aspect of her evidence the mother obfuscated and it was, at times, unsatisfactory.
[12] Exhibit F6.
I am satisfied that the arrangement for changeover at Mc Donald’s was that the mother would generally drop this young adult at the car park. The father made much of his assertions that the child was not brought into McDonald’s by the mother. This was a fourteen year old young adult and I am satisfied that the arrangement was generally that the child was dropped in the car park. I accept the mother’s evidence in that regard.
The mother’s evidence was that she kept the child without cause in 2007 because of her concerns over the father’s approach to the child’s autism. It was unfortunate that the mother adopted that approach because it had the effect of increasing the conflict between the parties.
I was troubled by the reliability of the mother’s evidence. However, I accept her evidence as to the alleged sexual assault of the father by her at the commencement of the relationship and her denials of the allegations of abuse from 2003.

DISCUSSION AND SUMMARY

These proceedings are about an almost 16 year old young adult who, in the light of his parents’ continuing conflict, has decided to terminate the time he spends with his father. He wants to continue at a school of his choice and to live in his mother’s home.
The father does not accept the child’s decision and yet this same father was content to accept a similar decision made by B (to escape the conflict by living with his father) in 2009 in eschewing a relationship with his mother and his brother. The father has no insight into the irony of his approach and the pointlessness of the continuation of this litigation.
In terms of the factors under s 60CC of the Act:-

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

The father says that he had a good relationship with the child as at July 2011. I do not accept that submission and evidence. It is clear that this child had wanted to terminate the relationship with the father or at least have it significantly reduced. The father had little insight or understanding in relation to this and I accept the evidence of the Family Consultant in this regard.
The father relentlessly pursued the time he wanted including make up time despite the clear objections of this young adult. The father did not accept that these are the views of the young adult but implacably believe they were the views of the mother and continues in that belief.
There is no doubt that both of these young adults would benefit from having a meaningful relationship with both of their parents. Sadly the conflict between the parents has undermined that possibility, having regard to the age and maturity of both children.

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.

The father asserts that the child is at risk of being sexually abused in the unsupervised care of the mother. That assertion is nonsense. The father had the opportunity to ventilate that argument in September 2006; he chose not to do so and he agreed to leave the children in the unsupervised primary care of the mother at that time. He was legally represented and an Independent Children's Lawyer supported that order. Unfortunately the father did not come to terms with his decision and he had ruminated about the alleged 2003 events and has conducted a war of attrition in the Family Court and Federal Magistrates Court. Such has been the impact that B no longer has an overt relationship with his mother or his brother and the child does not want (at this time) a relationship with his father. Yet the father still clings to his belief that he has little to do with the conflict.
As to the risks, there are a number of matters upon which the father bases his assertion.
The first is, that he says that, in March 2003 whilst the children were in the back seat of his car, they were arguing with each other and that during that argument one of the children claimed that the mother kissed his penis every morning and that there was an argument as to whose penis was kissed more. This assertion of facts was supported by an affidavit of the father’s partner, Ms C. Ms C recommended that the father report the matter to the police and to child protection authorities. When cross-examined by counsel for the mother, the father acknowledged there was another report made to child protection which was allegedly a report from the father which was of innocuous talk which would not be unexpected from boys of that age at that time. The father then asserted there was a second report in relation to the more serious disclosures that Ms C referred to. There was evidence of the innocuous report but not of the more serious report. That undermines the veracity of the father’s evidence, particularly having regard to his propensity to exaggerate (and/or to be mendacious) such a report.

Having regard to the evidence of Ms C, and particularly the evidence of the father, I am satisfied that the father has exaggerated an otherwise innocuous conversation between two brothers in a car in 2003.
The next allegation is that the father says that in about August 2003 (some four years after the parties had separated and about eight or nine months after the father had entered into another relationship) he said he entered the home of the mother and a bedroom where the mother and child were present and observed the mother engaged in sexualised conduct with the child. The father gave a graphic description of that alleged conduct. He said that he did not realise that the described behaviour was inappropriate at that time. He asserted that he needed to have counselling before he could report the matter to child protection authorities (despite making a report some five months earlier of his concerns). In December 2003 the father reported the matter to child protection authorities and apparently police. His description of what he saw then and now is significantly different. It is far more graphic in recent times and when pressed on the differences between the evidence at that time and now he obfuscated.
The father’s description of the alleged August 2003 event and his delay in disclosure in those circumstances undermines the credibility of his evidence.
In December 2003 the father said that he saw one of the children engaging in sexualised conduct. It was at that time that the father reported his alleged observance of the sexual abuse of the child in August earlier that year.
In early 2004 the father retained both children for a period of about sixteen days. One of the children was recovered by the mother with the assistance of police and eventually in April 2004 an order was made that both children be returned to her full time care.
Litigation followed in the Family Court with various applications and cross-applications. In September 2006 the proceedings were listed for final hearing before Bennett J. The father, who was represented, consented to final orders, that the children live with the mother and spend weekend and holiday time with him.
When asked why he consented to such an order in the light of such serious allegations, the father said it was because he was advised to do so and did not believe the Family Court would offer him protection. If that were the case the rhetorical question is why make the allegations, pursue them through the Court to the commencement of a final hearing, and then just walk away from the allegations?
The father had filed an application in early 2004 seeking orders that the children live with him and relied upon an affidavit which disclosed some of the above.
The father is an unreliable witness. Since 2003 there has only been one occasion when one of the children allegedly raised the question of being sexually assaulted by the mother. That was B on the weekend before the hearing in March 2012.
The father asserts that B made disclosures to him and he then took the child to the police. The father asserts that B made a disclosure in front of the police, although no evidence of that disclosure was produced despite the police reports being made available. That such a disclosure was allegedly made and not recorded by police was troubling. From the police material there is no evidence of any disclosure being made by B and the child was invited to come back to the police station the following Thursday and did not do so.
The Family Consultant, whose evidence I accept, raised the question of the alleged abuse with B (who had been living with his father for about two years prior to the interview) and was not under the control of the mother (as the father asserted in terms of the child) and B’s response was, as I indicated earlier:-[13]
42.… [B] stated that “I deny those claims, I say they are not true”. He said that [the father] and he only talked about “sexual abuse” because he keeps “bringing it up”. [B] was asked whether he thought that [the child] was at risk of sexual abuse living with their mother. He laughed and said “no” and added “I live there, I’d have noticed”. He stated he tells [the father] that “there is no need to worry” and he acknowledged that [the father’s] continued allegations have frustrated him.
[13] Of the Second Family Report dated 2 May 2011.
The problem with this statement by the child in so far as the father is concerned is that it raises serious issues about the father’s claim that he does not discuss these issues with the child or any of the children. He does do so.
Further, it is contrary to the father’s evidence that B claimed he had been sexually abused. It may well be that B made some acknowledgement to the father as a consequence of the father’s constant pestering of the child and pressure on the child to make statements but no disclosures have been made by the children despite police and child protection investigations from 2003 to 2012.
The escalation of the claims have come solely through the father who is fixated upon them and determined that they be treated as true. In 2010 the father asserted to police that in 1994 the mother and a girlfriend had engaged in a sexual assault upon him and that he had been raped. He asserted that he made these disclosures to the police in 2003 and 2004 and despite the plethora of material from police and child welfare authorities no such material was provided.
The father gave a description of what he allegedly saw with the mother and the child in about August 2003. He said this was set out in his descriptions to the police and child protection authorities. It was set out in his descriptions to Dr L. The evidence the father gives now is far more coloured and complete. It has a significant element of reconstruction and/or fabrication.
The father disclosed to Dr L the alleged ‘rape’ and Dr L reported:-[14]
He was “not fazed”, two not unattractive girls got carried away.
[14] Exhibit M5.
This was in November 2004 and was not the violent violation that the father asserted in 2013. The evidence he gave in re-examination was of a brutal violent attack upon him which had caused his enormous psychological concern to involve physicality against him. The descriptions increased as the years go on. I do not accept his evidence that this occurred. It was an exaggeration of an intimate encounter with the mother prior to the birth of their two children.
The father’s expansion of the allegations of sexual abuse and his rigid determined belief, were further expanded in his submissions. The father wanted to say something more during closing submissions and I gave him the opportunity to do so. In that submission he said that B had complained to him that he had been told about the rape by his maternal grandmother and then had said to the father ‘not only did she get me but she got you’. This was in submissions and not evidence. It was indicative of the allegations made by the father. He did not ever put that in an affidavit, he did not put that in oral evidence nor did he set that out in response.
The father asserted that the child’s maternal aunt had been informed of this by B. She was in court and was able to be cross-examined by him if he wished. He objected to her giving evidence.
It beggars belief in the history of this matter that such an allegation, if true, would not have been put at least in oral evidence or in affidavit, having regard to the whole reason for the adjournment in March 2012.
It is wholly indicative of the father’s absolute determination to establish what he believes are the facts, with disregard for truth or accuracy.
The father does not accept responsibility for the adjournment in March 2012 and the subsequent delay of the hearing. It was he who raised the issue; it was he who gave evidence that this matter had been the subject of police investigations. The father could have left the assertion of the 2003 allegation, however, he was determined to put it in evidence and did so. He cannot now abrogate his responsibility in that regard and the consequences that flow from it. That is the separation of these children from each other and one or other of their parents.
The father says he did not inform the State welfare authorities in December 2003 of the alleged rape history. His explanation was that he did not think it was relevant to the complaint that the mother had sexually abused the children. I do not believe the father.
I am conscious that sometimes victims of sexual abuse are reluctant to make disclosures of their histories through embarrassment (that was in fact what the father asserted in this case). However, the father’s evidence in this regard is inconsistent. He did not inform child welfare authorities in 2003 and 2004. He had an opportunity to ventilate what he says are serious and profound concerns about the well-being of the children at various interim hearings and finally a final hearing in September 2006.
I find that the father’s evidence in relation to the conversation between the children in March 2003 was likely to be an exaggeration of an otherwise innocent conversation between children. Even on the reading of his complaint at that time it falls into that category. The children were interviewed by Dr L in 2004 and he formed a view:-[15]
Children’s sexual behaviour was not consistently described. It is probably within the normal limits of their age and appears to have responded to normal parental concern.
[15] Report Dr L page 17(iv) Exhibit M5.
I find that the allegation of sexual misconduct by one of the children in December 2003 was nothing more than a child learning about his body and this falls into the comments by Dr L.
As to the claim by the father that he observed the mother engaging in sexual abuse of the child in about August 2003, that evidence is unreliable. I do not accept the father’s explanation that he failed to disclose that sexual abuse for four months because he did not understand the nature that was risible. It is likely to be a concoction made up by the father to pursue the family law proceedings.
The children have been interviewed on numerous occasions; they have been the subject of interviews and investigations.[16] The father has made formal complaints in relation to the behaviour of police in these proceedings at some stage.
[16] Exhibit M11.
The child is not at risk of sexual abuse in the unsupervised care of the mother.
What is of concern is the impact of the father’s strongly held beliefs that he was raped by the mother, that the mother sexually abused the children and that the mother engaged in an ongoing sexual relationships with one or both of the children is deeply troubling. The evidence of the Family Consultant was that that alone would predicate against that child residing with the father. I accept that evidence and that view.
The father submitted that there is a need to protect the child from the psychological harm caused by the mother in that she failed to facilitate the child spending time with him. There is some measure of weight I have given to that argument having regard to the uncontested fact that this young man is determined not to see his father. However, I am satisfied that this is the view of the child and not a reflected view from the mother.
The child is at some risk of psychological harm in not having a relationship with his father and brother. However, having regard to the evidence of the Family Consultant, The child is at greater risk if forced to live with or spend time with the father contrary to his mature and considered view in that regard.

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

The child is a young adult who has over the last two years or more expressed strong views that he does not wish to visit his father or communicate with him. The evidence of the Family Consultant was that these were the child’s mature views and that he was not coached. B has observed the child’s unhappiness at the father’s home. The child has tried to run away from time from the father on at least two occasions.
The father has consistently said that the child’s views were those of the mother and not of the child. Having regard to the evidence I reject that assertion.
I give significant weight to those views given the age and maturity of the child.

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

(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);

The child has a close and continuing relationship with the mother. Since B moved to the father’s care in 2009 the relationship between he and the child has been estranged, although B is of the view that once the proceedings are at an end his relationship with the child and the mother, is not out of reach.
The child has experienced a relationship with his father and has now, in all of the circumstances of the parental conflict decided not to engage in that relationship at this time.
In his evidence the father took numerous opportunities to demean or diminish the mother and her role as a parent. He claimed, over and over, that the mother’s evidence had been found to be unreliable; that the mother had breached orders, and that the mother had been sexually abusive of the children. I made it clear to him that I had heard that evidence and yet he persisted. He had little insight as to the impact of that constant criticism of the mother on the Court and from that statement made by B to the Family Consultant about the father’s constant discussion about alleged sexual abuse. He was determined to have his assertion of the alleged rape said over and over. The father belittled the relationship between the parties and the circumstances of the birth of the children. He asserted that the mother sought an abortion. He raised that issue on a number of occasions. He seems incapable of having anything positive to say in any form in respect of the mother. I believe that the father would be unable to contain himself in terms of his negative views of the mother in the presence of B and the child.
When the father was asked about how he would promote the relationship between the child and the mother (should the child be put in his primary care) he said he often took B past the mother’s home. It is not in issue that B has virtually no communication with the mother since 2009. B has been in the care of the father for three and a half years. Prior to that time he did have a relationship with the mother. I do not believe the evidence of the father that he has promoted that relationship.
B complains that the father continues to assert to him allegations of sexual abuse. Yet the father has no insight into his role in pursuing those allegations and his constant and persistent demeaning or dismissal of the mother. It is inevitable that if the child was to live with the father, the father would not facilitate, in any meaningful way, a relationship between this young adult and the mother.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child

The father asserts that the mother will not encourage the relationship between the child and the father. There is some substance to that argument. The mother has a history of breaching orders. I have concerns about the veracity of the mother’s evidence to which I have eluded elsewhere in these reasons. It is unlikely that the mother will promote a relationship between the child and the father.
If the child is in the father’s care it is unlikely that he will promote a relationship between the child and the mother. The father has a fixed belief that the mother sexually abused both him and the children. I am satisfied that such belief is not based in fact. Nevertheless it is the strong and implacable view of the father.
The Family Consultant observed that the father would have to address his beliefs in this regard if he were to ever have a relationship with the child. She doubted that he would have the capacity to do so.
The mother consented to orders and acquiesced to B’s request that he live with the father. The mother sought orders that B visit her as and when he wishes. B clearly has some affection for his mother but is unable to pursue that having regard to the ongoing litigation. He would be willing for her to attend ceremonies in the defence forces (provided she met her own airfare). As I indicated elsewhere the father has clearly not encouraged a relationship between B and the mother.
The father submits that he would facilitate a relationship between the mother and the child should the child live with him. In the light of the father’s failure to facilitate and encourage a relationship between B and the mother, I am not convinced that the father would enable a relationship between the child and the mother.
B does not telephone the mother and the child does not telephone the father.
I find that neither parent will encourage the child living with them to communicate or spend time with the other parent. I do not accept the evidence of the respective parents that they encourage contact. They may utter the words but that is different from encouragement.
The father does not like the mother and the mother does not like the father.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

The father says that it is better for the child to live with him. He ignores or gives no weight to the evidence of the Family Consultant as to the profound impact this would have on the child. This young man would be significantly and detrimentally affected by such a change. He is almost sixteen and has expressed a strong view for two years and for a much longer period that he wanted either no time with his father or limited time with his father. The evidence of the Family Consultant, which I accept, is that the impact on the child could be catastrophic if such an order was made.
In addition, the child has a medical condition which was diagnosed by Dr G and his team. The father does not believe nor does he accept that diagnosis. The issues arising from that diagnosis will be ignored by the father to the detriment of the child.

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

The practical difficulty and expense of the child spending time with and communicating with the father is the child’s determined and long term opposition to such time and communication.

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

(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);

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

The father submits that:-[17]
The history of the matter demonstrates that the mother has not had a sufficient capacity to provide for [the child’s] needs by properly facilitating time between (sic) and the father and encouraging that but rather being prepared to concoct a situation indicating that [the child] did not wish to see his father.
[17] At page 6 of the father’s Summary of Argument/Outline of a Case filed 31 January 2013.

There is no doubt that the mother has not encouraged the relationship between the child and the father, this is clear in the light of all of the litigation that has been swirling around these now young adults for almost all of their lives. That reflects poorly on the mother’s capacity to parent.
Similarly the confrontational approach she adopted at T School, particularly in 2011, reflected poorly on the mother’s capacity to parent the child. However, despite those facts, the child has thrived, particularly in 2012.
Therefore whilst the mother’s capacity to parent is diminished by the matters to which I have referred to, the child has still, at some level, thrived academically and athletically in her care and it is where he wants to be.
The father has likewise similar failures in his capacity to parent the child. The father was given the opportunity to understand and work with the child in terms of his autism. The father, to this day, does not accept the diagnosis of Dr G and his team. It is unlikely that the father would take any steps to deal with the issues raised by Dr G and would continue to deny that condition irrespective of the impact it may have on the child.
The child was taken to Dr G having regard to the recommendations of Dr L. The father said essentially two things, first that he should have been involved and second that the report of Dr G was a partisan report. I do not accept Dr G’s report was partisan. It did rely heavily upon the information provided by the mother but this was tested against other objective standards. Having regard to the father’s absolute (and continuing) denial of the child’s condition, and the evidence of Dr G I accept that it is unlikely that the father’s intervention would have had a significant impact. It was open for the father to attend and see Dr G prior to the September 2006 hearing. Furthermore the report of Dr G was a therapeutic report; it was not designed for a hearing. It was designed to understand the circumstances of the child. I give that report significant weight.
The father had the reports from the Family Consultants, and yet continued this litigation, that reflects negatively on his capacity to parent, particularly listening to and acting upon the views and opinions of the child, should they differ from the father.
The father is unlikely to facilitate a relationship between the child and his mother.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

The child is a mature young adult who whose parents have litigated about and around him from 2004, when he was about aged about seven until almost his sixteenth birthday. I accept he is able to make reasoned decisions about the time he spends with each parent.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant consideration.

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

Both parents have demonstrated through their respective approach to each other a very poor attitude as to the responsibility of parenthood and I repeat the comments I have made elsewhere in these reasons.

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

There is no cogent or persuasive evidence of family violence.

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

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

This is not a relevant consideration.

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

I suspect that only the end of legal childhood when the child attains the age of 18 will the ardour of the parent’s to fight over their children (at least in the Family Courts) conclude.
I can only wonder where the next area of conflict will arise.
B and the child will no doubt struggle with important events in their lives such as with whom to invite and how to have their twenty first birthdays, their engagements, graduations, their weddings and perhaps christenings; for if past behaviour is indicative of future behaviour their parents will continue to burden them and their families with their conflict.
If the child were placed in the care of the father, notwithstanding the views of the Family Consultant, it is likely that he would wish to return to live with his mother and it is likely that the child would not in fact abide by the orders having regard to the strong views he has expressed in that regard. If an order was made that the child live with the father it would likely mean that proceedings would come back to the Court by way of enforcement or otherwise. Similarly if the child was ordered to spend each weekend and half of all school holidays with the father, this would also end up in proceedings in the Court.
There is now a time to bring these proceedings to an end. The only way that proceedings can be brought to an end is if the child’s wishes are given weight and he is enabled to live primarily with his mother and attend N School.
It is likely that in those circumstances the child may start to restore his relationship with the father, however, I accept the evidence of the Family Consultant that the views of the father are so rigid and so entrenched that until the father changes, there may be no relationship between he and the child.

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

(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and
(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

I reiterate that which I have discussed earlier in these reasons.

EQUAL SHARED PARENTAL RESPONSIBILITY

These parties have been in conflict for almost a decade. Neither party respects the other and, as I have indicated elsewhere, they are barely able to communicate. Proceedings were commenced in the Federal Magistrates Court on 26 February 2004. Interim orders were made in April 2004 and in May 2004. In the Federal Magistrates Court, there were eighteen court events between 11 March 2004 and 15 July 2005.
The proceedings were transferred to the Family Court on 15 July 2005. In the Family Court, between July 2005, there were court events before Registrar Whenn, Brown J, and Benjamin J until the matter reached final hearing before Bennett J in September 2006. All in all there were some twenty five court events in that period of time. One would have hoped that would have been the end of the litigation.
It would be impossible for these parties to jointly parent. The recommendations of the Family Consultant (in her last two reports) are that the mother should have parental responsibility for the child. In the light of all the evidence and reflecting upon the factors in that light, the recommendations by the Family Consultant are the only viable option.
There is an issue about the child’s education. He is a gifted student and he is well regarded in his school. The child wishes to change schools and attend a local school for sound academic reasons in terms of the available curriculum. The father is opposed to that course. The mother has, in the past, considered home schooling for the child and the father asserts that the mother ‘molly koddles’ this young adult and excludes him from the general community. This young adult has been at his present high school for some time.
This young adult has a desire to go to another school and believes he can perform well at that school. Under the Tasmanian Education Act[18] he is required to continue to attend school until the end of 2013 and under further legislation he would be required to attend school up until his seventeenth birthday in early April 2014.
[18] 1994.
A description of the child and his level of maturity by the Family Consultant has been accepted by me. I see no reason why this young adult cannot select the high school with which he wishes to attend the final years of his school.
The mother believes that this young adult has a health difficulty and medical evidence was adduced in that regard. His current school has some doubts about that history and the father is of the view that it is a ‘taught illness’ which the mother has imposed upon the child. It is indicative of the father’s inability to see views other than his own. There is evidence from Dr G, an expert in this field, that the child has a health issue. He is managing that health issue well.
The father does not believe that the child has health difficulties diagnosed by Dr G. He is entirely resistant to that diagnosis. His resistance is so acute that he arranged for a report to be obtained to assist him in his case and when that report was not satisfactory, did not rely upon it. His solicitors did serve a copy upon the mother’s then solicitor. It is troubling that the father is not open to the acceptance of the diagnosis. Instead of trying to learn about the illness from Dr G (as directed by Bennett J) he argued with Dr G.
It is troubling in terms of his ability to equally share parental responsibility and in relation to his ability to parent the child. If he does not acknowledge the problem then the problem cannot adequately be dealt with.
The father’s belief is that because the child is a fine athlete and a “straight A” student such a diagnosis is not reasonable. The father is rigid in his views and unable to be swayed and has doggedly stuck to these views for most of the child’s life. He is unlikely to change.
The others have noticed the factors upon which the diagnosis was made including but not limited to B, the Family Consultant, Sergeant G and the mother. This is not in any way to detract from the capacity and obvious intellect of this young adult.
The father was critical of the evidence of the Family Consultant in that it was only one report and it was based on the views of the child. Unfortunately the father failed to acknowledge that the report was based on the reading of a great deal of material and that the Family Consultant had the opportunity of a longitudinal investigation of the child from about 2006 to 2012.
As a consequence of his views, the father does not see any risk of the child being moved to him. He does not accept the risks which are outlined by the Family Consultant and Ms M. That in itself is a concern as it is more focused on the needs of the father than the concerns of the child.
Furthermore, when pressed, on a number of occasions, about what he would do if the child did not come, eventually it came back, on many occasions to court proceedings. He was unable to provide a rational explanation as to what would happen if the child met with a counsellor and declined to live with him. His answer was simply to talk to the child.
The father submits that there ought to be equal shared parental responsibility however, given the matters I have outlined earlier that would not work and would simply inevitably bring these proceedings back to the Court. I have had regard to these circumstances and the relevant s 66CC factors and as a consequence I intend to make an order that the mother have sole parental responsibility.

LIVE WITH

The child wishes to continue living with the mother and has expressed strong views in that respect. I have considered all of the relevant factors in respect of residence and in the light of the evidence the only realist outcome for these proceedings is that the child continues to live with his mother. A change, as sought by the father would be contrary to the best interests of the child, it would expose him to the risk of emotional harm as outlined by the Family Consultant.

TIME AND COMMUNICATION

The father submits that if his application that the child lives with him is not successful, there should be an order similar to that which existed in July 2011.
The father gives no weight to the child’s rejection of that arrangement. Before and after July 2011 he made his views clear and the father would not accept them. He forced the then 13 or 14 year old into a car, the father argued with the police and wanted the mother ‘dealt with’ because she did not bring the child to the inside of the building at Mc Donald’s. The father rejects the views of the Family Consultant.
This young adult has drawn a line in the sand as a consequence of his parent’s conflict and in all of the circumstances should not be forced to endure further conflict by way of an order forcing him to see and communicate with the father when he does not wish to do so.
I do not intend to make any order in respect of time and communication between this young adult and his father other than that the child shall spend such time and communicate in such way with the father as the child shall decide.

OTHER ORDERS

Counsel for the mother asserted that I ought to make an order restraining the father from making allegations of sexual abuse and allegations about the rape. I have made findings in that regard and whilst I have concerns about the father’s fixed and intransigent views and whilst I am convinced that nothing in these Reasons will take away the father’s deeply engrained belief that the children were abused. However, I do not intend to make the orders sought by the mother as they would serve no meaningful purpose except to provide another platform for an application to this Court.
The father wanted to attend parent/teacher interviews with respect to the child by arrangement and be kept up to date with the child’s educational progress. I will not make an order will force the child to spend time with or engage with the father, in the absence of the child’s consent. The father will be permitted make enquires of the child’s teachers and receive copies of his school reports, subject to the child’s consent after her attains the age of 16 years.
The mother sought orders that both parties be restrained from commencing contravention proceedings without leave of the Family Court. Having regard to the nature of the orders made, I see no point in making such a restraint order, even if there was sufficient evidence upon which to base such an application. Accordingly I will not make such an order.
There are two issues outstanding. The first is the question of costs and the second a dispute about monies held in a solicitors trust account pursuant to orders made in this court. I will deliver reasons and appoint a date to enable argument of those two final issues.

I certify that the preceding two hundred and forty five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 March 2013 .

Associate:

Date: 26 March 2013

[2013] FamCA 183

26 March 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Procedural Fairness