Shirley and Moore

FAMILY COURT OF AUSTRALIA

SHIRLEY & MOORE

[2018] FamCA 988

FAMILY LAW – CHILDREN – Parenting – with whom a child lives – change of residence to the father – where the father is granted sole parental responsibility – moratorium on time.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT:

Mr Shirley

RESPONDENT:

Ms Moore

INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

FILE NUMBER:

PAC

3139

2013

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

15, 16, 17, 18, 19 and 23 February 2016; 21 November 2016;
12, 13 and 14 November 2018

REPRESENTATION

APPLICANT:

In person on his own behalf

RESPONDENT:

In person on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harding

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

Orders

(Amended on 27 November 2018 pursuant to rule 17.02 of the Family Law Rules 2004)

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The child, B, born … 2013, live with the father immediately from the making of this Order.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in relation to the child but exclusive of the issue of the child’s name, with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
In considering a decision about major long term issues in relation to the child:
(a)the father will advise the mother in writing of his proposal relating to the child and the reason for such proposal;
(b)the mother will within fourteen (14) days of receipt of written communication respond with her views to the father;
(c) the father shall give consideration to the mother’s views;
(d)after the father has considered the mother views, the father shall make a decision and advise the mother in writing of the outcome as soon as practicable after making the decision with his reasons for the decision;
(e)in the event that the mother does not respond in writing within fourteen (14) days as provided within Order (4)(b), the father shall send a further written communication to the mother and wait a further two days for a response;
(f)if no response is received from the mother in the time period provided for in order 4(e), the father shall be entitled to presume that the mother does not wish to be involved and may decide the issue without further input from the mother.
The father is restrained and an injunction is issued restraining him from changing the child’s surname or using any surname other than “Moore” to refer to the child or permitting any other person, institution or authority from referring to the child by a surname other than “Moore”.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the child while the child is in his or her care.
Unless otherwise agreed between the parents in writing, the child shall spend no time and have no communication with the mother until after 12 April 2019.
Thereafter, the child shall spend time with the mother at all times as may be agreed in writing between the parties and, failing agreement, as follows:
(a)each third weekend for a period of three (3) hours on Saturday and three (3) hours on Sunday, with such time to be supervised at times that can be facilitated by C Org and at venues nominated by C Org, with staff from C Org to supervise the time; and
(b)the mother and father shall equally share in the cost of supervised time charged by C Org to facilitate time provided in order 8(b).
After 12 April 2019, the parents will facilitate the child communicating with the other parent by telephone or Skype communication while he is in their care on each Wednesday between 5.00 pm and 5.30 pm, with the parent who does not have the child in their care to initiate the telephone call or Skype call to the other parent and the other parent to facilitate the child participating in such communication.
Both parents are to refrain from denigrating the other parent to or in the presence or hearing of the child and in the event that a third party is denigrating the other parent to or in the presence of the child, they will remove the child from the situation.
Both parents will keep each other informed and advise each other of any change within seven (7) days of the change occurring of the following:
(a)       their residential address;
(b)       their contact telephone numbers; and
(c)       their email address.
The parents are to notify each other in writing of any medical details that are necessary to enable the other parent to continue with any medical treatment prescribed or recommended by a medical practitioner for the child whilst in their care.
The parents will provide each other with the names, contact details and date of visit for any medical centres, doctors and allied health professionals that the child attends upon whilst in their care.
In the event of a medical emergency for the child, the parent whose care he is in at the time will as soon as practicable contact the other parent by telephone, email and SMS to advise them of the following:
(a)the name and address of the facility where the child is receiving medical treatment;
(b) the nature of the medical emergency.
The parents will provide each other with the name and contact details for any educational institution including day care provider that the child attends.
Both parent authorise and this Order serves as such authority to any school educational institution, day care, medical professional, allied health professional, extra-curricular provider attended upon by the child to provide such information about the child as may be requested by either parents, at the cost of the parent requesting such information.
Both parents will provide the other parent’s name and contact details to any school educational institution, day care, medical professional, allied health professional extra-curricular provided that the child attends.
Both parents agree that they will not record nor direct any third party to record by video or audio recording any interaction between themselves.
Both parents agree that they will not attend upon each other’s residential address and not direct any third party to attend upon each other’s residential address without the written consent of the other parent.
Both parents are to refrain from physically disciplining the child.
In the event that any treating psychologist and/or general medical practitioner engaged by the mother requests of the Independent Children’s Lawyer, then the Independent Children’s Lawyer has leave to provide such practitioner with a copy of the following documents:
(a)       the transcript of the evidence of Dr O on 19 February 2016;
(b)       a copy of these final orders and Reasons for Judgment;
(c)       the Family Reports of Mr P.
The father ensure that the child attends upon a child psychologist as frequently as recommended by the child psychologist to assist the child in transitioning into his father’s full time care.
The mother be restrained from attending at the child’s school and making contact or communicating with the child’s school for Term 1 and 2, 2019 which concludes on 5 July 2019.
The father provide written notice of the child’s school for Term 1, 2019 to the mother by 19 December 2018.

AND IT IS FURTHER ORDERED THAT

The mother is restrained and an injunction hereby issues restraining her from removing the child from Child Dispute Services.
The mother leave the Court precinct immediately upon the rising of the Court.
By this Order, Child Dispute Services, Level 3 Harry Gibbs Commonwealth Law Courts Brisbane, is authorised to deliver the child, B, born … 2013, into the care of his father, Mr Shirley.
Mr P, Family Consultant, shall be provided with a copy of this Order and the Reasons for Judgment delivered today for the purpose of assisting him to explain the Orders made today and the effect of the same to the child.
Mr P, Family Consultant, shall assist the parties in relation to compliance with, and the carrying out of, the Orders made on 23 November 2018 by:
(a)explaining the terms of that Order to the child; and
(b)explaining the Reasons for Judgment delivered in support of those Orders to the extent that this is possible, and in terms that are appropriate, given the age of the child.
The Independent Children’s Lawyer is discharged.
All outstanding applications are otherwise dismissed and the matter is removed from the list of cases awaiting determination.
Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (Cth), 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

(A)This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending Clause 21.a to record the correct date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC 3139 of 2013

Mr Shirley

Applicant

And

Ms Moore

Respondent

And

The Independent Children’s Lawyer

CORRIGENDUM: This corrigendum is issued to correct the failure to insert the following corrigendum: “The failure to delete a dictation error contained in [156] has been corrected by deleting the phrase “cross my heart sure” which appeared at the end of the paragraph.”

REASONS FOR JUDGMENT

B (the child ) was born in 2013. His parents never lived together.[1] During their relationship,[2] his father was married to someone else. To adopt the words of Mr P, who authored the Family Reports prepared to assist the Court, the current parental relationship – if it can be described as such – is “compromised by a bankruptcy of communication, cooperation and goodwill where all child focus is blunted by an entrenched conflict focus”. The passage of time has not ameliorated this focus, nor has it resulted in any improvement in that which Mr P described in early 2016.
[1] They spent overnight time together including up to a week in duration on occasions but, in the circumstances of this case, I do not regard that as meaning they ever really shared a residence.
[2] Which seems to have occurred between about March 2012 and 29 May 2013.
Because they do not co-operate (and evidence no sign of either a joint capacity or shared willingness to do so) and their interactions with each other are adversarial in nature, this parental dispute is not one which can be resolved by compromise, mediation or in a manner less adversarial than that which attends a trial.
Practical difficulties in facilitating the child having a meaningful relationship with both of his parents have almost always existed. The father lives in J Town, New South Wales, approximately 14 or so hours’ drive from the general location (near E Town) in which the child lives with his mother. She has been unwilling to disclose her address because of her asserted fear of the father. Save for those interactions which occurred under the supervision of C Org (and those which occurred before it was utilised), any time between the child and his father to date has taken place in and around the Brisbane locale: this has meant that the father has travelled from his home in New South Wales in order to spend time with the child.
Further complexity arises because the father has two children from his former marriage: eleven year old Q (born in 2007) and eight year old R (born in 2010). Q and R live with the father for five nights each fortnight and for half of the school holidays. To date, the child has only spent time with Q and R once.
Any lingering thought that the existence of previous parenting orders made by consent evidences a parental willingness to co-operate about the child’s parenting is easily dispelled when regard is had to the fact that, despite the existence of such orders, the child has not, in fact, spent time with his father as prescribed by them.
Rather, the evidence clearly establishes that one of the consistencies for the child has been the absence of regular and consistent time with his father. In fact, their time together has been attended by lacunae: on some occasions, the father cancelled the visits intended to occur because he could not afford to travel from New South Wales to Queensland to spend alternate weekend time with the child; on other occasions, the mother cancelled the visits on the basis of her assertion that either she or the child were too unwell to attend or she had car trouble or she could not afford the costs associated with making the child available to spend time with his father or the father had allegedly behaved in such a manner that she was not prepared to permit the child to be in his care.
An appreciation of the child’s interactions with his father, the lacunae in the same and the asserted reasons for these is most easily found by reference to the following summary:

DATE	CIRCUMSTANCES
Between the child’s birth and mid May 2013	Time: whilst the child was in his mother’s care. The mother alleges the father threw a stroller
29 May 2013	Time: the parties met at a local boat ramp. The parties argued: the mother alleges the father attempted to “abduct” the child; police are called and attend; the child is returned to his mother’s care
30 November 2013	Time: two hours supervised at C Org Contact Centre
1 December 2013	Time: two hours supervised at C Org Contact Centre
5 December 2013	Order by consent: the child to spend unsupervised time with his father: - In Sydney on 21 & 22 December for four hours per day supervised by C Org; - On 4 & 5 January 2014 for four hours each day with the father giving the mother 48 hours’ notice of where he will spend time; - Thereafter each alternate weekend for four hours per day
21 December 2013	Time: supervised at C Org Contact Centre
22 December 2013	Time: supervised at C Org Contact Centre
4 & 5 January 2014	No time
6 January 2014	Time: unsupervised in the E Town area
18 January 2014	No time: The mother did not provide the child – *contravention finding subsequently made*
19 January 2014	No time: Parents met for changeover, the child did not transition into his father’s care - *contravention finding subsequently made*
1 & 2 February 2014	No time
15 & 16 February 2014	No time
1 March 2014	No time: mother did not provide the child - *contravention finding subsequently made*
2 March 2014	No time: mother did not provide the child - *contravention finding subsequently made*
15 March 2014	No time: mother did not provide the child - *contravention finding subsequently made*
16 March 2014	No time: mother did not provide the child - *contravention finding subsequently made*
29 & 31 March 2014	No time: mother did not provide the child - contravention finding subsequently made
2, 4, 6, 8 & 10 April 2014	No time: On 27 February 2014, the father’s solicitor informed the mother that the father intended to spend time with the child pursuant to order 3 of 5 December 2013 orders. The mother did not provide the child - *contravention finding subsequently made*
12 & 13 April 2014	No time
26 & 27 April 2014	No time: the mother did not provide the child - *contravention finding subsequently made*
10 & 11 May 2014	No time
24 & 25 May 2014	No time
7 & 8 June 2014	No time
21 & 22 June 2014	No time
5 & 6 July 2014	No time
19 & 20 July 2014	No time
2 & 3 August 2014	No time
16 & 17 August 2014	No time: parents met for changeover but, for reasons in dispute, the child did not transition into his father’s care
30 & 31 August 2014	No time
13 & 14 September 2014	No time: mother said that, as there was an incident at Court on 8 September 2014 (during which father lost his temper), she was concerned about the child’s safety and did not provide him
27 & 28 September 2014	No time
11 & 12 October 2014	No time
25 & 26 October 2014	No time
8 & 9 November 2014	No time
22 & 23 November 2014	No time
6 & 7 December 2014	No time
20 & 21 December 2014	No time
3 & 4 January 2015	No time
17 & 18 January 2015	No time
31 January & 1 February 2015	No time
14 & 15 February 2015	No time
28 February & 1 March 2015	No time
3 March 2015	Order: the child spend time with the father for two hours on 7 March 2015 and three hours on 8 March 2015 supervised by T Group.
7 March 2015	Time: two hours supervised by T Group
8 March 2015	Time: three hours supervised by T Group
17 March 2015	Order: the child spend time with the father for two hours on 21 March 2015 and three hours on 22 March 2015 supervised by T Group.
21 March 2015	Time: two hours supervised by T Group
22 March 2015	Time: three hours supervised by T Group
9 April 2015	Order by consent (amended 24 June 2015): the child to spend time with the father each alternate weekend on Saturday for two hours and on Sunday for three hours with time to be supervised by T Group.
18 April 2015	Time: two hours supervised by T Group
19 April 2015	Time: three hours supervised by T Group
2 May 2015	Time: half an hour supervised by T Group as the father’s flight from Sydney was cancelled and he was late
3 May 2015	Time: three hours supervised by T Group
10, 12 & 14 May 2015	No time: On 1 May 2015, the father informed the mother that the father intended to spend time with the child pursuant to order 3 of 5 December 2013 orders. The time did not proceed.
16 May 2015	Time: two hours supervised by T Group
17 May 2015	Time: three hours supervised by T Group
30 & 31 May 2015	No time: father cancelled due to financial constraints
13 June 2015	Time: two hours supervised by T Group
14 June 2015	Time: three hours supervised by T Group
27 June 2015	Time: two hours supervised by T Group (the child meets Q and R)
28 June 2015	Time: three hours supervised by T Group - The last time the child spent with the father prior to the February 2016 tranche of the proceedings
30 June 2015	Order: the child spend time with the father on 11, 12, 25, 26 July for four hours and commencing 8 August 2015 each second Saturday and Sunday from 9.00 am until 5.00 pm.
11 & 12 July 2015	No time
25 & 26 July 2015	No time: the mother said the child was too sick
8 & 9 August 2015	No time
20 August 2015	Order: the child spend time with the father on 29, 30 August and 12, 13 September 2015 for a period of four hours.
29 & 30 August 2015	No time: father cancelled due to financial constraints
12 & 13 September 2015	No time: the mother said she had car troubles
21 September 2015	Order: the child spend time with the father on 3, 4, 17, 18 October for four hours and commencing 31 October 2015 each second Saturday and Sunday from 9.00 am until 5.00 pm.
3 & 4 October 2015	No time: the mother said she had car troubles/ did not have funds to afford the time
17 & 18 October 2015	No time: the mother cancelled due to financial constraints
31 October & 1 November 2015	No time: the mother cancelled due to financial constraints
14 & 15 November 2015	No time: the mother cancelled due to financial constraints
28 & 29 November 2015	No time
12 & 13 December 2015	No time
26 & 27 December 2015	No time
9 & 10 January 2016	No time
23 & 24 January 2016	No time
6 & 7 February 2016	No time
15, 16, 17, 18, 19 February 2016	Trial: Days 1 – 5
20 February 2016	Time: unsupervised from 8.30 am to 5.00 pm; changeovers facilitated by Mr P
22 February 2016	Time: unsupervised from 8.30 am to 5.00 pm; changeovers facilitated by Mr P
23 February 2016	Trial Day 6
23 February 2016	Interim Orders made: the child to spend time with the father - from 12.00 pm to 5.00 pm on 12 March 2016; - from 9.00 am until 5.00 pm on 13 March 2016; - commencing 26 March 2016: each alternate weekend thereafter from 12.00 pm Saturday until 5.00 pm Sunday, with changeovers to occur at a Contact Centre.
12 & 13 March 2016	Time: in accordance with February 2016 Order; not overnight
26 – 27 March 2016	No time: U Group was closed for Easter long weekend
9 – 10 April 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
23 – 24 April 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
7 – 8 May 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
21 – 22 May 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
4 – 5 June 2016[3]	No time: father unwell and unable to travel to Queensland
18 – 19 June 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday. - The mother says during drop-off, the child was crying and had to be prised away from her by three U Group Staff
2 – 3 July 2016	No time: father cancelled due to financial constraints
16 – 17 July 2016	No time: father cancelled due to financial constraints; he notified the mother by email on 13 July 2016
30 – 31 July 2016	No time: father cancelled due to financial constraints
13 – 14 August 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
27 – 28 August 2016	No time: father cancelled due to financial constraints
10 – 11 September 2016	No time: mother provided medical certificate saying the child was not well enough to spend time with his father
24 – 25 September 2016	No time: father cancelled due to financial constraint; father notifies mother of non-attendance on 21 September 2018.
8 – 9 October 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
22 – 23 October 2016	No time: father cancelled due to financial constraints
5 – 6 November 2016	Time: from 12.00 pm Saturday until 5.00 pm Sunday
19 – 20 November 2016	No time: mother cancelled due to her illness and said she provided a medical certificate to U Group. Father says U Group advised him that the mother had informed them she was unwell and that time would have to be cancelled
3 – 4 December 2016	No time: father cancelled due to financial constraints
17 – 18 December 2016	No time: mother cancelled visit via email to the father due to the child having a sore ear: provided a medical certificate which covered 15 – 18 December 2016
31 December 2016	Time: U Group was closed on 1 January 2017, no overnight time was spent
1 January 2017	No time: As U Group was closed on 1 January 2017, changeover could not be facilitated
14 – 15 January 2017	No time: father cancelled due to financial constraints. On 11 January 2017 father said he was unable to travel to Queensland
28 – 29 January 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
11 – 12 February 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
25 – 26 February 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
11 – 12 March 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
25 – 26 March 2017	No time: father cancelled due to financial constraints
8 – 9 April 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday - The mother said the child told staff he does not want to see the father; was forced to attend
22 – 23 April 2017	No time: the mother said she was unwell (doctor’s certificate provided by her); the father cancelled on 22 April 2017 due to illness
6 – 7 May 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
20 – 21 May 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
3 - 4 June 2017	No time: father cancelled due to financial constraints
17 – 18 June 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday
1– 2 July 2017	No time: the child twisted ankle at day care (sprained). Mother said medical advice was that he refrain from walking for the next few days
15 – 16 July 2017	No time: father cancelled due to financial constraints
29 – 30 July 2017	No time: mother cancelled visit as the child had ear infection, wheezy cough; she said she received medical advice that he needed to remain at home and rest for at least three days
12 – 13 August 2017	Time: from 12.00 pm Saturday until 5.00 pm Sunday - the mother said that, at 1.27 pm on 12 August 2017, she received an email from the father “threatening her”; father sent mother an email telling her that if she called the child whilst in his care, he would regard that as harassment and would report her to police - The last time the child spent time with his father other than during the most recent family report interview on 19 October 2018
26 – 27 August 2017	No time: father cancelled due to financial constraints
9 – 10 September 2017	No time: the mother said the child was unwell; she provided a doctor’s certificate to U Group
23 – 24 September 2017	No time: father cancelled due to financial constraints; visit cancelled on 21 September 2017
7 – 8 October 2017	No time: the mother cancelled as she said he car had broken down and she had no transport; she said she emailed U Group
21 – 22 October 2017	No time: father cancelled due to financial constraints
4 – 5 November 2017	No time: the child refused to leave with the father and Contact Centre advised mother take him home
18 – 19 November 2017	No time: father cancelled due to financial constraints, visit cancelled on 15 November 2017
2 -3 December 2017	No time: the child refused to leave with the father and Contact Centre advised mother take him home
16 – 17 December 2017	No time: father cancelled due to financial constraints
30 – 31 December 2017	No time: father cancelled due to financial constraints, visit cancelled on 27 December 2017
13 – 14 January 2018	No time: the child refused to leave with the father and Contact Centre advised mother take him home
21 January 2018 Contact Centre withdraws	ICL received a copy of correspondence sent by the father to U Group Contact Service on 21 January 2018 indicating the father had been advised that the Contact Centre was withdrawing from providing a changeover service for the child
27 – 28 January 2018	No time: father cancelled due to financial constraints
12, 13 and 14 November 2018	Trial Day 7, 8, 9

[3] Affidavit of Ms V filed 7 November 2016, Annexure “DA1”.

Given the above, it may, at first blush, be thought that the determination of those parenting arrangements which are in the child’s best interests is obvious: namely, that, because his time with his father has been as limited as outlined above and his attachment to his mother securely established, the only conclusion must be that the child’s best interests will be met by ensuring that he continues to live with his mother, as he has done for all of his life to date.
Such a conclusion would, of course, fail to take into account that one of the primary considerations[4] is the benefit to the child of having a meaningful relationship with both of his parents and also that his best interests – in both a short and long term sense – are the paramount consideration in determining appropriate parenting orders for him.
[4] s 60CC(2)(a), Family Law Act1975 (Cth).
The child’s parents each want him to live primarily with them. Each parent also seeks that an order is made according them sole parental responsibility for decisions about major long terms issues relating to the child. Ironically, given the circumstances of this case, the child’s parents agree that the parent with whom the child primarily lives should have sole parental responsibility for decisions about major long term issues relating to him.
Even if – consistent with practically everything else that has been in issue between them – they did not agree about this matter, for the reasons which are expressed throughout this Judgment, an order allocating sole parental responsibility to one parent is the only parental responsibility order that could sensibly be regarded as being in the child’s best interests.
These parents are, I consider, either incapable of joint decision making or have each decided to act so that they cannot be regarded as likely to be able to make any decisions about major long terms issues relating to the child jointly: given their established inability to communicate meaningfully and to co-operate, any obligation for them to do so would, in my view, be inevitably attended by conflict and, highly likely, a stalemate: neither of these eventualities could be seen as being in the child’s best interests, given the likely consequences for him of the same.
The child’s parents are, of course, in dispute about which of them should be considered responsible for the significantly limited opportunity he has been afforded to date to spend time with his father: the father asserts that, despite the existence of orders, the mother has deliberately failed to comply with her obligation to make the child available to spend time with him because she does not want the child ever to have a relationship with him or his half-siblings. In stark contrast, the child’s mother asserts that the child has not spent time with his father because his father has failed to take advantage of the opportunity to do so and/or whichever Contact Centre was, at the relevant time, entrusted with the obligation to provide supervision, has failed to ensure that the child is safe and/or that the father has acted abusively toward the child, with the consequence that the child does not want to spend time with him and would be at risk of suffering harm if he was to spend anything but supervised time with him.
The mother clearly, consistently and strenuously refuted any suggestion that she has been unsupportive of the child having the opportunity to spend time with his father and/or develop a relationship with him. Such refutation is significantly undermined when regard is had to the contents of the notes kept by U Group Children’s Contact Centre, W Town (U Group) of their facilitation of change- overs since the February 2016 interim orders were made. I record, in passing, that I accept the accuracy of the U Group records unless I indicate otherwise.
Reference to the U Group notes establishes that, when the child arrived there on 17 June 2017, he was calm. I accept that, during the process before he transitioned to his father, the mother spoke with the senior facilitator and told her that the child wanted to talk to her: the child then told the senior facilitator that he did not want to go with his father. I accept that, when he was asked why this was the case, he said “it is because he does not like him”. I accept that, after the facilitator advised the child that he could stay and make up his mind when his father arrived, the mother left. I accept that, after she left, the child told the facilitator that “I don’t want to go with daddy because mummy doesn’t want me to; I don’t like daddy because mummy doesn’t like daddy.” I also accept that the child told the supervisor that his mother told him not to go to church with the father when he visited him.
Despite his earlier comment about not liking his father, I accept that the child was happy to see him when he arrived; I accept he ran to him and jumped on him. I accept that, during their play together before they left U Group, the child told his father that “mum told me to tell you that I don’t want to come home with you” and that “I am afraid to go with you because Mum will not be happy”. I accept that, despite making these statements, the child expressed interest in going with his father and appeared calm when he left U Group with him.
The possibility that the child was mistaken or mischievous when he spoke as he did to the facilitator after his mother left on 17 June 2017 is extinguished when regard is had to the notes about the child’s attendance at U Group on 12 August 2017: the last occasion on which he spent time with his father as required by the terms of the February 2016 order.
I accept that, when the U Group facilitator arrived to greet the child on that day, the mother told her that “the child doesn’t want to go to his father’s, he so emotional”. I accept that, when the facilitator asked the child to tell her why he did not want to go to his father’s house that day, the child responded “mummy said I’m not allowed to say I want to go”. I accept that the mother (who was squatting on the floor beside the child) then grabbed him by the shoulders, swung him around to face her and said “no, no honey, you can go if you want to, but you didn’t want to, did you?”
I accept that the facilitator then told the child that he could tell his father, when he arrived, if he did not want to go with him to his house. I accept that, after the child asked if he could then go outside to play, the mother took him into her arms and said “when you are sad or scared when you’re at daddy’s, touch your heart right here (placing her hand on his chest) and mummy is right there. I’ll call you tonight to make sure that you’re okay, alright?”
In stark contrast to the mother’s clear conclusion that the child would be sad or scared during his time with his father, I accept that the child ran to his father with a big grin on his face and gave him a cuddle when he arrived. I also accept that, when the father asked the child what he thought they might do the next day (Sunday), the child said “mummy said I have to say that I can’t go to church with daddy and [Ms X] anymore”. I accept that the father reassured him that that was okay.
Given the comments the child made to the facilitators at U Group, it is, I think, completely unsurprising that, as recounted in correspondence from Y Group (a psychology practice) dated about 16 August 2017, the child told the therapist he first spoke to there, in his mother’s presence, that he was afraid of his father and that his father had hurt him.
The underlying premise that the child would be scared (or sad) in his father’s care found further expression when the child attended at U Group on 4 November 2017. I accept that he was calm when he arrived that day; I also accept that, when the facilitator approached the mother to tell her that she could leave (in anticipation of the father’s arrival), the mother tapped the child and told him “tell her.” I accept that the child then said “I don’t want to go to daddy’s because [Ms X] hurts me”. I accept that a more senior facilitator attended to advise the mother to make a decision about what she felt was right to do: I accept that the mother collected the child’s belongings and advised that she would take him home with her. Consequently, approximately 13 minutes after they had arrived, the mother and the child left U Group. I consider that they did so after the mother made a decision, and not because they were told by U Group staff to leave.
Another aspect of the way in which the mother has, in my view, approached ostensibly supporting the child in spending time with his father and/or having the opportunity to develop a meaningful relationship with him manifested in the interactions at U Group on 2 December 2017.
I accept that, when the mother presented with the child that day, she initiated a conversation with the facilitator. I accept she advised the facilitator that the child did not want to go with his father that day. I accept that the facilitator asked the child why he did not want to go and spend time with his father. I accept that the child replied “I don’t want to see daddy; I want to go and see Santa at the shops and go shopping….. I don’t want to go to daddy’s house because [Ms X] hurts me.” I accept that the mother told the supervisor, in front of the child, that she was concerned about [Ms X]. I accept that, approximately 11 minutes after they arrived, the mother and the child left U Group. I accept that, as they left, the child was chatting excitedly to his mother about them going to buy toys and see Santa.
The mother’s assertion that she supports the child in having a relationship with his father must also be assessed in light of her communication with U Group after the attendance on 2 December 2017. I accept that, on 13 December 2017, she emailed U Group in relation to an asserted conversation about cancelling the service “due to the child’s continuing refusal to see [Mr Shirley]”. I accept that the mother’s email included the assertion that she wanted to follow this topic up “as we will have the same problem again this weekend”; I also accept that she asserted, within the email, that she had been told not to bring the child to U Group “given his continued refusal” to see his father.
I accept that the mother followed up her 13 December 2017 email by emailing U Group again on 10 January 2018. I accept that her second email outlined that she understood that there were still interim orders; she also asserted, though, that “given the situation and comments”, she was seeking clarification.
I accept that, on 13 January 2018, U Group replied to the mother by email to advise that, if the child refused to go to see his father that day, the Centre needed to take the decision to cancel the visits and close the case.
It is against this background, then, that the events of the child’s approximately 11 minute attendance at U Group on 13 January 2018 must be seen. I accept that, when the U Group facilitator approached where the mother and the child were playing at the Centre that day, the mother asked the child if he wanted to go and see his daddy. I accept that the child said “yes he would like to go and see his daddy”. I accept that the mother then “spoke sharply” to the child, saying “but [Ms X] will be there and she hurts you, doesn’t she?” I accept that the child then said “yes she hurt me, but I’ll be fine; I want to go.” I accept that the mother then responded “loudly”: “does [Ms X] hurt you or not, I want to know!”
I accept that the child then looked at his mother and said “okay, I don’t want to go then, I want to stay with you”; I accept that the mother then smiled at the child and said “good boy”.
I accept that, after the facilitator told the mother she could leave and take the child with her, the mother smiled as she left, holding the child’s hand: I accept he was staring at the floor.
Given his comments to the supervisors at U Group and to the treating professional upon whom he attended at Y Group and the mother’s comments in both forums, it is unsurprising that the child made the comments that Mr P records that he did when interviewed on 19 October 2018. I accept that the child told Mr P that his mother is his favourite adult, “because my father is bad and hits me, smacks me, punches me, and puts me in a … corner.” I accept that, when he was asked what his family might love and feel proud about him for, the child said “I only have mum”. I also accept that he nominated the mother as the person whom he most trusted and felt safe with.
I also accept that the child told Mr P that he did not have a dad “he’s mean. My mum doesn’t like my father… Because I come home with bruises. He smacks me, punches me and sits me on the corner and yells at me…. He wants me to stay with him”. I accept he told Mr P that he did not trust his father and that he did not feel safe with children at his school.
I accept that the child told Mr P that the person he worried most about, or for, was his father; that his father had said “rude words” to him; that he is the “meanest father” and that he had never played with him.
I also accept that the child told Mr P that, when his mother talked about his father, she sounded “cross every day… Says he’s mean every day… She calls him arsehole…”
Whilst I accept that the child also told Mr P (when asked about his father speaking about his mother) that he sounded “cranky… Says she is the rudest mum….”, it should not be forgotten that, at that time, the child had not had any interaction at all with his father since August 2017. I accept Mr P’s recounting that the child was either unable or unwilling to recount to him a positive or likeable thing about his father. I also accept that he complained that “Ms X” was mean too, yelled, did not let him have dessert and that her son was also mean and told him what to do.
I accept Mr P’s opinion to the effect that the child’s age and developmental stage are such that he is likely to be effected by external influences which inform, shape and/or reinforce his asserted perceptions and experiences of his father. In doing so, I note that, during her cross-examination in early 2016, the mother said that the child picked up more than he should for his age, was far more advanced than he should be and was very, very intuitive to situations.
Given this, I think it almost inevitable that the child has picked up on the mother’s views about the father. I also I think it much more likely than not that, during her discussions with the child about his father, the mother speaks of him (the father) in a negative manner to the child. Further, as is apparent from the manner in which she dealt with the child’s expressed wish to see his father and “Ms X” on 13 January 2018, I think there can be little doubt that the child knows that it is “good” to choose to spend time with his mother and “bad” to choose to spend time with his father.
Any thought that these relatively recent examples of the mother’s attempts to influence the child against wanting to spend time with his father are unique or, perhaps, manifestations of her frustration at the father’s inconsistency at times in attending to spend time with the child (albeit that this has been mostly caused by financial constraints) is scotched by the following evidence of her underlying attitude toward the father and the idea that he and the child might have a relationship of any kind:
a)the content of various text messages she sent to the father:
i)on 10 June 2013: “you are the only one going to be missing out now, he won’t even know you”;[5] and
ii)on 18 July 2013: “he will NEVER have anything to do with your family as you call it. Deal with it, I am the child’s mum and that’s it!!!”;[6] and
iii)on 19 July 2013: “…you will never get him without me being present…you can either do it my way or not at all…you did this to yourself. I’m not going to make any effort for you”;[7]
iv)on 20 July 2013: “personally I’d prefer we never have anything to do with you again”;[8]
v)on 22 July 2013: “just drop our stuff off and leave it on the BBQ out the back by Friday, then be on your way. I don’t know if you’ve figured it out yet but we don’t want anything to do with you, so just drop the stuff off so we never have to speak to you or see you again. Thanx”.[9]
b)her comment to a C Org Supervisor on 22 December 2013 when told that the father had given the child some Christmas presents which he retained at his (the father’s) home: “why? He’ll [clearly a reference to the child] never ever come back here again”; and
c)her comment to Ms Z (a social worker) on 6 January 2014, during an interview associated with her application for a preferential treatment posting back to New South Wales, wherein I accept she said that if she remained in Queensland, she hoped the child’s father would eventually “give-up” on his request for custody and access to him.
[5] Affidavit of Ms V filed 4 February 2016, Annexure “DA1” (the father’s affidavit sworn 12 January 2016), [27i].
[6] Affidavit of Ms V filed 4 February 2016, Annexure “DA1” (the father’s affidavit sworn 12 January 2016), [27ii].
[7] Affidavit of Ms V filed 4 February 2016, Annexure “DA1” (the father’s affidavit sworn 12 January 2016), [27iii].
[8] Affidavit of Ms V filed 4 February 2016, Annexure “DA1” (the father’s affidavit sworn 12 January 2016), [27iv].
[9] Affidavit of Ms V filed 4 February 2016, Annexure “DA1” (the father’s affidavit sworn 12 January 2016), [27v].
In addition, despite repeatedly saying that she has not blocked the father’s time with the child and that the child deserves a relationship with his father and that it is not her right to prevent that relationship, the mother’s evidence makes it clear that, from her perspective, the father’s faults as a person and parent are so varied, significant and over-arching that the child would obtain little – if any – benefit from a relationship with him and/or the opportunity to spend time with him.
Additionally, her material conveys her perception that the father poses a risk to the child of such magnitude that time between them – if this was thought to be in the child’s best interests – should occur on a supervised basis: although her ostensible proposals at various times that the child spend unsupervised time with his father is completely at odds with this evidence.
The combination of:
a)the stark incongruity between the mother’s extensive evidence, containing extensive criticism of almost every aspect of the father’s approach to parenting, and her proposals on occasions that, after the opportunity to develop a “bond”, the child should be afforded the opportunity to spend increasing unsupervised time with his father; and
b)the timing of the making of such proposals; and
c)the fact that, despite advancing such proposals, she has maintained her critical views of the father, his behaviours and his attitude toward the child; and
d)the subsequent break-down of the time between the father and the child at times when it appears that it may actually have been resulting in the child continuing to build his relationship with his father,
is such that I have concluded that the mother’s proposals for the child to spend time with his father are, to a large extent, nothing more than lip-service, proffered when she is concerned that there is a very real risk that orders adverse to her proposal for the child’s future parenting regime may be made.
In addition to these factors, I have also concluded that there are very significant deficits in the mother’s veracity, which cause me to be even more sceptical about her last minute, ‘road to Damascus’ type, ostensible changes of position.
Whilst there are a number of other aspects of the evidence which have persuaded me to arrive at the conclusion about the mother’s lack of veracity, the most significant in my mind is that surrounding the type-written correspondence, dated 28 January 2014, which the mother advanced was authored by Dr AA and provided to her at the conclusion of a consultation he had with the child that day.

In order to appreciate the relevance of the correspondence dated 28 January 2014, it is necessary to recall that the child spent unsupervised time with his father on 6 January 2014 and was due to spend further unsupervised time with him again on the weekend on 18 and 19 January 2014. That time did not occur. Reference to the table above reminds that the child did not spend time with his father again until 7 March 2015.
In attempting to explain why she did not make the child available to spend time with his father after 6 January 2014, the mother said that he had developed a cold, which ultimately became croup and tonsillitis after the visit on 6 January 2014.
The mother said she took the child to see Dr AA and he gave her the type-written letter dated 28 January 2014.[10] She then provided it to the father. However, when he contacted Dr AA to check whether this was the case or not, Dr AA provided him with another letter[11] in which he denied authoring the letter the mother said he had given her. In addition, Dr AA expressed his concern about how his signature and stamp – both of which he acknowledged as being his – came to be on the type-written letter dated 28 January 2014.
[10] Affidavit of the mother filed 18 December 2015 at Annexure “AC”, p. 508.
[11] Affidavit of Ms V filed 4 February 2016, Annexure “DA1” (affidavit of the father sworn 12 January 2016), Annexure “R”.
Dr AA gave oral evidence during the hearing about the issue of the type-written letter dated 28 January 2014. He said that, whilst the child had been seen at the practice from which he works on two other subsequent occasions (in May 2014 and June 2014), he had only seen the child on 28 January 2014. He said the child presented with a cold (a croupy cough) and he gave him some Redipred to help settle it.
Dr AA said that he had not provided the mother with correspondence dated 28 January 2014 or otherwise; he said he did not provide her with a letter that day and did not understand or know how the type-written letter dated 28 January 2014, which purports to be a letter from him, came into existence. He said that he would never create a type-written letter such as that bearing the date 28 January 2014 because he always writes the same in handwriting: that is, his evidence was that he did not think he was the author of the letter, because he does not use a computer to print letters, but handwrites them. He also said that he does not use “RE” to refer to a patient and has never done so in his life. He was adamant about this. Dr AA was also concerned about the discrepancy in the date referred to in the body of the letter and the date with which it is dated.
Whilst Dr AA accepted that the letter could have been written by him – because it had his stamp and signature on it – he said that was highly unlikely: rather, he felt that the signature had been added to the body of the letter (dated 28 January 2014), which he had not written.
It seemed to me that the only thing that prevented Dr AA from being absolute in his evidence about not being the author of the letter he was purported to have written was that, because the very large number of patients he had seen since seeing the child on 28 January 2014, he would not recognise the child again.
The mother said she had not contacted Dr AA since the child saw him. She said that the doctor wrote the letter in front of her, at her request, so that she could provide it to the father. She denied the suggestion that the doctor did not write the letter.
The mother said, during her cross-examination, that Dr AA gave her the letter after she asked him to write down what he had just told her; she said she questioned why what she was given was not on letterhead and he told her that as long as it had his stamp and date and everything on the bottom of the letter, it was fine; she said that all she knew was that the letter was correct. The mother said that Dr AA typed the letter in front of her and gave it to her after he signed it: she rejected the suggestion that her evidence in this respect was false. She denied the assertion that she created the document dated 28 January 2014.
I accept that Dr AA did not observe the child to have swollen tonsils when he saw him on 28 January 2014. Consequently, the reference in the letter to them and tonsillitis and the other aspects of the outlined history could only have been known to him if such information had been provided by the mother during the consultation. I accept that such information is not recorded in Dr AA’s notes of his consultation with the child on 28 January 2014. That it is not certainly suggests to me that Dr AA did not author the letter dated 28 January 2014.
In addition, if Dr AA had typed the letter on a computer, as the mother in essence said he did, I think it much more likely than not that his practice system would automatically have saved a copy of it to the child’s file. However, there is no copy of it on the child’s file. That is: if the letter had been hand-written, there may well not have been a copy of it, but because it was type-written one would expect a copy to exist in the practice records if it in fact emanated from within the practice. The absence of a copy is a further matter that supports Dr AA’s direct evidence in relation to the issue of the authorship of the letter.
I accept Dr AA’s evidence about the issue of the letter dated 28 January 2014. I accept that he did not write it. I do not accept the mother’s evidence about the manner in which the letter dated 28 January 2014 came into existence. I think it much more likely than not that the mother was somehow responsible for the creation of the letter, which she then provided to the father in an attempt to explain her failure to provide the child to spend time with him and/or in support of her attempt to establish that the child became ill as a consequence of being in his father’s unsupervised care.
The conclusion I have arrived at about the mother’s absence of veracity, based on the issue of the letter dated 28 January 2014, is further bolstered by a consideration of the mother’s evidence when asked to explain why the child had not spent time with his father in accordance with Order made on 21 September 2015 in the period from before Christmas 2015 until February 2016. Whilst she said that it was mainly because of financial reasons, she also said that, as far as she understood it, the September 2015 order actually finished on 27 December 2015.
The mother accepted that Clause 8(e) of the September 2015 order relevantly provided that, commencing on Saturday 31 October 2015, the child was to spend time with his father each second Saturday and Sunday from 9.00 am until 5.00 pm Sunday. Clause 8(f) of the September 2015 Order provided that the child was to spend time with his father from 9.00 am until 5.00 pm on Sunday 27 December 2015.
I do not accept the mother’s evidence that she understood that Clause 8(f) of the existing order was to continue on from Clause (e). I do not accept for a second that she misunderstood the terms of the order, nor do I accept any contention, given its terms, that the order was unclear. I do not accept the apologies proffered by the mother during the course of her cross-examination as being genuine or reflective of a true mistake: rather, I consider it more likely than not that, consistent with her attitude towards the child’s relationship with the father, she simply chose to attempt to find an explanation for her ongoing non-compliance with operative Orders.
Whilst the mother said during her cross-examination that, if the child remained living with her, she would comply with orders which provided for him to spend unsupervised time with his father, the history of non-compliance is such that I am not persuaded to accept her evidence in this respect.
Further aspects of the mother’s evidence which, when combined with that already discussed, persuade me to consider her evidence very carefully and to prefer the contents of the documentary exhibits where the same differ to her account of events recorded within them and to generally prefer the father’s evidence to hers where the two are in conflict include: her evidence about her ability to access her bank statements and obtain copies of them; her evidence about the quantum of the costs to her of traveling from her home near Suburb N/E Town to W Town and paying half of the changeover fees (said to be $100.00 per visit); her evidence about the issue of money allegedly being deposited into her bank account by a family member (given that the same was not corroborated by the contents of her bank statements for the period initially said to have been that during which the money was received); and her approach to failing properly to declare the quantum of her income in the Financial Statement filed in October 2015: whilst her evidence was that she had not deliberately understated her income, I remain sceptical about that assertion and note that it is clear that, at the very best for her, she made a deliberate decision not to update the information until asked about it during cross-examination, with the result that her pre-questioned evidence understated her receipts by about $300.00 nett per week (or about $15,000.00 per year).
I also note that it appears from the face of Mr P’s most recent report that, during her interview with him on 19 October 2018, she told him that she remained in the public service. However, her evidence during cross-examination revealed that she had, in fact, been retrenched in January 2018 and remains working in Suburb N, albeit as an employee of a commercial venture. Even if I am wrong in my understanding of Mr P’s most recent report in this respect, it is clear that the mother did not reveal that she had left the public service at any time before she was cross-examined.

Overview of the bases relied on by each party for the orders ultimately sought

In many cases it is unnecessary to determine which parent is or what circumstances are responsible for any hiatus in a child’s opportunity to spend time with the parent with whom that child does not primarily live. It is often said that the real focus should properly be upon the fact that time has not occurred (and the consequent impact upon the child’s relationship with the ‘absent’ parent) rather that upon the apportionment of blame for the absence.
Such an approach in this case would, however, peremptorily dismiss one of the main aspects of the father’s case: namely, that the mother has deliberately and resolutely failed to comply with the terms of various orders, often made by consent, which have provided for the child to spend time with him. He says that, given this, the Court would not be remotely confident that the child will ever have the opportunity to have a meaningful relationship with both his parents if he continues to live primarily with his mother.
Consequently, his proposal that it is in the child’s best interests to live primarily with him is based on his contentions that, given the mother’s behaviour:
a)he is the only parent who will facilitate the child’s relationship with both of his parents; and
b)if the child does not live primarily with him, he will not have a relationship with him or Q and R; and
c)the child will be at risk of harm, caused by over-involvement in the health care system and over-exposure to the manner in which the mother interprets events: that is, he is at risk of suffering psychological harm on a long term basis if he continues to be primarily parented by her.
In contrast, the mother emphasises the importance for the child and his development of maintaining stability in his care regime. She also emphasises that he has always lived with her and that he has very strong relationships with members of his extended maternal family. She highlights the likely impact upon the child of a separation from herself and his interactions with his extended maternal family. The mother also suggests that the father’s personal and parenting deficits are such that the child would be at a risk of harm if he were to move to live primarily with his father: she contends, amongst other things, that the father is not really interested in a relationship with the child, has failed to take every opportunity available to him to spend time with the child, has been physically abusive of the child and lacks the capacity properly to meet the child’s physical and emotional needs. She advances, therefore, that the child’s best interests will be met by remaining in her care, as has been the case for the entirety of his life.

principles

In these proceedings, being proceedings for a parenting order[12] in relation to the child, I may, subject to s 61DA[13] and s 65DAB[14] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[15] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[16] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[17]
[12] s 64B of the Family Law Act 1975 (Cth).
[13] Presumption of equal shared parental responsibility.
[14] Parenting plans.
[15] s 65D of the Act.
[16] s 60B of the Act.
[17] s 60CA and s 65AA of the Act.
The matters to which regard must be had in determining those parenting orders which are in the child’s best interests are prescribed by s 60CC of the Act. The requirement to “consider” each of these matters involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[18] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the child’s best interests. I have given heed to and reflected on all of the relevant considerations in arriving at my conclusion about those orders which are in his best interests.

The benefit to the child of having a meaningful relationship with both parents and the need to protect him from harm[19]

[18] Banks & Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.

[19] ss 60CC(2)(a) and (b);60CC(2A); 60CC(3)(j) of the Act.

The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how the child’s parents have, or should have, a meaningful involvement in his life.
In McCall & Clark,[20] the Full Court concluded that the preferred interpretation of the phrase ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, I should consider and weigh the evidence at trial and determine how, if it is in the child’s best interests, orders can be framed to ensure that he has a meaningful relationship with both of his parents. Thus, I must consider and determine whether there is a benefit to the child in having a meaningful relationship with his mother and father, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with them. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the child from physical or psychological harm.[21]
[20] (2009) FLC 93-405
[21] Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
When asked whether she wanted the father involved in the child’s life, the mother said ‘certainly’; however, she also said that, whilst the child deserved a father figure, he (not yet six years of age) is the one who gets to decide whether he wants his parents in his life. I am not remotely convinced that, if the child decided that he did not want his mother in his life, she would be accepting of that proposition.
When asked why she wanted the father involved in the child’s life, the mother said because he is his father; she identified possible benefits to the child as being that his father could take him hiking and fishing and teach him to drive a boat and help him build cars.
Whilst the mother said that she agreed that the child had a basic right to a relationship with the father, she accepted that she did not want the father in her life. Whilst she said that she agreed that part of ensuring that the child’s emotional needs are met involves supporting his relationship with his father, I consider that her past actions have, to a large extent, completely contradicted that assertion.
Further, despite her evidence and the terms of the orders proposed by her on occasions (by which she has advanced that the child should have the opportunity to spend unsupervised time with his father), I consider that the mother’s underlying, real view is that there is little, if any, benefit for the child in spending time with his father or being afforded the opportunity to have a meaningful relationship with him.
So much can be gleaned from her evidence as at February 2016 to the effect that her view remained that, whilst the child was forced to “endure” time with his father every fortnight, it was very reasonable to conclude that he would continue to have issues with “post-traumatic stress”, which could affect him into adulthood.
Additionally, her case involves contentions which include that: the child is the product of rape (and that the entire relationship between his parents was a product of forced and repeated sexual harassment of her by the father); the father suffers from such mental instability as to negatively impact upon his parenting capacity and as to put the child at direct risk of harm (given what she alleged are his suicidal and homicidal desires); the father’s numerous negative character traits include him being manipulative, predatory, demonstrating an inability to take responsibility for his own actions and exhibiting a tendency to project blame onto her and others for his own failings and behaviours, as well as being willing to commit perjury; the father has been prepared to physically injure the child so as to gather evidence in his attempt to establish that she is an unfit parent; the father has deliberately failed to feed the child simply because she told him to; the father was physically and emotionally abusive of her during the course of their relationship and has been abusive to Q and R; the father has been physically and emotionally abusive to the child, such that the child has demonstrated symptoms of post-traumatic stress; the father refuses to accept the advice of medical professionals and is likely to mistreat the child medically; the father is likely to use information obtained over the internet to attempt to diagnose the child himself, with a potential consequence that the child could be medicated to a point that could cause a vegetative state or his death; and that the father will deliberately refuse the child medical attention.
I accept that, if the matters summarised immediately above were established vis-à-vis the father, it is unlikely that there would be any benefit to the child in having a meaningful relationship with him. However, I am not persuaded on the evidence that they are established. Rather, I consider that there is a benefit to the child of having a meaningful relationship with his father in that such relationship will assist him in his process of individuation as he ages and matures.
Provided that he is not exposed to psychological harm whilst in his mother’s care, I am also satisfied that there is a benefit to the child in having a meaningful relationship with her, for the same reason.
On the evidence before me, I am not persuaded that the child has suffered psychologically as a direct consequence of spending time with his father. I am not persuaded that the father lacks the parenting skills to appropriately care for the child if their time together occurs on an unsupervised basis. I am not persuaded that the father has ever acted towards the child in a manner that has resulted in the child suffering physical harm. I am not persuaded that the father has physically abused the child during supervised time with him. I am not persuaded that, at any time when he has been responsible for the child’s care, the father has neglected the child or failed to care for him appropriately. I am not remotely persuaded that the father would cause the child harm if he were permitted to spend unsupervised time with the child into the future. I am not remotely persuaded that the father’s motivation in pursuing time with the child has anything to do with him seeking revenge against the mother.

I am not persuaded that, in the event that the father smacked R when he was two years of age, this means that the child is at risk of being physically abused by his father if their time together is unsupervised. I accept the father’s evidence that he did not throw a pram out of the car in anger in May 2013 and that, rather, having removed it from the boot, he tossed it onto the ground behind him.
The mother was not present in person at the Court on 8 September 2014. An email from the then Independent Children’s Lawyer to the mother suggested that she did not see what happened outside of the Court room either, given that she specifically outlined that “at no time did I see what Mr Shirley did outside the Court room”. She did report that, at the end of the mention that day, the father exhibited extreme distress at the outcome, said certain things to his lawyer and then stormed out of the Court room; she heard a loud noise outside the Court room, the Court Officer activated the duress button and, when a security guard arrived, the father was escorted from the building.
I accept that the father became very distressed at Court on 8 September 2014. I accept he felt that the Court had overlooked the fact that the mother had not been complying with the orders which required her to present the child to spend time with him. I accept that Court staff activated the duress alarm that day. Whilst the father did not accept he lost his temper, he described himself as having been very distressed and upset at the outcome. I accept his evidence that he left the Court room in a hurry and was holding back tears. In the absence of any contradictory evidence, I accept that he walked behind a pole outside the Court room and cried. In the absence of any contradictory evidence I accept the father’s evidence that he did not throw his paperwork onto the ground but dropped it from his hands.
Even if I am wrong in this conclusion and the father in fact, in a moment of upset, threw a folder of papers to the ground outside a courtroom in circumstances where, I accept, he had been attempting to overcome the mother’s obstruction of his desired interactions with the child, I am not persuaded that such behaviour is demonstrative of a general incapacity to appropriately manage his emotions.
I am not persuaded that the father has previously expressed murderous intentions or, during the timeframe and on the bases the mother advances, suicidal tendencies. I note that she relied on the contents of various full or part emails and texts passing between the parents as indicating that the father had suicidal tendencies and/or homicidal intentions. For example, she asserted that the contents of an email communication/conversation on 18 January 2013 should be considered as constituting a threat or indication by the father of an intention to commit an assault: she said the email should be seen as him suggesting that he would actually physically hit the bosses at work with a shovel. I do not accept this at all.
When asked during her cross-examination whether she thought that it was a joke about the bosses at the workplace to which both she and the father were then attached, the mother said it was not a joke (rather, it was “too far”). I do not accept that was her position at the time of the communication. Whilst during her cross-examination she said that she had taken this comment as a threat, she accepted that she did not raise that with either the bosses at the or the police. That she did not provides further buttressing for my conclusion that she well knew at the time of the communication that she and the father were engaged in a workplace joke directed to our unnamed superiors.
I do not accept for an instant that, at the time, the mother took the father’s response to her queries about a posting on Facebook to be an actual threat of actual harm.
The mother’s evidence that the following communication from the father to her on 13 December 2012 (during their relationship) indicated that he had suicidal tendencies:
Yeah, I should send you a copy of my timetable. Obviously 7 to 4 work. 5.30 to 8 kids, dinner, baths, bed (suicide hour). Wednesday climb then get home, suicide hour, bible study all night. Friday night climb. Sunday church till about 1 in the arvo.
The mother said, during her cross-examination that, from this communication, she had concluded that the father was indicating an intention to commit suicide on a daily basis (“it does sound that way”). I do not accept for a minute that at the time she received that communication she genuinely thought that the father was suggesting suicide. That the mother has been prepared to use a communication which was obviously sent to her in jest in an attempt to advance her proposition that the child would be at risk if he was to spend unsupervised time with his father (because of the asserted suicidal ideation alleged to have been expressed by the father in this message) simply demonstrates to me the extent to which she is prepared to go in her attempts to achieve the parenting orders/regime she considers to be in the child’s best interests.
The mother also said that she had taken the following exchange between herself and the father on the afternoon of 3 December 2012 as indicative of an intention on the father’s part to commit suicide:
(father): I doubt I can. I am still defusing WW4.[22]
(mother’s reply): Sounds like you need another hug.
(father’s response): Or a nine millimetre to the temple.
[22] Which she accepted she knew was a reference to “World War 4.”
During her cross-examination, the mother refuted the suggestion that this communication was meant as a joke; I do not accept her refutation. I am completely confident that these comments were meant as a joke and that, at the time, she took them as a joke. Again, I consider she has deliberately reframed these comments and has deliberately advanced them in a context other than that in which she knows they were made. I consider the mother to have taken advantage of these comments and that her actions in this respect provide a further example of the extent to which she has been prepared to go in her attempt to portray the father as posing a risk to the child. I do not accept her evidence that, at the time this comment was made, she considered it to be a threat by the father to commit suicide.
The mother suggested that the father had previously expressed a murderous intention toward his ex-wife; she relied on a text message he sent to her on the morning of 3 December 2012 when, after she asked him if he wanted a hug, he said “Wow. What a weekend. Want to go halves in a murder charge?” I do not accept for an instant that, at the time the mother received that message, she considered that the father was seriously suggesting to her that they kill his now ex-wife.
Given that during her cross-examination, the mother said that she still continued to see all of the messages discussed above as threats to harm or indications of intention to suicide or threats to murder, I struggle to see how she could genuinely support the child in spending anything other than supervised time with his father in the future.
I also note that the mother relied on certain text messages to advance her proposition that the father had previously threatened to harm her. However, her evidence was that she had only copied down aspects of the messages from the phone; that is, the mother did not provide the entirety of the text conversations and, as such, I am unable to assess the context within which the extracted comments or messages were made. By way of example only, I am unable, as a consequence of the manner in which the mother placed the evidence of these messages before the court, to ascertain whether the text “I will beat you up” was sent threateningly or in response to an earlier text by the mother to the father in the same vein.
Whilst the mother alleged that she reported this text to the police, she also said that no record of her report was taken: that is, her evidence is that, despite reporting a threat to her in circumstances where such threat was captured in a message she received, the Queensland police service did not record that complaint. I do not consider this to be likely.
It is clear that the mother wanted the Court to accept her assessment/interpretation of only a selection of text communications/emails that were said to have passed between the parties at various times: that is, to accept those which she had chosen to write out, and to form conclusions from them without the benefit of the entire context within which the comments were made. I consider that, without the full context of the communications, I am unable to assess the context of the mother’s summaries of things that she asserted were in fact in the source communications.
I note that the mother also suggested that the father had sent her a text message on 14 December 2012 in which he said “maybe I should break into your house and rape you.” During her cross-examination, she said that such message was not a joke; she also said that she was actually quite concerned when she started to get messages with that content. She said that she went to the police with that message. When she was then asked whether she had been able to locate a report of her attendance on police with that message in the documents produced by the Queensland lease service in answer to a subpoena, she said it was the same issue as with the other message: she said the police told her that they had no proof of anything. However, on her account, there would have been proof given that she had the telephone on which she received a text message and the text message. I am not persuaded by the mother’s account of her alleged response to the text message. In the circumstances, I am not persuaded that, as at December 2012, the context in which such a message was sent (whatever that might have been) was one that the mother perceived as threatening. I reach the same conclusion in relation to the other text messages about which the mother gave evidence.
Whilst she maintained that the police to whom she spoke about each of these did not listen to her, stating that she did not know why and that that also worried her about the police, I am not persuaded to discount the possibility that messages of such ilk were passing between the parties, who were then still engaged in an intimate relationship. I am not persuaded by her denial of the contention that she thought the text messages jokes at the time they were sent.
I have arrived at this conclusion given that, at paragraph 2819 of her affidavit, the mother said that “I was very concerned after I found out about the beach incident. Considering Mr Shirley was always making statements to rape, it was becoming clear these may not have been jokes, and that Mr Shirley is quite capable of this act.”
When it was suggested to her that by writing “it was becoming clear that these may not have been jokes” she had shown that, at one point, she considered all of the contents of the text messages to be jokes, the mother said it was “just bad wording”. I do not accept her evidence in this respect.
The mother raised a concern that the child will be at risk of suffering psychological harm if he lives with or spends unsupervised time with his father because the father has previously diagnosed her as having various mental health issues. Her concern is that, having undertaken this exercise vis-à-vis her, the father will do the same to the child: that is, he will diagnose the child and form his own view about any medical or other health issues the child might have.
I am not persuaded on the evidence before me that there is any risk to the child that his father will purport to diagnose him as suffering from a physical or psychological condition as a consequence of obtaining information over the Internet.
I am not persuaded that, in his attempts to communicate with the mother about spending time with the child, the father has attempted to control her behaviour or responses to his communication; I do accept that he has, on occasion, attempted to insist that she commit her position to writing: that is, I accept that he has attempted to have her confirm in writing whether she will or will not provide the child for time with him or whether she will or will not make any suggestions herself about where the child might spend time with him. Given the context in which the father’s requests were made, I am not persuaded that he was doing more than attempting to have the mother commit.
I also note that, despite her evidence about the risks she identified the father as posing to the child, the mother advanced, during her submissions in February 2016, that the Court should conclude that she had formed the view that the child would not be at risk of suffering harm if he were to spend unsupervised time with his father each alternate weekend from 9.00 am to 5.00 pm on each of Saturday and Sunday, commencing in early March 2016.
I accept the evidence of Mr P in relation to the risk to the child’s long term functioning of exposure to comments critical of his father. I consider it much more likely than not that the mother has exposed the child to her negative and derogatory views of the father; I consider that the child is at risk of suffering psychological or emotional harm in the future if she continues to enjoin him in her views about the father and fails to ensure that he is not exposed to the same.

The child and his relationship with his parents and others[23]

[23] s 60CC(3)(a), (b), (g) and (m) of the Act.

I accept that, even at the time of the Family Report, completed in mid-2015, the child transferred between his parents with no discernible reluctance or resistance. I accept Mr P’s evidence to the effect that his face lit up “with recognition” of his father and mother and that his body language included extending his arms out to each of them.
I note that the mother has previously placed significant weight on what she asserts was the child’s express wish not to spend time with his father: for example, she relies on what she describes as his negative response (when he was nearly two years of age and just two years of age) to her asking him if he wanted to spend time with his father as indicative of a true view. I certainly do not join in her approach in this regard. That the mother considered the child’s responses, at about two years of age, to be a “very clear” demonstration that he wanted to see his maternal family and not his father casts doubt on her capacity to appropriately appreciate and understand the child’s communications with her.
I think it much more likely that, rather than the child requiring further comfort when told he was going to be seeing his father, it was the mother who required such extra comfort.
Whilst I accept that, on occasions after spending time with his father, the child may have displayed some behaviour that was a little different to his “usual” behaviour (that is, that he might have been more clingy more attention-seeking and more reactive for a while), I note that Ms BB, an educator from the CC Day Care Centre at which the child previously attended, said that she was not particularly concerned by the child’s behaviour (emotional moments when his personal space was invaded that day by another child and seeking comfort from her and another educator that day) on 9 March 2015 ( after time with his father). I also accept that, overall, the Centre did not have any major concerns about the child that day.
I accept the evidence given by Ms DD from T Group, by which organisation the child’s time with his father was supervised on the occasions outlined in the table above: 7 and 8 March 2015; 21 and 22 March 2015; 18 and 19 April 2015; 2, 3, 16 and 17 May 2015; 13 and 14 June 2015; 27 and 28 June 2015. I accept her evidence to the effect that the supervisor is always in visual and hearing shot of a child whose time with a parent is being supervised and that supervised parent.
I accept Ms DD’s evidence about the reason T Group decided to cease providing their service to the parties in June 2015: that is I accept her account that she had received significant complaints from the mother in particular about issues that she felt were problematic during the child’s supervised time with his father. I accept that the time needed to respond to the mother’s repeated complaints and assertions simply became such that T Group decided that it was no longer financially viable for the Centre to provide supervision to this family.
I accept that the contents of the various T Group reports accurately record the observations of the child’s interaction with his father during supervised visits and also accurately depict the manner in which the father interacted with and responded to the child on such occasions.
I accept that the child appeared comfortable when he first arrived at U Group on 8 April 2017, but later became anxious when his mother said she was leaving. I accept he told her “I want to go home with you, I don’t want to see dad”. I accept that the facilitator told the child that he should decide when his father arrived and that if he did not feel like going with him then that was fine and he would contact his mother to come and collect him. I accept that the child agreed to the supervisor’s proposal. I accept that, when the father arrived, the child ran to him, shouting “dad”. I accept that he was happy during their play interaction and happy when he left the Centre with his father.
I accept that when the father returned the child to U Group on 9 April 2017, he was accompanied by Ms X and her son EE. I accept that the father, Ms X, EE and the child all played happily together and that the child was very chatty with Ms X and EE. I accept he hugged everyone when it was time to leave and told his father that he would say goodbye from outside (which he did).
I accept Mr P’s assessment of the child’s most recent observed interactions with his father: that is, I accept that the father permitted the child to take the lead in their interactions and was content to affirm and encourage him; I also accept that the child spoke more assertively and directly when with his father than he did in his mother’s company. I accept Mr P’s assessment that the child engaged positively with his father; I also accept and join in his observation that such interactions are at odds with the behaviour of a child who, according to the mother’s descriptions, had suffered multiple episodes of abuse and/or neglect whilst previously in his father’s care.
I accept that the child has had an extremely limited opportunity to engage with members of his father’s extended family. I also accept that this appears to be the consequence of the combination of orders initially being made by consent, the terms of which provided that the father was not permitted to introduce the child to anyone without obtaining the mother’s permission and that, when he asked her for the same, she declined to agree. Despite her approach to the child’s interaction with persons other than the father, the mother was critical, during her cross-examination of the father, of the fact that the child has not been given the opportunity to meet members of his extended paternal family. That she was so seems to be a not dissimilar approach to that taken by her in criticising the father for deliberately failing to feed the child and criticising him for potentially causing the child harm by feeding him something that she had not approved.
Further, I note that, when she spoke with Mr P for the January 2016 Family Report, the mother opposed the child having the opportunity to interact with Q and R at all. I also note that this appeared to be a significant change of position, especially given that, despite having (at most) extremely limited interaction with them, she had previously described them to Mr P, when she spoke to him for the preparation of the June 2015 report, as her ‘stepkids’.

I accept that the maternal grandmother is a person who is highly likely to be very important to the child. I consider that the maternal grandmother is also highly likely to be very supportive of the mother: I noted her evidence (which in this respect I accept) to the effect that, if her daughter had asked her on 17 August to accompany the father wherever he wanted to go to spend time with the child, she would have done so. I am persuaded, therefore, that it is much more likely than not that it was the mother (and not her mother) who was responsible for the way in which that attempt at the child spending time with his father concluded.
I note at the maternal grandmother agreed it was important for the child to have a close and loving relationship with his father and that it was important for the child to spend time with his father. Despite this, she was not initially concerned about the eight month lacuna in their opportunity to spend time together, although she then said that such a gap did concern her. She agreed that the child might have been missing out on a relationship of importance during that eight month period (although she agreed that that thought had only just occurred to her).
I accept that the maternal grandmother did not tell the mother on 17 August 2014 that she was not prepared to supervise the time. I accept that she told her that she was feeling very uncomfortable after an interchange with the father and told the mother that she would not be spoken to “like that” by him; I accept that after that the mother spoke to the father outside of the maternal grandmother’s hearing and that after that the mother told the maternal grandmother to take the child and leave and so she did.
I record that, since February 2016, the child has spent a further 20 occasions of time with his father. Whilst their last time together occurred in mid-August 2017, I think it very relevant to note that in January of this year, the child told his mother at U Group that he wanted to see his father and the father’s then partner and maintained that – at least initially – despite her challenge to that asserted wish. That he did so – even after a lacuna of some five or six months in his opportunity to spend time with his father – suggests to me that his relationship with his father has improved and strengthened since the orders were made in March 2016. That being the case, the significant impact upon the child if there is to be a change to his primary care arrangements may be somewhat more ameliorated now than they would have been had such a change occurred in or around February 2016.

Whether it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the child[27]

[27] s 60CC(3)(l) of the Act.

It is, I think, always preferable to make that parenting order which is “least likely” to lead to the institution of further proceedings in relation to any child. In this case, the father has already successfully prosecuted an application for contravention of an order made by consent.
Given the findings I have already made about the mother’s attitude about the child’s relationship with his father and to the obligations previously placed upon her by previous orders of the Court, I have little hesitation in concluding that, if the child continues to live primarily with her, it is highly likely she will continue to approach the implementation of any requirement that the child spend time with his father with which she does not agree in the same manner as has previously occurred.
Additionally, given my conclusion that the mother has failed previously to comply with the terms of orders to which she agreed, I have little confidence that she is likely to abide terms in relation to the child’s time with his father which have been imposed upon her by the Court.
Consequently, if the child continues to live primarily with his mother and orders are made for him to spend unsupervised time (or any time with which she does not agree) with his father, I consider it much more likely than not that the future will be resplendent with applications for enforcement and/or contravention.

The parental relationship

I accept Mr P’s assessment that the parents never formed a committed, stable or functional adult relationship. In addition, they have never achieved a cooperative, functional co-parenting relationship. I accept that they appear to continue to be embroiled in an entrenched, destructive parenting dispute. Nothing in their interactions during their respective cross-examinations of each other suggested that there is any likelihood of improvement to the manner in which they relate to each other.
It is clear that the mother regards the father’s way of communicating with her as constituting abuse whilst the father regards the mother’s method of communicating with him as obstruction. I accept that, on occasions, the mother chose not to respond to the father’s attempts to communicate with her to organise time between himself and the child; I also consider that it is much more likely than not that she approached such communication with delay and/or stalling in mind.
I am completely persuaded that the mother’s approach to communications with the father about matters about the child has been to attach conditions: one need only have regard to that aspect of her cross-examination about the issue of her criticism of the father’s actions in giving the child a biscuit (which he also received at day care) to be able to gain an appreciation of the likely inability of these parents ever being able to reach any joint decisions about the child or of the mother ever being able to actually bring herself to openly acknowledge that the father might be doing something appropriate in his approach to parenting the child.
I note that the mother proposed that the parties be required to agree about any religious activities to which the child was exposed prior to him being involved in them. I understand that she sought such an order because she was concerned to ensure that religion was not “shoved down” the child’s throat, given the divergence between her views and those of the father. Whilst I certainly understand the reason underpinning the mother’s proposal in this respect, the history in this matter is such that I am not persuaded that any such requirement is one which is likely to be in the child’s best interests.
The mother said that she wanted sole parental responsibility but if the child lived with father, she wanted an order for equal shared parental responsibility: she said that if the child was living with his father and required something, she would not argue with the father about it but would agree to it. I do not accept this suggestion at all.
An appreciation of the father’s attitude towards the mother can easily be gleaned by reference to his evidence to the effect that, as a person suffering from an un-diagnosed and unmedicated form of bipolar disorder, one did not always make the best judgement decisions and he believed that was what was happened when he had a relationship with the mother.
The father said that he and the mother had never reached agreement in writing about anything. He agreed, in essence, albeit on the basis that he was justified in his behaviour, that he had previously told the mother that he did not need to tell her anything when she asked him, at the conclusion of the child’s time with him, what had happened in relation to the food he had given the child and what they had done. He justified his response on the basis of his assertion that the mother was impolite in the manner in which she spoke to him, did not show any respect to him as a parent and was accusatory and aggressive.
The father accepted that he had provided the mother’s commanding officer with notes or details about her previous charge of breaching an apprehended violence order (which proceedings were subsequently withdrawn) after he inspected documents produced for these proceedings; he said he did not know at that time that he was not permitted to do so and said that he was trying to protect himself from her allegations against him by ‘setting out the background’ of what she did; he denied attacking her job or acting as he had to have her lose her security clearance so that she would be transferred back to the J Town base: he said that he acted as he did in response to allegations that the mother had made against him.
The father outlined during his cross-examination that his view of the communication difficulties between the parents is that the mother has continuously blocked his attempts to obtain information about or to assist the child. He was clear in saying that he could not believe what the mother said to him given that she had made up lies about him: that is, said things about him which he knew were untrue.
I accept that it is much more likely than not that the absence of trust between the parents remains such that, if the mother told the father something about the child’s medical health, he would want to make his own inquiries independently to either corroborate the accuracy of what she had told him or to determine whether what he had been told was an accurate recounting or representation of the situation. Further, whilst the father told the mother at one stage that he would attend the child’s medical appointments, he did not do so because he said he had not agreed to attend the same with the mother: his intention was that he would be the parent to take the child to the medical practitioner in the absence of the mother; he explained that he had taken that decision because he was concerned that being in the same place at the same time would make him vulnerable to allegations from the mother about his behaviour toward her. He also advanced that there was some form of ulterior motive behind the mother’s offers that he attend medical appointments with her, given that she did not otherwise facilitate the child spending time with him.
I accept that the mother was critical that the father failed to discuss with her about taking the child to a church service when he was two years of age; I also accept that the child has been baptised in the Christian faith.
I accept that the parents’ absence of trust is such that, when the child required medical treatment, the process was by no means a simple one. I also note that when the father was asked if he recalled the reason he ended up signing the documents necessary to allow the child to have the operation, he said “to shut you up” (referring to the mother).
I accept that the father enrolled the child in a preschool in J Town where he lives and that when he did so he made no mention of the mother; he was listed as the child’s “parent” and his ex-wife was listed as the child’s “carer”. I accept that he did not discuss enrolling the child at this facility with the mother. He explained that the form he filled out was not an enrolment form as such, but a form to go onto a waiting list to secure a position at the preschool.

What orders are in the child’s best interests?

I accept that Mr P considered that Dr O’s evidence reinforced his concerns about the efficacy of co-parenting if the child remains living with his mother. I accept that he also thought it suggested further scrutiny of the nature of the mother’s relationship with the child.
On the evidence before me and taking into account the history of them this matter is discussed in these reasons, I am persuaded that it is much more likely than not that the child will have the opportunity to have a meaningful relationship with both of his parents if he moves to live primarily with his father. I consider it much more likely than not that, if he continues to live with his mother, the reality for him will be that he will be deprived of the opportunity to have a meaningful relationship with his father. I consider that he will also be deprived of the opportunity to have a meaningful relationship with Q and R and also to develop relationships with members of his extended paternal family.
Whilst I certainly accept that such a move is likely to challenge the child’s sense of emotional and psychological security, I consider that, buttressed by the professional assistance about which he has spoken, the father has the capacity to support the child as he deals with the impacts of such a change and the adjustments associated with it. I am strengthened in that view by the fact of the child’s behaviour toward his mother as recorded in the U Group records of his attendance there in January this year; I consider that his request to see his father, when assessed against the background of the earlier comments which I accept his mother has made in his presence at U Group and during the therapy session in which he was jointly engaged with her, as demonstrative of the existence of a not insignificant bond between them.
I also consider that, in the mother’s comments during that same session, can be seen the seeds of the enmeshment about which Mr P spoke.
I accept the submission made by the father to the effect that the history of the mother’s ostensible attempts to facilitate the child’s relationship with him has been attended by contravention and non-compliance on her part. Despite having been reminded on a number of occasions during the course of the proceedings about the importance of supporting the child in his relationship with his father, I am satisfied that the mother simply is either unwilling or unable to do so on a sustained basis.
I consider it much more likely than not that, if the child continues to live with his mother, any orders for him to spend time with his father on anything but a supervised basis would almost inevitably break down after a period of time. Given more recent events, which I regard as constituting a repeat of the cycle of intermittent time with his father with which the child has already had to contended, I cannot discount the possibility that if the child continues to live with his mother he will have no relationship at all with his father and will lose the opportunity to develop relationships with Q and R.
Whilst I hold some reservations about the father’s willingness to support the child in his relationship with his mother, I am persuaded that, of the two parents, he is the parent with the greater capacity and willingness to support the child to have a meaningful relationship with both of his parents. I am also persuaded that, of the two parents, the father is the parent with the greater capacity to meet the child’s psychological needs, particularly when these are considered from a long term perspective.
I completely acknowledge the likely significant short-term impact on the child of a change to his primary care arrangements. In addition to this change, a move to live primarily with his father is attended by the necessity that he adapt to being one child of three within his father’s care (at least for five nights per fortnight and half of the school holiday period) as opposed to the norm for him of being the only child in his mother’s household. Whilst I accept that such a change is likely to be attended by some upheaval and associated difficulties on occasion, it is also likely to be attended by the benefits associated with the opportunity to develop significant and beneficial relationships with each of Q and R. I am not persuaded on the evidence before me that it is likely that, if the child lives primarily with his father, he will be in any way scapegoated. Whilst the move is also attended with a change of school and general living environs, I am satisfied that the child’s age is such that he is unlikely to suffer any long term educational disruption as a consequence of moving to live with his father in New South Wales.
I also note that as the mother is no longer employed in the public service she is freed of the obligation to accept transfers around Australia. I also note her evidence to the effect of that if an order is made for the child to live with his father in New South Wales, it is her intention to move to live in that state so as to be able to spend time with the child.
Whilst the mother’s proposal at the end of the hearing in November 2018 again included that the child be afforded the opportunity to spend unsupervised time with his father, I consider this to be a repetition of that which followed the close of the evidence at the end of February 2016. The orders made then provided for the child to have the benefit of immediately spending unsupervised overnight time with his father. Whilst this was contrary to the mother’s proposal that there be an extended period (of about six months) of full day time on each of Saturday and Sunday of the weekends on which the child would spend time with his father, the parties were able to implement the orders (albeit not at the highest frequency proposed in the orders) until about August 2017, after which there was yet another lacuna in the child’s opportunity to spend time and continue to develop a relationship with his father.
I consider that the mother deliberately failed to support the child to spend time with his father earlier this year. Further, I am persuaded by the contents of the Contact Centre’s notes of those occasions (which I accept completely) that the mother positively persuaded the child to change his first asserted position that he wanted to spend time with his father. These actions, taken together with what I consider to be the mother’s obstruction of the child’s opportunities to interact with his father, have persuaded me to conclude that I cannot be remotely confident that, if the child continues to live primarily with his mother, he will be afforded any real opportunity to develop a meaningful relationship with his father.
Whilst it will no doubt be, potentially, a significant task to support the child to cope with the significant change to his life following a move to live with his father, there is nothing in the evidence to suggest that the father is anything other than a capable parent. I accept the father’s evidence to the effect that he will seek professional assistance so as to be best able to support the child to cope with the change; I also accept his submission to the effect that it is his intention to support the child in maintaining a meaningful relationship with his mother once it is in the child’s best interests to resume interacting with her.
I accept the thrust of the father’s submissions to the effect that in essence, the mother has, relatively consistently, done all that she could on many occasions to thwart the child’s time with him: I accept that she made allegations that he harmed the child whilst supervised time occurred; I accept that she has been critical of the supervision services; I accept that, on occasion, she has arranged and attended social and family occasions in priority to making the child available to spend time with his father; I accept that she has sought to impose her own conditions over the child’s time with his father and, if these were not accepted, refused to permit the child to spend time with his father despite the existence of orders for such time; I accept that she has deliberately ignored orders on the asserted basis that she thought their operation ceased (a contention I have rejected); and I accept that she has been obstructive when the father attempted (including by saying he was prepared to accept supervised time with the child when operative orders provided for unsupervised time) to resume interacting with the child.
I am not remotely persuaded that, in his actions in pursuing the opportunity to have a relationship with the child, the father has been motivated by anything other than the desire to have a meaningful relationship with his son. I am not remotely persuaded that he has pursued this litigation for revenge against the mother. I accept that he has approached the management of his mental health condition in an appropriate way. I accept that he has an established relationship with treating medical professionals and, on the evidence before me, that he has been compliant with recommended treatment.

I consider it much more likely than not that, if the child is now prevented – as I consider more likely than not to be the case if he continues to live primarily with his mother – from continuing upon the path of developing a meaningful relationship with his father, he is at risk of suffering deleterious impacts in a long term psychological sense.
I accept that the child has a significant attachment to his mother. I also accept as much more likely than not that he has significant attachments to members of his maternal extended family, particularly his maternal grandmother. I accept that it is much more likely than not that the child will, at least initially, suffer a loss of the opportunity to communicate with his maternal grandmother as regularly as he previously has, as a consequence of a move to live with his father. However, I am also confident that, once his time with his mother recommences, he will regain the opportunity to resume his relationship with his maternal grandmother and members of his extended maternal family.
I am not persuaded that the father will be unable to provide for the child on a day-to-day basis if he lives primarily with him. I am not persuaded that the father would deliberately act toward the child in any way so as to cause him harm. I am not persuaded, on the evidence before me, of the father’s alleged “predatory nature.” I am not persuaded that he would deliberately refused to feed the child simply because the mother suggested that he needed to do so or in an attempt to somehow exact “revenge” against the mother. I am not persuaded that on occasions when he has exhibited concern for the child, the father was “faking” such concerns. I am not persuaded that it is likely that the father will diagnose the child with illnesses he does not have “which will result in him being medicated causing a vegetative state or death” (a contention advanced by the mother in her evidence).
I am not persuaded that, in seeking that the child live with him, the father has been motivated by financial considerations. I do not accept that the father accorded greater importance or “weight” to the parenting arrangements made in relation to Q and R that he has for the parenting arrangements he has pursued in relation to the child. I am not persuaded that, in pursuing orders in relation to the child, the father has demonstrated an absence of concern for the child’s well-being and functioning vis-à-vis the well-being and functioning of Q and R. I am not persuaded that the father lacks the parenting capacity to manage all three of his children simultaneously. Similarly, I am not persuaded that the child has suffered post-traumatic stress as a consequence of his exposure to his parents’ interaction. I am not persuaded that, in choosing to remain living in New South Wales so that he can co-parent Q and R with their mother, the father has demonstrated a preference for those two children over the child.
I do not accept that the father has ever deliberately harmed the child in order to attempt to make the mother appear to be an unfit parent. I am not persuaded on the evidence before me that the father has ever attempted to instil indifference toward the mother in the child; I am not persuaded that he has attempted to psychologically harm the child during any of their interactions. On the evidence before me, I am not persuaded that there is a risk at the father will remove the child from Australia permanently. I am not persuaded that in the event that the father left the child and his siblings in the temporary care of the paternal grandparents (or Q and R’s maternal grandparents, should that occur), the father would be inappropriate abdicating parental responsibility for the child.
I am not persuaded that in seeking an order for sole parental responsibility, the father has evidenced an intention to try to “cut” the mother out of the child’s life: rather, such order simply reflects the absence of any capacity for these two parents to communicate meaningfully or make decisions jointly about the child.
Whilst I am not persuaded that the father has acted to do “anything he could” to ensure that the child was refused medical attention, it is clear that the absence of trust between the parents impacted upon the mother’s attempts to obtain the father’s consent to the child having surgery to deal with his tonsillitis and adenoids.
Whilst I accept that the bond the child has formed with his father is likely of a very different kind to that which he has formed with his mother, the reality is that it is only in his father’s care that the child will be afforded the opportunity to maintain a relationship with both of his parents. In addition, I consider that there is a not insignificant risk to the child’s emotional development if he continues to be significantly exposed to the way in which his mother interacts with the world and interprets the information within it.
I also note that, whilst the child is currently in his Prep year, he had previously spent reasonably significant time at day care (as an understandable consequence of the mother being in paid employment) and, as such, had experienced vying with other children for attention within that scenario.
I am not persuaded that the child’s health and welfare, considered globally, would be at risk if he was to have the opportunity to interact with his father on an unsupervised basis in the future.
I am persuaded on the evidence before me that, whilst the mother retains primary care of the child, there is little prospect of any enduring father/son relationship; similarly there is little prospect that the child would have the opportunity to develop relationships with Q and R. I think it much more likely than not that, if the child lives primarily with his father he will be free to develop positive perceptions of him and his half siblings, as well as his mother and will be free to form his own views of each of his parents. I accept Mr P’s evidence to the effect that the child living with his father will enhance his ability to develop secure, intact and positive relationships with both of his parents whereas a continuation of the existing care regime will likely result in him having an ongoing relationship with his mother and an insecure, broken, negative and/or no relationship with his father.
For those reasons then I am satisfied that it is in the child’s best interests that he live primarily with his father.

The child’s time with his mother into the future

I have no doubt that the implementation of the orders I have determined as being in the child’s best interests will be seen by the mother as a catastrophic event. As Dr O noted, it is almost impossible to assess the impact upon her and her functioning of the child leaving her primary care to live with his father.
I also take into account Mr P’s evidence about the importance of ensuring that the child is afforded an appropriate opportunity to transition into his father’s care and settle within a new care regime. It would not be in his best interests to be exposed to the impact of his mother’s grief. For this reason, then I am persuaded that it is in his best interests that there be a moratorium over his time with his mother and that that moratorium extend until the conclusion of the first term of the school year in 2019. I consider that that time should be sufficient to enable the child to transition into his new living arrangements and be settled within them.
I consider that, thereafter, it is in the child’s best interests that he be afforded the opportunity to spend, initially, supervised time with his mother.
Given that, understandably, there is no evidence at all upon which I can rely to determine, for example, whether it is more or less likely than not that the mother will be able to contain her distress and upset when she spends time with the child after that period of time has expired or whether it is likely or not that she will have been able to complete the fairly onerous therapeutic tasks identified by Dr O or whether that task is sufficiently completed to persuade that it is in the child’s best interests that he be afforded the opportunity to spend more expansive unsupervised time with her is simply unknown and, in my view incapable of sufficiently certain prediction to persuade me that it is now appropriate or possible to make orders for time that extends beyond supervised time.
Of course, there is nothing to stop the father agreeing to any proposal that the mother might put to him for unsupervised time if he is persuaded that, at whatever time such proposal is advanced, it is in the child’s best interests that the supervision over his interactions with his mother be lifted.
In arriving at my conclusion that I am not persuaded at present that it is in the child’s best interests that any orders for unsupervised time be made, I have, of course, taken into account the desirability of maximising the prospects that parties engaged in litigation in which a final orders are made are not required to recommence a litigious process. However, as has often been said, final parenting orders are never, in one sense, “final”.
I consider that it is likely to be in the child’s best interests that, once the moratorium in relation to his time with his mother has ended, he be enabled to speak and communicate with her on a weekly basis by Skype or telephone. However, in order to ensure that he is not exposed to the emotional impost of the potential of his mother’s ongoing grief, I consider it appropriate to permit the father to monitor such communications and to determine whether it is appropriate that they end at any given time.
The father sought a continuation of an injunction to restrain the mother from approaching his home and the school at which Q and R and into which he will enrol the child. As I understand his case, the father advanced that such orders were appropriate and in the children’s best interests because they were needed to ensure that they are not exposed to a repeat of the mother’s aggressiveness during their interactions at the Contact Centre and her view that she was actually their stepmother.
I accept that the mother advanced in her submissions that she foresaw a difficulty with the injunction sought by the father given that, if the child lived with his father, he would likely attend the same school as Q and R. She advanced that there was no guarantee that she would not come into contact or be in close proximity to those children if she was attending the school for the child. The mother also submitted that there was no evidence to suggest that in the time since the injunction was ordered she had done anything to approach where Q and R lived; she also noted that both parents had agreed to being restrained from approaching each other’s homes.
As at February 2016, the Independent Children’s Lawyer did not object to an order which would provide for the mother not to approach within a certain distance of Q and R, rather than the order prohibiting her from approaching the school. The father accepted that position.
A consequence of the mother’s attendance with the child on a doctor on 9 March 2015 was that it was suggested that she book with “Ms PP” for counselling. Despite having said earlier in her cross-examination that she would comply with any recommendations to help the child, she accepted that she did not attend “Ms PP” for counselling; she said that she attended a private counsellor with whom she could engage quicker; she said she did not go to “Ms PP” because she could not get in to see her for two weeks. She explained that she spoke to a work psychologist but could not recollect her name; she said she was told that given the child’s age, all she could do was reassure him, hold him and keep him safe: which is what she considered she had been doing. She said she saw this psychologist for one session on about 11 March 2015 and it was for some supportive psychological interaction.
Whilst I have no doubt whatsoever that it is in the child’s best interests for his mother to engage the therapeutic process outlined by Dr O, I am not persuaded that is it appropriate to make an order requiring that she do so. Having participated in the proceeding, having had the benefit of listening to Dr O’s evidence and having the ability to provide any therapeutic treating professional she may choose to engage with a copy of these Reasons, I think there could be little doubt in the mother’s mind about those areas which she needs to address in order to ensure that her future time with the child is as beneficial to him as it can possibly be.
I note that during his evidence Mr P raised the possibility of a change to the child’s surname if the child moved to live primarily with his father. The mother and the Independent Children’s Lawyer both oppose the making of any such order. I am not persuaded, at this stage that, such an order is in the child’s best interests. I consider that a move to live with his father will already be attended by significant changes for the child and that there will already be a significant number of matters with which he will have to deal. I consider a change to his surname to be an unwarranted additional disruption to his functioning at this time. Further, I consider it important to maintain a demonstrable link between the child and his mother, the parent with whom (until implementation of these orders) he has always primarily lived and from whom he has always received the overwhelming majority of his care.
The father submitted that the Court would be persuaded that the circumstances of this case justify the making of an order for costs against the mother. He submitted that the Court should take into account that he had spent in excess of $240,000.00-$250,000.00 during the course of the proceedings in his attempts to have the opportunity to develop a meaningful relationship with the child.
Having regard to s 117(1) of the Act, I am not persuaded that the circumstances justify the making of an order for costs and I decline to do so. In arriving at that decision, I have taken into account the father’s evidence of his intention to resume paid employment, the fact that the mother intends to sell her house and leave her employment to follow the child to New South Wales and that each of the parties are in relatively modest financial circumstances.

I certify that the preceding three hundred and seventy-eight (378) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 November 2018.

Associate:

Date: 23 November 2018

[2018] FamCA 988

23 November 2018

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Standing

Statutory Construction