Simplot & Deene (No. 2)

[2013] FamCA 574

FAMILY COURT OF AUSTRALIA

SIMPLOT & DEENE (NO. 2) [2013] FamCA 574

FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – mother fails to provide evidence – limited cross-examination permitted –   no benefit apparent for the child other than knowledge of his mother’s interest in him. 
FAMILY LAW – LEGAL PRACTITIONER – failure to comply with orders – responsibilities to the Court not fulfilled.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

APPLICANT: Mr Simplot

RESPONDENT: Ms Deene

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11902 of 2007

DATE DELIVERED: 6 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7, 14, 19 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Thexton Lawyers

COUNSEL FOR THE RESPONDENT: Mr Reid

SOLICITOR FOR THE RESPONDENT: Michael Reid Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelsen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mckean Park

Orders

1. That all previous parenting orders are discharged.

2. That the father have sole parental responsibility for the child B Simplot (“the child”) born … 2001.

3. That the child live with the father.

4. That on one evening each week by agreement, the father facilitate telephone communication between the child and the mother. If no agreement is reached between the parents by 4 pm on Friday 9 August 2013 as to that communication, it be fixed as each Thursday evening at 6 pm for up to 30 minutes commencing on 15 August 2013 and the father shall on each such occasions:

   (a)       make the call to the mother’s telephone number as provided by her;

   (b)       ensure the child is available at the designated time; and

   (c)       tell the child that it is important that he speaks to his mother.

5. That unless the parties otherwise agree, the mother is restrained from spending any other time with the child.

6. That the mother is restrained from recording her conversations with the child.

7. That the father be at liberty to provide a copy of these orders to the principal of the child’s school, his medical practitioner and any other health professionals with whom the child is engaged.

8. That the father’s application for costs is dismissed.

9. That the Independent Children’s Lawyer explain these orders to the child and is hereafter discharged from the proceedings.

10. That all applications are otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simplot & Deene (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC11902 OF 2007

Mr Simplot

Applicant

And

Ms Deene

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 28 November 2008, the Court made final parenting orders for B (“the child”) who was born in 2001.  Those orders were made with the consent of both parents Mr Simplot (“the father”) and Ms Deene (“the mother”).

2. The orders provided inter alia that:

   ·    The parents have equal shared parental responsibility;

   ·    The child live with the father on a monthly cycle of four nights in one week, three the next two weeks and a few hours after school in the fourth week; and

   ·    That the parties follow the lawful directions of a psychiatrist about counselling and treatment.

3. Curiously, there did not seem to be any order about the child’s time with the mother except on holiday-type occasions.  Suffice to say, the parties understood what it all meant.

4. That structure was radically changed in January 2012 when orders were made by Senior Registrar FitzGibbon after a contested interim hearing.  The parties had agreed on an interim basis to discharge the 2008 orders. From then onwards, the child was to live with the father and spend very limited time with the mother.  What was not agreed, but ruled upon by the Senior Registrar, was that the mother’s time with the child was to be supervised.  The mother also consented to an injunction preventing her from approaching the child at school.  The Court invited the Department of Human Services to intervene in the proceedings because of the potential for physical abuse to the child.  The dispute giving rise to the interim hearing in which those orders were made began in December 2011 and at a hearing on 19 December 2011, an Independent Children’s Lawyer was appointed.

5. After a number of years of sharing the child, these January 2012 orders were a significant change to his life.  The Senior Registrar described the “presenting issues” as

   the psychiatric disorder, difficulties and good psychiatric health of the wife.  They have been a consistent theme throughout the litigation.

6. At the time of the 2012 orders, the child expressed a willingness to spend time with the mother if either of his maternal uncles was present.  The difficulty was that the maternal family did not enjoy a good relationship amongst themselves.  That led to the involvement of other persons to supervise the child’s time with his mother. 

7. Since 2012 however, the child’s relationship with his mother has deteriorated to the point where I could not now make orders returning to the previous parental sharing arrangements either as to decision-making or indeed, the care of the child.  I find there is a significant risk to the child of physical and psychological harm and he also has a very strong view about his own care and the relationships with his parents.

8. The incident that seemed to precipitate the January 2012 hearing sounded innocuous enough but it was the focus of intense cross-examination by the mother’s lawyer.  I find the following occurred in December 2011.

9. As school was about to break up for the year, the father collected the child and began the trek home.  The father was loaded with equipment in a back pack.  As he and the child walked along the street near their home, the mother drove along, pulled up and called the child to get into the car.  The child refused.  The mother got out of her car and came towards the child.  The father placed himself between the child and the mother and began ushering the child towards his home.  The mother endeavoured to grapple or grab the child.  The father inappropriately described her actions as trying to abduct the child by physically dragging him into her car.  The father was a poor witness whose affidavit was badly drawn; the Court is entitled to better and certainly more care in respect of the evidence.  Much time was wasted on the precise details of the steps each of the mother and the father took on that particular December day.  The father described the mother as assaulting him but on reflection, he thought that that was not an accurate description.  It matters little but I find that the mother tried to physically get hold of the child and was thwarted by the father.  In the process, the mother manhandled the father. 

10. What seems to have begun this confrontation was whether or not the child was going to a children’s party. That was innocuous enough but in the context of a litigious family, combined with the mother’s psychiatric history, this was the event that ended the child’s relationship of trust and security with his mother.

11. This incident may have precipitated the chain of court events thereafter but during the preceding year, there were statements made by the child, which I accept he said, accusing his mother of physical abuse when in her care.  The child’s school was concerned about it but the Department of Human Services appears not to have been.  The father listened to the child’s complaints during that year but did not take them seriously.  I shall return to that below.

12. The ostensibly drastic orders I propose to make here are very unusual but the history of the litigation after November 2012 points to the mother’s complete neglect of obligations to provide detail about the past and future concerning the child and a complete abdication of responsibility to comply with directions of the Court in respect of preparing for trial.  I must add that it is sad to say that she has had questionable assistance from her lawyer.  That history must unfortunately be set out because otherwise, the Court might be viewed as having denied the mother natural justice and not made sufficient inquiry about the evidence to assist it in determining what is in the child’s best interest.

13. In the proceedings in January 2012, the mother attended the Court and was represented by a firm of solicitors other than her present practitioner.  Significantly, as I earlier pointed out, the mother consented to the orders when represented by a lawyer at the hearing.

14. On 7 May 2012, an interim hearing again was held by the Senior Registrar and the January 2012 orders were varied.  The child’s time was thereafter to be supervised at a contact centre.  The mother was again restrained from attending at the child’s school.  The Senior Registrar then fixed a first day hearing before Dessau J and made a variety of directions for the filing of affidavit material.

15. At the hearing before the Senior Registrar, the mother’s current legal practitioner appeared for her.  The Senior Registrar had the benefit of two reports from consultant psychiatrists at that time.  Significantly, what the Senior Registrar did not have, was any material from the mother.  As he noted in his reasons for the orders that he made, the documentation had been prepared (so he had been told) but had not been filed by the mother.  This was four months after the January 2012 hearing. 

16. Some reasons were noted by the Senior Registrar as justifying the orders he was asked to make which severely reduced the mother’s time and restricted that limited time as well.  They were:

    ·    The child had had limited time with the mother for the previous six months;

    ·    The wife’s psychiatric difficulties were noticeable;

    ·    Psychiatrist Dr E who examined the mother gave a qualified diagnosis but said further evidence was required to confirm what he suspected;

    ·    Psychiatrist Dr D who examined the child said that the child had no psychiatric illness but was not a reliable historian about his previous mental health difficulties; and

    ·    The child thought his mother excessively hostile.

17. The Senior Registrar said that the child’s presentation could be attributable to either parent.  Suffice to say, the Senior Registrar thought supervision of any time between the mother and the child should continue.

18. Ironically (for the purposes of my reasoning) the Senior Registrar said that even if the trial was conducted as a less-adversarial process, the Evidence Act 1995 (Cth) provisions applied. He warned about statements being made by litigants and witnesses without factual backing. Much of that seems to have been lost on the mother and indeed her legal practitioner.

19. In June 2012, rather than being listed before Dessau J, the matter came before Registrar Field.  All parties were represented.  A trial date was fixed before Dessau J on 3 December 2012 for five days.  Directions were made for filing affidavits of evidence.  In the mother’s case, the affidavit was to be filed by 2 November 2012.

20. For the purposes of the proceedings before Dessau J, a family report was released on 2 October 2012.  That report was not only in evidence before me and relied upon by the Independent Children’s Lawyer but the mother (without appropriate notice) sought the attendance of the report writer for cross-examination before me. 

21. On 12 November 2012, Registrar Field extended the father’s time for filing but also the mother’s, to 26 November 2012. 

22. Alarmingly, over a period of three days commencing 4 December 2012, a bizarre set of circumstances unfolded before Dessau J.  The transcript of those days was on the court file but I need only refer to her Honour’s orders.  Costs orders were made against the mother and her solicitor.  Importantly, the mother had still not filed her material. 

23. It is unnecessary for me to do more than point to her Honour’s reasons for orders in which she referred the transcript to the Legal Services Commission to “investigate the conduct of the mother’s solicitor”.  The proceedings before Dessau J had to be adjourned. 

24. To the extent that it is necessary to be clearer than that, the mother could not have misunderstood what her Honour was saying because she took over the conduct of the case whilst her solicitor was even present.  Despite all of that, the mother retained the same solicitor throughout the proceedings thereafter and before me.  Indeed, the solicitor appeared as her counsel.

25. Although Dessau J referred the matter to the Registrar to manage the case to trial after it was adjourned, it was referred to me as the case management judge.  On 11 February 2013, noticing that the mother still had not filed any material relating to the case, I made orders setting out another first day hearing before me but this time for 8 May 2013.  I made the following orders:

    1.That all extant applications for final orders are listed to a DIRECTIONS HEARING before the Honourable Justice Cronin at 10 am on 8 May 2013 for the purposes of listing the matter for final hearing.

    2.That the parties and if represented, their legal practitioners, attend the first day of hearing.

    3.That notwithstanding applications/responses have already been filed:

    (a)by 4 pm on 19 April 2013, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

    (b)by 4 pm on 3 May 2013, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

26. The Court’s orders were endorsed with the following notations:

    A.It is noted that a variety of previous orders have been made requiring the wife to file documents and that despite the matter being adjourned on 6 December 2012, no such documents have been filed.  If compliance as not occurred by the return date, any application for an undefended hearing will be considered on the return date.

    B.If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

27. By the relevant dates in those orders, the mother had not complied.

28. On 8 May 2013, the mother did not attend nor did her solicitor.  No explanation was given.  I set down the case as an undefended hearing for 7 June 2013 directing that the evidence in chief by the father was to be given by affidavit.

29. Just in case it might be thought that there might be a plausible reason for the mother’s absence on 8 May 2013, there was not.  Counsel for the Independent Children’s Lawyer advised the Court that he had spoken to the mother’s solicitor that morning and was told that the solicitor would be attending.  Consistent with his conduct before Dessau J, he did not.  Despite all of that, the mother continued to instruct him to appear for her.  His professionalism leaves a lot to be desired and the Legal Services Commission should examine the matter as requested by Dessau J. 

30. However, to the extent that Mr Reid’s conduct has created a dilemma for the mother, two important observations need to be made.  First, not only did the mother continue to instruct Mr Reid but he asked for her attendance at the bar table on the return date before me to take notes for him.  It was noticeable throughout the hearing that the mother gave Mr Reid notes.  Yet, on the third day of the hearing, he was marginally late but his client was completely absent until late in the morning yet he was content to continue his cross-examination in her absence.  He indicated that he was clearly happy to do so.  Secondly, as the transcript will show and my published reasons of 7 June 2013 will indicate, whilst I have been critical of Mr Reid’s approach to the conduct of the case, I did not exclude the mother completely (over opposition from the father and the Independent Children’s Lawyer) and permitted a number of hours over three days of cross-examination to try and give the mother an opportunity to at least indicate where the child’s best interests lay.  Mr Reid cross-examined on topics that generally and unhelpfully went to credit and not much else.

31. On the day that the case was to proceed undefended, the mother and Mr Reid attended and sought to produce documents that had not been filed nor provided to the other parties.  I declined Mr Reid’s applications and have given separate reasons for those decisions which I will not repeat here.  Suffice to say, there were two parties to this litigation and the mother was completely ignoring the rights of her son let alone those of the father.  An extraordinary latitude has been given to the mother not only by me but also Dessau J.  The father was privately funded and had been caring for the child since the child came into his care.  He too was entitled to a resolution.  In addition, the Independent Children’s Lawyer was again funded from the public purse and had used up the resources.  In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 the High Court of Australia dealt with the question of practice and procedure and in particular, the relevance of case management principles. French CJ said:

    It might be thought a truism that (case management principles) should not supplant the objective of doing justice between the parties according to law.  Accepting that position, [the previous authority] cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind referred to [in the relevant rules].  Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

32. Whilst French J was referring to interlocutory hearings, the same must be said of final hearings.  The resources of this Court like most courts are finite.  There is enormous strain on litigants let alone cost.  In proceedings involving children, there is a greater necessity to resolve matters quickly to enable children to be removed from the conflict between their parents so that some certainty can be given to their lives to enable them to have the benefits that children in this country should have.  I can do no more than refer to his Honour’s words about the loss of public confidence in the legal system where this Court focuses on the best interests of children yet here, a litigant refused to provide material that would enable a court to assess her proposals matched against the evidence of the other parent and the relevant expert witnesses.  To then be faced with nothing short of humbug by a lawyer whose responsibilities are to the Court as much as to a client gives emphasis to the fact that case management principles must at times become a very significant objective in doing justice according to law.

33. In Aon Risk Services, the plurality was critical of the absence of the explanation for what was occurring.  No explanation has been given as to why the mother in this case did not prepare for the hearing before Dessau J in December 2012 and why a further six month period had expired without so much as a document being filed or an application being made by the mother to file significant material.  On the very day that the hearing was to commence, the solicitor waved material in his hand indicating that he thought the “LAT” would permit that to occur.  In my view, that attitude was irresponsible if indeed it was on instructions at all.

1. Thus, to the extent that the mother maintains her case was not adequately put or she was denied natural justice, that was very much her own doing.  It is in the child’s best interests for this case to be finalised and the evidence is overwhelming that the child is well settled in his father’s care and has a poor relationship with his mother.  There is no foreseeable prospect of the parents ever making decisions together.  Orders are therefore necessary.

2. The father sought orders for sole parental responsibility, residence with him and that the child’s relationship with his mother be limited to telephone communication on a weekly basis or as the child might otherwise desire. He also sought the return of the child’s “passports” but that issue was not canvassed nor was any evidence supportive of such orders led.

3. Upon the conclusion of the proceedings, the Independent Children’s Lawyer sought orders that communication between the child and the mother be limited to when the child wanted it.

4. The father relied upon a trial affidavit filed 22 May 2013.

5. The Independent Children’s Lawyer relied upon the evidence of the family consultant Dr J, psychiatrist Dr E and psychiatrist Dr D.  Dr E’s affidavit was filed on 17 May 2012 and Dr D’s affidavit was filed on 21 June 2012.  Suffice to say, as a participant in earlier proceedings before Dessau J and the Senior Registrar, the mother had access to those documents.

6. Before dealing with the father’s evidence, it is helpful in this case to consider what two professional experts to whom I have just referred said.

7. By an order made on 12 January 2012 the Independent Children’s Lawyer was to nominate a forensic psychiatrist for the purposes of assessing the mental health of the mother.  There is some significance in that order because it was made by consent of all parties including the Independent Children’s Lawyer.  The mother was represented on that day by a lawyer.  Furthermore, a specific order was made that the child attend upon a paediatric psychiatrist.

8. Dr D is a forensic child and adolescent psychiatrist.  He was the nominated psychiatrist but also named in the same order to which I have just referred as the professional who was to examine the child.

9. Dr D assessed the child on 13 March 2012.  At interview, the child was described as mildly precocious and pseudo-mature.  He focused on his mother’s flaws and had an idealised view of his father.  Indeed, he told Dr D his mother had “a bit of a mental problem… I think she has but no-one can’t guarantee that”.

10. Descriptions of abuse included have boiling water and a kettle thrown at him and being assaulted with a hammer in the ribs.  He described his mother frequently threatening suicide and himself being threatened with being killed “when he was older”.  He went on to express a multitude of complaints about his mother. 

11. The child was 10 years old when assessed and Dr D did not have the benefit of informational input from the parents.  The child was not seen as suffering a psychiatric illness but had been under “considerable duress and stress”.  Dr D thought the child not necessarily a reliable historian about his previous mental health difficulties but that was unremarkable given the child’s age.  The child was burdened by contact with his mother but Dr D could not determine whether he had been influenced to adopt the position he did but he did not think so.  Other than to say that the child may have been insidiously exposed to the father’s feelings, there was no other evidence of manipulation.  Having said that, Dr D thought that if the assaults were true, the child’s position was understandable.  However Dr D thought the assessment of the mother was important.  That assessment was undertaken by the Independent Children’s Lawyer’s nominee Dr E.

12. Dr E has been a consultant psychiatrist since 1986.  He read the parties’ affidavit material and some other reports from earlier proceedings.  To the extent that he did not have the mother’s comprehensive affidavit material, he can hardly be blamed.

13. Dr E assessed the mother on two or three occasions.  He noted her denials of any abuse to the child.  He had significant reservations about the mother’s historical account of things.  His opinion was that the evidence needed to be tested.  He described her presentation as idiosyncratic.  That presentation was not consistent with someone who had suffered the abuse she alleged.  He did not find her presentation consistent with a diagnosis of post-traumatic stress disorder.

14. The testing of the evidence underpinned the opinion of Dr E.  If the facts were true, Dr E thought at some point the mother would have had post-traumatic stress disorder.  If the facts were not true, he thought she had a paranoid delusional disorder or more likely, factitious disorder.  Importantly, he opined that in either case, her psychological functioning would be deemed to be “very disturbed” and the child’s physical and emotional wellbeing would be at serious risk.

15. A difficulty is that the evidence that would have established either of the factual scenarios considered by Dr E could not be tested.  However, because of the mother’s refusal to file material and presumably a failure to give proper instructions to her lawyer, I am left with both possibilities contemplated by Dr E.  One of those possibilities is that the evidence of the father of the reports to him and others by the child is true if the mother has done nothing to refute it.  I have the tested evidence of the father.  I have the unchallenged evidence of Dr D but his view was that much depended upon the assessment of the mother.  This becomes a circular argument.  However, I do also have the report of the school chaplain which was tendered by consent.

16. Just how the school chaplain came to interview the child was contentious but no-one argued that what was indicated in the report was an inaccurate transcription of what the child told Ms N.  It would appear from the document that Ms N is a psychologist. 

17. On 27 March 2012, Ms N saw the child on his own. 

18. She asked him a number of questions.  She said there was no doubt that the child felt and experienced being happy and safe with the “new” arrangements with his father.  He described the events at his father’s home in a way that showed care, love, reasonable punishment and discipline, responsibility and a much-cherished stable emotional ground.  These descriptions of safety, happiness and security did not vary across all the responses he gave.

19. That is very significant in this case having regard to the fact that the mother has placed no material before the Court that would enable me to either test those descriptions nor show that they are wildly exaggerated.

20. Ms N had spoken to the child’s teacher who said that his behaviour was “good and reasonable now” (my emphasis).

21. The teacher had reported to Ms N that the child got into trouble “sometimes” but not as much as he had in the past.  She gave an example of Mondays being difficult when he had had weekends with his mother but that was no longer happening.  The teacher confirmed a steady improvement in the child’s behaviour over the course of the term.

22. Ms N then reported that one thing that disturbed the child in his previous arrangement with his mother was always being late for school and other places.  That had all changed because of the control by his father.  He even described doing his homework and not being shouted at.

23. The child told Ms N that discipline and punishment with his mother left him anxious and that his father was fair and that he was not frightened of him. 

24. Sadly, the following sentence appeared in Ms N’s report:

    [The child’s] idea of happiness is that he spends his life with Dad, and that, preferably, he have no contact with his mother.

    That evidence is extremely powerful and there was no evidence from the mother to refute it.

25. Before turning to the evidence of the father, it is also helpful to look at the family report.  Dr J was required for cross-examination although I am not entirely sure why.

26. Dr J is a family consultant.  He holds degrees in psychology including a doctorate conferred in 2007.  No-one challenged his expertise.  Registrar Field ordered a report be prepared to assist the Court in determining final parenting arrangements.

27. Dr J reviewed the written material, interviewed both mother and father and then the child.  He had access to psychiatric reports.  There was limited cross-examination of Dr J by the solicitor for the mother.  No challenge was made to much of the history that he reported.  He was asked about why he had not read material provided under subpoenae and he answered that he had not been authorised by the Court to do so. Dr J agreed that he had subsequently done so when requested.  He confirmed that, having read it, he had not changed his views. 

28. Of his interview with the mother, Dr J said that she had told him that she would like to maintain an active role in decisions concerning the child’s life and for the child to return to live with her “at least part of the time”.

29. Dr J assessed the father as showing no anomalies in his presentation.  He described him as exhibiting euthymic mood, reactive affect, and logical form of thought.  He appeared to engage in a transparent manner, insofar as he did not appear to provide an overly positive account.

30. In respect of his assessment of the mother, Dr J said that she tended to be overly verbose and at times lacking in detail.  He said there were no obvious anomalies in her mood though her affect tended to be quite unwavering throughout the assessment even when discussing topics that would typically correlate with distress.  She was reluctant to discuss a number of issues indicating that there was no reason for her to repeat them.  She appeared frustrated at times and in some instances, unable to account for information submitted particularly by the father.

31. It was of significance that the mother told Dr J of physical violence to her by the father.  None of that direct evidence was before me.

32. In his summary, Dr J noted that the mother maintained that she had never been hospitalised in relation to a mental illness nor given a psychotropic medication.  She rejected the reports of Dr E.  Indeed, she impugned the credentials of the assessors.  She had been examined by another psychiatrist before Dr E. She was unamenable to any suggestion that these people could offer some understanding of her functioning and behaviour.  She maintained she suffered from post-traumatic stress disorder but refused to entertain any suggestion of organic psychiatric illness.

33. As for her brothers who had at that stage been potential witnesses in the proceedings, she simply said they had perjured themselves.

34. Of her own family, the mother told Dr J they had jeopardised the supervised visits ordered by the Court because of their bullying behaviour.

35. Dr J assessed the child who presented as a healthy child of unremarkable height and weight.  He was succinct, articulate and clearly familiar with the assessment process.  There were no reasons to indicate that he did not understand what was going on. 

36. Importantly, as to the child’s views, Dr J said that he was unequivocal concerning future parenting arrangements.  He was wholly negative about his mother and extremely positive regarding his father.  That evidence was consistent with that of Dr D. 

37. Dr J described the child reporting that his mother as very aggressive and having hit him.  That was in the context of punishments which were punitive, inconsistent and reactive.  He told Dr J things that were consistent with those reported by Ms N.  He also reported to Dr J that his mother spoke negatively about his father.  As for visits with his mother, he described them as being “okay”.

38. The child was able to tell Dr J that his time with the father was positive. He described his father as patient and collaborative and supportive of his interests. 

39. Dr J had no doubt about the child’s views which he thought were not the result of systematic manipulation by the father insofar as they were presented in age-appropriate language and were accompanied by tangible examples.  As for those views, Dr J thought that the child was not developmentally mature enough to make long-standing decisions in relation to his own interests but his observations about his parents provided an indication of the general parenting arrangements for the future.  Dr J said that as such, a considerable emphasis should be placed on those views though tempered by consideration for factors that the child was not privy to. 

40. From the perspective of the relationship of the respective parents and the child, Dr J said that there was nothing untoward about the child and his father but with his mother, things were starkly different.  He said the child was cold and aloof and there was no warm embrace but only a tepid acknowledgement.  The mother was animated and enthusiastic but the child only responded slightly to her efforts.  He said that the child appeared robotic.  There were obvious levels of apprehension.

41. Dr J assessed the situation simply.  He said that the child appeared to have become exhausted by his mother and felt that he had been consistently let down.  He said that the mother presented with little insight about how her own behaviour impacted upon the child and she had a poor understanding of why he felt the way he did.  The mother placed all of the difficulties at the foot of the father but the child appeared to have a functional and reciprocal relationship with his father with little apprehension, uncertainty and emotional instability as was evident with his mother.  Dr J then said:

    In total, there is a vastly different relationship between the child and each of his parents.

42. Dr J observed that irrespective of what diagnosis the psychiatrist may have had in relation to the mother, there was a range of collateral information that pointed to the mother having difficulties with her mental health and those were impacting on her interactions with the child.  As Dr J observed, the mother exhibited little insight into her own psychological functioning and in particular the fact that she could benefit from treatment.

43. Dr J turned to the question of risk.  Bearing in mind the assertions of the child about his mother being aggressive, reactive, punitive, unreliable, inconsistent and manipulative, it is not difficult for me to find that he is at risk in her care if his time was unsupervised. That is because although the psychiatrist had concerns about the diagnosis of the mother, there is now a consistent pattern of complaint by the child relating to the aggression, unreliability and so forth. The mother’s apparent claim has been that all of those attributes apply to the father but there is no evidence to support that.

44. Dr J noted that a psychiatrist Dr K in 2008 described the child at serious risk in the care of the mother. Dr J thought that little had emerged from his own observations that was inconsistent with previous professionals. 

45. Accordingly, Dr J recommended that the child live substantively with his father but that there be some time with the mother but it had to be in a controlled environment. The view of Dr J was that the mother wanted the child to flourish and that she loved him. He thought that terminating any time at the moment might be premature but that was on the basis that the mother accepted treatment for her mental health problems. That latter condition has not been met or if it has been, no evidence was presented to suggest that there was no problem.

46. Dr J thought that any time with the child needed to be supervised anyway to protect both the child’s physical and emotional safety. He thought that as matters progressed, the limitations and restrictions could be removed.  On the evidence, I could not see that progress for some considerable time. If it did occur, the child would well into his teenage years and much better able to manage a lot of the behaviour of his mother that has bedevilled the relationship. I have no understanding of how long supervision would need to go on and it ought be obvious that with a child of the child’s age, close checking supervision may quickly become counter-productive and he may become resistant. Dr J also thought that the mother needed to establish a trust with the child so that he found her reliable and consistent. The child clearly does not see his mother that way at the moment.

47. The evidence of Dr J was not tested by the solicitor for the mother on issues that would challenge the expert opinion he gave.  In my view, nothing I heard from Dr J was surprising. His recommendations were that there be an attempt to re-establish what is currently fractured but all of that is based on a number of things being undertaken by the mother. Having regard to her approach to the court hearing and her apparent dismissal of a need for treatment, I can disregard the opinion of Dr J about a build up because it is not supported by any facts.

48. Dr J recommended that the child should have a very significant say in the nature and extent of the relationship with his mother and for the reasons outlined, I think it is in his best interests that that path be largely but not entirely followed. I say not entirely because I think it is in his best interests that his mother does not fade out of his life. What needs to occur is the changing of his relationship from tepid to something meaningful. That will not occur unless there is at least an attempt made to have the relationship continue. That can best be done by telephone for a while until the child is comfortable about something more and at that stage, he will be more physically and emotionally able to handle the problem of his mother if they are not addressed.

49. Counsel for the Independent Children’s Lawyer submitted that the child’s time with his mother should be limited to periods when he wanted to see her and if that occurred, the father should facilitate it. In his evidence, the father had said he would support contact if the child desired it but I am concerned that placing the responsibility on the shoulder of the child would be unwise particularly having regard to the reaction of the child to his mother witnessed by Dr J. In other words, it would be unlikely to occur.

50. The solicitor for the mother was not prepared to do a final address at the conclusion of the hearing notwithstanding the extraordinary lead-in time of the hearing, his attendance as counsel and his targeted cross-examination. He asked for time to prepare a submission and over opposition, I granted that. I directed that it be prepared, served and filed by 4 pm on 1 July. As with many responsibilities apparently undertaken by Mr Reid, it was not filed.

51. Thus, I am not at all sure what the mother’s position about her future relationship with the child should be.

52. The solicitor for the father submitted a written submission on time. That traversed the provisions of Part VII of the Act. It was submitted that protection of the child should take precedence over him having a meaningful relationship with his mother. It was submitted that the material gave rise to concern about the mental health of the mother and the impact that might have on the child. There is some significance in that because of the child’s consistent complaints about the violence of his mother.

53. The father’s submission was presumably supportive of the orders he proposed when the case began. Nothing in the submission showed a departure from his position. Thus, the father’s position was that he have sole parental responsibility, that the mother communicate with the child by telephone and at such other times as the child desired.

54. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the law in relation to parenting disputes. Section 65D empowers the Court to make an order regarding the care arrangements for children including who is to be responsible for making long-term decisions about them, who the children are to live with, as well as a variety of contact arrangements.

1. Section 65D provides that the power to be exercised in relation to making parenting orders is subject to the presumption of equal shared parental responsibility set out in s 61DA.  In this case, the mother is not seeking equal shared parental responsibility.  In any event, there is sufficient history to rebut the presumption set out in s 61DA(4).  I could not be satisfied that it would be in the best interests of the child for the parents to have equal shared parental responsibility on the findings I have made above.

2. Section 64B(1) defines a parenting order.  An order may be made in relation to any aspect of the care, welfare or development of a child as well as any other aspect of parental responsibility. 

3. When making a parenting order, s 60CA requires the Court to find that the child’s best interests are the paramount consideration.  I have earlier mentioned that it is not the only consideration but where there is a conflict between those considerations, the best interests of the child must prevail.

4. To determine what is in the child’s best interest, s 60CC provides a check list of how those interests are determined.  The primary considerations are:

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

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

5. The words “meaningful relationship” do not just mean contact between parent and child.  There must be some benefit for the child in having that relationship.  Based on the evidence of Dr J, there seems little that the child can currently receive from his mother other than some knowledge of her because he does not trust her nor wish to have the sort of relationship that a loving parent would have.  What is important is that a child benefit from the relationship and at the moment it is difficult to see any benefit other than that he retain a knowledge that his mother is interested in him.

6. Section 60B of the Act provides the principles and objectives of Part VII of the Act. One of those principles is the right of the child to have contact with and communicate with both parents. There is no prospect that the child can benefit from the sort of relationship pursued by his mother. He has a very close affinity with his father. To change the relationship that he has with his father to the extent that the mother pursues, is not in his best interests.

7. Section 60CC(3) sets out additional considerations to those set out above.  They can be dealt with globally in this case having regard to the matters set out above.

8. The child has expressed an unequivocal view about the future of the relationship with his mother. The more difficult question is the weight that should be given to those views. Dr J thought that the child was not developmentally mature enough to make long-standing decisions in relation to his own interests. It is important therefore that he has the opportunity to know, understand and be cared for by his mother but in the controlled environment where the concerns about his safety can be alleviated.

9. As Dr J described, the child’s relationship with his mother is tepid. No similar concerns were expressed about the relationship with his father. The child relies upon his father for security and support. It is important that that not be destabilised as it is all that the child has. I cannot say anything positive about the prospects for the improvement in the mother and son relationship. The evidence supports the conclusion that the mother has to seek professional help. She seems resistant to that as was indicated by her frustration about the probing questions of Dr J. Until such time as she accepts that assistance, the relationship with the child will remain tepid. That is clearly not in the child’s long term interests.

10. The history of not only the litigation but the nature of the relationship between the parents indicates that the mother has not taken her role as a parent seriously. The mother has not provided the Court with information about what role she desired to fulfil as a parent. Any such intention of the mother has therefore not been tested to see how it would impact upon the child and whether it would be in his best interests.

11. The mother provides no significant assistance to help the father maintain the child. As I understood her position, she was not in a position to provide financially yet she had consistently instructed a lawyer to act for her. The father on the other hand was supporting the child.

12. It is also apparent from the evidence of the family consultant that the child is not adversely affected by the absence of time with his mother. Conversely, he did not want to be separated from his father.

13. An important concern as evidenced above is the issue of the mother’s capacity to provide for the child’s needs. His father is reported as having adequately handled those matters yet there is no evidence that the mother has provided for the child’s emotional needs. Even if it was suggested that there should be some limited form of physical relationship between the mother and the child, I do not know what it is that she can provide. The child is resistant to personal contact and consistent in his allegations of physical violence. One must therefore ask what the mother has to provide. She had ample opportunity to present evidence and presumably chose not to do so.

14. There are no cultural or specific characteristics about the child that warrant special consideration. He appears to just want to do things that children do but he sees no role for his mother. The family consultant was clear in indicating that the mother needed to address that issue by getting help so that there can be a relationship.

15. Section 60CC requires the Court to contemplate the attitude of the parents to their responsibilities as parents. The father has persisted in caring for the child in trying circumstances. He was cross-examined by the mother’s lawyer about matters that did not suggest that he was not a capable and loving parent. Having regard to the matters outlined above, there is little more I can say about the mother’s attitude not so much to the litigation but to her role as a parent.

16. I have found there has been physical violence towards the child and even if there was some mystery around some of the facts, the allegations were continually made by the child and there was no evidence that that had been manipulated by the father. I have also the evidence of the father about the event in the December that precipitated a change of the child’s residence. The cross-examination by the mother’s solicitor seemed to be challenging the preciseness of the event yet there can be little doubt that the mother endeavoured to take the child against his wishes and pressed on with that endeavour despite the father’s protection of the child. That was not appropriate parenting by the mother even if I have found that the father’s description was exaggerated.

17. All of those matters point to and highlight the fact that there is a problem between mother and child which would not be resolved by orders of the nature sought by the mother. In other words, on the evidence, there is no prospect of any benefit from any relationship with the mother at this time in the child’s life. The litigation has been going on for a long time and it is in his best interests if final orders are made. The father made clear that if the child wanted a relationship with his mother, he would support it.

18. Thus, it would not be proper to make any orders of the nature apparently contemplated by the mother. On the evidence, I find it is proper to make orders along the lines sought by the father.

19. I consider that it is important for the child to have some understanding that he has a mother and as he matures, he will decide whether he can handle her way of behaving.

20. Despite the fact that the Independent Children’s Lawyer advocated that any communication between the child and the mother should be at the child’s instigation, that is fraught with difficulty if a child of the child’s age decides that he does not want to make an effort. In my view, there should be a weekly telephone communication instigated by the father at which he requests the child to speak to his mother and that be for a duration of a maximum of 30 minutes. During that time, the mother can talk to the child about what he is doing at school and about his extra-curricula activities. It will be difficult for the mother to engage the child in any lengthy conversation and to the extent that the child is resistant, he may terminate the call if he becomes unhappy with the topics raised by the mother. I do not expect that the parties will agree on such day and times but in the event that they do not, I shall fix a default time. It goes without saying that the mother is to provide the father with her telephone number and that should be done by written communication whether electric or otherwise. I am concerned that the child should understand that his father has responsibilities for these calls and that the child has to participate. To ensure that he understands that, I propose to order that the Independent Children’s Lawyer discuss these orders with the child as soon as practicable.

21. In the hearing, there was a concession made by the mother’s lawyer that conversations with the child had been taped. That is inappropriate and also fraught with danger depending upon the motivation of the parent and the nature of any leading conversation. Accordingly, I propose to restrain that sort of activity as not being in the child’s best interests.

22. The father also sought costs both personally against the mother and against her solicitor relating to the second and third days of the hearing and then there was the unpreparedness of the mother and/or her solicitor to undertake a final address giving rise to the solicitor’s request to undertake the task of written submissions.

23. The submission was based on the conduct of the mother in being unprepared for the hearing and being given the latitude to cross-examine. It was submitted that costs were accordingly thrown away.

24. Section 117 of the Act provides the power to make an order for costs. It provides however that in proceedings in this Court, each party shall pay their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating making any order for costs, it must take into account the various matters set out in s 117(2A) of the Act.

25. Nothing in the hearing indicated that the solicitor for the mother was doing anything other than on instructions. I have earlier mentioned the drama of the hearing before Dessau J and the concerns there expressed by her Honour. Despite all of that, the mother continued to instruct Mr Reid. Nothing I heard in the evidence suggested that the mother suffered from such a mental illness that she was incapable of giving those instructions. I noted that the Legal Services Commission had been invited and encouraged to look at what Mr Reid was doing but as far as I was aware, nothing had been done by that body to suggest that he should not be a practising lawyer. As such, there is no basis that I could see under which an order for costs could be made against Mr Reid.

26. The mother’s role in disputing the factual circumstances that gave rise to the ending of the relationship with the child were tested and highlighted but it could hardly be said that that was the basis of the orders I am now making. The problems between the mother and the child appear to have been long-standing. As I have found, the December incident precipitated the ending of the time between mother and son but the testing of that evidence could not be seen to be unreasonable nor irrelevant. The father sought final parenting orders and even on an undefended basis, he needed to attend court. I have also criticised the quality of the material upon which he relied which in reality, I suspect, caused some of the mother’s cross-examination.

27. Thus, I find there is no basis for a finding that the circumstances here justify an order for costs.

I certify that the preceding One Hundred and Fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  6 August 2013