Smith and Duke

[2016] FamCA 131

FAMILY COURT OF AUSTRALIA

SMITH & DUKE [2016] FamCA 131

FAMILY LAW – CHILDREN – final orders – where the litigation is recommenced – where the father seeks orders for sole parental responsibility and that the child live with him – where the mother seeks orders for sole parental responsibility, that the child live with her and spend no time with the father – where the child is reluctant to spend time with the father – where the reluctance is without explanation – where the father has not seen the child in over 12 months – where the father alleges the mother failed to encourage a relationship between the father and child – where the father alleges this occurred following his refusal to allow her to relocate with the child – where the mother rejects the allegation and says that she promoted the child’s time with the father – where the observations of the family consultant are accepted by the Court but the recommendations provide no assistance  – where consideration is given to the best interests of the child and the primary and additional considerations – where consideration is given to the definition of a “meaningful relationship” – where the Court does not consider there to be a risk of abuse, neglect or family violence – where it is ordered that the mother have sole parental responsibility and that the child live with the mother – where it is ordered that subject to the child’s wishes the child will spend time with the father.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 62B, 62G(2), 65DA, 65DAA

Baglio & Baglio [2013] FamCA 105
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Dennison & Wang [2010] FamCAFC182
Mazorski & Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Sigley & Evor (2011) 44 Fam LR 439
St Claire & St Claire and Ors [2013] FamCA 108
Wang & Dennison (No 2) [2009] FamCA 1251

APPLICANT: Ms Smith

RESPONDENT: Mr Duke

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4833 of 2009

DATE DELIVERED: 3 March 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9, 10,11, 12, 13, 17 and 19 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Jordan & Fowler

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That all previous orders be discharged.

2. The mother shall have sole parental responsibility for the child B born … 2006 (“the child”) on condition that:

   (a)the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issue affecting the child but in particular the child’s education and health;

   (b)the mother shall consult with the father with regard to such issues and the parties will make a genuine effort to come to a joint decision about any such issues; and

   (c)if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.

3. That the child shall live with the mother.

4. That subject to the child’s wishes as conveyed to the father by the mother in writing (electronically or otherwise), the child do spend time with the father as follows:

   (a)commencing 26 February 2016 from the close of school on Friday until the commencement of school on Monday in each alternate weekend;

   (b)for one half of each school holidays at times to be agreed and in the absence of agreement the first half;

   (c)from 10:00 am until 6:00 pm on Father’s Day PROVIDED that the child’s time with the father shall be suspended from 10:00 am until 6:00 pm on Mother’s Day;

   (d)from 4:00 pm on Christmas Eve until 2:00 pm on Christmas Day in 2016 and each alternate year and thereafter with the mother in 2017 and each alternate year thereafter;

   (e)from 2:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2017 and each alternate year thereafter and with the mother in 2018 and each alternate year thereafter;

   (f)for such other time as may be agreed.

5. That the father is at liberty to send letters, cards and gifts to the child and that the mother shall ensure that they are provided to the child, retained and opened in the child’s presence as soon after receipt as is practicable.

6. That the mother is to facilitate the child spending time with the father and/or communicating with him other than as provided for in paragraph 4 of these orders if the child expresses a wish to do so.

7. That the mother is to keep the father informed of the school at which the child attends and to provide the father with at least fourteen (14) days advance notice of any change.

8. The mother shall authorise each school at which the child attends to release to the father materials usually provided to parents including copies of school reports, newsletters and the opportunity to purchase school photographs.

9. That the mother shall notify the father as soon as possible if the child is diagnosed with any serious or ongoing medical condition or suffers a significant injury.

10. Both parties shall keep the other informed as to their address and contact details and to provide the other with at least fourteen (14) days advance notice of any change.

11. That the appointment of the Independent Children’s Lawyer is discharged.

12. That all matters be removed from the Active Pending List and all applications be dismissed.

13. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (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 document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Duke 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 ADELAIDE

FILE NUMBER: ADC 4833  of 2009

Ms Smith

Applicant

And

Mr Duke

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By final order made 21 January 2014, Mr Duke (“the father”) and Ms Smith (“the mother”) concluded their parenting dispute in respect of B born in 2006 (“the child”). The proceedings had commenced in December 2009.

2. The final orders provided that the child live with the mother but spend time with the father initially from the close of school on Friday until 6 pm on Saturday on each alternate weekend and thereafter graduating to Friday through to Monday in each alternate weekend and an overnight period in the intervening week.  In addition, the orders provided that the child would spend half of each school holidays with the father at times as may be agreed.  The orders provided for other special occasions and required information to pass between the parties in respect of any serious or other significant medical condition that may affect the child.

3. The orders also provide the following:-

   9.That the parties and the said child shall attend upon [X Services] for the purpose of attachment/reunification counselling upon such terms and conditions as either [Ms H] or [Ms C] may direct and the mother shall facilitate the child’s attendance thereat.

   10.That the counselling referred to in paragraph 9 hereof shall be confidential and at the joint expense of the Mother and Father.

4. The parties had been assisted by the appointment of an Independent Children’s Lawyer (“Independent Children’s Lawyer”).  It is uncontroversial that the parties were assisted by the involvement of a family consultant who had prepared and published four reports dated 7 December 2010, 13 April 2011, 7 May 2012, and finally 20 June 2013.

5. Demonstrably, the final orders did not resolve the differences between the parties.  The child has virtually spent no time with the father.  If anything, the dispute between the parties in respect of the parenting arrangements for the child has worsened, the mistrust between them heightened and the toxic environment in which the child is required to view his parents is now palpable.

6. By Initiating Application filed 14 November 2014, the mother seeks the discharge of paragraphs 3, 4, 5 and 8 of the final orders made 21 January 2014.  The effect of the orders sought would be to remove any reference to the child spending time with the father.

7. By Response filed 17 December 2014, the father now seeks that the final orders be discharged and that the child shall live with him, that he shall have sole parental responsibility for the child and the mother shall spend time with the child as may be agreed providing that any such time is under supervision.

8. The father’s position at trial was somewhat ameliorated in that he concedes there should be an order for joint parental responsibility and that any time that the child spends with the mother is not now to be subject to supervision.

9. In the alternative, he seeks that the mother’s Initiating Application be dismissed and a return to the provisions of the orders made 21 January 2014.

10. The ICL was re-appointed and at the conclusion of the proceedings counsel for the ICL relied upon a Minute of Order which sought that the child live with the mother and that she shall have sole parental responsibility.  No provision was made for the father to spend time with the child, but he would be at liberty to send letters, cards and gifts to the child with a corresponding obligation on the mother to ensure that the child opened the gifts and that she should facilitate the child either spending time with the father or communicating with him as he may request.

11. The mother was also obliged to keep the father informed as to the educational advancement of the child and any issues relating to serious or ongoing medical condition, injury or complaint.

DOCUMENTS RELIED UPON

The Mother

1. The mother relied upon the following documents:-

   (1)Mother’s Initiating Application filed 14 November 2014

   (2)Mother’s Trial Affidavit filed 11 September 2015

   (3)Affidavit of Mr W filed 11 September 2015

   (4)Affidavit of Ms U filed 20 November 2014

   (5)Affidavit of Ms N filed 15 December 2014

   (6)Affidavit of Mr R filed 16 December 2014

   (7)Affidavit of Ms T filed 16 November 2014

   (8)Affidavit of Ms D filed 16 December 2014

2. The evidence of Ms U, Ms N, Mr R, Ms T and Ms D are all of narrow compass and relate to the incident that occurred at the child’s school on 19 November 2014.

3. In addition, the Court was assisted by both a Case Outline document and written submissions filed and prepared on behalf of the mother.

The Father

1. The father relied on the following documents:-

   (1)Response filed 17 December 2014

   (2)Father’s Trial Affidavit filed 5 November 2015

   (3)Affidavit of Ms E filed 5 November 2015

   (4)Affidavit of Ms K filed 5 November 2015

   (5)Affidavit of Ms G Duke filed 5 November 2015

2. The father also relies upon observations of supervised contact as set out in various reports prepared by Relationships Australia following observations of contact in 2011 to 2013 being Annexures BSD4 and BSD5 of the father’s affidavit.  The annexures have been received not simply because they form part of the father’s trial affidavit but rather because they were the subject of specific focus during the course of the evidence.  The authors of the reports were not called but the final report was authored not by the person or persons who actually supervised the father’s time with the child.  Notwithstanding that there was no objection on behalf of the mother to the annexures forming part of the father’s evidence, it is a matter for me to determine the weight that is attributed to the information contained in the observational reports.

3. The Court was also assisted by the father’s Outline of Case.

The Independent Children’s Lawyer

1. The ICL relied upon the family report (“the report”) prepared by Dr H (“the family consultant”).dated 21 April 2015.

2. For reasons that were not explained, neither party nor the ICL relied upon the reports that had been prepared by family consultant Ms I pursuant to orders of Judge Mead in the Federal Circuit Court.

CHRONOLOGY

1958   Date of birth of father

1971   Date of birth of mother

30.7.2004     Parties commenced cohabitation

2005   Parties marry

2006   Date of birth of the child

Aug-Oct 2006 Parties separate

13.10.2006    Mother moves to Adelaide

Nov 2007      Mother commences relationship with her current partner

2007-2009Father spends limited time with the child in Adelaide and under the supervision of the mother

23.12.2009    Father commences proceedings in the Federal Circuit Court

16.3.2010     Divorce Order made upon the mother’s application

1.7.2010        Orders for property settlement are finalised

Aug 2010Father commences supervised contact at a children’s contact service

13.12.2010Order appointing the ICL

20.4.2011Trial date of 17 May 2011 is vacated and orders made for the father to spend unsupervised time with the child on alternate Sundays from 10.30 am to 2.30 pm

30.5.2012Trial listed for 14 December 2011 is vacated

8.1.2013Mother’s partner moves to Brisbane to pursue post-graduate studies

7.4.2013Child refuses to spend time with the father

9.8.2013Father files Application in a Case seeking orders for therapeutic intervention to reinstate his relationship with the child

9.8.2013, 15.8.2013 and 24.9.2014

Father files separate Applications alleging contravention of orders

21.1.2014Final parenting orders made

31.7.2014 and 5.11.2014

Father files further Contravention Applications

14.11.2014Mother files current Initiating Application

18.12.2014Father files further Contravention Application

23.12.2014Order made suspending paragraphs 3, 4, 5 and 8 of final orders made 21 January 2014 with the father to spend two further 90 minute periods with the child followed by a family report

2015Mother marries her current partner

ORDERS MADE 21 JANUARY 2014

1. Following four years of contested proceedings the parties reached an agreement as to final parenting orders on 21 January 2014.  It was agreed that the father last spent time with the child in April 2013.

2. The orders provided for the child to live with the mother and spend time with the father as and from 7 March 2014 gradually increasing from each alternate Friday night to each alternate weekend from Friday through to Monday and each Wednesday overnight, representing a total of five nights a fortnight.

3. Additionally, the time the child spent with the father during school holidays was also subject to a graduated increase culminating in the child spending one half of each school holiday period with the father.

4. Other than paragraph 9, the orders were unremarkable.  Order 9 provides as follows:-

   [9]That the parties of the said child shall attend upon [X Services] for the purposes of attachment/reunification counselling upon such terms and conditions as either [the psychologist] or [the alternate psychologist] may direct and the mother shall facilitate the child’s attendance thereat.

5. The construct of the orders was the subject of considerable discussion prior to the proposed consent order being made.

6. It was common ground that the father had not spent time with the child for a number of months.  Inherent in the exchange between bar and bench was the clear understanding that whilst the mother’s position may have changed as a result of her abandoning any application to relocate the child from Adelaide to Brisbane so that she could reunite with her current partner, the re-establishment of a relationship between the father and child was unlikely to occur without the assistance of “attachment/re-unification counselling”. 

7. During the hearing it was acknowledged that a concern had been raised by the family consultant in respect of the child being further involved in a process which would most likely involve further counselling, interviews and possibly assessment.

8. At line 23 of page 3 of the transcript of proceedings on 21 January 2014, the following is recorded:-

   His Honour:   Mr McQuade, I will be frank with you.  The only reason I raise it [whether the proposed psychologist should have the advantage of the family reports] is this, that obviously paragraph 9 has about it a process of attempting to re-establish, re-affirm, strengthen the relationship between the father and the child.

   Mr McQuade:          Yes.

   His Honour:   By necessity, the process involves the child.  The way the order is drafted is not necessarily open ended because, of course, it is subject to the conditions and terms that [the psychologist or alternate psychologist] would place on it but I am mindful that in the report, [the family consultant]…makes some comment – strong comment about the extent to which this child has been involved in the process and the sheer number of interviews and assessments that the child has been subjected to.  It seems to me that the reports or at least certainly that last report by [the family consultant] ought to go to either [of the psychologists] just simply so that the practitioner can be alive to the concerns of at least another practitioner that some caution has to be…

   Mr McQuade:          I don’t seek it, your Honour.

   His Honour:   …expressed in terms of how far this goes and how far this child is actually involved in the process.  It is open-ended to some extent.

   Mr McQude:Yes.

   His Honour:   But, clearly, the interests of the child would not be served by forcing this child continually and repeatedly to attend upon [X Services].

9. Following my indication that notwithstanding the difficulty that may arise in the enforcement of the provisions of paragraph 9 of the order, I was prepared to make orders given that the parties had reached a clear position of consent and acknowledging that they were each represented by experienced solicitors and counsel with the added benefit of the support of the ICL. The following exchange occurs at line 13 on page 6:-

   Mr Jordan:Yes. Yes. Look, your Honour, my client is going to need some – she thinks the child – well, we don’t know quite what goes on with attachment and reunification, what the boundaries are but my client comes to the court…with a significant change of position.

   His Honour:   I understand that.

   Mr Jordan:As she would envisage that – hopefully that counselling, although it is an open-ended sort of arrangement, might not just confine itself to reunification but might also be an opportunity to persuade the child that this is not any form of breach of trust from my client, for example, but – so I don’t ask your Honour to make any changes to paragraph 9.  My client is mindful of what your Honour has said about continued interviewing, etcetera, and – but having regard to all matters, she is prepared to consent to the orders in its present terms.

10. The transcript reveals that the Court had some misgivings as to whether the orders would be capable of compliance.  If it was to happen it would only occur against the background of significant therapeutic intervention and the significant change in the attitude of the child towards his father without the parties understanding at the time of the orders being made the basis for the child’s reluctance.

11. It is acknowledged by the parties that the intended outcome of the orders did not eventuate and the proposed therapeutic intervention was demonstrably unsuccessful.

BACKGROUND

1. The parties met in June 2004.  The mother was employed in the travel industry and the father was engaged in property development.

1. Cohabitation commenced in 2004 in New South Wales.  The child was born in 2006. 

2. Following the child’s birth the parties are in stark disagreement as to the extent to which each of them cared for the child.  The mother alleges that the father encouraged her to resume work as soon as possible following the child’s birth.  She says that whilst at first she did so on a part-time basis, nonetheless she had the full-time care of the child.

3. The father alleges that he did not encourage the mother to return to work, but because of his assessment of her post-natal circumstances namely, her inability to cope with the household duties and parenting obligations, he took over the day to day household duties and spent significant time with the child.

4. The father agrees that certainly from September 2006 the mother had the primary care of the child.

5. The mother attributes the father’s move to L Town in New South Wales for work as the date of the parties’ separation.  The father considers that the mother’s relocation to South Australia on 13 October 2006 and her subsequent advice in December 2006 that the marriage was over as the effective date of separation.

6. Whilst not necessary conceded, other than on limited occasions the father thereafter spent little time with the child.

7. Thereafter, the father says that he continuously sought to spend time with the child but the mother was steadfast in her refusal other than on about four occasions a year when the father was able to spend time with the child in Adelaide and under the supervision of the mother.

8. He alleges that in late 2009 he was not able to contact the mother and ultimately proceedings were commenced by Initiating Application filed 23 December 2009.  The father relocated to Adelaide in 2010.

9. The mother considered that the father’s conduct was controlling.  She alleges that she was subjected to intermittent domestic violence.  She did not adduce evidence in respect of that allegation and her case in that regard suffers significantly by reason of lack of detail and particularity.  She also alleges that she contracted genital herpes from the father.  The father admits that he “regrettably and inadvertently passed on genital herpes” to her.  The balance of her allegations as set out in paragraphs 79, 80, 81 and 82 of her affidavit filed 11 September 2015 are denied.  No evidence was led to assist in substantiating the mother’s various allegations which at best are vague, lack particularity and therefore can be given little or no weight.

10. Clearly, the relationship between the parties was unhappy and marred by conflict, mistrust and irreconcilable differences.

11. The father considered that up until the time he instituted proceedings there was hope of a reconciliation.  If that was his genuine belief, he was clearly misguided.

12. Upon her arrival in Adelaide in October 2006, the mother lived with the maternal grandmother until 2008.  The father had the mother’s contact details and faltering arrangements were made for the father to spend time with the child.

13. In November 2007 the mother met her current partner and a relationship soon developed.  She acknowledges that when she moved into her own premises in December 2008 she was not prepared to reveal her address to the father.

14. The father refers to email communication forwarded by the mother to him on 16 February 2010 in response to his advice that he would be relocating to Adelaide in early 2010:-

    I have some concerns about you coming here.  As you know, I have reservations about you and the way you have conducted yourself in relationships and in life generally; and your post-separation conduct leaves a lot to be desired…I wonder what kind of role-model you would be to [the child] and I wonder why you are here?  I think you may be here just to cause me grief.  Your history of relationships tells me there is not much promise in this area…

15. The father alleges that the mother’s position was that he had little or no residual relationship with the child and that the “relationship is not properly grounded”.

16. The father denies that he has little or no relationship with the child, but I think it is reasonable to find that the mother clearly thought otherwise.  The issue was not so much the state of the relationship but the assertion by the father that the mother did nothing to facilitate the relationship and indeed was active in not promoting it, whereas the mother says that she did all that could reasonably be expected of her, complied with orders and that however it has come to pass, the reality is that there is no relationship between the father and the child and there is nothing that she can do that would restore it.

17. Following commencement of proceedings, orders were made that enabled the father to spend supervised time with the child at a children’s contact service.  There were numerous occasions in 2010 and 2011 which are the subject of various observational reports comprising Annexure BSD4 of the father’s trial affidavit.

18. It is the father’s summary of the observations of the contact supervisors that the father and the child played happily together, that the child was observed to be affectionate towards the father, call him daddy and “showed no sign of distress from [the child]”.

19. The mother proffered no evidence in respect of the supervised time that the father spent with the child. Whilst there are obvious difficulties in the assessment of the weight that can be placed to the observational reports in circumstances where the report is prepared by a person or persons who were not the supervisor of the contact but merely the transcriber of the supervisor’s hand-written notes, the father’s assertion that the observations of supervised time supported his contention of a good or at least promising relationship existing, was likely to be accurate.

20. The father does however concede that from time to time the child showed reluctance to spend time with him but after gentle coaxing the contact took place with little hesitancy at the commencement and no observed distress at the conclusion.  Following the further orders made in the Federal Circuit Court, a further 26 supervised occasions took place in 2012 and 2013.  It is the father’s summary that 21 of those occasions were demonstrably without distress by the child and with appropriate behaviour by each of the parties.  On five occasions there was some hesitancy by the child but it was a moment that came and quickly passed.

21. The mother provides no evidence in respect of any of the periods of supervised contact at the children’s contact service over the years that they occurred.

22. Of importance to the father is his perceived observation that it was only following the filing of an Application in a Case on 12 March 2013 which sought orders that if granted would prevent the mother from relocating the child’s residence from South Australia to Brisbane that the child became demonstrably oppositional to spending time with the father. 

23. By June 2013 it is the father’s observations that the child would “bury his head into his mother and say ‘no, I am not going’ and ‘I don’t want to go, I hate daddy’ before asking ‘can I write I hate you?’”.

24. The children’s contact service suspended its involvement as and from 2 June 2013.

25. It is conceded that there is no explanation either by the mother alleging some untoward or inappropriate behaviour by the father towards the child, or from the child as to his reluctance to spend time with the father after 2 June 2011.

26. The child’s unwillingness to engage with the father is all the more confounding against the background of unsupervised time that the father spent with the child from May 2011 to the last unsupervised visit which occurred on 20 April 2013.

27. I do not consider it a disservice to the father’s case to summarise his position, namely that following his refusal to allow the mother to relocate the child to Brisbane in early 2013 she either took active steps to dissuade the child from seeing and/or spending time with the father, or alternatively, did nothing to encourage the relationship.

28. The mother denies the father’s assertion and asserts that she has always behaved courteously and appropriately towards the father being at all times respectful of both the need to promote a relationship with the father and to comply with Court orders.

29. She challenges the father’s assertion that she took a set against him following his refusal to allow the proposed relocation.

30. In his trial affidavit the father details the somewhat benign circumstances of a visit by the father and the paternal grandmother to the mother’s home in order to spend time with the child on 22 April 2013.

31. The father records that the child was reluctant to leave the home, but all parties and the child went to the local park whereupon the mother took her dog for a walk for an extended time.  Some of the child’s friends were also at the park and the father and the boys appeared to have played happily together.

32. It could not be said that on this occasion in April 2013 the mother demonstrably interfered with the father’s time with the child, a finding that accords with the father’s evidence.

33. Thereafter the father spent no time with the child and various contravention applications were filed by the father in order to promote compliance with the orders.

34. It is an important assertion by the mother that in July 2013 and notwithstanding that the child was not spending time with the father, she took the child to Sydney to see the paternal grandmother.  The child saw his grandmother on each of the three days and it is the mother’s evidence that the child was “reserved and reluctant but he was still cooperative”.  For reasons that are not understood, the mother records that the child refused to have his photograph taken with his grandmother.  The child was seven years of age.  According to the mother, the child’s behaviour had been oppositional for some few years prior to this occasion.  The child’s conduct appears both confounding and without explanation.

35. The orders of 21 January 2014 provided for the parties and the child to engage in reunification therapy.  The mother’s summary is that the nominated psychologist declined to engage with the child and accordingly, the therapy and anticipated contact periods did not take place.  Whilst the father met with the psychologist on two occasions, the therapy was ultimately abandoned following correspondence from the psychologist on 8 May 2014 advising that:-

    I do not believe [the child] would successfully engage with me for reunification counselling.  I do not believe co-parenting counselling is indicated.

36. Notwithstanding the therapeutic process being abandoned, the father contacted the child’s school and an arrangement was made with the principal that the school would attempt to assist in facilitating a handover of the child to the father.  The father and his partner attended the school on 7 March 2014 and an attempt was made from 3.15pm to about 4.15pm to persuade the child to go with the father.  It appears that the child was prepared to engage with the father within the limited confines of the school grounds but not otherwise.

37. A further attempt for the child to transition into the care of the father at school was made on 21 March 2014.  Whilst it appears that the child was prepared to interact with the father and his partner, despite their best endeavours and those of the school staff, the child continued to request that he be allowed to return home.

38. The father considers that the proximity of the mother’s partner’s home situate over the road from the school was a sufficient distraction for the child to be reluctant to go with him.  That is a matter of speculation on the part of the father and is not supported by the evidence.  Further attempts occurred on 9 and 23 May 2014 and 6 June 2014.

39. Whilst the father seeks to place a beneficial gloss on the various occasions that he spent time with the child, it is a reasonable summary of the evidence that the child was prepared to remain in the presence of his father, but only in circumstances that were familiar to him such as his school or in the presence of his mother or the mother’s partner.

40. On 4 July 2014, handover was attempted at a family restaurant. The father and his partner attended together with the child and the mother’s partner.  I accept and find that the child was and remains comfortable in the presence of the mother’s partner.

41. The father noted that the child appeared relaxed and was prepared to engage in light-hearted banter.  The apparently happy interaction continued for 45 minutes until an attempt was made to persuade the child to leave the restaurant with his father.  The child refused.  It was the father’s observations that the child’s “body language and demeanour” appeared absent of fear or distress.  It was the evidence of the mother’s partner that he could do no more to persuade the child to spend time with his father or to promote the advantages of their relationship.

42. A similar outcome was achieved on a subsequent visit on 14 August 2014. 

43. The father sought compliance with the orders on 16 August 2014.  He attended the child’s soccer match with the prospect of the child coming into his care at the conclusion of the game.  The mother was present and whilst the father records that the mother told the child that he had to go with his father, he considered that the mother paid lip service to the orders and in respect of any obligation to actively promote time with the child.  The mother denies that she behaved in a manner which would not promote the child spending time with the father and notwithstanding her best endeavours and encouragement, the child has not been prepared to spend time with him.

44. The mother’s position is summarised at paragraph 118 of her trial affidavit:-

    (a)I have always encouraged [the child] to go;

    (b)I have always prepared [the child] to go;

    (c)I have always either taken [the child] or arranged for [my partner] to take him (except handovers at school);

    (d)I have never hindered the process;

    (e)I have pushed [the child] to spend time with his father to the point where I have been uncertain as to whether I have exceeded my parental authority.

45. If the mother’s position is to be accepted, then the apparent refusal of the child to engage with his father in the absence of any cogent explanation is confounding.

46. The mother points to the various attempts at handover that occurred.  She considers that both she and her partner were at all times civil and did their best to encourage the child to transition to his father.  The father complains that the mother could do more.  An example of the father’s entrenched belief is encapsulated in his inability to persuade the child to spend time with him on Father’s Day being 7 September 2014.

47. At paragraph 258 of the father’s trial affidavit the following is recorded:-

    During the next fifteen minutes I said to the child “I want you to come and spend some time with us” and “I want to give you your presents from last Christmas and your birthday when I was not allowed to see you”.  [The child’s] body language seemed interested but as if he were coached in advance as to what to do he did not say one word for more than fifteen minutes that we were in [the restaurant] together.

48. Whilst that passage attracts no weight, it highlights the father’s strong belief that the child’s reluctance is explained by him being coached by either his mother or his mother’s partner to refuse any entreaty by the father.

49. The father is also mistrustful or at least critical of the school staff that provided both venue and assistance in attempting to facilitate handover.  At paragraph 302 of his affidavit the father attributes some adverse responsibility to the school staff alleging that:-

    On every one of the visits to [the school] from and including 7 March 2014 staff from the school had intervened and ended the time I was to spend with [the child] by taking [him] by the hand and walking him home.  On only one occasion after the school staff had ended our visits by telling us that we had to leave was there no school staff member around to escort [the child] home so [my partner] walked [him] to his home.

50. The father’s criticism of the involvement of the school staff is misguided.  The school were under no obligation to facilitate the handover arrangements and if it is the father’s position that there should be some criticism levelled at the school for their conduct, I find that the evidence is to the contrary.

51. The father attended at the child’s school on 19 November 2014 with his partner.  It is asserted by the father that upon the child greeting him, he walked him to his car, put the child in the back seat and took him home.  It is common ground that the child resisted.  The issue is the extent of force that was used by the father to ensure that the child remained in his care.

52. The mother alleges that the conduct of the father and his partner was tantamount to an abduction.

53. The police became involved and the incident necessitated a return to Court on 21 November 2014.

54. The interim application of the mother was adjourned to 18 December 2014 and during the period of the adjournment the operative orders were suspended and three overnight periods being 28 November, 3 December and 12 December 2014 were nominated.  Handovers were to occur at a family restaurant and the orders required the appointment of an ICL.

55. Each of the parties complain as to the conduct of the other on each of the three Court-ordered occasions.

56. The child refused to leave the restaurant with the father and his partner and not surprisingly the parties blame the other for the child’s reluctance.

57. The father admits that he commenced to video record and photograph aspects of the interaction asserting that it was his intention to direct his photographic endeavours at the mother to show her “bizarre and irrational behaviour”.

58. There was a further attempt to have the child interact with the father on 24 December 2014.  It was unsuccessful.  The parties met at a restaurant.  The mother asserts that the child was reluctant to leave her side and expressed fear that the father and his partner would attempt to remove him.

59. It is not suggested by the mother that the father’s conduct was in any way inappropriate and as the mother, her partner and the child entered the restaurant they observed that there were presents for the child on the table.  The mother says that as they approached the father the child said loudly that he hated the father and wanted to go home.  The father denies that the child used those words but does accept that the child expressed a wish to go home.

60. It seems that the child did not engage with the father and his partner and whilst he seemed calm, the father accepts that the child wanted to leave.  The meeting lasted about 40 minutes and whilst uncomfortable the interaction was polite.  The father has not seen the child since that date.

THE EVIDENCE

The Mother

1. The evidence contained in the mother’s trial affidavit was supplemented by further evidence in examination in chief.

2. The mother reinforced her position that she has done all that she could to promote the relationship between the father and the child and to encourage the child to spend time with his father pursuant to various orders that have been made from time to time.

3. Specifically, she denied that she enrolled the child in swimming and other extra-curricular activities that would present a more attractive option to the child than to spend time with the father.

4. She asserted that she always packed the child’s bags in readiness for him to see his father and encouraged the time.

5. She denied the allegation and inference in paragraph 48 of the affidavit of Ms K that whilst telling the child that he had to go with his father, she did so in a manner designed to upset the child and increase his apprehension and anxiety.

6. It is the father’s contention that up until his refusal to accommodate the mother and child moving to Queensland to accompany her partner during his course of study, he had a meaningful relationship with the child albeit under various conditions of supervision.  The mother categorically denies that the dispute over her frustrated attempt to relocate in any way altered her attitude or her preparedness to comply with orders of the Court.  She did however admit that on 1 August 2014 when confronted with the child’s continued refusal to spend time with the father, she said to him “you promised in front of your mother that we could go to Queensland and you did not follow through with your promise”.

1. Under cross examination by counsel for the father, the mother revealed that she is currently employed in a health professional field which she has worked in for the past 15 years. She has had various contracts of employment and has various areas of specialisation.

2. The focus of the cross examination was to explore the mother’s experience in the area of diagnosing and treating anxiety and related conditions.  The mother agreed that it was not uncommon for her to provide professional assistance for those suffering with anxiety and she agreed that it was a condition that she should be able to recognise.  The mother was then asked whether she considered in her professional opinion that the child suffered from anxiety.  She did not consider that the child’s behaviour would satisfy the diagnostic criteria for an anxiety disorder but did concede that at times when confronted with the prospect of spending time with the father, the child may well have been anxious.  The issue is the clear gulf between a person who may be understandably anxious from time to time and a person suffering from an anxiety disorder.

3. In any event, the exploration of the topic was unhelpful in the absence of any psychological or psychiatric assessment as to whether the child does exhibit the diagnostic indicators of an anxiety disorder.  It did however set the foundation against which to contrast the inexplicable determination of the child not to spend time with his father and the paucity of evidence by either of the parties or in particular the ICL to explore and explain why that might be the case.

4. The mother was challenged as to a statement contained in paragraph 42 of her affidavit filed 1 February 2010 where she considered that the father was disinterested in the child.  She was also reminded of her earlier proposition that the father was not properly grounded and that she considered that he lacked values and integrity.  At the time she had a fear of the father and viewed him with a sense of dread.  Whilst acknowledging that the expressed sentiments represented a truthful assessment of how she considered the father in 2010, she declined to proffer a current opinion of the father on the basis that she has had little or nothing to do with him other than during relatively few occasions that the parties had met to attempt to effect a handover of the child.

5. The mother was not prepared to offer any opinion as to whether the father would be a good or a bad role-model for the child, but I suspect that the mother’s answers were more tempered by caution than honesty.  Her dislike for the father was clear and I do not consider that the mother holds him in high regard.  I do accept her proposition that at least some of her fear and anxiety arises from an abject weariness of the continued litigation.

6. The conundrum in this matter is the continued refusal of the child to spend time with his father in the absence of any explanation.  The mother conceded that there has been no complaint on any occasion by the child to explain his reluctance.  Even in the mother’s affidavit filed 14 October 2014 in response to the father’s contravention application, no complaint is recorded.  At paragraph 6 the mother says:-

   I have genuinely and frequently encouraged and pressed [the child] to spend time with the father.  [The child] is well aware of the fact of the final order, that he is required to go with his father at the specified times, and that I want him to go.  [The child] becomes frustrated when I have raised the issue and has consistently maintained he does not want to talk about it and that he does not want to spend time with the father.

7. When pressed, the mother conceded that there is no relationship between the parties and that the child may well be aware of the mother’s anger and dislike of the father.  Notwithstanding the deleterious effect of ongoing litigation between the parties, it is the mother’s position that she hoped a relationship would develop.  She can proffer no explanation other than that the child may simply find the internecine dispute between the parties to be too hard and he has devolved to the point of least resistance which is to have nothing to do with his father.

8. The focus of the cross examination was to highlight that the child’s refusal to spend time with the father coalesced when he refused to allow the mother and child to relocate to Brisbane in early 2013.  The mother denies that she was bitterly disappointed by the father’s refusal and her evidence is that she accepted that she needed his permission.  As is clear from the transcript of proceedings, the mother abandoned her plans for relocation as at the making of consent order.

9. The mother conceded that the only time that the child has spent overnight with the father was on 19 November 2014.  Whilst she maintains that the question of overnight time had never been raised by the father until January 2014, any request was always refused.  I accept that the mother could not countenance the child spending overnight time.

10. The curious aspect of the proceedings centres upon the rationale of the parties entering into the orders of 21 January 2014.  As has already been the subject of critical comment, the inclusion of orders requiring the parties to attend reunification counselling did not auger well for compliance. The mother asserts that whilst she had concerns, she believed that it could work.  As is now settled history, the orders failed at the first hurdle being the attendance by the father at the child’s school on 7 March 2014.

11. It was put to the mother that there is more that she could have done to promote the father attending school and facilitating the child’s transition to his care.

12. For her part, the mother considered that providing the orders to the school, a discussion with the principal and advising the teachers that the orders that were now in place would entitle the father to collect the child from school, was all that could reasonably be expected of her.  In addition, the child attended school with a packed bag and a clear expectation that at the end of the school day his father would attend.

13. The mother was criticised for giving inadequate instruction to the school, but that proposition was rejected.  The mother’s evidence is that whilst she was not sure what would happen and considered the possibility that there could have been an unpleasant scene, she did the best she could to alert the school and prepare the child.

14. The father attended the school on a number of occasions after 7 March 2015 and the mother conceded that other than the first occasion she did not contact the school to find out what went wrong.  The mother conceded that perhaps she should have done so in order to ascertain how the process may have been improved and there was certainly nothing preventing her from making the enquiries.  She rejected any suggestion that she did not promote the child’s time with his father and specifically asserted that she had told him on many occasions he would have an enjoyable time and that he should go happily with him.

15. The mother was again challenged as to whether the child’s presentation was indicative that he may be suffering from anxiety at a clinical level. The mother conceded that the child may have been anxious, but took no steps to explore whether the child’s anxiety may have warranted intervention.  It was conceded that the child often expressed his desire not to see and/or spend time with his father, both to the mother and to the staff at the children’s contact service, but always without explanation.

16. The focus of the cross examination then turned to the relationship between the child and the mother’s partner.  The mother was asked whether she had ever explained to the child that the only person stopping the family (including the mother’s partner) from being together was his father’s opposition.  The mother did admit that at some stage she concedes that the child knew that the father was stopping the family from going to Queensland, but rejects the proposition that she actively promoted that position with the child.

17. The mother did concede that life would be easier if the father would leave the family alone. That is also her current view.  She said that she didn’t always hold that view, but her email of 16 February 2010 at annexure BSD3 to the father’s trial affidavit would suggest that from a very early stage in the proceedings, the mother was disparaging of the father’s behaviour and considered that his continued involvement was to cause the mother grief and was not an attempt to build a relationship with the child.

18. I find that the mother held a continuing view that the father was promoting the proceedings simply to cause difficulty for her.

19. To counter the assertion that she did not promote the relationship between the child and his father, the mother pointed to the involvement of the paternal grandmother with the child.  The mother and the child visited his grandmother in Sydney notwithstanding that the child was initially reluctant to do so.  The child did however participate in various activities and the mother was happy to facilitate whatever time was to occur.  Equally, there was no difficulty in facilitating appropriate contact between the child and his cousins and the father’s extended family.  The mother’s interaction with the paternal grandmother only serves to highlight the unexplained refusal of the child to see his father.

20. The mother did concede that when the final orders were made, she had little or no confidence that the father had changed his behaviour, but she was hopeful that the child would see his father.  She denied that on any occasion she told the child that it was his choice as to whether he went with his father or not.

21. The focus turned to the arrangements that the mother had put in place on 21 March 2014 upon the father’s attendance at the child’s school with the intention of taking the child to his swimming lesson.  The father alleges that the child indicated that he would wish to go home and that his maternal grandmother would take him to the pool.  Whilst the mother was not present, she was asked whether an arrangement had been made that her mother would be available to take the child to the swimming lesson.  The mother conceded that her mother was at home, but that it was not a fall-back position.  I considered that the mother’s evidence on this point was poor and that the child was made aware of a fall-back position namely, that upon refusing to go with his father his grandmother would take him to the swimming centre.

22. It was put to the mother that when she became aware that the father intended to attend the swimming lessons, she either changed or cancelled the swimming class.  She agreed that there had been a change, but denied that it was in reaction or response to the father’s attendance.  I do not accept that it was a coincidence that the child’s swimming lessons changed without reference to the father’s intention to attend.

23. At paragraph 158 of the father’s trial affidavit, he states that upon his attendance at the child’s school on 23 May 2015, whilst the child interacted well with him, he still refused to go and said “Mummy tells me I can go home and spend time with Nanny until she comes home from work.  I want to go home”.

24. The mother agreed that she had made arrangements for her mother to be present.  She did so because by now the history was such that it was more likely than not the child would refuse to go with the father and obviously an arrangement had been made to ensure the child was appropriately supervised.

25. The mother was prepared to concede that she did not keep the father informed of the child’s extra-curricular activities in order to limit the father’s opportunity to attend.  I am left in little doubt as to the focus of the mother’s actions, but the underlying issue is her motivation for seeking to restrict the father’s opportunity to interact with the child.  The father’s position is that the mother has malicious intent and whilst displaying a thin veneer of support for the child spending time with the father, she continues to undermine the relationship.  The mother asserts that notwithstanding her dislike for the father, she recognises that the relationship is important and in terms of litigation, it would be a much easier way forward if the child would agree to spend time with his father.  Her current conduct is a recognition that she can do no more than to promote the interaction and is concerned to minimise the anxiety, distress and disruption caused to the child by his refusal to see his father in the face of the father’s persistence.

26. The evidence of the mother supports the position that there is unlikely to be any real cooperation between the parties such is the depth of their mistrust and dislike of the other.  I am satisfied on the mother’s evidence that her compliance with Court orders is cursory and not motivated by any desire to promote a relationship between the child and his father.  I am not however satisfied from the evidence that the child’s refusal to engage can necessarily be entirely explained by the mother’s lack of enthusiasm.

27. On 24 October 2014, the father and his partner attended the child’s school in order to see him.  When the child entered the room he did not appear distressed and they spoke for about half an hour.  The father asserts that the child appeared relaxed in his company and that there was happy interaction.  When the child was escorted into the foyer with the possibility that he would then leave with the father, he became withdrawn.  The mother concedes that the child was quite comfortable with the situation.  That would suggest that there are other issues impacting upon the child other than the primary position of the father that the mother does not encourage the relationship.

28. In terms of the proceedings, the attendance by the father and his partner at the child’s school on 19 November 2014 is a significant incidence.  The assertion by the mother is that the father attended at the child’s school with the intention to remove the child by force in order that he spend an overnight period in the father’s home.  The mother was not in attendance, but it is her evidence that the child remains frightened by the incident.  She considers that the child’s subsequent refusal to engage with the father thereafter is a direct consequence of the fear that the incident engendered in the child.

29. The mother’s position is that she would support the child seeing his father if that is what he wants, but ultimately given all that has happened, it is now a matter for the child to make that decision and the mother will give effect to any request.

30. Under cross examination by counsel for the ICL, the mother admitted that upon the child being returned to her on 20 November 2014, he was taken to the police station and was photographed.  Her explanation is that she considered that the father may have committed an offence in retaining the child and that a report should be made.  Notwithstanding what must have been a distressing experience for the child, the mother considers that he remained unaffected by attending the police station.

31. I consider that the response by the mother suggests she is either misguided or disingenuous as to the likely deleterious effect that would inure to the child by attending a police station and having to report the events of the previous evening.  As is now uncontroversial, whatever level of distress and/or anxiety may have been experienced by the child, there was no adverse conduct occasioned to him by the father and other than the somewhat precipitous manner in which the child was taken from his school, the evening was otherwise uneventful.

32. I consider that the mother’s conduct in taking the child to the police station was at best opportunistic and had the effect of reinforcing the child’s reluctance to spend time with his father by instilling in him the concept that he had been kidnapped or abducted from the school.

33. In an attempt to put the 19 November 2014 incident into perspective, the mother accepted the proposition that in her view the child was frightened of the father before this date and certainly as early as 7 March 2014.  Why the child should be frightened of his father in circumstances where no explanation has been provided by the child and there is little or no evidence of there ever having been any adverse conduct by the father towards the child, is as far as the mother is concerned a matter of speculation.  She does not know why the child is frightened of his father, but accepts that he is.

34. The mother considers it likely that the child is acutely aware of the ongoing litigation, the disruption to the mother’s home with her partner’s temporary relocation to Brisbane and what she considered at the time to be the father’s relentless attempts to spend time with the child.

35. The mother accepted that the father sends gifts and presents to the child to recognise special occasions.  It appears that the child routinely refused those gifts and the mother then placed them in a cupboard in the garage with the intention that if the child shows an interest, then they are there for him.  It was put to her that a more mature and insightful process would be to require the child to open the present in order to reinforce the father’s desire to remain connected.  The mother appeared surprised at that proposition and recognised that her conduct in not insisting that the child open the presents could not be seen as the mother promoting and supporting a relationship with the father.

36. Whilst satisfied that the mother presented as being exhausted by the ongoing litigation, it is likely that it has resulted in significant lack of enthusiasm on her part to support any relationship with the father.  Her compliance with Court orders is devoid of any enthusiasm for the underlying purpose.

Mr W

1. The potential importance of the evidence of the mother’s partner is not properly reflected in the relatively narrow compass of his trial affidavit. 

2. Whilst he is supportive of the mother, I do not consider that his evidence was in any way compromised by any desire to assist her.

3. He was frank in admitting that the mother was distressed by the father’s initial move to South Australia and confirmed that she doubted the father’s motives and that his presence caused her significant distress, upset and misgiving. 

4. This witness had little to do with the child and the father whilst time was being supervised at the children’s contact service but had a significant involvement in the day to day care of the child prior to his move to commence his studies in Brisbane.  His relationship was such that the child would confide in him and I accept his report that the child said and was observed to be reluctant to see his father.  He did concede that virtually on each occasion until 7 March 2013 the child was prepared to engage with the father.

5. In 2010 the child reported that he hated his father and never wished to see him again.  Mr W stated that he did not make a fuss and placed no emphasis or significance on the statement.

6. Not dissimilar to the mother, the child was not able to give him any explanation as to the basis of his opposition to spending time with his father.  The child acknowledged to him that the staff at the children’s contact service had spent substantial time trying to persuade the child to see his father and whilst usually successful, the child relayed a level of reluctance.

7. His observation was such that he had not considered that the child was ready to spend overnight time with the father but the final orders were concluded without his input.

8. I accept the assertion of Mr W that he did not have specific understanding of what arrangements if any were made between the mother and the school to try and effect the child’s handover to the father. 

9. It was only after the failed attempt on 7 March 2014 that Mr W rang the school and complained about what had happened.  It was his position that the school staff should not have allowed the distressing interaction to take place.

1. The child has complained to Mr W that he is scared of his father.  Nonetheless, he frankly admitted that in the absence of any explanation by the child, he had not observed anything in terms of adverse behaviour or conduct of the father which would explain the depth of opposition.

2. He conceded that the child had come home with Pokemon cards being a gift from the father and he appeared to enjoy playing with them.

3. After 19 November 2014 Mr W attended all of the handovers and I accept that they were difficult and challenging to all involved.

4. I accept his evidence that he did all that he reasonably could without excess notwithstanding his best effort. 

School Incident – 19 November 2014

1. The balance of the witnesses called by the mother were either employees of the child’s school or in respect of Ms U, a parent who witnessed the incident on 19 November 2014.

2. Mr R is the school principal and has assisted in attempting to effect handover between the father and the child.  It is his observation that “it was quite an ordeal for [the child]”.  Other than on 19 November 2014 the principal is not critical of the father but remains firm in his observation that the interaction between the father and the child was distressing.

3. Perhaps unwisely, the principal persisted in trying to assist with the handover but I consider that his involvement was well motivated.  Any criticism of the involvement of the principal and other school staff is unwarranted.  All of the witnesses attached to the school were impressive in their evidence.

4. Ms D observed the father and his partner enter the school office at about 3.00pm.  Ms N who was the child’s class teacher in 2014 brought the child to the front office.  She observed the father trying to kiss the child but the father’s attempt at affection was rejected by the child and he tried to avoid the father.  Eventually she observed the child being shepherded into a side room and soon thereafter the father’s partner exited the room carrying the child’s bags and moved to the carpark.  The father was then observed to be carrying the child to his car that was in the carpark and was being driven by his partner.  The child had his arms pinned and he appeared to be kicking and trying to get free.  He was distressed and appeared reluctant to leave.

5. The observations of others including Ms U who was a parent of a child at the school was distressing. 

6. The evidence of the witnesses was persuasive and I am satisfied that the child was removed from the school against his will and by force. 

7. The father may well have acted out of a sense of frustration but his actions have had the regrettable consequence of extinguishing any remaining vestige of trust between the parties.

The Father

1. The father’s evidence is comprised in his trial affidavit.   Under cross-examination he confirmed that he works from home in his capacity as a financial services provider and is currently engaged and planning to marry Ms K.

2. As to the final orders made on 21 January 2014, the father conceded that the implementation of the orders might be difficult, but given the mother’s consent and the provision for reunification counselling, he considered that it represented the best opportunity for the parties to reconcile the differences.

3. The father ultimately accepted the proposition that the orders did not represent a real expectation of compliance but rather, that they would be a pathway to a graduated resumption of time.  The tenure of his evidence was that notwithstanding the orders that he sought namely, that the child live with him, he was prepared to consider any arrangement which might have the potential to restore a relationship.  The conundrum for the father was the proposition that it would be unrealistic for him to expect that the child should move to his primary care in circumstances where either the child appears irretrievably opposed to that outcome, or on the father’s case, that the mother will not support the relationship.

4. As indication of the pedantry with which the father and his partner approached the matter arises from his evidence of repeated photo taking of the mother’s conduct at handover.  The father rejected any contention that he was taking photos of the child but rather that his focus was clearly on the mother.  Whilst initially he did not see that this was problematic notwithstanding that his actions were likely to be observed by the child, eventually he conceded that he should have taken photos of the mother in her car from a distance. 

5. The father’s partner also engaged in filming the handover between the parties focussing on the mother’s behaviour. It was conceded that there were voluminous notes of all aspects of the litigation, parenting arrangements and interaction between the parties and the child stored both in written and electronic form. 

6. When pressed, the father accepted that perhaps it was not helpful to film the interaction.  I find the father’s concession somewhat tepid.

7. The father was challenged as to his reasonable expectations of the various handovers attempted at a fast food restaurant.  He expected that the mother and her partner would tell the child in strong language that he was going to be spending time with the father and that upon doing so they would then leave.

8. If the child refused to stay, he would expect that the mother and her partner would talk to the child and reinforce the advantage of spending time with him.  In summary, the father did not consider that the mother had reinforced with the child that he is loved by his father.

9. Perhaps not surprisingly, the father was prepared to seize upon any potential arrangement which might promote and persuade the child to remain with him.  Whilst mistrustful of the mother and her motives, the father’s evidence was not such as to enable me to find that there was overt conduct on the part of the mother (and her partner) which was capable of providing the complete explanation of the child’s almost total reluctance to engage.

10. The father conceded that handover from school is not likely to be successful until a relationship is re-established.  In those circumstances, it is the father’s position that handover could occur at the school gate.

11. Before that occurs, the father opines that the child needs to see his mother strongly promoting him having a relationship with his father and that the point of handover should now be at the father’s home.

12. He conceded that the mother could not be expected to physically remove the child from the car but at the very least the mother should strongly coax the child to attend.

13. The clear frustration for the father is his observation that almost every single handover was successful up until April 2013.  Whilst not evidence, he is suspicious that the change in attitude of the child is related to a change in the attitude of the mother once she realised that any relocation of the child to Queensland would be opposed.

14. I accept the father’s evidence that within the confines of the conditions of the time that he was to spend with the child in general his time was without significant problem until April 2013.

15. The father was challenged as to his conduct at the child’s school on 7 March 2014.  The father conceded that the child was distressed for the first 15 minutes but thereafter their interaction was highlighted by laughter and apparent enjoyment on the part of the child.  The father could not explain the child’s subsequent reluctance to leave with him.  There was clearly no interference by either the mother and/or her partner and I have found that the focus of the principal and the school staff involved in the various attempted handovers to be well motivated.  The father could not have expected a greater level of accommodation and goodwill.

16. The father did concede that he blocked the school gate.  He said that it was to prevent the child from going onto the road but I find that the real reason was to stop the child from leaving the school and running over to the home of the mother’s partner which was in close proximity to the school.

17. When asked to consider the overall experience of the various handovers the father conceded that whilst it was not good it was also not always terrible.

18. The father ultimately conceded that the child may be reacting adversely to the mother’s partner being absent from the home.  It was even possible that the child may have picked up on the mother’s upset at being separated from her partner and that the child’s behaviour may well be in response to this.

19. As expected, the father was strongly challenged in respect of his conduct on 19 November 2014. 

20. Whilst the father would disavow any suggestion of a plan or strategy that had been determined with his partner, I find his evidence unpersuasive and lacking in credibility.  The father admitted that it was prearranged that his partner would drive.  I am left in no doubt that the father expected difficulties in the child voluntarily going with him and he was prepared if necessary to use whatever force may be required to place the child in his car.  The father agreed that when the child was seated the doors were locked and that he refused to open the door notwithstanding that a teacher was at the driver’s door urging the father and his partner to release the child.

21. There is no suggestion that the father had any intention of hurting the child and whilst he remained in the father’s home overnight, it is conceded that he engaged reluctantly.

22. It is difficult to see what advantage was likely to occur and I am easily led to the finding that the father’s conduct and that of his partner was misguided, ill-conceived and potentially highly damaging to the child.  The seriousness of the father’s conduct is heightened by his inability to accept that his behaviour was unacceptable.  The impact of the incident is however somewhat tempered by the evidence of the child’s reluctance to engage with the father from April 2013 to November 2014.

23. Under cross-examination by counsel for the ICL the father agreed that there had not been any successful communication between the parties since early 2013.  Little or no information about the child has been provided to the father and I accept the father’s evidence that the mother has in all probability altered the child’s extra-curricular activities to minimise the opportunity for the father to attend.

24. The father’s proposal for the child was that he would come into his care and efforts would be made to improve his speech and use of language and promote improvement in his academic performance.  The child would remain at his current school which the father acknowledges is in close proximity to the home of the mother’s partner.

25. It is the father’s trenchant view that the mother has and will continue to undermine his relationship with the child that underpins his proposal.  I am satisfied that the father demonstrates little or no insight as to the potential consequences of the child being removed from the mother’s care and transitioning to his care.  However it may have come to pass, the child is clearly oppositional to having a fulsome relationship with his father.  It is reasonable to consider that any attempt to place the child in the primary care of the father may well result in significant anxiety and distress if not clear refusal on the part of the child.

26. The concern is that the father’s proposal is predicated upon his view of the underlying reason for the child’s refusal to engage, whereas in the absence of any clear understanding or explanation, the determination of orders that are in the best interests of the child must be approached with caution. 

Ms E

1. This witness observed the father interact with the child from 2010 to 2013.  She regularly supervised his visits and made favourable observations of the interaction and activities that the father and child engaged in.  It was not her observation that the father made any derogatory remarks about the mother and the interaction could generally be described as positive and warm.

2. I accept the evidence of this witness.

Ms G Duke

1. The evidence of the paternal grandmother is comprised in her affidavit filed 5 November 2015.  She first met the mother in 2004 and was favourably impressed by her presentation.

2. The paternal grandmother had infrequent contact with the child.  She saw him in November 2007 and June 2008 in Adelaide and on 13 December 2011 where she and the father met the child at his school and later spent time together at Suburb O where a photographer took photos of them together.

3. She did not observe any inappropriate conduct between the father and the child and it is her evidence that they interacted appropriately.  I accept her evidence of this observation.

4. She again came to Adelaide in January 2013 and spent time with the child on three separate occasions on and about his seventh birthday.  Her observations of these occasions were not dissimilar to her previous observations.

5. She again travelled to Adelaide in April 2013 and together with the father spent time with the child on three occasions with handover occurring at a children’s contact service.  Again it was her observation that the father and the child interacted well and the child appeared at ease in the presence of his father, referring to him as “Daddy”.

6. Perhaps contrary to the evidence of the father, it was the view of this witness that on all occasions the mother was cordial and pleasant. 

7. In July 2013 the mother and the child went to Sydney with the intention of spending time with the paternal grandmother.  The arrangements were made between the mother and the grandmother and whilst there is some discrepancy as to whether the mother and child were to stay with the grandmother they nonetheless spent time together without incident except for the last morning of their visit when the grandmother saw the child being pulled through the front gate of her home by his mother.  Her evidence is that the reaction of the child was extreme and he had his head between his knees.  It was only after some considerable time that the child would engage with anyone.  Ultimately his behaviour appeared to moderate.  That was the last occasion that the child came into contact with the paternal grandmother.

8. It is the evidence of this witness that the mother was gracious in her interaction and as if to reinforce the reliability of her evidence she makes the observation that the father behaved obsessively with the child.  She considered that in her interaction with the mother she appeared to be sad at being separated from her current partner.

9. The paternal grandmother made appropriate concessions without being pressed to do so and I accept the powerful picture she paints of the child being calm and relaxed in the presence of his father prior to April 2013 but thereafter his oppositional behaviour appears without cause or explanation.

Family Consultant

1. The ICL relied upon the family report prepared pursuant to s 62G(2) of the Act as ordered on 23 December 2014.  The family report is dated 21 April 2015. 

2. The report sets out the professional qualifications and considerable experience of the family consultant noting that whilst she holds the tertiary qualifications as a Bachelor of Social Work and a Doctor of Philosophy in Health and Social Sciences, she does not hold the qualification of a psychologist.

3. The report must be seen against the history of the reports as prepared by the previously instructed family consultant but neither tendered or relied upon by each of the parties or the ICL.

4. There was no challenge to her experience, training or qualifications.  I consider that this may have been a significant omission in the manner in which the parties and perhaps more importantly, the ICL approached the evidence of the family consultant.  At various pre-trial stages and at the commencement of the proceedings, I raised with counsel whether the family consultant possessed the necessary training, study or expertise to provide evidence that was likely to assist the Court in determining the orders that would best serve the child’s best interests.

5. In particular, I considered that the absence of any explanation for the child’s almost total opposition to the father may require a consideration as to the psychological or psychiatric functioning of the child.  In summary, there remained the possibility that the child’s behaviour is explained by the presence of a psychiatric disorder or psychological impediment.  If that is a possibility, then I expressed to counsel that it would be extremely difficult to craft orders in those circumstances.

6. I received no submission from counsel for each of the parties and the ICL that the family consultant was not possessed of expertise in the relevant specialised field of knowledge or that the proceedings should be adjourned to enable a better understanding of whether a differently skilled family consultant could be engaged and provide assistance to the Court.

7. The family consultant was able to inform herself as to the extensive history of the matter.  I note her reference to the affidavit material generally, although it is difficult to determine what use, if any, the family consultant had of the extensive information provided. 

8. It is also a relevant consideration that the interviews with the family consultant, the parties and the child took place on 3 November 2014. At the time of interview the child was aged 9 years and 3 months.  Counsel did not consider that it was necessary for there to be an addendum or updated report.

9. The family consultant properly records her view of the relationship between the parties in the following terms:-

   [7]Relationship issues between these parents have apparently included issues of mutual distrust, mutual disrespect, polarised views about what constitutes child focussed parenting, and apparently increasingly polarised views about [the child’s] needs for overall wellbeing including cessation of being the focus of parental conflict, and including the child’s emotional, psychological, rational, and physical safety.

10. The family consultant summarised the father’s position namely, that notwithstanding his significant attempts, he had not been able to form a meaningful relationship with the child since April 2013.  It is reported that the father was prepared to work with the mother in order to facilitate his relationship with the child and was prepared to recognise that the child had indicated his “emotional unpreparedness to engage in a relationship with his father”.

11. The mother’s position was that the father did not recognise that the child feared him and that the continuing pursuit of a relationship by the father was “strengthening his resilience to spending time with his father”.

12. The father reiterated his strongly held view that the mother was either not prepared to encourage the child to have a relationship with his father or actively dissuaded the child from doing so.

13. The family consultant considers that the mother “appears to demonstrate sensitive empathic and loving capacity”.

14. The family consultant found that the father displayed “apparent lack of insight into his and [the mother’s] damaged, distrusting and apparently non-productive relationship.”

15. The interview with the child is informative.  He did not report as a child who had been inappropriately coaxed or encouraged to be oppositional to his father but rather, considered that his mother and her partner to be nice people whereas when asked to describe his father he said:-

    Dad, hate him, he’s the worst person in the world, he kidnapped me, it makes me feel very, very, sad… they locked the doors with the child locks in, I was crying the whole time, I was trying to get out and I wasn’t saying much.

16. The child considered that his father was:

    the meanest person I’ve ever met by far, and I don’t know anything about [the father’s partner] and I don’t want to, all I know is she helped my Dad kidnap me.

17. The presentation of the child when talking about his father was described as being an “explosive rendition”.

18. The child’s expressed position was repeated in the observed interaction with the mother and her partner and then with his father.  In the first instance the child was observed to closely embrace his mother.  The favourable observations were unremarkable.

1. In McCall & Clark (2009) FLC 93-405, the Full Court said at [119]:

   We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is     “the respective approach” although, depending upon factual circumstances, the present relationship may also be relevant.  We note however that s 60CC(3)(b) requires a court to explore existing relationship between a child and his or her parents and other persons, including grandparents.  If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit the court making appropriate orders in circumstances where a significant relationship has not been established between a child and a parent at the date of trial.

2. I must therefore consider orders that serve the best interests of the child and must weigh up the competing primary considerations, namely the benefit to the child of having a meaningful relationship with both of his parents but also the need to protect him from physical or psychological harm.

3. The latter consideration therefore requires a focus on whether the child is at risk of being subjected to physical or psychological harm or being exposed to abuse, neglect or family violence.

4. The mother would argue that the father’s conduct on 19 November 2014 was an example of the physical harm that was occasioned to the child by the actions of the father.  For his part, whilst attempting to minimise what was clearly appalling conduct on his part, it could not be said that there is evidence to establish that the father generally presents a physical risk to the child.  There is no doubt that he holds great love and affection for the child and there is no evidence prior to the school incident which in any way suggests the father either would place the child at risk or that he would cause physical harm to the child.

5. As has been the subject of earlier comment, there is no evidence of the risk of psychological harm.  The family consultant was not a psychologist and it was apparent prior to the commencement of the proceedings that she would not be able to assist the Court if it was suggested that in pursuing a relationship with the father the child may well be the subjected to psychological harm.  For reasons not clearly enunciated the ICL did not consider that issue warranted investigation or consideration.

6. I am also satisfied that whatever the adverse reaction of the child might be to spending time with his father, if it were to occur there is no risk of abuse, neglect or family violence that would arise. 

7. The Court is then left in the position of being obliged to determine the matter based upon the apparent trenchant refusal of the child to engage with his father and the opinion of the family consultant that to force the child to do so is likely to reinforce the child’s continuing refusal to engage.

8. In Cotton & Cotton (1983) FLC 91-330 Nygh J (at 78,259) considered that whilst it was generally desirable for a child to maintain a meaningful relationship with both parents:

   …that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child.  It is not, in other words, a question of contact for contact’s sake.  If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even if not likely to confer any benefit, then little purpose is served by this Court making orders for such contact.  That does not Detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.

9. In Sigley & Evor (2011) 44 Fam LR 439 in the context of a relocation case, the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so quoted, amongst others, the decision of Champness & Hanson (2009) FLC 93-407 at [136]:-

   [103]The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the child had a “meaningful relationship” with both parents.  This is an incorrect assumption.  The court’s obligation is to make the orders most likely to promote the child’s best interests.  In seeking to achieve that objective, s 60CC(2)(a) directs the court to consider “the benefit to the child” of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all the other relevant factors.

10. The Full Court then went on to cite Champness (supra) again at [136]:-

    The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one.  It is for the court, not an expert, to determine what constitutes a ‘meaningful relationship’.

11. In St Claire & St Clair and Ors [2013] FamCA 108 Cronin J was confronted with an eight year old child who had not had any contact with his father for three years. The child’s 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father was subject to the child’s consent. The final orders provided for the younger child to spend time with the father in accordance with a strict therapeutic regime conducted over a period of 12 months. His Honour said:-

    [209] It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents.  In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question asked was whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.

12. His Honour recognised that it was difficult to determine the extent of the benefit that may come to the child for a meaningful relationship with the father in the following terms:-

    Just what benefit the child will receive in a limited and controlled environment is hard to know.  The husband strongly resisted what he described as the prison-like environment of a contact centre.  His view about [the child] just treating him as a normal father was unrealistic.  Having said that, properly prepared, he could explain to [the child] just who he is and how important it is for her to know that if she needed a father, he could be available to her.

13. In Wang & Dennison (No 2) [2009] FamCA 1251 Bennett J made final orders that the children live with the mother but declined to make any orders for them to spend time with the father. This was based on the reluctance of both children aged 10 and 12 to re-establish a relationship with their father and his inability to see “the children’s need for peace”. Her Honour had previously tried therapeutic intervention which was considered unsuccessful. There was evidence before her Honour that the continuation of reunification therapy would place the children at an unacceptable level of emotional and physical risk. The following paragraphs of the judgment are apposite: -

    [76]…[The father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of bitterness or vindictiveness towards the mother.  Nor has his campaign been based on selfishness.  I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification it is beyond the capacity of the mother to provide. 

    [77]It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well-motivated and best performing parent.  The Court must have regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, at least to the extent of any conflict.

14. The Full Court in Dennison & Wang [2010] Fam CAFC 182 at [5], when considering the father’s appeal against her Honour’s orders, recognised that at the heart of the father’s appeal was an inability to:

    understand how at the end of a lengthy trial where the trial judge made strong and adverse comments about the mother, and no comments of a serious nature against the father, that the orders provided him with no physical contact.

15. Implicit in the disposal of the appeal is clear support for the objects of the Act namely that the best interests of the child or children should be the paramount concern.  Importantly the Court recognised that the “reality of the situation of the parents and the child…was clearly a significant part of the trial judge’s reasons for making no orders, as opposed to the desirability for a parent having a ‘meaningful relationship’ with his children”.

16. In Baglio & Baglio [2013] FamCA 105 Murphy J had to consider the father’s application to spend time with a three year old child who he had not seen for three years. The mother was opposed to the child spending time with the father and she freely admitted that she would not encourage a meaningful relationship. She said that she lived in constant fear of the husband and it was clear that she had intentionally alienated the child from the father.

17. His Honour found that there was a “chance of a meaningful relationship…which is beneficial to the child” and that the absence of such a relationship may well cause harm in the long term.  At [121] following a finding of no unacceptable risk his Honour said “if there is no unacceptable risk of harm to her, the child should have the opportunity to know and have an image of, a father who did not hit her.”

18. At [148] the following appears:

    …I am concerned by the mother’s actions in intentionally alienating the child from her father and removing from her life all references to him, other that references to violence.  The child’s rights enshrined in Part VII Objects and Principles pertained.  I am also concerned by the mother’s repeated assertions that she will not encourage a relationship between the child and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child.  I consider such statements and conduct to be completely antithetical to the child’s best interests and demonstrative of an inability on the part of the mother to place the child’s needs, and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.

19. The reality of the situation is that there is no possibility of the child being placed in the primary care of the father without physical restraint and very likely severe emotional distress. The father acknowledges that the orders he seeks are not viable in the absence of reunification therapy as was considered.

20. Reunification therapy was considered pivotal to the successful implementation of the final orders and the re-instatement of the child spending time with his father.

21. Notwithstanding that the father is mistrustful of the mother’s behaviour and conduct, the evidence is that the orders have been complied with and the child has been presented to the father.  I am not able to find that the mother is refusing to make the child available, but notwithstanding the many occasions that he was presented to the father both at school when the mother was not present and on those occasions when either she or her partner attempted to facilitate handover, the child’s reaction was of consistent refusal.

22. The issue is not that the father has nothing to offer or anything to do with his presentation which might be considered to be adverse to the child, but rather, that he does not want to spend time with his father and there is no evidence of what remedy and methodology might be employed to achieve a reunification.

Section 60CC(2)(b)

1. I do not consider that there are issues of family violence and whilst I bring to account the father’s conduct on 19 November 2015 when the child was forcibly removed from his school, I accept that it was motivated by the father’s exasperation at not being able to resume a relationship with his son.

2. No evidence has been presented as to any psychological risk of harm that might inure to the child if orders are or are not made requiring further interaction between the parties and the child.  Given the lack of any reasonable explanation against which to consider the child’s extreme behaviour, the Court has not been assisted by the apparent reluctance of the parties and the ICL to explore the nature and extent of the child’s anxiety about his father.

Section 66CC(3)(a)

1. The child was vociferous in his negative attitude towards his father.  The family consultant noted that at the observed interaction, the entrance by the father into the childcare area resulted in the child immediately hiding under a small table and repeatedly saying “go away, I hate you, go away, I hate you”.  The child at no time came out from under the table and would not respond to the father’s entreaties expressing love and a recognition that they are father and son.  Whilst the family consultant was critical of the father suggesting that he did not “perceive ways in which he might have acknowledged to [the child] that he had heard the child’s words”, I am satisfied that his conduct was appropriate and reasonable.  It is difficult to expect the father to behave in a particular way when faced with the extreme and no doubt distressing behaviour of his son.

2. It was strongly submitted that I am entitled to take the child’s response both by word and action as a clear indication of his view and wish namely, to spend no time with his father.

3. I am also mindful of the complete absence of any explanation for the child’s conduct that is both extreme and concerning when placed into historical context of the father having a close relationship with the child up until April 2013.

4. I do not consider that I should give significant weight to the child’s wishes or views in the absence of a reasonable basis for his refusal, but that is different to an acknowledgement that ultimately whatever orders are made may be incapable of implantation given the child’s attitude.

Section 60CC(3)

1. The child has a strong attachment to his mother and I suspect to her partner.  It was at least a consideration that the mother’s distress at not being able to join her partner in Queensland was potentially the catalyst for the sea-change in the child’s attitude towards his father.  That position was not necessarily supported by the family consultant.

2. I do not consider that the child is in any way attached to his father.  That is not necessarily fatal to an order being made that the child spend time with the father, particularly in circumstances where it is likely the child would benefit from a resumption of time, but it is nonetheless a factor that needs to be brought into account.

Section 60CC(3)(c) and (ca)

1. The mother has clearly had an integral involvement in the child’s life.  The father has not.  The parties have not been successful in either the participation and decision making about major long term issues or any process of consensus in that respect.  I do not consider that these parties are capable of engaging in such a process devoid of anxiety, mistrust and entrenched dislike.

2. Any communication between them is devoid of regard and respect for the other.  I am able to find that the parties have no ability to communicate and their dislike and mistrust is thinly disguised in a cloak of civility.

Section 60CC(3)(d) and (e)

1. The mother’s proposal is that the child continued to remain living with her, whereas he should spend no time with the father.  The effect of the orders that she seeks is to do no more than to enshrine by way of order the current circumstances notwithstanding the orders of 21 January 2014.

2. The father’s orders would see the child transitioning by some process to the primary care of the father.  He says that he is capable of promoting a relationship between the child and his mother, whereas the mother is not able or prepared to do so with him.

3. I have found that the father recognises that the child is unlikely to be a ready and willing participant in the process.  There appears to be a concession by the father that any orders that would promote a re-establishment of the relationship would be an acceptable first step.

4. That would represent a dramatic change in the child’s current circumstances.  The focus of the proceedings has been on the effect on the child of orders that would see him being brought into contact with his father.  There is significant evidence of the child’s reaction when introduced to his father.  The child’s attitude can be seen as a continuum on a spectrum commencing with apparently pleasant interaction but tempered with a refusal to go with his father, to the observations of the family consultant of the child cowering under a table.

5. Accordingly, as the evidence presently stands, any orders that I make must recognise that the child is likely to refuse to see his father and suffer significant distress.

Section 60CC(3)(f) and (i)

1. I am unconcerned as to the capacity of each of the parties to appropriately parent the child, nor in the ordinary course would there be any concern in respect of the mother’s partner or the father’s partner.  I am satisfied that all involved are genuinely motivated to the best interests of the child.  They clearly disagree as to how that should be given effect, but I am not persuaded that either of the parents have an incapacity to provide a safe and protective environment for the child. 

Section 60CC(3)(g)(h)(j) and (k)

1. These considerations are not relevant in the circumstances of this case.  Importantly, I do not consider that there is any evidence of family violence that would impact upon the orders that each party seeks.

Section 60CC(3)(l) and (m)

1. The family consultant is strongly of the view that if there is to be any hope for a relationship in the future between the father and the child, the child needs to be relieved from the odium of further litigation.  It is opined that left to his devices, the child may mature and if not pressured into doing so, may well determine that it would be to his advantage and benefit to see his father.

2. The mother would represent to the Court that she would respect any wish by the child to see and or communicate with his father and that the Court can have confidence she would facilitate such a request.  The father considers that there is little likelihood in the absence of an order that in the mother’s home he would be promoted in a positive light.

3. The parties are clearly weary of the litigation, but more relevantly, the distressing conduct of the child under interview and observation by the family consultant would provide ample basis for the Court to strive to make orders that would bring the proceedings to an end with a significantly reduced risk of any further litigation.

PARENTAL RESPONSIBILITY

1. The current order does not provide for the manner in which the parties are to share the parental responsibility for the child.

2. In the absence of any expression to the contrary, it can be presumed that it is in the best interests of the child for the parents to have equal shared parental responsibility.

3. The parties are highly conflicted and have little or no ability to communicate with the other.  Their current relationship is built upon a foundation of mistrust and dislike.

4. It is an unfortunate aspect of this case given that the adults are high functioning individuals.  Each of them have tertiary education qualifications and in their separate lives are productive, functioning and well-respected individuals.  They bring none of that intellect to bear in their interaction and involvement with the other.

1. The evidence does not support any real ability of the parties to consult with each other or to make a genuine effort to do so.

2. The ICL strongly supports an order that the mother have sole parental responsibility for the child and whilst the father may understandably rail against such an outcome, I must focus on the best interests test as the paramount consideration in the determination of parental responsibility.

3. That does not mean that there should not be an obligation on the mother to advise the father of major decisions that are likely to impact or affect the child, but that ultimately she shall be responsible for making those decisions.

CONCLUSION

1. The orders that the father seeks that would see the child living with the father are not in the best interests of the child and in any event are untenable.  They are not supported by any evidence that I have had to consider.  Whilst not obliged to do so, the same considerations apply to an order that would see the child spending equal time with the parties.

2. The current orders of 21 January 2014 provide that the child would spend significant and substantial time with the father.  I have not found any conduct or behaviour on his part that would speak against such an order but rather, I find that the child’s attitude is likely to make the operation of the orders untenable.

3. I am obliged however to have regard to the primary consideration under s 60CC namely, that a child has a right to enjoy a meaningful relationship with his parents.  There is no explanation for the lack of relationship other than the child’s refusal to engage with him.

4. For her part, whilst she does not necessarily promote orders that would have the child spending time with the father, her position is that she would support and facilitate any request made by the child to communicate and/or spend time with his father.

5. It seems to me that taking into account the age of the child, the inference reasonably drawn from the parties entering into the consent order on 21 January 2014 and the absence of any explanation to explain the child’s oppositional behaviour, orders should be put in place not dissimilar to the tenor of the consent order but with the caveat that the orders are subject to the child’s wishes.  This reflects the reality of the situation given the impossibility of forcing the child to spend time with his father unless he chooses to do so.

6. A change in attitude by the child will provide certainty of outcome and will not require the parties to re-engage in further litigation.

7. The existence of orders will also place a continuing obligation on the mother to be reminded of the need to reinforce the benefits of the child resuming a relationship with his father and whilst denying him a resumption of time with his son, he has at least some comfort in orders that make it clear but for the child’s current refusal, there are no other barriers to the child resuming a relationship with him.

8. I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 March 2016.

Associate: 

Date:  3 March 2016