Stokes & Vines

FAMILY COURT OF AUSTRALIA

STOKES & VINES

[2008] FamCA 467

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Mother wishes to relocate with the child from New South Wales to Queensland – Father opposes relocation – It is not in issue that the child should live with mother, rather whether the mother and the child should be permitted to relocate to Queensland and what time, if any, the child should spend with the father – Mother permitted to relocate with the child to Queensland after the end of the New South Wales School year in 2008

FAMILY LAW – CHILDREN – With whom the child spends time and communicates with – Child’s views – The child has a strongly held view that he does not want to spend any time with the father – Child suffers from Tourette’s Syndrome and anxiety and his symptoms get worse when he spends time with the father – It is not in the best interests of the child that the child spends time and communicates with the father – No order for the child to spend time with and communicate with the father but the mother is to take reasonable steps to facilitate any request by the child to communicate with or spend time with the father

FAMILY LAW – CHILDREN – Parental responsibility – It is not in the interests of the child that parental responsibility be shared – Mother is to have sole parental responsibility for the child

FAMILY LAW – CHILDREN – Family violence – Allegations that the father has been violent towards the mother and the child

Family Law Act 1975 (Cth)

APPLICANT:

Ms Stokes

RESPONDENT:

Mr Vines

INDEPENDENT CHILDREN’S LAWYER:

Champion Legal

FILE NUMBER:

PAF

4816

2001

DATE DELIVERED:

20 June 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Parramatta and Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

13-14 December 2007 and 30 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cleary

RESPONDENT:

In person

INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey

Orders

All prior parenting orders are discharged.
The mother, Ms Stokes (also known as …) born … February 1975 have sole parental responsibility for the child born … April 1996.
The child live with the mother.
The mother is permitted to relocate with the child to Queensland, such relocation not to occur prior to the conclusion of the New South Wales school year in 2008.
There be no Order for the child to spend time with or communicate with the father, Mr Vines (also know as … and …) born … November 1966, subject to Orders 9 and 10.
The father be and is hereby restrained from contacting the child by telephone, letter and/or through the child’s school, presently N School, or any other school that the child attends from time to time.
The father be and is hereby restrained from attending or telephoning N School or any other school that the child attends from time to time.
The mother shall take all reasonable steps to ensure that her present solicitor has postal and telephone contact details for the child and shall notify her present solicitor of any changes to those details within 7 days of such change.
The father shall, within 14 days of the date of these Orders, notify the mother’s solicitors of his current postal address and telephone contact details and shall keep the mother’s solicitors informed of any changes in those details, with notice to be provided within 14 days of any change.
The mother shall take all reasonable steps to facilitate any request by the child to communicate with or spend time with his father and in order to facilitate such request shall obtain the father’s contact details from her current solicitors.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Any application for costs by either party or the Independent Children’s Lawyer should be lodged with Justice Fowler’s Associate with a request for re-listing to deal with the issues of cost and a copy served on each party and the Independent Children’s Lawyer.
Within 21 days of the date of service of such a request each of the parties file and serve a statement of their financial affairs and a written submission on costs.
In the event that no such request is made within 21 days of the date of this judgment then there will be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Stokes and Vines is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 4816 of 2001

MS STOKES

Applicant

And

MR VINES

Respondent

REASONS FOR JUDGMENT

Introduction

The mother of a twelve year old boy diagnosed with the neurological disorder Tourette’s Syndrome seeks the discharge of orders for contact between the child and the father in order to relieve the stressors which she says are created by such contact and which she says cause the manifestation of symptoms of the Syndrome. She also seeks to relocate her son's permanent place of residence to Queensland from NSW commencing in time for the child to enrol in Queensland schools for the 2009 school year. She asserts that both orders are consistent with the child’s strongly and consistently expressed wishes and his best interests. The father seeks a refusal of those orders and a reinstatement of contact following a suspension of it pending the hearing albeit that he seeks contact on a very limited basis. He asserts that the continued suspension of contact would have severe long term detrimental effects on the child’s welfare and that the wishes of the child if expressed are the product of influence from the mother.

Background Facts

The father born … subsequently known as … and … but presently known as Mr Vines was born in November 1966 and is presently aged 41 years.
The mother was born in February 1975 and was then known as … and is presently known as Ms Stokes and is aged 33 years.
In 1988 the father, according to an account given by him to the Department of Community Services left his country of birth to live in another country as a refugee.
In 1991 the respondent father arrived in Australia to live and had some contact with a psychologist at the Community Health Service.
In 1992 the mother completed her higher school certificate.
In January 1995 the parties first met overseas.
In February 1995 the parties married overseas.
In March 1995 the father returned to Australia.
In July 1995 the mother arrived in Australia and the parties lived in Sydney.
In March 1996 the maternal grandmother of the child arrived in Australia from overseas and remained here for 3 months.
In April 1996 the child was born and is presently aged 12 years.
In May 1996 the father indicated he had problems with the child crying and was referred to the Mental Health Services who direct him to Torture and Trauma Services Support Group (STARTS). The father subsequently said he does not know the source of the information as to his alleged torture (in his country of refuge) but that in any event he was not tortured.
In June 1996 a notification was made to the Department of Community Services alleging an assault by the father on the child and the father consults the Mental Health Services which prescribed medication for him which he says he did not take or if he did he only took it for a short time and not as prescribed. In his interview with the Department the father says he felt angry and out of control when the child cried and he squeezed the child and bruised him.
On 14 June 2006 the father filed undertakings as to his treatment of the child with Department. The father agreed to seek professional help to resolve his emotional problems.
In 1997 the maternal grandmother arrived in Australia and commenced to live with the parties.
In 1998 the father travelled to Europe for a 4 week holiday. The mother refused to go with him when she says she found a handprint on the child’s face. She says she informed the father that she was leaving him and he hit her for the first time.
In July 1998 the parties first separated.
In July 1999 the mother returned to her country of birth with the child and says that under the joint influence of her family and the father’s family she attempted a reconciliation with the father and the parties returned to Australia together and the parties separated and reconciled more than once.
On 29 January 1999 the Department of Community Services received another report in relation to the child.
In 2000 the mother’s younger brother and sister came to Australia to live with the maternal grandmother.
In September 2000 the mother says that the father hit her and she left him and went with the child to live in a Women’s Refuge and this constituted the final separation of the parties.
In 2001 the mother and the child returned to her country of birth for about three months. She says that she returned to Australia when she discovered that the father had located her in her country of birth.
In May 2001 the mother and the child moved to live in Queensland. The mother came to Sydney to visit her mother and the father had daytime contact with the child at the home of the child’s maternal grandmother.
In June 2001 the mother moved into a refuge in Brisbane for three months before she could acquire her own accommodation and she undertook studies in Community Services. She and the child undertook counselling.
In August 2001 the mother again travelled to Sydney and stayed with her mother. The father came and removed the child and kept him for several days.
In August 2001 the father started to consult with Dr G in relation to his psychiatric health.
In October 2001 a temporary protection order was issued in the Magistrates Court of Queensland for the protection of the mother and the child.
On 31 January 2002 a protection order for two years against the father was issued in the Magistrates Court of Queensland for the protection of the mother and the child.
In January 2002 the parties were divorced in Brisbane.
In January 2002 the child started school in Brisbane.
On 1 March 2003 the following orders were made by the Family Court in Parramatta namely:
1.That the child […] born on the […] April 1996 reside with the mother.
2.That the mother have sole responsibility for the day to day care welfare and development of the said child save as may be necessarily exercised by the father during contact.
3.That the father have contact with the child at all such reasonable times as may be agreed to in writing between the parties and failing agreement as may be ordered by the Court and shall include:
(a)for 3 periods of 2 hours on Friday between 3.30 pm and 5.30pm to take place at and be supervised by the Logan West Contact Centre Brisbane and shall not occur more frequently than once per month,
(b)Thereafter, for 1 period of 4 hours between 10am and 2 pm with the child to be collected from and returned to the Logan West Contact Centre not less than one month after the last contact referred to in paragraph 3(a );
(c)Thereafter, from 10 am to 4 pm on Saturday with the child to be collected from and returned to the Logan West Contact Centre not less than one month after the contact referred to in paragraph 3(b) above and thereafter monthly.
(d)By telephone each Tuesday and Thursday between 6 pm and 6.30pm (Queensland time) upon the father providing to the mother’s solicitors a home link telephone number and the mother to initiate the telephone call.
4.That the father without admission shall not physically discipline the child nor seek to obtain any information from the child as to the mother’s whereabouts associates and other relevant matters.
5.That the mother’s application to transfer these proceedings to the Family Court of Australia at Brisbane is adjourned marked not reached. [it was subsequently refused]
6. That a Family Report be prepared as soon as possible.
7. That this matter is adjourned to the Judicial Duty List.
In July 2002 a Family Report was prepared by a Mr S and the father did not participate in interviews.
In April 2003 there was some contact between the child and the father when the mother brought the child to Sydney. There was some short contact in September 2003, and in December 2003 contact took place at the home of a member of a community church.
In July 2004 the mother returned to live in Sydney together with her friend known as M. The child was enrolled in N School. The mother asserts that the move was in part a compliance with a request from the child that he again be able to see his father. It is asserted by the mother that the father said to her in the child’s presence “I will kill you if you do not let me see him” and to the child “I will take you away from your mum.”
In December 2004 the mother took the child to see a Dr T in relation to his behaviour and Dr T diagnosed the child with Tourette’s Syndrome and mild levels of Anxiety. He also showed signs of an associated Obsessive Compulsive Disorder.
In early 2005 the mother reported that the child informed her of nightmares and fears that he could be taken away by his father.
In January 2005 the father reports the mother’s friend M to the Department of Community Services and the Police alleging that he had made threats to the father and had abused the child. The mother asserts that at this time she was informed by the child upon return from a period of contact that he was forced by the father to go to the police and report that she and M had hurt him which is denied. He also reported that his father had said that he would hurt him if he told the mother about the trip to the police.
In April 2005 Orders were made by consent to the following effect:
1.That the orders made on 1 March 2002 be discharged.
2.That the child, namely, […], born […] April 1996 (“[the child]”) reside with the mother.
3.That both parties are jointly responsible for the long-term care, welfare and development of [the child].
4.That each party be responsible for the day to day care, welfare and development of [the child] whilst he is in their respective care.
5.That [the child] have contact with the father as follows:-
a.Saturday from 10:00 am to Sunday 5:00 pm each alternate weekend commencing the first Saturday following these orders.
b.Each Christmas Day in the odd year commencing 2005 from 10:00 am to 7:00 pm.
c.Each Christmas Eve in the even numbered years commencing 2006 from 10:00 am to 7:00 pm.
d.Liberal telephone contact each Tuesday and Thursday from 6:00 – 6:30 pm. [The child] to initiate the phone calls with his father.
6.For the purpose of contact change over that the mother deliver and collect [the child] from […] Bookshop, […], at both the commencement and cessation of contact.
7.That no parties, including the parents, shall physically discipline [the child].
8.That each of the parties shall be entitled to attend parent/teacher interviews, concerts, sports carnivals and assemblies at [the child’s] school from time to time when the parties are invited to attend.
9.That each of the parties be entitled to receive all school reports, notices, newsletters, correspondence and other documents including applications for school photographs from [the child’s] school.
10.That each parent be and is hereby restrained from consuming either:-
a.Illicit substances
b.Alcohol in excess of the legal limit for driving a motor vehicle at all times when [the child] is in their respective care.
11.That the parties be and hereby restrained from denigrating the other parent and members of the extended family in the presence or hearing of [the child] and shall use their best endeavours to ensure no other person denigrates the other parent or members of the extended family in the presence or hearing of [the child].
12.That the father not attempt to speak to the mother during his telephone contact with [the child].
13.That each party notify the other party within 3 hours of any admission of [the child] to a hospital or any prescription being issued by a medical practitioner and provide the said hospital or medical practitioner all consents necessary for the other parties to consult the relevant medical practitioner and consult the medical practitioner in relation to [the child’s] diagnosis and treatment.
14.That each party shall notify the other at the earliest opportunity of any serious illness of [the child] whilst in their care and ensure that all medications prescribed for [the child] are delivered to the other parent as appropriate.
15.That both parties give each other 7 days notice of any details of any appointment with a specialist, medical practitioner and provide all consents necessary for both parties to attend the appointment with the specialist, medical practitioner and to consult the medical practitioner in order to discuss [the child’s] diagnosis and treatment.
16.That the mother do all acts and things necessary to authorise the relevant school which [the child] is attending to send all copies of school reports, weekly notices, correspondence and applications for school photographs directly to the father. That such authority be provided on the first day of [the child’s] attendance at the relevant school.
17.That the father not attend [the child’s] relevant school except during those times when an event is held at the school which allows the attendance of student’s parents.
18.That parties shall be restrained from removing the child […] born […] April 1996 from the Commonwealth of Australia, and that the court request the Federal Police to place the name of the child on the Airport Watch List and to maintain the name of the child on the said Watch List.
19.The mother provide the father with two weeks notice in relation to any travel outside the City/Metropolitan [area].
20.That both parties be restrained from residing in a location outside the City/Metropolitan area.
21.That pursuant to Section 65DA(2) the particulars of the obligations these orders create and the particulars and consequences that may follow if a person contravenes these orders are set out in Annexure A and their particulars are included in those orders.”
Between April and September 2005 the mother reported that the child repeatedly expressed to her a desire to cease contact with the father and I accept this evidence, and the evidence she otherwise gives.
In September 2005 the mother noticed that the child’s behaviour had deteriorated even more and that he had started wetting his bed, developed a facial tic and continued to have nightmares.
On 2 September 2005 the mother reports that the child told her he did not want to attend contact with his father the following day and he stated that his father was always asking him questions for instance “Where does your mother live” and accompanied this question with threats if he did not tell him.
On 3 September 2005 when the child returned from contact he informed his mother that he did not want to see his father any more and that if his mother did not help him he would go to his school for help. He said, it is reported by the mother, “I would rather be dead”.
The mother made arrangements for the child to see a clinical psychologist. This was the last occasion on which the child had any contact with the father.
On 12 September 2005 the mother attended with the child at the Family Health Centre where she consulted with a child psychologist who advised her to cease contact and seek legal assistance and also informed her that she would make a report to the Department of Community Services. She referred the child to a social worker.

The mother and the child consulted with the social worker who gave the same advice and referred the mother to a Community Legal Centre.
On 23 September 2005 the father advised the mother by text message that he was travelling overseas.
In October 2005 the father informed the mother that he had returned from overseas and wished to resume contact with his son. The mother informed the father that she had been advised to cease contact.
In December 2005 the mother was contacted by the Department of Community Services case worker and an appointment was made for 20 December 2005.
On consultation with the Department on 20 December 2005 the mother was informed by the caseworker “[The child] strongly expresses he doesn’t want to see his father and you should take this matter back to court and make sure [the child] has been heard and that he is safe.”
In February 2006 the mother made application for the appointment of an Independent Children’s Lawyer and for a suspension of contact.
On 6 February 2006 the Federal Magistrates Court made an order for the appointment of an Independent Children’s Lawyer (Child Representative).
The parties attend the Court for mediation on 22 February 2006 and the father alleges that the mother’s partner made threats to him and the mother alleges that the father tried to drag the child away from her. A telephone interim apprehended violence order for the protection of the father for a period of 14 days was made.
The father attended the child’s school on 24 February 2006 to hand him a note.
On 27 February 2006 the mother made a statement to the local police.
On 28 February 2006 the father’s application for an Apprehended Violence Order is, on his non attendance at Court, dismissed.
On 8 March 2006 the mother filed an amended application in which she sought in addition orders permitting her to relocate to Queensland.
On 10 March 2006 the Federal Magistrates Court made orders transferring the proceedings to the Family Court of Australia and further orders by consent in the following terms:
“1.That pending further order the orders for contact between the father and the child made on 5 April 2005 be suspended.
2.That pending further order the father be and is hereby restrained from contacting the child by telephone letter and or through the child’s school namely [N] School.”
[This later order was subsequently disobeyed by the father]

On 17 March 2006 an interim Apprehended Violence Order for the protection of the mother and the child is made by the Local Court.
The father alleges that on the 30 May 2006 he was assaulted in a public place by two men unknown to him who told him not to attend the Court the following day.
On 31 May 2006 the father rang the Local Court but did not attend on that day. The matter was finally dealt with on 1 June 2006 when an Apprehended Violence Order was made for the protection of the mother and the child from the father.
In September 2006 the parties were interviewed by Dr R whose report was released on the 16 November.
On 22 June 2007 the father filed a Response to the Application seeking a variation to the orders to provide contact on alternate Sundays with changeovers to occur at a Contact Centre at Harris Park.

The Issues

The issues:
1.        Whether the parties should have shared parental responsibility.
2.        There is no issue that the child should live with the mother.
3.        What (if any) time the child should spend with the father.
4.Whether the mother is entitled to relocate the child’s residence to Queensland.

Credit

The Mother

The mother gave evidence both orally and by affidavit and was cross examined by the father and the Independent Children’s Lawyer. Overall I found her evidence and the manner of her giving it plausible and although her recollection was not perfect, I prefer her evidence to the evidence of the father where the evidence conflicts. She was frank in answering the questions put by the father. Her declared motivation in the proceedings was appropriately child focussed and I did not detect any residual affect arising out of the breakdown of the relationship. She said on a number of occasions that her task before the Court and generally was to support her son and to seek a result which conformed to his often stated views as to what should happen. Evidence given as to her previous move from Queensland to Sydney in part in an endeavour to promote a relationship between the child and his father indicated a willingness to promote that relationship if at all possible.

The Father

The father gave evidence orally and by affidavit.
a)The father represented himself and was therefore able to be more closely observed in his behaviour and attitude than a person who is represented by a lawyer.
b)The father appeared to still carry with him the burden of unresolved emotional problems it seemed from the breakdown of the relationship.
c)His questioning of the mother sought to emphasise his view that she was unjustified in withdrawing from the relationship.
d)He sought to ask questions as to the mother’s fidelity. He seemed preoccupied with her relationship formed with another man and subsequently abandoned following the breakdown of the marriage.
e)He asked questions which sought to remove from himself any responsibility for the failure of the marriage. He saw all of the child’s problems hereinafter referred to as being the product of a failure of the mother to agree to his proposals to see his son.
f)He held steadfastly to the view that he could in no way be responsible for the child’s illness (the existence of which he seemed to deny) nor that his behaviour might have caused the symptoms displayed by the child.
g)He expressed the view that the reports of the experts in this matter were “just made up.”
h)The expert evidence was given both in a report and orally. The evidence of Dr R is that for the father there is a reality created by what he thinks and in his case it is not only “I think therefore I am” but rather “I think it therefore it is”. In other words the father tends to create his own reality to which he is firmly committed and in which he has a sincere belief notwithstanding that those around him do not share his view of the world.
His recollection was selective when it came to issues which he did not think assisted him, for example:
a)He denied ever consenting to an order that time spent with him should be suspended when there were clearly orders bearing his signature indicating consent.
b)He subsequently said that he did not consent and then that he did consent but it was against his wish.
c)He admitted that he was at Court when the order was made. He then went on to explain that he thought it was temporary.
d)In relation to the order which restrained him from contacting the child’s school, it is noted that notwithstanding that restraint he contacted the school on a number of occasions.
e)He in evidence said at first that he had not contacted the school
f)Then he changed that to a statement that he did not believe that he had contacted the school.
g)Then that he could not remember if he had telephoned the school.
h)Then he said that he remembered calling them once because of his concerns for his son.
i)He then also remembered in some detail the conversation which took place with an employee of the school when he was informed that he was not by the order permitted to telephone the school.
j)His explanation was that he rang notwithstanding prohibition on telephoning the school “because he was the father” and seemed to advance the view that this description of himself rendered him immune from the obligation to comply with orders of this court.
k)The father put the proposition that he had lied to government departments in order to obtain housing advantage.
l)The father had been diagnosed by a number of doctors with depression as was evident from material tendered in evidence.
m)He was at first reluctant to admit that he might have been so diagnosed and his reaction to the question was a hesitant “maybe”.
n)He proclaimed a lack of memory about consultation with doctors on this subject.
o)In particular he could not at first remember having been prescribed medication. He subsequently said that he had been prescribed medication but had not taken it and then later that he had only taken one or two tablets.
p)He ascribed his consultation with Psychiatrists to the fact that he had not seen his son.
q)Subsequently he said that he had consulted such Doctors as a result of his mistreatment at work.
r)The father in his evidence given orally in contradistinction to evidence he previously gave by affidavit denied he had ever had a stick with which he threatened the child.
s)When the content of the earlier affidavit was put to him he said that he “can’t remember that he would ever say that”.
t)He then denied he had ever said it and said that the affidavit must have been the product of a misunderstanding. He also, having denied that he had ever hit the child, conceded that he had smacked him.
These were but some examples of the father’s lapses of memory, his selective memory and his shifting capacity for recollection of which there were many.
The father was described by the Psychiatrist Dr R as a sociopath. She describes him as possessing behaviour which is not child focussed but is self serving. He did not work in a way which would enable child support to be properly assessed. He sought to use this as a tool to bring the mother to heel but without regard to the consequences for the child of his conduct.
The father says Dr R could not look at the world as the child might perceive it and could only comprehend the world as he saw it which was as he thought it should be.
The father says that in answer to an inquiry made of the child’s school after the contact between the child and his father ceased he was informed by the school that the child no longer suffered a facial tic. He however in his evidence said that the school lied and they always lied, he had seen it on television. It seemed that the programme he had watched had nothing to do with the school the child was attending.
Dr R reported of him that he was “loose with the facts”, denying the history of torture given to the Mental Health Services and the medication he was prescribed in 1996. He was explicit about attempts to manipulate the welfare system and not working to avoid payment of child support. He was described by her as having a sociopathic personality. The doctor observed that this was consistent with the mother’s history of his controlling and other behaviour toward her and the child which lacked empathy. Dr R came to the conclusion in part that the father was not being entirely honest with her. She came to the conclusion that if the reports previously made by the mother in relation to the father and material evident from documents subpoenaed to Court and inspected by her (including documents from DOCS) she was concerned that the father was at the least suffering from an anxiety state. If the accounts previously given of the father’s torture which he had reported were correct he was probably suffering from a post traumatic stress disorder. She also noted that a psychiatrist had previously made a diagnosis of adjustment disorder.
Having regard to the matters referred to above and having observed the father’s demeanour in the box and heard his statements to the Court I would accept the evidence of the mother in preference to that of the father where the two conflict. I have reservations about the likely reliability of much of the father’s other evidence also for the reasons referred to above.

Other Evidence

The mother said and I accept her evidence that the father treated the child harshly on a number of occasions.
The mother said and I accept her evidence that the father attacked her boyfriend at court.
The mother asserted and I accept that it was on the occasion of the attack that the child commenced to exhibit facial tics, a symptom of a neurological condition from which he suffers namely Tourette’s Syndrome. The father concedes that on this occasion the child was very frightened and began to shake.
The mother asserts that between April and September 2005 the child’s health began to deteriorate. On one occasion at this time the father took the child to a police station and caused him to lodge a complaint about the mother’s boyfriend abusing him. The child denies that there was anything in the complaint but says he went at the father’s insistence that he complain. He immediately told his mother of the incident on his return to the mother’s care.
Notwithstanding the father’s alleged concern about the abuse, he made no effort to contact the mother concerning these very serious allegations.
By September 2005 the child was experiencing nightmares and wetting his bed and soiling his pants and refusing to eat. He cried very easily and did not want to go to school and developed facial tics. The father concedes that he observed a change in the child’s behaviour in early 2005. He also observed facial tics and a twitch. He says he noticed the boy appeared unhappy and anti-social. It is the father’s assertion which I do not accept that the boy told him he was being hit by the mother’s boyfriend.
In September 2005 the child asks that he not see the father any more. The mother says and I accept that at that time the child was complaining to her about the father’s interrogation of him as to events in his mother’s household.
The mother says and I accept the evidence that the child expressed a wish to die, rather than see his father.
The father conceded that he had been informed that the child was ill. His evidence was that he had asked friends about Tourette’s Syndrome but had come to the conclusion that the child was simply anxious or frightened or nervous or depressed because of not seeing him.
He says that he asked his general practitioner what the syndrome was but could not remember what he had been told. The father apparently made no attempt to consult Dr T who had diagnosed the boy with this disorder.
The father is unable to contemplate that the child might ever be better off without contact with him. He will not accept that the child does not want to see him. He cannot accept that the child might be expressing a preference for death rather than contact with the father.
Dr R, a Child and Family Psychiatrist, gave evidence by report and orally.
For the preparation of her report she had interviews with the mother both with and without the child and interviews with the child alone. She interviewed the father alone. Her reason for so doing was that the child did not want to see the father and despite many reassurances that the father could not take him away and that the interview would be conducted in English the child was adamant in his refusal to be with the father even in company. Dr R’s report is dated November 2006.
In reporting her interview with the child, Dr R described him as an anxious ten year old boy. He had a variable blinking facial tic which was more frequent during periods of emotional arousal.
He was diagnosed with Tourette’s Syndrome in 2004. The symptoms of the syndrome reportedly diminished and in some cases disappeared when the child had not had the stressor of contact with his father in 2006.
When asked why he thought he had come to the appointment, the response was “to help me not see my dad any more”. He said that “I do not want to see him again he always bites me … from when I was a baby”.
In his father’s defence he did say that he thought that he (the father) thought it was playing around and that it did not hurt.
When the child at the age of 9 had expressed and interest in seeing his father again he said “(I) thought he would change … he didn’t … he started threatening me and my mum”. He explained that the threats included threatening “to take me away from my mum”, “Dad said he would kill her (his mother) if she did not let him see me again”. “He took me to the police station and forced me to say that I did not like [M] (the mother’s then partner) so he would leave me and mum alone”. “He (the father) always shouts at my mum and threatens to kill her”. “I am scared if I see him anymore he will take me away”.
The child was adamant that he enjoyed no time with his father. The child said that although he used to have nightmares about his father he did not have them any more. They, together with his problems of enureses and encopresis, ceased upon contact with the father ceasing.
The tools used by Dr R elicited a primary response from the child when given three magic wishes “not to see my dad any more”. When asked to place people in houses he put his father in a house far away never to be seen any more.
In her oral evidence she says she formed the view that those expressions of view of the child were genuine. She said she would be even stronger in that view if the mother’s history was found to be true. In these proceedings I have found that the mother’s evidence is to be preferred.
Dr R states that if abuse has occurred of a child then without evidence that an abusive parent has made proper efforts to remediate his or her abusive impulses, attitudes or behaviours because of an empathic understanding of the effects of abuse and as an act of reparation for wrongdoing then contact between the perpetrator and the child should not occur. I accept this recommendation.
She further says that if the father’s version of events be deemed to be more accurate than his ex wife’s and he had indeed shown a proper attitude to parenthood (which includes not being a threat to the mother) then contact should occur. I do not prefer the father’s version of events.
However Dr R could not see at the time of making that report any merit in exposing the child to a stressful encounter when she could not support ongoing contact between the father and the child.
The father has said as reported by Dr R that the reason that the child was bed wetting was that he did not see him. It seems that the symptoms of Tourette’s Syndrome are not accepted by the father as due to a neurological disorder but simply the fact that the chid does not see him. He said that the child will have a lot of mental problems if he does not see him.
In her oral evidence Dr R commented that the histories given by the parties were so disparate that she set them out separately in the report contrary to her more usual format of reporting.
Under examination from the Independent Children’s Lawyer, Dr R confirms Dr T’s diagnosis of Tourette’s Syndrome and notes that a symptom of compulsive hand washing which the child has earlier demonstrated was consistent with that diagnosis and that obsessive compulsive disorders are not an uncommon feature of it.
She confirms that it is a recurrent disorder. She confirms that it is likely that will react to significant stressors in the child’s life. The child will need to learn features of trigger stressors and seek to avoid them.
She goes on to say that if the relationship with the father is not meaningful and the mother’s allegations of an abusive relationship are true then it is likely that the stress which would be occasioned by contract between the father and the child is likely to affect the course of the Tourette’s Syndrome.
In discussing whether the fears of the child in relation to his father were genuine Dr R said that she could detect real anxiety in the child. Discussion about a reunion with the father for example produced a facial tic. The boy’s fear that the father might take him away was genuinely coming from the child. The child believed that something might happen in his relationship with his mother because of his father. This was in the context of the child reporting threats of the father to kill the mother and threats of taking the child away.

In oral evidence Dr R offered the opinion that the father was self focussed and unable to see the Court process as being about the child and his best interests. Rather, the father saw the process as one which the mother had engaged to serve her own ends. He was unable to see things other than through his own lens and was unable to be flexible about other people’s perspective and demonstrated narcissistic psychopathic personality traits. She says of him that he has no insight into the impact that some of his behaviour has on the child. She was not encouraged to the view that the father would put the child’s interests before his own.
Although the child highly valued his attachment to his mother Dr R did not consider that there was anything concerning about that attachment. As to the loss of an association with the father Dr R says that this can create problems in the child’s view of himself, in addition to the loss of any positive things that his father can otherwise give him.
He can however derive benefit for his development from other male role models. Whilst his view of himself as a male starts with a consideration of the model provided by a parent it does not necessarily end there, she says.
Dr R was cross examined by Mrs Cleary, Counsel for the mother, after she had had the opportunity to consider material subpoenaed to Court including the file of the Department of Community Services. Her attention was drawn to the fact that in 1996 after an investigation by the department the father signed certain undertakings as to his conduct including that he would not pick up and handle his son and that he would seek help for his emotional problems. Dr R confirms that the father did not inform her of his consultations with a Dr L and a Dr H and a Dr A nor of the prescriptions he received for medication. The history disclosed in the documents did not coincide with the history provided by the father to Dr R.
In 1999 the mother complained to the Department of Community Services that the father had hit the child across the face, and in October 2005 the child complained to the Department of his father biting him and shouting at him and constantly asking him for his mother’s address. The child is reported at this time as soiling his pants and saying that he never wanted to see his father again.
In 2006 a consultant psychiatrist a Dr O reported that the father was suffering from a major depressive episode and prescribed Lexapro. Notwithstanding the invitation of Dr R to provide her with a medical history this information was not passed on to her by the father.
Dr R gave evidence that now having had the benefit of the detail of the documents produced on subpoena and in particular the details of the father’s diagnosis and prescribed treatment that the picture he presented to his son might well have been quite different to the one he asserted in the interviews leading to her report. She said that there was the possibility of risks for the child in having contact with a father so diagnosed who on his own report did not take the medications prescribed for his condition. She did not say that those risks would materialise inevitably but possibly. She did say that if the father was in an adverse situation there was a high likelihood of a depressive recurrence.
In cross examination by Mrs Cleary, Dr R described the father as having an antisocial personality disorder and that diagnosis was consistent with his breach of a court order in contacting his son’s school and saying by way of explanation that he was a father. She also expressed the opinion that the father’s three changes of name represented facts which gave her concern as to the stability of his identity and what he knows about himself.
Documents were tendered from the records of Dr A and Dr G, both treating doctors of the father, which reports confirmed a diagnosis of the father with adjustive disorder and depression although, unlike the father’s evidence, attributed that to primary causes other than his limited contact with his son.
Documents from the Department of Community Services filed were tendered including:
a)A report made of an assessment conference in December 2005 where inter alia the reporter notes:
“It was evident that [the child] experiences high levels of anxiety and becomes quite emotional easily. [The child] also appeared to have a nervous tic further demonstrating the anxiety and stress he is experiencing. At that time [the child] expresses a view that he does not wish to see his father again.”
That view remains it appears consistently and continuingly held.
b)A report dated January 2006 recording the child as presenting with nightmares because of threats that his father would take him away. He reported that he having stopped seeing his father felt less anxious.
Under cross examination from the father, Dr R says that the mother’s attitude in this matter is probably not a desire to procure vengeance against the father as suggested by the father. She points to the efforts of the mother to created contact opportunities.
Dr R also under cross examination refers to the reaction of the child in her presence when it was suggested he might see his father. He was alarmed and could not be reassured even though the doctor was there. These clinical problems are she says quite significant problems with Tourette’s Syndrome.

Relevant Law

Legal principles

The principles governing this case are set out in Part VII of the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

There would be a benefit to the child if he could have a meaningful relationship with each of his parents but in the circumstances of this case including the relationship between the parents which is characterised by fear, anxiety and distrust and one in which the father has made threats of harm to the mother and her former partner, threats as to the removal of the child from the mother’s care, it is not in my opinion possible for that benefit to be presently demonstrated. The child has been exposed by the father to stress and fear and I do not find at the present time that a meaningful relationship between the child and his father is possible. He has and will maintain a meaningful relationship with his mother.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father has no insight into the effect of his behaviour on the child and a continuation of the relationship at this time would expose the child at least to psychological harm. The child is a boy of particular vulnerability to stress by reason of his disorder and he needs to be protected as much as possible from effects of that stress upon him which includes facial tics, enuresis, encopresis, disturbed sleep, obsessive compulsive disorder and anxiety among others.

Additional considerations

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

The views of the child in this matter are that he wants to have no contact with his father. The views are strongly held, and held since 2005. They give rise to acute anxiety in the event that the proposition of contact with the father is suggested to him. They have been consistently held since 2005. The improvement in the child’s Tourette symptoms on withdrawal of contact with the father add a note of credibility to the report of the effect on the child of contact between the child and the father. The child is now 12 years of age. He has expressed reasons which he says are expressed from experience in support of those views. They appear on the evidence to be genuinely held views and there is no doubt as to their strength. Given all the circumstances of this case I am of the view that they should be given weight in the consideration of the outcome of the proceedings.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has an impaired relationship with the father which is presently characterised by fear and a desire not to have contact with him. He has an appropriate relationship with his mother and maternal grandmother.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother has in the past facilitated contact with the father for the child but at present is unwilling to do so having regard to the child’s express view that he does not want to have contact with the father. The father has said that he would always want the child to have a relationship with his mother. He has however threatened to remove the child from her care and on her evidence which I accept threatened to kill her. In Brisbane where the mother proposes that she and the child would live the child will be able to have a continuing relationship with his maternal grandmother and his uncle and aunt and cousins. I am satisfied that if the child again expresses a wish that he see his father that it is likely that the mother will facilitate meetings for that purpose.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The move for the child to Brisbane with the mother would put him further from his father but closer to his grandmother and other maternal relatives who now or shortly will live there. The separation from the father has previously occurred and it is noted that on the prior occasion it was the child facilitated by the mother who enabled contact to be re-established again. In Brisbane there will be a sense of security which the distance of location compared from the father will provide for the child and hopefully a lack of the stressors that that relationship currently engenders. In these circumstances it is hoped that the remission in symptoms of the child’s disorder will continue and that he will be able to live without the disabling features of the disorder brought on by that stress.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is a matter which will arise given the proposed relocation of the child to Queensland. However in the past as I have said the mother has facilitated contact between the child and the father at the child’s wish. It is not my intention nor would it be were the child to continue to reside in Sydney to make an order for him to spend time with the father. The circumstances of his health and the need to preserve his life freed as much as possible from the ravages of stress would even if they were the only considerations (which they are not) cause me to believe that his best interests are served by no present contact with the father wherever they were living. Accordingly the consideration of these matters is affected by those facts.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
It seems clear that the mother can meet the child’s needs for physical and emotional security and for his good health and educational development. The father’s lack of insight and his sociopathic personality, and his view of the world through his unique lens of reality give me no cause to believe that he could do likewise effectively and in a way which would benefit the child.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child will have the ability to share in the cultural heritage of both parents since each of his mother and father were born in the same country and so are the maternal relatives.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to the matters canvassed in evidence. It seems in addition to me that the father has so ordered his affairs on his own evidence that he has minimised the child support payable for the child and thereby not undertaken the responsibility of parenthood in the way in which a responsible parent should. His failure to obey orders of a court on the basis that his position as father gives him some right to disobey them equally fails to demonstrate an appropriate attitude to his responsibilities as a father when those orders are made for the protection of the child.
The father’s attitude to matters relating to his son seems on the evidence to be reflective of the father’s needs and the father’s inability or unwillingness to take into account the perceptions of his son and the effect of his conduct, attitudes and behaviour on him, in particular his threats to remove the child and kill his mother.
There is no evidence that the mother has not demonstrated appropriate behaviour toward the child or failed to fulfil her responsibilities as a parent.
(j)any family violence involving the child or a member of the child’s family
There have been proceedings between the mother and the father in relation to Apprehended Violence Orders and the mother and not the father has procured orders for her protection and that of her child and her former partner.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
The orders herein made were made finally and in favour of the mother and the child and the mother’s then partner and the father says he did not contest the order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There seems to me to be little doubt that the conflict between these two parents which has now been ongoing for some time is of no benefit to the health and welfare of the child and in the circumstances were there to be any order that the child spend time with the father it would be the source in my mind of the likelihood of further conflict. Given the vulnerable nature of the child having regard to his disorder it is important the ongoing conflict with its attendant stress is avoided and accordingly I propose to make the orders referred to above.

Section 60CC(4) & (4A)

I refer to my earlier observations. There is presently no effective communication between the parents. Although the father has spent time with the child it has not been to the child’s benefit. The father’s communication with the child seems poor and centred on the father, not the child’s needs. There have been attempts by the mother to communicate with the father and procure contact but given the effect of that contact on the child, it ceased. It appears to me that in the circumstances that has been justified. I take into account inter alia in making that assessment the orders which are herein referred to and events that have taken place since separation.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

Unless the court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that until a child turns 18 years each of the child’s parents has parental responsibility for the child.
“Parental Responsibility” means all the duties, powers and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan entered into by the parties.
The presumption that parties should exercise joint parental responsibility is displaced if it is in the opinion of the Court a consideration of promoting the best interest of the child rebut the presumption, or the person with whom the child has lived has engaged in abuse of the child.
The Independent Children’s Lawyer submitted that it was appropriate in this case that the mother have sole parental responsibility for the child by reason of the inability of the parties to share parental responsibility. The relationship between the parents is such that they could not do so and given the father’s condition it is unlikely that it will ever change since the father has not undergone effective treatment and therapy for his condition.
In addition the mother and the child have had the benefit of final Apprehended Violence Orders in their favour for protection from the father.
Having regard to the child’s views and his affliction with Tourette’s syndrome and the lack of insight of the father and his apparent incapacity to accept that the child is so afflicted and generally his perception of reality, I find that it is not in the interest of this child that parental responsibility be shared between the parents.
Accordingly I propose making an order that the mother have sole parental responsibility for the child.

Section 65DAA / Section 65DAA(5)

I note that neither party sought equal time with the child. I note that given the order for sole parental responsibility I am not bound to consider the child spending equal time with each parent. Given what is hereafter proposed as to the respective places of living for the child and the father and mother, not only is such a proposal not in the child’s best interest but is also impractical and in any event not sought.

Relevant Law for consideration in relocation cases

General Principles

The best interests of the child is the paramount consideration but the best interests of the child are not the sole consideration.
One cannot ignore the interests and desires of parents, but if there is conflict between these considerations, priority must be accorded to the child’s welfare and rights but they must be viewed in the context of the circumstances of the parent with whom the child resides.
The issue for this case cannot be separated from the issue of residence and the best interests of the child. The issue of who should be the resident parent is not separate from a consideration of whether a relocation of the child should be permitted.
When considering the substantial geographical change involved in cases such as this, one deals with that change as just one of the proposals for the child’s future arrangements so far as that approach is possible.
No one factor is dispositive of decisions as to residence of the child in the context of a proposed relocation.
All the issues arising under section 60CC must be considered.
There is no issue in this case that the child should live with the mother. I would as I have said propose that there be no order that the child spend time with the father having regard to the evidence and the matters I am required to take into account under section 60CC, whether the mother chose to live in Sydney or Brisbane.
A consideration of those decisions and the fact that the mother desires to live in Brisbane where she will have the comfort and support of her relatives seems to me to be a situation in which the child will have the benefit of a more serene and happy household.
In addition although the child will as a result of such a move become remote from his school friends he is reported as saying that he has friendships with other children in Brisbane formed when he previously lived there and he has no doubt that he can pick them up again. In all the circumstances I am persuaded that the child will be better off living with his mother and having contact with his wider family in Brisbane and enjoying the friendships he had previously formed there. He will have the benefit of living with a mother who has a support group at hand and also with the security that a return to the stresses he previously suffered is less likely. Were I to require him to reside in Sydney he would not have those benefits or not to the same extent.

Conclusion

In considering a result in this case the Court is not bound by a consideration of the parties’ proposals, but for the reasons set forth I make the orders set out above.

Costs

In relation to applications for costs should any party or the Independent Children’s Lawyer have any such application they should lodge with my Associate a request for re-listing to deal with the issues of cost and serve a copy on each other party. In the event that no such request is made within 21 days of the date of this judgment then there will be no order for costs.
I have no up to date evidence of the parties’ means. There was not before me adequate and up to date information as to the costs of the parties of the Independent Children’s Lawyer or of their means to be able to meet any such costs. I direct that within 21 days of the date of service of such a request each of the parties file and serve a statement of their financial affairs and a written submission on costs.
In the event that no such statement is received it will be presumed that the party in default has sufficient means to meet an order for costs if made and that there is nothing that the defaulting party wishes to put on costs their capacity to meet them or their quantum.

I certify that the preceding one-hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 20 June 2008

[2008] FamCA 467

20 June 2008

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Costs

Remedies