TORRENS & GALL

[2016] FamCA 1027

FAMILY COURT OF AUSTRALIA

TORRENS & GALL [2016] FamCA 1027

FAMILY LAW – CHILDREN – Best Interests – Where the child has a meaningful relationship with the mother – Where the child is wary of the father and does not wish to spend time with him – Where the father realises his relationship with the child is strained – Question whether orders should seek to rejuvenate the child’s relationship with the father – Where the father has perpetrated family violence and abuse – Where the father pleaded guilty to assault of the child – Where the mother attempts to maintain the relationship between the father and child – Where the mother suspends or moderates the child’s time with the father dependent on the father’s behaviour – Where the child requires protection from the risk of harm posed by the father – Decided no prescriptive order for child to spend time with the father – Order for sole parental responsibility to the mother

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Leave to re-open –  Where the trial commences on an undefended basis – Where the father appears after the evidence is already closed – Where the father wishes to participate – Where the father seeks an adjournment to file and serve an affidavit – Where the father has not complied with procedural orders requiring him to file and serve an affidavit – Decided the father’s adjournment application is refused – Where it would be unfair to expect the mother and Independent Children’s Lawyer to listen to and then cross-examine the father on his oral testimony – Decided that evidence not be re-opened – Decided the father is permitted to make final submissions

Family Law Act 1975 (Cth) ss, 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE, 98

Family Law Rules 2004 (Cth) Part 15.2

McCall v Clark (2009) 41 Fam LR 483

APPLICANT: Ms Torrens

RESPONDENT: Mr Gall

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 10429 of 2007

DATE DELIVERED: 23 November 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane

JUDGMENT OF: Austin J

HEARING DATE: 15 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

1. All former parenting orders in respect of the child B, born … 2005, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

3. The child shall live with the mother.

4. The parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to his birthday, Father’s Day, and Christmas Day, and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

5. For the purposes of implementation of Order 4 hereof:

   (a)The mother shall, within 7 days hereof, notify the father in writing, and keep him informed, of the postal address to which he may send written communication; and

   (b)The father shall thereafter keep the mother informed in writing of the address to which mail directed by her to him may be sent.

6. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

7. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

8. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of the child.

9. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

10. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

11. Within seven days hereof the mother shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to him the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14. Costs are reserved for 28 days.

15. Any and all outstanding applications are dismissed.

Notation

(A)These orders intentionally make no provision for the child to spend time with the father or to communicate by telephone with him. Decisions about if, when and how the child spends time or communicates with the father (other than in accordance with Order 4) shall be made by the mother as an incident of her sole parental responsibility for the child.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10429 of 2007

Ms Torrens

Applicant

And

Mr Gall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings represent the second bout of litigation between the applicant mother and respondent father over parenting orders for their only child, who is now 11 years of age.

2. Earlier proceedings between the parties were finalised by the Federal Magistrates Court (as the Federal Circuit Court then was) in May 2008. These proceedings were commenced by the mother in June 2012, again in the Federal Magistrates Court, but were later transferred to this Court for determination.

3. Unfortunately, progress of the proceedings to trial was delayed for reasons beyond the Court’s control. The proceedings were originally listed for hearing in both May and July 2014, but the trial dates were vacated due to the father’s imprisonment on criminal charges unrelated to this litigation.[1] Procedural orders made during 2016 brought the matter to trial in November 2016.

   [1] Notations B and C made on 2 June 2016

4. The parties contested all aspects of the child’s care, including allocation of parental responsibility for him, his residence, and the nature of his interaction with the non-residential parent. Over the father’s objection, orders in the nature of those uniformly proposed by the mother, Independent Children’s Lawyer, and Family Consultant were demonstrably in the child’s best interests.

History

1. The parties married in 2002, separated in 2006, and divorced in 2008. The child was born in 2005 and was very young when the parties separated.

2. Parenting proceedings were first initiated by the mother in 2007 and were concluded by final orders made on 15 May 2008. Those orders were made with the parties’ consent and provided for the child to live with the mother and to spend substantial time with the father.

3. Gradually, over the following few years, the mother became dissatisfied with the father’s level of compliance with the orders and his attitude towards her. She alleged he withheld the child from her and made their personal interaction unpleasant.[2] Her dissatisfaction reached its nadir following events in April 2012. They argued over the division of the child’s Autumn school holidays, about which the father complained to the police.[3] The mother consequently obtained a family violence order against the father for her protection.[4] Then, some weeks later, the father assaulted the child during a visit and the family violence order protecting the mother was extended to include the child.[5]

   [2] Mother’s affidavit 12/7/16, paras 6-17

   [3] Mother’s affidavit 12/7/16, para 18

   [4] Mother’s affidavit 12/7/16, para 19

   [5] Mother’s affidavit 12/7/16, paras 22-23, 30

4. The mother commenced these proceedings in June 2012.[6] Interim orders were made by the Federal Magistrates Court in January 2013 providing for any time spent by the child with the father to be supervised by the paternal grandmother or paternal aunt.[7] In May 2013 the proceedings were transferred to this Court.[8]

   [6] Mother’s affidavit 12/7/16, para 31

   [7] Order 1 made on 29 January 2013

   [8] Mother’s affidavit 12/7/16, para 39

5. The orders made in January 2013 were the only set of interim parenting orders made throughout the proceedings. Although those orders required the child’s supervision when with the father by either of two paternal family members, the mother later relaxed that restriction. She allowed the father’s current girlfriend to supervise until the father was imprisoned in 2014[9] and she allowed the child to regularly speak with the father in gaol by telephone throughout 2014.[10] Upon the father’s release from custody on bail in December 2014, the mother arranged for the child’s supervision by the paternal aunt to resume,[11] but by March 2015 the mother was advised by paternal family members they were no longer prepared to provide such supervision.[12] Thereafter, the mother still involved the father in the child’s life when and to the extent she considered was safe, which included his invitation to sporting fixtures, birthday parties, public parks, the beach, the shopping centre, and the home of the maternal grandmother.[13] The mother also arranged for the child to maintain contact with other members of the paternal family.[14] Those informal arrangements applied until final trial in November 2016.

   [9] Mother’s affidavit 5/5/16, paras 7-10

   [10] Mother’s affidavit 5/5/16, para 11

   [11] Mother’s affidavit 5/5/16, paras 13-14

   [12] Mother’s affidavit 5/5/16, para 15-18

   [13] Mother’s affidavit 5/5/16, paras 20-27, 29-30, 33, 35-36, 38-40, 44, 46-47, 57-58, 62, 67-68

   [14] Mother’s affidavit 5/5/16, paras 18, 24, 37, 51, 55, 66

Proposals

1. The mother pressed for the orders set out in her Case Summary filed on 10 July 2016 and the Independent Children’s Lawyer pressed for the orders set out in her Updated Outline of Case filed on 1 November 2016. Their proposals were similar. They wanted the mother to have sole parental responsibility for the child, for the child to live with the mother, and for no orders to be made regulating the child’s expenditure of time or communication with the father. They expected the mother to decide, as an incident of her sole parental responsibility for the child, if, when, and how he could visit or communicate with the father.

2. The father filed his Response in these proceedings in December 2012. It has never been amended, despite procedural orders being made in March and June 2016 requiring him to file an amended Response. The father confirmed orally at trial that he sought orders providing for him to have sole parental responsibility for the child, for the child to live with him, and for the child to spend substantial time with the mother.

3. As can be seen, there was marked disparity between the parties’ views about the nature of the orders that would advance the child’s best interests.

Evidence

1. The mother relied upon her last two affidavits, filed respectively on 5 May 2016 and 12 July 2016. She was not required for cross-examination by either the Independent Children’s Lawyer or the father.

2. The mother and Independent Children’s Lawyer relied upon the last Family Report compiled by the Family Consultant (Ms C), dated 31 October 2016, which was annexed to her affidavit filed on 4 November 2016. The Family Consultant prepared two earlier Family Reports in these proceedings, but neither was read in evidence as they did not materially add to the evidence afforded by the last report. An even earlier report prepared by a different Family Consultant (Ms D) was similarly not read. The Family Consultant was not required for cross-examination by either party or the Independent Children’s Lawyer.

3. The father filed two affidavits in these proceedings – one in December 2012 and the other in November 2013. Procedural orders were made in June and July 2016 for the father to file his fresh affidavit evidence in readiness for the trial, but he failed to do so. Consequently, at the time of trial, the only evidence filed by the father was at least three years old and carried no probative weight in the determination of current parenting orders. His affidavit filed in November 2013 simply annexed his response to an earlier Family Report (which report was not adduced in evidence at trial), a letter he wrote to the Independent Children’s Lawyer, and a short letter from a psychologist he briefly consulted. In the affidavit he filed in December 2012, he acknowledged his prosecution for “smacking” the child, but otherwise merely expressed his dissatisfaction with the mother’s behaviour and attitude.

4. Importantly, in the father’s presence, the Court ordered in July 2016 that the trial could proceed on an undefended basis if either party failed to comply with procedural orders.[15] Aside from the father’s failure to file any evidence in accordance with the procedural orders, he told the Family Consultant he may not attend the hearing[16] and so, when he failed to promptly appear at Court on the day of trial, the trial began in his absence. He eventually appeared at 10.39 am, by which time the evidence was closed and submissions were very nearly complete.

   [15] Order 3 made on 20 July 2016

   [16] Family Report, para 3.11

5. The father wanted to participate in the proceedings but he was advised about his need to successfully seek leave to re-open the case to adduce any further evidence. The father ideally wanted time to prepare, file and serve an affidavit but, due to his past failure to comply with existing procedural orders requiring him to do so and his asserted difficulty in preparing an affidavit, one could have no confidence in his ability to produce an affidavit even if reprieved with an adjournment. In any event, the prejudice to the mother and child of having the determination of these proceedings delayed for even longer was much greater than the prejudice to the father of being required to proceed without evidence he could have filed long ago. His adjournment application was therefore refused. Nor was there any sound basis to re-open the case to enable the father to give oral evidence. Consistently with the regime established by the Family Law Act 1975 (Cth) (“the Act”) (s 98) and the Family Law Rules 2004 (Cth) (“the Rules”) (Part 15.2), procedural orders made in these proceedings required the parties’ evidence to be given in affidavit form and to be filed and served in a timely way. It would have been grossly unfair to expect the mother and Independent Children’s Lawyer to listen to the father’s oral testimony and then cross-examine him without any preparation. The father confirmed he did not wish to cross-examine either the mother or the Family Consultant, and they did not want to cross-examine him, so there was no need to re-open the evidence for that purpose. He was permitted to make final submissions about the outcome of the proceedings.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The child certainly has a meaningful relationship with the mother as she has always been his primary carer. Despite the father’s expectation to the contrary, there was no basis upon which the child’s established residence with the mother should be upset. His derivation of benefit from his relationship with her cannot be compromised.

2. The characterisation of the child’s relationship with the father is, however, not so straightforward. The child undoubtedly loves the father, but he is wary of him. The reasons for his wariness will be addressed under ss 60CC(2)(b) and 60CC(3) of the Act but, for present purposes, acknowledgment of the tension between them is enough to deal with the issue under s 60CC(2)(a) of the Act.

3. The child told the Family Consultant only weeks ago, in October 2016, he has not spent any time alone with the father since an incident between them in October 2015 because he was “scared of what [the] father could do”. He suggested to the father that they could attend a cinema together to watch a movie, but the idea was rejected by the father, apparently because he considered that would be a waste of their time together.[17] The child was even reluctant to see the father in the company of the Family Consultant and said he was unwilling to spend time with the father the following day, as had been tentatively arranged.[18]

   [17] Family Report, para 5.3

   [18] Family Report, paras 2.4, 5.4

1. The mother told the Family Consultant she believes the child worries about the father, even though he does not want to spend time with him. She found the child much more settled when the father was in prison during 2014 and was relieved of the pressure to see him in person. In those circumstances, he knew the father was accommodated safely, he did not have to see him, and he was able to communicate consistently with him by telephone and letters.[19]

   [19] Family Report, paras 4.6, 4.7

2. The mother’s impression of the child’s genuine affection for, but guarded disposition towards, the father is most likely factually correct. The Family Consultant’s involvement with the family spanned three years, between 2013 and 2016, and over that period she witnessed the child’s views about the father wane from initial keenness to spend time and build his relationship with the father to his current wariness and refusal.[20] Even the father realises his relationship with the child is strained. He told the Family Consultant at their most recent meeting in October 2016 that “[the child] isn’t going to see me again anyway”.[21]

   [20] Family Report, para 7.2

   [21] Family Report, para 3.10

3. Relevantly, s 60CC(2)(a) of the Act mandates an inquiry about the benefit to the child of having a meaningful relationship with the father, where a “meaningful relationship” is defined to be one which is qualitatively important, significant and valuable (see McCall v Clark (2009) 41 Fam LR 483 at 507-510). The evidence proves the child’s relationship with the father is important, significant and valuable to him, though considerably less so than his comparable relationship with the mother, from which he derives much more benefit. The real question for determination is whether orders should be made with the designated purpose of rejuvenating the relationship, so the child is potentially able to derive more benefit than he currently does from his relationship with the father in its present rudimentary form.

Section 60CC(2)(b)

1. Since the parties separated, the father’s conduct towards the mother and the child has been erratic and intemperate. On occasions, it has been plainly abusive. His commission of “family violence” (s 4AB) and “abuse” (s 4(1)) has not motivated the mother to terminate all of his interaction with the child, but a less forgiving mother in her position might well have reasonably done so. A selection of examples will illustrate the point.

2. In April 2012, the father whipped the child on the legs with a studded leather belt, which left ugly welts on his skin. The mother was alerted to the abuse when notified of the child’s injuries by staff at his school. The injuries were sufficiently serious to cause the school staff to report the incident to child welfare authorities. The report invoked an investigation by police, which involved the child’s formal interview. The father was charged with two counts of “assault”, to which charges he eventually pleaded guilty, though the outcome of the prosecution remains unknown. The mother deposed the incident caused the child to regress to bedwetting and to experience night terrors for months afterwards.[22] He was barely seven years of age at the time.

   [22] Mother’s affidavit 12/7/16, paras 22-26, 39; Family Report, para 6.2

3. More recently, in October 2015, the child and father went to the beach together. They had an argument, during which the father grabbed the child’s arm, thrust him up against a wall, and yelled angrily in his face. The child ran away from the father but, through the intervention of kindly strangers, he was re-united with the mother.[23] The child was profoundly affected by that incident. He refused to see the father and barely maintained telephone communication with him.

   [23] Mother’s affidavit 5/5/16, paras 38-40; Family Report, paras 4.9, 5.2, 6.5

4. Some weeks later, the mother took the child to see the father with a view to their re-introduction, but the child was unwilling to remain alone with the father. When the mother tried to explain the child’s reluctance, the father exploded at them both, telling them to “fuck off” and criticising the child for not wanting to stay. After the mother and child departed, the father sent text messages to their individual mobile telephones impliedly threatening his suicide. The text messages read, in part:[24]

   If you don’t call and apologise (NOW) [child’s full name] you will never see or hear from me again. Your mother has brain washed you and taught you to hate me. I miss you to much to keep missing you [child’s name] my life is ruined and you were the only thing that kept me from killing myself [sic].

   Ill leave and go commit suicide to make you both happy im dead too if you like. But you tell [child’s name] if he doesn’t call me now he has no father! [sic]

   [24] Mother’s affidavit 5/5/16, paras 40-43, Annex ANX04; Family Report, para 4.2

5. The father admitted to the Family Consultant he sent those text messages, but brazenly maintained the child had “a right to know” how he was feeling.[25]

   [25] Family Report, para 3.4

6. On the child’s birthday in 2016, the father telephoned the mother to discuss arrangements for purchase of the child’s gifts. Their disagreement degenerated into an argument, during which the father threatened the mother by saying:[26]

   Don’t ruin today [mother’s name], I’m picking [the child] up and taking him with me, I don’t give a fuck about what you think! I’m gunna tear you in half if you fuck this up [mother’s name] [sic]

   [26] Mother’s affidavit 5/5/16, para 65

7. The father’s behaviour on that occasion was remarkable for its incongruence with the circumstances. The mother offered for the child to accompany him to buy a birthday gift, which the father declined. The mother also invited the father to join her and the child for lunch, which he declined. The father’s volcanic loss of temper and his threat to “tear [the mother] in half” must have been very disturbing, if not terrifying, for her.

8. Those incidents, spanning some four years between 2012 and 2016, prove the father’s undiminished capacity to act violently and unpredictably. His assault of the child in 2012 was particularly serious, but it was not an aberration, because he was physically abusive towards the child again in 2015. Those instances are merely illustrative of the father’s aggression, threats and intimidation which permeate his inter-personal relationships with the mother and the child.

9. Despite the barrage of animosity, the mother stoically tried to maintain some form of interaction between the child and the father, though she exercised common sense to suspend and moderate that interaction from time to time, as the father’s behaviour towards them fluctuated. She was correct to recognise the risk of physical and psychological harm posed to the child by the father’s subjection of him to abuse and his exposure of him to family violence. It is clear the child does need protection from the risk of such harm. Regrettably, the father is unable to appreciate that fact.

10. The need to ensure the child’s protection from harm is a higher priority than the need to enhance the prospect of his derivation of benefit from his relationship with the father (s 60CC(2A)), though both are desirable objectives. The only way in which the tension between those objectives can be satisfactorily resolved in this case is by declining to make prescriptive orders about when and how the child spends time and communicates by telephone with the father and to leave those decisions to the good judgment of the mother. The father is not thereby necessarily eliminated from the child’s life, but his involvement is restricted according to the mother’s discretion.

11. The filial link between the child and father can be delicately maintained by their occasional written communication. The mother and Independent Children’s Lawyer both conceded an order to that effect could be made.

Child’s best interests – additional considerations

1. There were various other aspects of the evidence that only served to buttress the conclusion that no orders should be made prescribing the nature of the child’s personal and verbal interaction with the father. In summary, those additional considerations are the child’s expressed views (s 60CC(3)(a)), the father’s lack of insight (s 60CC(3)(f)), and the mother’s laudable willingness to support the child’s relationship with the father (s 60CC(3)(i)).

2. The child now flatly refuses to visit the father alone. He refused to meet the father even under the observation of the Family Consultant and is frightened to tell the father outright of his unwillingness to see him.[27] The Family Consultant felt she developed a solid rapport with the child over the years of her involvement with the family and she believed the child had sufficient maturity to make the decision not to see the father,[28] which sentiment she evidently considered was both honestly and reasonably held. She was not challenged about that evidence, the validity of which I consequently accept. It necessarily follows that some weight must be reposed in the child’s views as an influential consideration.

   [27] Family Report, paras 2.4, 5.4, 5.5, 7.5

   [28] Family Report, paras 7.1, 7.5

3. As the Family Consultant remarked, the father seemed focused upon his own needs rather than the child’s, and furthermore, lacked any real insight into the child’s predicament and the reasons for it.[29] Several stark examples prove the correctness of her opinion:

   (a)In 2015, the father was living in a men’s hostel following his release from prison and he suggested to the mother that the child should be allowed to stay with him there. Understandably, neither the mother nor Independent Children’s Lawyer agreed with his suggestion.[30]

   (b)In October 2015, the father sent a text message to the mother requesting that she inform the child he was “very sick coughing blood and shitting blood” and that he was going to let himself die.[31] Why he thought the child should be burdened with such disturbing information was never explained.

   (c)The father considered the text message he sent to the child after their altercation in October 2015 threatening his suicide was justified because the child had the “right to know” how he was feeling at the time,[32] even though the child was then only 10 years of age.

   (d)The father told the Family Consultant in October 2016 that, even though he believed his relationship with the child was “over”, the Court should order the child to spend “maximum time” with him.[33] At the trial in November 2016, he even proposed that the child should live with him.

   [29] Family Report, paras 7.2, 7.5, 7.6

   [30] Mother’s affidavit 5/5/16, para 35

   [31] Mother’s affidavit 5/5/16, para 37, Annex ANX03

   [32] Family Report, para 3.4

   [33] Family Report, para 3.7

4. In circumstances where the child has never lived with the father (since the parties’ separation), orders were made in January 2013 for him to spend only supervised time with him, and he has had very little personal interaction with him over the past year, the father’s serious submission for the child’s primary residence was so preposterous as to call into question his judgment and insight.

5. The Family Consultant was so concerned about the father’s presentation in October 2016 that she immediately contacted the Independent Children’s Lawyer to impress her recommendation against the child spending any time with him. She also encouraged the father to consult his doctor to guard against the risk of self-inflicted injury or suicide.[34]

   [34] Family Report, paras 7.7, 8.1, 8.2

6. The father maintains he genuinely believes the mother is actively impairing his relationship with the child. He said so to the Family Consultant[35] and also during his final submissions. Even if he honestly holds to that belief, there is no objective evidentiary foundation for it. The mother was not challenged about the correctness of her assertion that she tries to keep the child in at least fortnightly contact with the father, which she tries to monitor in an unobtrusive way to ensure the child’s safety.[36] Her evidence about trying to cautiously maintain the child’s relationship with the father can be safely accepted as correct, since the Family Consultant believed she was genuine and her efforts are borne out by other evidence.

   [35] Family Report, paras 3.2, 3.7

   [36] Family Report, paras 4.2, 4.3, 4.13

7. The Family Consultant rejected the efficacy of the father’s belief that the mother influences the child against him. She considered the father need not look any further than his own conduct for the reason why his relationship with the child has deteriorated.[37] Indeed, the mother commendably made valiant efforts to ensure the continuity of the child’s relationship with the father. She allowed their interaction to resume after the father assaulted the child in 2012, she consistently implemented the child’s supervised visits with the father in accordance with the interim orders made in January 2013, she allowed the father’s then girlfriend to supervise the visits even though she was not a designated supervisor, she kept the child in touch with the father when he was in prison during 2014, she kept the child in touch with other members of the paternal family regardless of the father’s hostility towards her and, more recently, she loosely supervised the child’s visits with the father when the paternal family members were no longer willing to do so. She could have refused the father any personal interaction with the child by strict reliance upon the terms of the interim orders made in January 2013, but she did not. She deserves credit for her conduct, not the father’s unwarranted criticism, which was just more evidence of his lack of insight.

   [37] Family Report, para 7.9

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because the father abused the child, as evidenced by the assault he committed upon the child in 2012 (s 61DA(2)). It is tolerably clear the parties encounter difficulty in regularly communicating in a courteous and cooperative way, so an order for equal shared parental responsibility would not advance the child’s best interests in any event.

2. Although the father applied for an order providing for the child to live with him, no such order could be conscionably made. The mother is and always has been the child’s primary carer, the child’s relationship with her is considerably stronger than his relationship with the father, she can capably provide for all of his physical, intellectual and emotional needs, and she poses no risk of harm to him. The only basis upon which the father proposed the reversal of residence was his unfounded belief that the mother does not support the child’s relationship with him.

3. Since an order will be made for the child to remain living with the mother, an order will also be made investing her with exclusive parental responsibility for the child, at least in relation to all “major long-term issues” (as defined in s 4(1)) in his life.

4. The evidence does not reasonably enable any prescriptive order to be made regulating the circumstances under which the child should spend time with the father. The final parenting orders made in May 2008, providing for the child to spend substantial amounts of time with him, broke down in April 2012. Since then, his behaviour has been too erratic to support any regular regime of interaction with the child. The interim orders made in January 2013 requiring his supervision by members of the paternal family were rendered otiose when the paternal family declined to continue regularly providing the supervision. He was in prison for most of 2014 and apparently still remains on bail in respect of an outstanding prosecution. Throughout 2015 and 2016, either he failed to stay in regular contact with the child or his hostile behaviour towards the mother or child justified suspension of his interaction with the child.

5. The father adduced no evidence to suggest the future would be any different from the past. The Family Consultant’s acute worry about his psychological stability caused her to advise that he immediately seek referral for psychological therapy,[38] but so far as the evidence goes, the father ignored her advice. He does not perceive any shortcomings in his behaviour. With no insight and no apparent inclination to modify his approach towards the mother and the child, there is no scope to envisage any improvement.

   [38] Family Report, para 7.7

6. The evidence implied the mother will act to promote the child’s relationship with the father, to the extent it is possibly consistent with the preservation of his safety. Consequently, no orders will be made to regulate the child’s future interaction with the father. That will be left to the discretion of the mother as an incident of her sole parental responsibility for the child.

7. The same reasoning dictates that no order should be made to regulate the child’s telephone communication with the father. That too will be a decision left to the mother’s discretion. In the past, the father’s commitment to regular telephone communication with the child has been lamentable and, on occasions they have spoken over the telephone, the father has been short-tempered.[39] The mother proposed an order that the father be at liberty to telephone the child, but that proposal was incompatible with the evidence she adduced. She can allow it if she wants.

   [39] Mother’s affidavit 5/5/16, paras 34, 47, 54, 59

8. However, there is no impediment to written communication between the child and the father. As earlier noted, the mother and Independent Children’s Lawyer did not wish to be heard against an order being made allowing for the child and father to communicate periodically in writing. An order to that effect is made, which does not require the mother to reveal her residential address to the father against her will.

9. Notwithstanding the absence of need for the mother to reveal her residential address to the father, an order requires them to keep one another appraised of their current mobile telephone numbers and email addresses so that contact between them is possible when required. Communication by text and email may be preserved as evidence, should it ever be needed, so correspondence between them by that method is more likely to be temperate.

10. In anticipation of the possibility of the mother allowing the child to spend time with the father in the future, injunctions require both parties to abstain from corporal punishment of the child and from exposing the child to their denigration of the other. There was no evidence of the need for the mother to be bound by such injunctions, but she suffers no prejudice by being bound by the same obligations as the father.

11. An order requires both parties to inform the other if the child is seriously ill or injured while in their respective care. There could be no reasonable objection to such an order.

12. An order requires the mother, in exercise of her sole parental responsibility for the child, to authorise the child’s school principal to release to the father, at his expense, the child’s school reports and school photograph order forms. The father will probably want to be informed about the child’s academic progress and have updated photographs of him, even if the child does not spend time with him. The mother and Independent Children’s Lawyer both proposed an order to that general effect.

13. The mother proposed an order enabling her to procure a passport for the child. There is no need for such an additional order in circumstances where she is conferred with exclusive parental responsibility for the child.

14. Finally, an order is made requiring the mother to promptly produce the child to the Independent Children’s Lawyer for him to receive an impartial explanation of the orders made to conclude the litigation and, if considered appropriate, the reasons for such orders. The Independent Children’s Lawyer submitted to the making of such an order.

1. The orders set out at the commencement of these reasons are responsive to the child’s best interests.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 November 2016.

Associate:

Date:  23 November 2016