Trent and Trumble

[2014] FCCA 2182

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRENT & TRUMBLE [2014] FCCA 2182

Catchwords:
FAMILY LAW – Breakdown of child’s time with her father – mother undermining – mother not supportive – mother ignores and breaches court orders – both parents lack insight and the ability to reflect on their behaviour – mother guilty of contravening court orders.

Legislation:

Family Law Act 1975, ss.60B, 60CA and 60CC

Re: F Litigants in Person Guidelines (2001) FLC 93-072

Applicant: MR TRENT

Respondent: MS TRUMBLE

File Number: MLC 2176 of 2013

Judgment of: Judge Curtain

Hearing dates:

29 November 2013;

4 June 2014; and
5 June 2014

Date of Last Submission: 5 June 2014

Delivered at: Melbourne

Delivered on: 3 October 2014

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not relevant

Counsel for the Respondent: In person

Solicitors for the Respondent: Not relevant

ORDERS

THE COURT ORDERS THAT:

Contravention

1. The court finds that the mother has contravened order 15 of the orders made 29 November 2013 on five (5) occasions pursuant to s.70NAC of the Family Law Act 1975 (“the Act”).

2. Pursuant to s.70NEB(1)(a) of the Act the mother is ordered to:

   (a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry (“the Program”);

   (b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

   (c)pay and otherwise be responsible for all costs associated with the Program; and

   (d)provide an appropriate certificate of completion of the Program to the father.

3. The father’s costs in relation to the Contravention be reserved and considered by the court in the future should the mother be guilty of further breaches of any orders of this court.

Parenting orders

1. All prior parenting orders be and are hereby discharged.

2. The mother and the father have equal shared parental responsibility for the child, X born (omitted) 2001 (“X”). 

3. X live with the mother.

4. The father be at liberty to forward cards, letters and gifts to X and the mother shall ensure they are delivered to X and brought to her attention.

5. X spend time with her father as agreed between them or as agreed pursuant to order 9 below.

6. X, the mother and the father do all things necessary and sign all necessary documents to attend the Parenting Orders Program offered by Catholic Care at the expense of the father (if any) and that under the direction of counsellors at Catholic Care the parents implement time between X and her father as agreed between X and her father through that counselling.

7. The parents comply with all reasonable directions they receive from the counsellors at Catholic Care which includes amongst other matters, any referrals to any other programs or any other form of counselling that the counsellor at Catholic Care deems reasonable.

8. A copy of the:

   (a)transcript of the Report given by Dr B on 17 April 2013 and (“the transcript”);

   (b)s.11F Report by Ms L dated 21 January 2014 (“the s.11F Report”);

   (c)Family Report by Dr B dated 7 October 2013 and the Family Report by Mr B dated 17 April 2014 (“the Family Reports”),

   be supplied to the parties’ counsellor at Catholic Care AND that no person release the transcript, the s.11F Report and/ or Family Reports, or provide access to the transcript, the s.11F Report and/ or the Family Reports to any other person.

9. Each parent is to facilitate telephone communication between X and the other parent whenever X expresses a wish to communicate with the other parent including on X’s birthday, each parent’s birthday and the grandparents’ birthdays.

10. The father, the mother and their servants and agents be and are hereby restrained from physically disciplining X.

11. The parents are to keep each other advised of any general health issues concerning X and advise the other parent as soon as practicable of any serious illness or injury suffered by X and provide information and any necessary authorities to allow the other parent to speak to and receive information from any treating medical or health practitioner.

12. The father and the mother do all things necessary and execute all necessary authority or such document so that both parties be listed as contacts in the event of any emergency and in relation to X’s education, welfare and development.

13. The mother do all things necessary and execute all necessary authority or such document so that the father may obtain the following information from X’s school:

    (a)notification of curriculum day;

    (b)notification of school functions and events;

    (c)copies of school reports and photographs;

    (d)notification of parent teacher interviews; and

    (e)notification of any information relevant to the welfare of X.

14. Each parent is to keep the other parent advised of his/ her residential address and telephone numbers and advise the other parent of any change within twenty four (24) hours.

15. The father and the mother be and are hereby restrained from discussing with X any issues relating to spending time arrangements, parenting issues, child support issues and/ or these orders, save for counselling pursuant to order 9 above.

16. The parties keep a communication book purchased by the father and exchange that communication book at changeover.

17. The father shall not consume alcohol to excess twenty four (24) hours before any spending time period and/ or during any spending time periods with X whilst denying the need for this order.

18. For the purposes of spending time with X the father is to collect and return X from the mother’s residence or such other place as the parties and X may agree to from time to time.

19. The father and the mother, their servants and agents be and are hereby restrained from abusing, belittling, rebuking or otherwise denigrating the other in the presence or hearing of X and from permitting any other person to do so.

20. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.The effect of Order 11 above is not limited to the parties to the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Trent & Trumble is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2176 of 2013

MR TRENT

Applicant

And

MS TRUMBLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. “Insight” is defined in the Shorter Oxford English Dictionary, 6^th edition published in 2007 as, “…(i)nternal sight, mental vision…a mental looking to or upon something; consideration...”

2. The same dictionary defines “reflection” as follows, “…thought occurring to or occupying the mind; a thought expressed in words; a remark made after reflecting on a subject...”

3. In this contested parenting hearing which occupied three days, the father and mother displayed no evidence of either.  They concentrated on what they considered to be the faults and weaknesses of the other as a person and rarely were they child focused. 

Background

1. Both appeared in person and I assisted them the best I could pursuant to Re: F Litigants in Person Guidelines (2001) FLC 93-072.

2. The applicant father is aged 53 years and is a self-employed (occupation omitted) on a relatively low income. His perceived lack of financial support by the mother for their child is one of the festering disputes between the parties.

3. The respondent mother is aged 49 years and has been unemployed for some time notwithstanding her attempts to find employment.  She currently receives the carers pension for the care she provides her mother and otherwise tries to support herself and the party’s child on Centrelink benefits and the father’s child support payments.  She finds life a financial struggle.

4. They were married on (omitted) 2000 and separated in 2003.  They have one child, X born (omitted) 2001 (“X”). 

5. Following separation the parents, after some months, arrived at an agreed outcome of care on the basis that X would live with her mother and spend regular and frequent time with her father.

6. In 2006 this apparently became problematic and the father instituted proceedings in the Family Court of Australia.  Final orders were made by consent before the Honourable Justice Guest on 20 September 2006 which in essence provided that X should live with the mother, the parents would “…share parental responsibility for all major issues…” X was to have graduated time with her father which by January 2008 was a four week cycle as follows:

   “(a)(i) Each alternate weekend from 12midday Saturday until 6.00pm Sunday in respect of the first and third weekends of the cycle.

   (ii) From 12noon until 6.00pm on Saturday on the second weekend of the cycle.

   (iii) From after school until 7.00pm on the Thursday prior to the fourth weekend of the cycle.”

   It also provided for half holidays and other important days in the calendar.  Subsequently and sensibly, the parties struck their own arrangement whereby the above four week cycle was ignored and X spent time with her father from the conclusion of school on Fridays until 6.00pm Sunday every second weekend, half holidays and other events of the calendar which were important to X and her father.  These arrangements seemed to go relatively smoothly and were frequent and regular until late 2012.

7. On 15 November 2012 the Child Support Agency changed the father’s percentage of his period of care of X to reflect the actual time she spent with him, which was assessed at 22%.  Previously, this had been set incorrectly at 0% and therefore this adjustment led to reduction in the sum of child support paid by the father to the mother.  The father says in his material that on 16 November, (that is the next day), he was denied time with X and he was only allowed to see her from the Saturday until the Sunday on the usual alternate weekend she was to see him.  Subsequently he was unavailable for about two weeks whilst he enjoyed an overseas holiday.  The timing of this was unfortunate, as it was obvious that the mother was annoyed that not only was the child support reduced, but the father then proceeds to enjoy an overseas holiday, something (from the mother’s perspective) that was simply unavailable to her.  On his return he sought to continue the fortnightly time with his daughter and on 14 December 2012 he contacted the mother to indicate he wanted to see X pursuant to their agreement.  Apparently he was told that X was not well and he could not collect her or even speak with her.

8. Notwithstanding that conversation, he went to the mother’s home on 15 December which he understood to be the appropriate weekend and nobody answered the door.  He did not get to see his daughter at all.  He subsequently complained to the mother about the time with X being reduced or cut off and he was told, “…it was up to X and X did not want to see him…”  Subsequently the time with arrangement collapsed and X and her father have not had regular and frequent time with each other ever since.

9. The father commenced proceedings by filing a Contravention Application on 25 March, 2013 and when it first came before me I suggested he should withdraw that application as I could see that style of application only aggravating the problems between the parents. I suggested that he would be better off seeking to vary or modify the earlier orders that provided X’s time with her father. I made an order for a brief report pursuant to section 11F of the Family Law Act 1975 (“the Act”) the contents of which proved to be both helpful and troubling. 

10. On 17 April 2013 I made an order that the father’s Contravention Application be withdrawn and that he have leave to file an application to seek parenting orders.  Consequently, on 16 May 2013 the father filed an application seeking that he have sole parental responsibility and X live with him.  The mother subsequently filed a Response which sought to effectively maintain the status quo subject to incremental time with X to ease her back into an ongoing relationship with her father.

11. The father subsequently filed a further Contravention Application and affidavit in support on 17 February 2014 where he alleged the mother had breached some interim time with orders I had made.  This only served to have the parents focus on their behaviour rather than the causes of it.  I will deal with this application now and then turn to the parties’ parenting proceedings.

12. In his Contravention Application the father alleged there were 17 breaches of the order I made on 29 November 2013.  Pursuant to the Rules of this court I asked the respondent to plead to each matter and she put in a plea of not guilty to all save for the alleged breach of order 20 made on 29 November 2013 which says as follows:

    “The parties keep a communication book and exchange that communication book at change over and the Father and Mother will include all important information including but not limited to:

    i) schooling;

    ii) medical including dental issues facing the child; and

    iii) any important dates/appointments for the child.”

    which she said should not be considered a breach at all.

13. The father alleged that the mother breached this order because, “…she has not facilitated a communications book…”  However I struck that count out explaining to the father that as it was silent on who should purchase the book, it could not be said that she had breached the order when either of them could have provided such a book.  After the respondent had pleaded not guilty to the other charges, I called the father into the witness box to be cross-examined by the respondent. 

14. The first charge was that in breach of order 15.2 that X spend time with the father each Tuesday after school or non-school day from 3.30pm to 7.30pm, that, “…(t)he respondent Ms Trumble without reasonable excuse did not make the child X available for spend time with the applicant father Mr Trent…”

15. The father gave evidence that pursuant to that order he went to the home of the mother and X at 3.30pm on Tuesday, 24 December 2013 and X was not made available for her to spend time with the father.  He says he received an SMS text message from the mother prior to attending the home that X would not be made available but nonetheless he sought compliance with the order.  In cross-examining the father, the mother alleged that the maternal grandmother was at home whilst X and she were out buying school books and attending a doctor’s appointment.  The respondent alleged that her mother told her that the father never attended their home to collect X for her time with the father pursuant to the order. 

16. The respondent never called her own mother to corroborate this allegation notwithstanding she had her mother in court observing these proceedings.  The father strongly denied any allegation that he did not attend and was adamant that when he rang the doorbell no one answered the door and it appeared that on one was home at all.  I accept the father’s evidence over that of the mother.

17. The respondent’s defence to the alleged breach was that X had to purchase some school books and also had to attend a doctor’s appointment at the time when she was supposed to spend time with the father.  The mother sent a message to the father the day before, saying that as X had these commitments and she would not be available to spend time with him.  In my view this was not a reasonable excuse under the legislation, as the mother could have worked around X’s time with the father for both the need to get school books and attend the doctor and/or X could have attended to these matters when she was spending time with the father. 

18. The second alleged breach is that pursuant to order 15.1 X was to spend time with the father on each alternate Sunday between 11.00am and 3.00pm and that on Sunday 29 December 2013 the mother without reasonable excuse did not make X available for compliance with this order. 

19. When giving evidence the respondent mother said that she sent a message to the father telling him that they were going away for a brief holiday at (omitted).  The mother alleged that she could suspend time with the father during this period because another order gave her this option.  The order she relied on was order 16 made on 29 November 2013 which says as follows, “…The time with in Order 15 above be suspended should the Mother and child book and undertake a holiday together, more than 50 kilometres from the Father’s home for any period up to but not exceeding three (3) weeks in January, 2014, upon two (2) weeks written notice to the Father by the Mother beforehand...”

20. I put to the mother that that order required that she give the father two weeks written notice beforehand.  The mother admitted that she did not give that notice 2 weeks prior to the holiday and in fact gave the father at best, a few days’ notice.  In my view, the mother again had no reasonable excuse for not complying with the earlier time with order.  She gave the father very short notice the child would not be made available and then went on a holiday.  She was not entitled to do that.  Moreover, she was not courteous enough to suggest to the father that notwithstanding it was not two weeks’ notice, could they still in the circumstances have a brief holiday?  She simply imposed it on the father, ignoring the importance of a relationship between daughter and father and more particularly, not promoting X’s relationship with her father at all.

21. The third breach was that on 31 December 2013 the mother did not comply with order 15.2 that X spend time with the father each Tuesday from 3.30pm to 7.30pm in that when the father went to collect X from the mother’s home she was not made available.  The mother’s reasonable excuse (in her mind) was that she sent the father a message that day to say that X would not be made available because she was busy with friends having a, “…catch up…” and would not be made available.  When I challenged the mother on this breach she said she did not comply with the order because X did not want to see her father.  I told the mother that X did not have that discretion; the order was not subject to her wishes.  Again the mother does not have reasonable excuse for breaching this order.

22. The fourth breach is that the mother did not comply with order 15.2 again which provided for X to spend time with her father on Tuesday from 3.30pm to 7.30pm on 7 January 2014.  When the father attended the home of the mother and X and she was not made available.  The father’s evidence is before he attended the home, he sent the mother a message requesting that X be made available and he got a response as follows from the mother, “…on behalf of X she does not wish to come over again…”  The mother tried to explain that the reasonable excuse was that X did not want to attend; they were her wishes.  I explained to the mother that that was not a reasonable excuse and I expected the orders to be complied with.

23. The fifth alleged breach occurred on 12 January 2014 where it was alleged that pursuant to order 15.1 the mother did not make X available for time with her father on Sunday between 11.00am and 3.00pm.  The mother’s defence that she had a reasonable excuse was that X was asleep and she sent a text message to the father in reply to his request for compliance as follows, “X is still sleeping at the moment.  I believe you know her answer to this question.”

1. Again it is not a reasonable excuse not to comply with my orders because the child happens to be asleep at the time.  The mother should have made the child available to the father or otherwise attempted to comply with the order and she effectively refused to do so.  She is clearly in breach of this order.

2. When the father was giving evidence, I indicated to him that although he had 17 alleged breaches that it was undesirable that we dealt with each and every one of them given the pressure of time.  In my view she had breached at least 3, if not more of the first 5 alleged breaches and I suggested he should be content with that to allow the court to get on with the part heard trial in relation to the parenting dispute.  To the father’s credit he agreed to this course and we did not have to deal with the rest of his Contravention Application.

3. The mother’s attitude to compliance with my orders made on 29 November 2013 about X’s time with her father was without any reasonable excuse under the Act and she certainly showed no respect for court orders. In the circumstances she is guilty of 5 breaches of the earlier court orders.

4. Pursuant to s.70NEA of the Act the court has wide powers to deal with the mother’s breach of these orders. She presents as a woman embittered by her negative perception of the father and has poor parenting skills in not setting boundaries for her daughter nor directing her to spend time with her father.

   I considered all style of penalties open to me pursuant to s.70 NEB of the Act and felt that any severe penalty I imposed could well make the position worse, notwithstanding it was clear that the father would prefer a tough penalty. This woman requires education to develop insight and reflection on what she has done and therefore, it is most appropriate that she should undertake a post separation parenting program.

The evidence

1. The parties relied on the following documents for the parenting dispute:

A. The applicant father

a)Initiating Application filed 16 May 2013;

b)Affidavit sworn by the father on 25 March 2013 and filed 25 March 2013;

c)Affidavit sworn by the father on 15 May 2013 and filed 16 May 2013;

d)The s.11F Report dated 17 April 2013;

e)The Family Report dated 7 October 2013 by Dr B;

f)The s.11F Report by Ms L dated 21 January 2014; and

g)The Family Report dated 17 April 2014 by Mr B.

B. The respondent mother

a)Response filed 22 November 2013; and

b)Affidavit sworn by the mother on 21 November 2013 and filed 22 November 2013.

The Family Reports

1. There are two s.11F memoranda and two family reports in this case. In an attempt to avoid further litigation and in the hope that the parents could change their poor attitude to each other and improve their very low level of communication, I made an order on 16 April 2013 pursuant to s.11F of the Act for a child inclusive conference and an oral report to be received by the court at 2.15pm on 17 April 2013.

2. This was undertaken by Dr B, a consultant attached to this Registry who provided a very helpful and professional assessment to the court.   The significant parts are as follows:

   As to the mother:

   “…She is suggested that X has, essentially, said that she doesn’t want to see her dad…I was also particular about checking with her regarding what she’s doing to ameliorate this issue…I was repeatedly met with terms like “my hands are tied”, “this is her, what, am I expected to drag her?” – Those types of comments…I didn’t get the impression that there was a really coherent strategy for managing that behaviour.  And it led me to conclude that there was not a huge matter of insight there about how to address that issue…”

3. He said of X that:

   “…she impresses less than candid and less than transparent – in fact, she impresses quite guarded and quite evasive around some of the issues.  She appeared to be searching for reasons why she didn’t want to see her father…she really wasn’t able to offer me any sort of coherent explanation as to why that was.  And that concerned me.

   She did appear cognisant of the discord that may have existed between her parents…She did impress with a…sense of loyalty to her mother…She did appear aware of, you know, child support and that dad pays this to an account and then that is distributed to her mother.  Perhaps, more for me with that sort of issue than I would be comfortable with for a child that has just turned 11…

   …she basically just said that she would like me to tell the judge that, you know, she will see dad when she chooses to…she didn’t impress with the requisite maturity and reasoning that would imbue me with a lot of confidence about her making decisions in her longer term best interest…

   …I flagged with the respondent mother that I was concerned that whether, deliberately or inadvertently, she was being provided with some ideas from her mother that were counterproductive in terms of fostering a relationship with both parents…

   …it may be helpful for the respondent mother to engage in some sort of treatment to assist her in managing her own frustrations and difficulties.  It’s apparent to me, based on a very cursory consultation process, that she hasn’t effectively done that in a way that quarantines X.  And it may be helpful for her to get some support [for] that issue in the future…”

4. The family report dated 7 October 2013 and prepared by the same author of the above memorandum undertook a wider assessment and supplied more details of the problems facing this family.  The more significant parts of that report are as follows:

   “41. The relationship between the parents has broken down, perhaps permanently. Where they were once able to maintain some level of functional communication in relation to X, there has evolved a level of ill-will and animosity. There are a number of factors that are likely to have contributed to this, however, the situation is certainly not helped by Ms Trumble’s acerbic and clearly pointed references to Mr Trent on Facebook. The dispute over child support payments is also likely to have invoked a level of resentment on the side of the respondent mother.

   42. Ms Trumble claims that the current impasse with X and her father is purely driven by the child. She accepts no responsibility for how events have transpired. She has argued that she has only ever encouraged X to see her father and to speak to him over the telephone. Unfortunately, many of her actions suggest otherwise. She has fundamentally failed to comply with the orders of 2006 and reiterated by Judge Curtain in April 2013. Indeed, she appears to show little regard for the rulings of the court, prioritising her own view that X should decide on central elements of her own parenting arrangements…Her online behaviour offers an insight into the militant and aggressive stance she has taken towards Mr Trent – despite clear information suggesting that he has fulfilled his child support obligations. Her text messages to Mr Trent, including “X is not up to seeing you. Give her some space. Please, stop calling here. Respect her wishes. Get on with your day” (02/01/13), do not evidence a level of insight, compassion, and understanding. Moreover, they are not suggestive of a mother who is desperately trying to comply with orders that have been made in the child’s best interests.

   43. Ms Trumble’s view that X should decide when and how she should spend time with her father – a decision with lifelong implications – is naïve and lacks an understanding of the broader implications of X not growing up with the benefit of both parents. It may well be the case that Ms Trumble has not actively discouraged X in her opinions, although she has certainly reinforced the child by not compelling her to see her father. Ms Trumble probably believes she is acting in X’s interests by empowering her to make her own decisions on such important matters, however, she may be setting up a pattern of entitlement and selfishness. At some point in the future, this may come back to cause problems for X…

   44. X was most unconvincing during interview. She is clearly a confused girl. She was fundamentally looking for fault in her father…There was a perception of negative intent on the part of her father, without any clear grounds. X is obviously aligned with her mother and concrete about a very complex social dynamic…The risk of an entitled pattern emerging in this child is real and significant. Indeed, there is much about her decision-making that impresses as naïve, immature, and short-sighted…

   45. X’s refusal to spend time with her father does not appear to emanate from any determinable incident(s) while in the care of her father. There is no suggestion of physical or sexual misconduct…

   46. Whatever the pathway, the current impasse is concerning. The relationship between X and one of her primary carers has been severely disrupted. Considerable work will be required to repair this relationship. The unfortunate reality is that whatever measures the court orders from here on, the probability of Ms Trumble implementing these as they are intended is seriously questionable. She has shown little regard for the interim arrangements outlined by the court, so there is little grounds on which to suspect she will wholeheartedly embrace any future determinations.”

5. Following the recommendations made in the family report referred to above I made interim orders on 29 November 2013 which provided for X to spend time with the father.  I also made orders for the mother and X to undertake separate therapeutic counselling and the parents to undertake a parenting program.  I adjourned the matter part heard to see if we could re-establish a relationship between the child and her father and examine the events that may follow these orders.

6. I made a further order pursuant to s.65L of the Act to require a family consultant to supervise and assist the parties with compliance of the orders. Pursuant to that order a further child dispute memoranda was prepared by Ms L on 21 January 2014 which detailed the following significant comments:

   “Mr Trent was unable to consider his own role in X’s alleged refusal to spend time with him.  He acknowledged that he did not follow X’s requests regarding how they were to spend time together because she should not be able to “dictate” their activities.  Mr Trent did not express any sensitivity regarding X’s experience although, with considerable prompting, was able to identify that she may feel a level of mistrust in him, although he does not believe this to be the case…

   …Ms Trumble stated, unequivocally, that she will not facilitate X spending time with her father unless X expresses a desire to do so.  Ms Trumble is aware that she is in breach of the current Court orders but stated that she is prioritising X’s request not to spend time with her father and will not “force” X to do so.

   Future directions

   Ms Trumble presented as immovable around her decision not to provide X to spend time with her father.  She gave no indication of being willing now or in the immediate future to comply with an order of this Court if it were to require X to spend time with Mr Trent…

   …It is unfortunate that Mr Trent was unable to respond to X’s relatively basic requests around the time they spent with one another on 15 December.  Had he done so, the current resistance (whether originating from X or Ms Trumble) may not have emerged…

   …Ms Trumble has similarly not complied with orders 23, 24 and 26 of the Court relating to her engagement in counselling services for herself and X and participation in a parenting program.  Her engagement in such services may assist her in developing a greater understanding of the importance of supporting X’s relationship with her father…”

7. Pursuant to my order made 29 November 2013 X only spent time with the father on two occasions, 15 December 2013 and 17 December 2013 and then the time with her father ceased.

8. In an effort to detail the significant problems that appear to exist between the parents and X, I sought an updated family report that was prepared and dated 17 April 2014 by Mr B of this Registry.  The important parts of that report (particularly the highlighted parts by me), are as follows:

   “21/ X, presented as a physically tall girl who looks older than what she is. She appears quiet and unassuming and as Dr B notes in his report “shy by disposition”. This writer concurs with this opinion. X was able to describe in some detail her actions and the events as they transpired (from her point of view) leading up to her spending time with her father. X stated that on the 14th December she sent a text to her father stating that on the following day when he picked her up could he “be alone”. In this message X also indicated that she requested that she and her father go to “mini golf” and then to her favourite restaurant, namely “(omitted)”.  She reported that her father sent a text back to her stating “If it’s good enough to message me it’s good enough to call me”. X indicated that she and her mother were at a dinner dance and that it was loud noisy and she did not wish to call her father at this inappropriate time. X reported that she then received “2, 3 or 4 calls” on her phone as did her mother, all from her father attempting to make contact. These were not answered. On the following morning , X actualy [sic] called her father of her own volition to confirm that she was being picked up and spoke briefly with her father. She did not reiterate that she wished to be picked up alone, however she had this expectation given her prior text message to her father.

   22/ X reported that her father came on time to pick her up as agreed. She noted however that her sister Y was driving. X stated that “I panicked, and ran to mum feeling like I was going to cry. I just wanted to be alone it’s my choice to see other people. I then picked myself up and went out there and said I told you to come alone. He yelled “come on come on”, and he was smiling”. X reported that her father sat in the back of the car thus ensuring she sat next to her sister Y. “It felt awkward….. [sic] then he said do you want to call your grandma, and I felt like I had to say yes or if I said no he would have questioned me over and over until I said yes”. X reported that she spoke wither [sic] grandmother, “and then he took me to mini golf” where apparently Mr Trent asked “why didn’t you want Y to come….. [sic] then I felt scared”. Following mini golf X reported that her father began to ask her if she wanted to go back to her grandmother’s home to see her. “If I’d said no he would have questioned me”. After visiting her grandmother, X went to lunch with her father where her Aunt and Cousin turned up.

   23/ X went on to state that “It’s not so much (about) other people” (being present) but her father’s “attitude” towards X. His attitude…what he does…how he talks to me”. X gave examples that she may be stroking her mouth with her fingers or wearing a particular necklace and playing with it (twirling it) and her father would abruptly and in a harsh voice order her “don’t do that”. X commented that such an attitude is “annoying, it’s frustrating”. She went on to comment  “He’s not doing what I want to do…he’s not listening to what I want to do so I don’t want to go”. “I’m not like the boss, but he needs to listen to me….. [sic] I’m the one who has to go there, so why can’t I have a say who I see”.

   …

   28/ X presents as a quiet and somewhat introverted girl on the cusp of her teenage years. This writer tends to concur with Dr B’s [sic] assessment of X.  She appears to be somewhat simplistic in terms of her capacity to think clearly and objectively. As such, X is not surprisingly, clearly aligned with her mother. This alignment has most likely become stronger during the relatively lengthy period when she did not spend time with her father.  It has most likely been reinforced and strengthened by the continuing litigation process that X perceives as constituting a threat to Ms Trumble. This may be further reinforced if X has inadvertently or otherwise been privy to criticisms of her mother.

   …

   30/ The Court placed some structure on the resumption of time between X and her father. This appears to have foundered. The primary reason for this appears to be due to what is perhaps a most unfortunate and ill timed attempt by Mr Trent to proceed at a pace that was most likely not appropriate for X, given the very long time that she had been absent from her father’s care, and the current level of dysfunction noted in the parental system.

   31/ X made clear attempts to convey to her father that she wished to meet him alone. His disregard of this, and furthermore, his clear view that he did not believe that his actions of including other adults in the first encounter with his daughter in some 15 months shows a distinct lack of insight into X’s psychological and emotional needs. There is no doubt that Mr Trent loves his daughter however he must be patient and accept that X needs time to adjust to a routine that for her has been absent from her life for a considerable time…”

Relevant Legal Principles

1. Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:

   a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child;

   b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):

   a)the child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;

   d)parents should agree about the future parenting of their child; and

   e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Sections 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) of the Act. They are:

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

1. This is the major problem in this case.  The mother just does not understand the need for X to enjoy a relationship with both parents.

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

1. This is not relevant currently although it was alleged to have occurred during the parents’ cohabitation.

Additional considerations are:

1. As to sub-section 60CC(3) of the Act:

(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;

1. The primary source of this information was provided through the family consultants’ reports, some of which I have highlighted above for the parents’ information and education, amongst other reasons.

2. The most recent report by Mr B dated 17 April 2014 comments on the views expressed by X when he says at page 11, the following:

   “24/ X went on to comment about past issues and events that she felt had contributed over time to influencing her views regarding spending time wither father. This included such events as her father not spending quality time with her, being absent at times working or going to social gatherings with friends and her feeling left out. These past experiences as well as more recent events appear to have all combined to influence X’s views and wishes. She reported that her mother would not stop her from spending time with her father if she wished to do so. However the fact that “none of this is mum’s fault” and “this whole thing has dragged on for ages” (meaning the legal proceedings) has greatly upset X.

   25/ Asked to comment on what would have to happen for X to reconsider spending time with her father, she stated as follows: He “Can’t question me” he “needs to be nicer to mum” , “He needs to make me feel comfortable”, “listen to what I want “ and “he’s got to stop Court”. Given a hypothetical scenario whereby the Court made a decision for X to be in the care of her father , X with some shock stated “I’d freak out”. Asked what “freak out” meant to her she elaborated after some thought that this meant that she would fell [sic] “scared” and “crying”. X thenstated [sic] that if this eventuated “I would call my dad and yell and scream at him…I’d be so mad”. X added that “How’s he going to solve the problem (of seeing him) when (a change of care arrangements) it’ll just make me upset””

3. He also says at page 12:

   “28/ X presents as a quiet and somewhat introverted girl on the cusp of her teenage years. This writer tends to concur with Dr B’s [sic] assessment of X.  She appears to be somewhat simplistic in terms of her capacity to think clearly and objectively. As such,  X is not surprisingly, clearly aligned with her mother. This alignment has most likely become stronger during the relatively lengthy period when she did not spend time with her father.  It has most likely been reinforced and strengthened by the continuing litigation process that X perceives as constituting a threat to Ms Trumble. This may be further reinforced if X has inadvertently or otherwise been privy to criticisms of her mother.

   29/ There are most likely multiple sources of influence that have combined to affect X’s thinking regarding time with her father. Dr B alludes to three possible scenarios to account for X’s current difficulties. This writer concurs that most likely a combination of some past events (in and of themselves not dramatically sinister or detrimental, but repeated in combination, likely to have some effect), the deterioration in the parental dynamic (sparked by changes in the amount of maintenance paid to Ms Trumble), and possibly overt (but most likely covert and subliminal) influences and/or manipulation by Ms Trumble on X, have all combined to affect her observed attitude towards her father. X is a relatively unsophisticated girl by way of personality, worldly experience and capacity to look at what is in effect a very complex psychosocial family dynamic. She does not yet possess the wisdom to appreciate the complexities and possible psychological and developmental consequences for her if she totally cuts all ties wither [sic] father at this stage of her development.   In this regard not much weight can be placed on X’s views and wishes.”

4. I adopt this assessment of X’s views.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

1. The mother and X enjoy a close and normal relationship, save where it relates to the father.  In that area it is clear that X’s relationship with her mother is dysfunctional and somewhat abnormal.  As to the father, whilst I accept that X loves her father, currently that relationship is at best strained and at worst terribly damaged, and both parents and X have contributed to this.

   (ii)  other persons (including any grandparent or other relative of the child);

2. There was little evidence led or detailed about X’s relationship with her half-sister or grandparents, save that from what I heard in court it appears that she has a close relationship with her maternal grandmother but a somewhat limited one with the extended family of the father.

(c)  the extent to which each of the child's parents has taken, or failed             to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

  (iii)  to communicate with the child;

1. It is clear that X’s mother has participated in making decisions about her long term issues and spending time and communicating with the child.  The problem with this case is that the communication with and spending time with X is very problematic for X and the father.  It appears that the parties and the child will have to work together to try and cure those problems, otherwise in the near future X will not enjoy any relationship with her father.  Moreover, it is possible that in the long term she will have a strained relationship with her mother, because it is likely that in the future X will be very critical of her mother for not promoting her relationship with her father.

(ca)  the extent to which each of the child's parents has fulfilled, or                  failed to fulfil, the parent's obligations to maintain the child;

1. As best I could discover during the trial, both parents have maintained the child to the extent of their legal obligation, but the mother would complain bitterly that the father has not provided the financial support that he should have for their daughter (or more accurately what the mother expected).

(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;

1. The likely effect on X on separation from her father is hard to gauge but unless this current problem is cured and she spends time with her father regularly, she will grow up to be an adult who will not be emotionally complete.  She may be psychologically vulnerable.  I note that at page 15 of the Family Report by Dr B dated 7 October 2013 he says at paragraph 43:

   “[the mother] may be setting up a pattern of entitlement and selfishness. At some point in the future, this may come back to cause problems for X.”

(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;

1. Not relevant.

(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;

1. In his report dated 17 April 2014 Mr B made the following observations and comments about Mr Trent:

   “10/ Mr Trent, is convinced that his ex wife has conspired to actively cut X out of his life and that this most likely began when the Child Support Agency adjusted his payments to Ms Trumble. He rejects any notion that his past (alleged) behaviours have in any way affected X, as they either did not transpire, or were relatively inconsequential to affect X to a degree whereby she has formed such a negative image of him that she is actively rejecting him. Mr Trent stated that his ex wife has been given every opportunity to cooperate and effect a change in circumstance whereby X spends time with him, and she has not done so. In addition Mr Trent pointed out that the Orders of the Court stipulated that Ms Trumble was to organise counselling for X and herself and had not done so. As such Mr Trent is convinced that his ex wife is not motivated to affect any changes in either X or herself whereby their daughter may resume spending time with him.

   11/ Mr Trent stated that his resumption of time with X on the 15^th December had, as far as he could ascertain, progressed very well. Mr Trent outlined his recollection of events on the 15^th and 17^th of December respectively, and stated that he could not identify any behaviours or occurrences on his part or that of other’s present during his time with X to justify the cessation of time.

   12/ Mr Trent was asked to specifically comment on why he had not acquiesced to his daughter’s request (sent by text message the day before) to have no one else in attendance when they met on the 15^th December. Mr Trent stated that he had indeed received such a request from X but he stated that he could “not be sure” if this message had been sent by her (possibly suspecting it had been her mother – writer’s comment). It appears that on the day that Mr Trent picked up his daughter, her half sister Y was also present. In addition, X was asked whether she could be taken to see her grandparents, which she acquiesced to with no protest. Later in the day Mr Trent and Y were joined by X's Aunt and Cousin for lunch. During this time Mr Trent stated that X appeared to be enjoying herself and there were “no problems whatsoever” with the exception that Mr Trent did not take X to the restaurant that she had requested (“(omitted)”) and that this was the only “questionable” issue that may have upset X.”

2. In relation to the mother, Mr B made the following comments:

   “16/ Ms Trumble presented as a pleasant woman with a very passive air about her. She indicated that whilst she had no issue with executing the Orders of the Court, her ex husband’s refusal (and insensitivity) to abide by her daughter’s wish to initially not have anyone else present when she spent time with her father had derailed the process of re introduction of X to her father. Ms Trumble stated that “The Judge” had given clear instructions to her ex partner that he was to listen to what X wanted and… abide by her requests. His blatant refusal to abide by X’s wishes is, according to Ms Trumble, indicative that her ex partner will do as he pleases and not consider what their daughter wants. Ms Trumble stated that her daughter was very clear that she did not wish to continue to spend time with her father after her second visit, convinced that her father had not changed his attitude and would not listen to her wishes. Ms Trumble indicated that she could not “force” X to see her father and had to be supportive of X’s wishes.

   17/ At one point during the interview with Ms Trumble, she appeared somewhat overwhelmed, stating that she was trying to “keep X happy” tend to her various “medical issues” (such as teeth braces) with no financial assistance at all from her ex partner. Ms Trumble stated that she also found X challenging at times, that her daughter was “growing up” and there were occasions when she did not wish to participate in activities initiated by her.

   18/ Asked to describe the relationship between X and her father when X did have regular time with him, Ms Trumble stated that “She had a pretty good relationship with her father until she decided to not see him”. Asked why the relationship had gone from “a pretty good” one to one where X was refusing to see her father, Ms Trumble proffered a number of  reasons to account for this. The first was that it was “hormonal”, with X growing up and experiencing changes , [sic] physically and emotionally as part of the transition into the teenage/early adult years. In addition Ms Trumble pointed to other factors affecting X’s attitude towards her father. Ms Trumble cited “How he has been in the past”  as affecting X’s perception of her father. This included such (alleged) behaviours as being non attentive towards X, not turning up on time to pick her up, being absent from home when he was supposed to be with X etc. Ms Trumble feels that X is protective of her. As such, Ms Trumble believes that Mr Trent’s continuing litigation has upset X. In addition she believes that other external influences such as members of Mr Trent’s family “badmouthing” her or making statements to X that have turned her “off” her father and his family. Ms Trumble made specific reference to an incident whereby at a recent community picnic, Mr Trent’s mother approached a friend of Ms Trumble’s and continuously harassed her stating that it was Ms Trumble’s fault that X was not seeing her father. Apparently, X then inadvertently heard about this from friends and neighbours of Ms Trumble’s through neighbourhood “gossip” (Writer’s quote) and thus X was upset. Ms Trumble firmly believes that all of the above factors have combined to affect X’s decision to discontinue spending time with her father and most definitely not any influences on her part.”

(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;

(i)  the attitude to the child, and to the responsibilities of parenthood,              demonstrated by each of the child's parents;

1. In this decision I have combined the factors referred to in (g) and (i) together given that they overlap in this case.

2. Mr B in his report of 17 April 2014 had the following to say in relation to these issues:

   “31/ X made clear attempts to convey to her father that she wished to meet him alone. His disregard of this, and furthermore, his clear  view that he did not believe that his actions of including other adults in the first encounter with his daughter in some 15 months shows a distinct lack of insight into X’s psychological and emotional needs. There is no doubt that Mr Trent loves his daughter however he must be patient and accept that X needs time to adjust to a routine that for her has been absent from her life for a considerable time. Teenage children experience a number of challenges as they transition from their childhood years to the semi adult world of their teenage years with the associated hormonal, psychological and social challenges that they must encounter assimilate and adjust to. Above and beyond these normal developmental issues children from separated families may (as in this case) have past experiences of parental (and continuing) discord, perhaps a parent that is unable to set boundaries and limits on them, who may, purposefully or otherwise influences their thinking towards a certain view, and finally divided loyalties on the part of the child. Thus, one can see how all these issues combine to  complicate the task for a child to engage in a process (eg Time with their father) whereby they will experience further and ongoing grief. Thus an easier option for any child with reasonable survival instincts is to opt out, the path of least resistance and not engage in a process that is likely to bring them further emotional pain.

   32/ Both parents in this matter are problematic and should shoulder some responsibility for the manner that this case has played out. Ms Trumble dearly loves her daughter but is most likely an ineffectual parent unable to set boundaries on her daughter and make decisions that whilst going against her daughter’s wishes, will ultimately actually benefit her. Dr B notes, Ms Trumble’s general attitude towards her daughter may be setting X up whereby “a pattern of entitlement and selfishness” will result in X’s future behaviours. (Para 43. P 15). Ms L in her 11F memorandum (P.2) notes that Ms Trumble “unequivocally” stated that she would not facilitate time between X and her father unless X wanted to. This is concerning and shows either a distinct lack of insight into X’s emotional needs, and/or a blatant disregard of the Court Orders. Ms Trumble is either hiding her antipathy for Mr Trent behind the thin veil of abrogating her responsibility as a mother and placing the decision making on her daughter, or she simply truly believes that X is actually old enough to make such life changing decisions. Either way Ms Trumble’s behaviour and attitude is concerning.

   33/ In turn, however, parents must also listen to and respect their children’s views. Mr Trent whilst well meaning and wishing to provide for his daughter the rich tapestry of family and culture that emanates from his family of origin,  appears to have been too hasty in imposing on X other members of his family so early in the reunification process. Mr Trent appears to indicate to Ms L during her  11F intervention that X’s request to him for not having other people present was not acceded to, and that X could not “dictate” to him. (See 11F Memorandum on File. P.2) Such an attitude shows a certain arrogance and disrespect that will not necessarily be well accepted by an emerging teenager wanting to (metaphorically) flex their adolescent muscles. Such an attitude is more likely to lead to resentment and a stubborn resolve by X to get her own way. A more diplomatic attitude by Mr Trent towards his daughter would most likely produce a better outcome.”

(j)  any family violence involving the child or a member of the child's          family;

1. The mother alleged both in court and in the family report that when the parties cohabitated the father was violent and controlling.  Since separation there has been no allegations of this style and it appears that it has not been an issue since the parties have separated.

(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;

1. It is very difficult to draft orders that would discourage these parties coming back to court.  I will attempt to draft orders that may assist them in dealing with their problems but the outcome will depend on their willingness to work together for this end.   

(m) any other fact or circumstance that the court thinks is relevant.

1. Mr B in his report dated 17 April 2014 said the following at page 14:

   “32/ In summary, both parents most likely have less than optimal parenting skills and lack a certain degree of insight. They have erred in the manner that they have handled their daughter and the associated issues in this matter thus far. In addition, as adults they are quite polarised, distrustful of each other and lack any capacity to communicate effectively. Both parents look to the Court to solve their problems. The reality is that the Court will certainly make decisions for this family, however ultimately only they can solve their problems. Mr Trent proposes that there is a change in X’s care arrangements in his favour. This is likely to cause X great distress in terms of adjusting to what is most likely a totally different parenting style to what she is accustomed to. In addition, the extreme alignment that X has, and the closeness she feels to her mother is likely to cause in X immense resentment and anger that ultimately is most likely to make the relationship with her father more strained that what it already is. Ms Trumble believes that allowing X to decide whether she spends time with her father is best. To allow X the option of simply not seeing her father without attempting to further assist X and her parents to resolve this impasse is also not in X’s best interests.  In summary, neither of the parent’s options are supported by this writer.”

   [This in fact should be paragraph 34, but there was a typographical error in the report with its paragraphs on pages 13 and 14 numbered as “31, 32, 33, 32, 33” which was not corrected by the author].

Parental responsibility

1. Both parents lack insight and the ability to fully and effectively reflect upon their past behaviour as parents of X.  Given I propose to make orders for the parties and X to undergo counselling, I am proposing they retain equal shared parental responsibility in the belief that they can eventually work together for X’s welfare.  I am asking the father to meet the costs of the counselling (if any) as on balance I believe he has a stronger cash flow and he would be prepared to do this for X.  I noted the mother said she could not comply with earlier orders for counselling because of the cost, which I doubt, but I did not want to give her any opportunity for not to comply with these orders.

Conclusion

1. The mother, like many people in this society has a facebook page.  It is common ground that after the child support liability for the father was reduced in late 2012, the mother had on her facebook a photograph of her with X and posted nearby the following statement:

   “…Real dads support their children without the law telling them they have to!...”

   and there were other similar postings critical of the father, some of which may not have been posted by the mother.  However, she clearly provoked these comments and there was no evidence from her that she did anything about this until it came to the court’s attention.

2. On 22 November 2012 the mother lodged an objection to the fresh child support assessment and it was considered on 21 January 2013.  The basis of the mother’s objection was that the father, “…does not have X for two nights per fortnight and half of the holidays as per the Court order but has below regular (0-51 nights annually) care of X…”  This objection was disallowed by Child Support services.

3. The mother in cross-examination said she was unhappy with the decision of Child Support services and she said:

   “I think that they haven’t taken into consideration the fact that Mr Trent can afford to pay more child support than what he does and I believe that he somehow knows how to work his way around the system of hiding things.  I’m pretty sure he’s a good master at it.”

4. As to the negative postings on her facebook about fathers, the mother said she was angry, “…I was venting…” She also admitted that X was aware the mother was upset about the child support dispute between the parents.

5. When put to the mother by me that it is a sad world when she put these complaints about fathers on her facebook next to a photo of the mother with X she answered without remorse, “…It’s a sad world when fathers don’t pay what they should pay to their children as well, your Honour…”  The following exchange took place between the parents:

   The father:  “Did you think for a moment that it could have a positive effect on X, that she was able to access and look at your computer and your facebook account?”

   The mother:  “I didn’t think at the time when I did it.  I wasn’t thinking of anything in particular.  I was just doing – venting some anger because I’d been frustrated of having to go through this year after year after year after year.  That’s why I did it.”

6. I asked the mother:

   “…So you must have resented the child support payments reducing and that affected you?”

   and she answered:

   “Rightfully so.”

When I asked the mother what she thought of the father, to tell him in court of her views, she replied:

“….I’m very angry because you’re - because of what you’re doing to our daughter, why you are making her go through this and why you are wanting to punish me so much when I’ve done nothing wrong…”

1. The mother was given an opportunity at the end of cross-examination to clarify any ambiguous answers she may have given and she then said:

   “I just wanted to clear up the - again about the fact that, when all this began, X made her own decision about not wanting to come and see you.  I had no influence, nor would I have ever influenced her, because I don’t entertain it at all.  I wanted to make that crystal clear.  I’ve always made that clear.  It is not I, it is X and it is not I.”

2. I note that she did not give evidence that X could choose whether she could attend school or her doctor or dentist.  The mother just does not understand the problems she has created or contributed to.  She also gave evidence that, “…X knows I have to go to court…” and “…it has upset X too…”

3. It speaks poorly of her parenting skills that she could not shield X from the parties’ litigation.  One gets the impression that she shares everything with her daughter that is negative about or puts the father in a bad light.  However, it could not be said that the father was always child focused and always made X a priority.  In the third day of the trial I had the following exchange with the father:

   “…The question was, right, consulting X.  Right.  Not once did you say in your answer you consulted your daughter?”

   “Yes, I did consult her, your Honour.”

   “How often?”

   “Every time.”

   “Every time.  Every time you had her you consulted her.  Beforehand?”

   “Well, she would often consult me before.”

   “Yes.  And she would say to things like, “Dad, I would like to play mini golf and I would like to go the (omitted) and I don’t want anyone else there.”  Did she say that to you?”

   “No.”

   “She never said that you?”

   “No,  She sent a text.”

   “All right.  Are you being smart now, are you?”

   “No.”

   “You knew from the text she wanted to play mini golf ?”

   “That’s right.”

   “And go to the (omitted)?”

   “Yes.”

   “And not have anyone else there?”

   “That’s right.”

   “So you consulted with her in that sense why didn’t you do it?”

   “We never spoke about it, your Honour.”

   “I’m not asking you whether you spoke about it.  Right.  We are talking about consulting your daughter.  You told me you did every time.  What you’re not telling me is after consulting her?”

   “Yes.”

   “You told what she wanted?”

   “Well, we did go to play golf.  We just didn’t go to the (omitted) and we did involve other people in that visitation, yes.”

   “Okay.  So why didn’t you do what she wanted given your starting to get back together, reconstructing time with your daughter, why didn’t you do that?”

   “I felt that she was comfortable with our discussions about the activities that we spoke on 15 December and 17 December.”

   “So you don’t know your own daughter.  Because you read the report?”

   “Yes.”

   “She complains bitterly, and I use the word bitterly, about how you imposed on her [her] half sister.  How you imposed on her telephoning her grandmother.  How you imposed on her not going to the restaurant she wanted.  How you imposed on her seeing her auntie.  Do you see that as a problem?”

   “In the presence of that situation it wasn’t anywhere near as harsh as you’re putting it, your Honour.”

   “Do you see it as a problem?”

   “In hindsight, I’m led to believe that it was a problem, yes.”

   …

   “You were led to believe.  So even today you will say others see it as a problem, experts, judges, but not you?”

   “I just said yes.”

   “Is that your answer?”

   “I said yes, I do see it as a problem.”

   “Yes.  Why do you see it as a problem?”

   “Because it has come up now as something significant.”

   “Why is it significant?”

   “Because as an initial interaction or first off visit I should have been more sensitive to X’s needs.”

   “Why?”

   “Because that’s what was recommended by the professionals and also that was what X requested.”

   “And why weren’t you?”

   “I felt…”

   “Why did you impose on her the phone call to the grandmother?  It was more about the grandmother’s needs than X’s, wasn’t it?”

   “Not more about the grandmother’s needs at all, your Honour.”

   “Why did you do it?”

   “Because I felt X was comfortable to do so at the time and with the cultural upbringing that we’ve had, being the family that we are, we are all concerned with X and that’s pretty obvious, your Honour.”

   “What about X’s needs?”

   “Yes.”

   “What do you mean, yes?”

   “I felt comfortable at the time.”

   “Well, you know what that shows, incredible lack of insight?”

   “Mmm.”

4. I repeat the comment in the child dispute memorandum, dated 21 January 2014:

   “It is unfortunate that Mr Trent was unable to respond to X’s relatively basic requests around the time they spent with one another on 15 December.  Had he done so, the current resistance (whether originating from X or Ms Trumble) may not have emerged.”

5. The father raised this topic when cross-examining Mr B, the author of the family report:

   “Under the circumstances of not having had contact with X for such a long period and the way that it has all panned out, and mentioning the fabric or the tapestry of the family and culture, is it, in your view, such a big crime or error to warrant words of arrogance and disrespect?”

   “Mr Trent, my view is as follows.  From your perspective as an adult, I have absolutely no problems with what you were attempting to do.  You were attempting to, I suppose from your adult perspective, include who you believe to be quite significant others, and – and these people are, in fact, significant others.  There’s her sister; there’s grandparents;   an auntie and a cousin, so I can totally understand it from your adult perspective.  What I’m conveying, however, is that it does not fit in with X’s perception, and this is where, I guess I’m trying to give the message to yourself and the court, that it warrants some introspection on your part, some insight, to be able to say, gee, I would love for X to see her grandparents because they have missed her.  She may have missed them.  But why don’t I wait a couple of weeks.  Why don’t I just concentrate on just one on one initially to just break the ice, find out where X is at, see who she wants to see, when she wants to see them.  So I don’t think you did the wrong thing from an adult point of view, but I believe that it was wrong in terms of exposing your daughter to that - what I perceive to be, or she was conveying to me, was a fairly overwhelming type of situation that went against her stated wishes to you that you be there alone.  Does that answer your question?”

6. In further cross-examination Mr B also said:

   “…given the scenario, given the circumstances, there is absolutely no question in my mind that this child should at least be exposed to some level of counselling to sort out certain issues in her mind and that the parents should be exposed to some level of counselling for another independent person to perhaps raise for them alternatives to some of their thinking and some of the stances they have taken…”

7. I also note that this exchange took place between the court and the mother:

   “That’s not a fair question because she has said also that she’s prepared to do what Mr B recommended: that she’s prepared to go to (omitted) and undertake the counselling with Catholic Care and she will direct X to go there.  Is that right, madam?”

   “Yes, your Honour.”

8. As to the style or time with orders and counselling Mr B said:

   “In making that suggestion, Mr B, what would be the best way, in your view, to start contact as soon as possible?”

   “Now, that’s a good question.  Can we put in this context?  Given, say, theoretically the court adopts your recommendation, should we have an order, say, for contact with the child or time with the child, on a Sunday or alternate Sundays or Tuesdays, and then have the counselling, or, no orders for time with her and just have the counselling and see what comes out of the counselling?”

   “Well, your Honour, I would have been inclined to say that the contact regime should be guided by the professionals that initially engage with the child, because that process, I believe, will involve a certain amount of getting to know the child and what her concerns and issues are.  With the clear knowledge, though, that I think there needs to be a clear message conveyed to X, both by her primary parent and by the counsellors involved, that there is a determination that there will be contact.  I don’t believe that, firstly, she should be given a get out of jail card, so to speak, and secondly, I think the professionals involved have to be very clear as to what the intent of their intervention is going to be, because, unfortunately, your Honour, in some instances like this certain professionals involved - although with the parenting orders program it’s very clear, the name implies there are orders, but the thing I’m fearful of is that a professional will possibly take a stance or a viewpoint that perhaps leans more towards the child, or their readiness, or their input and perhaps may come to a conclusion that, hang on, look, we can’t start this for the next eight to 12 months, or something like that, and I wouldn’t want that to happen.  So I would say a combination of – of – of two factors: (1) That there is a clear, implicit direction by the court that contact is to begin, but that is to of some degree controlled by the professionals involved, but that it will begin and it should be on a predetermined basis.  Following initial lead in time, because these people will argue, well, look, we need to talk to this child for a couple of occasions first and prepare her etcetera.”

9. On conclusion, the proposal of the father that X should live with him and he have sole parental responsibility was not only rejected by X but also by Mr B and Dr B.  It was said to be hugely disruptive for the child and, “…not a viable option at this point…” I note near the end of the trial the father, to his credit, did not seek these orders.

10. The reality is that this court can and will make decisions in the cases that come before it but ultimately it is up to these parents to solve their problems.  In all the circumstances, I adopt the recommendations of Mr B in his report and make orders accordingly.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Associate: 

Date:  3 October 2014