Tulley and Lindmann-Tulley

FAMILY COURT OF AUSTRALIA

TULLEY & LINDMANN-TULLEY

[2008] FamCA 897

FAMILY LAW – CHILDREN – With whom a child lives – Child expressing negative reaction to time with father – Concerns for child’s psychological and emotional health - Need to have relationship with both parents – block period of time with father

Family Law Act 1975 (Cth) s 60CC, 65L, 69ZN

Goode v Goode (2006) FLC 93-286

APPLICANT:

Mr Tulley

RESPONDENT:

Ms Lindmann-Tulley

FILE NUMBER:

BRC

1154

2007

DATE DELIVERED:

11 September 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

11 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Walker

SOLICITOR FOR THE APPLICANT:

Western Legal

RESPONDENT:

Respondent Mother appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dooley, Dooley Solicitors

Orders

IT IS ORDERED THAT

The matter be adjourned for further hearing before Justice Murphy at 2.15pm on 17 December 2008 in the Brisbane Registry of the Family Court of Australia.

IT IS ORDERED UNTIL FURTHER ORDER THAT

All previous parenting orders be discharged.
Each of the parents have parental responsibility for the child ... born … June 1997 (“the child”).
Each of the parents be responsible for making the day-to-day decisions with respect to the child’s care, welfare and development during the time that, pursuant to these orders, she spends with each of them.
Each of the parties shall do all such things, sign all such documents and the father pay all such reasonable fees as might be required so as to facilitate their attendance, together and with the said child, upon Ms P, psychologist, for such counselling and therapy as hereafter referred to and as Ms P might recommend.
IT IS REQUESTED THAT, if at all possible, Ms P facilitate a session with the child:
a.as soon as practicable and within the next week and to include therein an explanation of these orders;
b.specifically on Friday 19 September 2008, preferably after school;
c.specifically on Friday 17 October 2008, preferably after school;
d.on Thursday 30 October 2008, and each second Thursday thereafter, or with such frequency as Ms P shall otherwise recommend.
The said child shall live with each of her parents at such times and periods as might be agreed in writing between the parties and, failing any such agreement live with the father:
a.from after school Friday 12 September 2008, until before school Tuesday 16 September 2008;
b.immediately upon, the cessation of the counselling session contemplated as occurring with Ms P on Friday 19 September 2008 or if that counselling session does not take place, from after school on 19 September 2008 until the conclusion of the counselling session contemplated as occurring with Ms P on Friday 17 October 2008 or if that counselling session does not take place, until after school on that date;
c.from after school Thursday 30 October 2008, until before school Tuesday 4 November 2008, and between those times and on those days, each alternate week thereafter;
and otherwise with the mother.
During the one month period of time specified at order seven (7), the mother neither spend time with, nor communicate with the child.
a. In order to facilitate the time provided for at order 7(b), changeover shall occur immediately upon the cessation of, and at the counselling sessions contemplated therein, or, failing those sessions shall occur, at school.
b.Changeovers in respect of the time provided for at order 7(a) shall occur at school.
c.Changeovers for the commencement of the first two periods of time provided for at order 7(c) shall be immediately upon the cessation of, and at, the counselling session contemplated at order 6(d) or failing those sessions shall occur at school and the changeovers for the conclusion of those two periods shall occur at school.
d.Changeover for all other times provided for pursuant to these orders, or as otherwise agreed between the parties, shall be effected by the mother delivering the child to the father’s residence at the commencement of time and the father delivering the child to the mother’s residence at the conclusion of each period of time.

IT IS FURTHER ORDERED THAT

Pursuant to Section 65L of the Family Law Act 1975:
a.compliance with these parenting orders is to be supervised by a Family Consultant of the Family Court of Australia Brisbane Registry and to the extent possible it is requested that this Family Consultant be Ms B;
b.the supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with , and the carrying out of, the parenting orders.
IT IS REQUESTED THAT prior to the further hearing of this matter before Justice Murphy on 17 December 2008, Ms B shall prepare a short report dealing with all such matters as she considers relevant to the child’s best interests, and specifically addressing the issue of whether, in her opinion, the child is in need of psychiatric assessment and/or treatment .
Ms P be at liberty to receive and read, and the Independent Children's Lawyer shall publish to her, the reports in these proceedings prepared by Mr W, Ms R and the two family reports by Ms B resulting therefrom.
The Independent Children's Lawyer have liberty to apply on the giving of three working day’s notice, with the solicitors and/or counsel for the father being granted leave to attend by phone at any such hearing.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED THAT

(a)Justice Murphy has indicated a desire to have Ms P’s involvement occur at the earliest opportunity. If, but only if, the only occasion upon which Ms P can see the child between today and next Tuesday afternoon, is Tuesday, that the father be at liberty, upon giving notice to the child’s school and the mother, to have the child remain in his care for the purpose of that consultation with Ms P.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1154/07

MR TULLEY

Applicant

And

MS LINDMANN-TULLEY

Respondent

Ex Tempore

REASONS FOR JUDGMENT

This matter came before me today for what a dual purpose. The first was as the first day in the Court's less adversarial trial process, having been transferred to this Court from the Federal Magistrates Court.
The second purpose was to hear and determine an Application in a Case filed by the father.
That application, in terms, sought an order that the child the subject of these proceedings, a daughter, born in June 1997, live with him for a period of six months and during that time spend no time or have no communication with her mother.
The mother told me from the Bar table that she was served with that Application on Tuesday and had read it. She indicated, initially, that she had not appreciated the full impact of the material because she had only had an opportunity to read it briefly.
With that in mind, and also bearing in mind particularly, Principle 1 and Principle 4 of the Principles outlined in s 69ZN of the Act, I considered it important and in the child’s best interests, that the interim application be heard and determined by me today.
In particular, I note that one of the Act’s Principles, governing proceedings in this Court, is that I am to direct myself to those concerns directly relevant to a child's best interests. Given the history of this matter to which I will shortly make reference, it seems to me to be clearly in the child’s best interests that that interim application be determined today.
Secondly and as importantly, that section requires the Court to deal expeditiously with proceedings and in a manner that, to the extent that it is possible, dispenses with legal form and technicality. Noting particularly that the father has recently relocated from Western Australia to south-east Queensland in order to be near, and to attempt to establish a meaningful relationship with his daughter, I consider I should hear the application today in the child’s best interests.
With those considerations in mind I attempted to carefully take the mother, who appeared for herself, through the issues raised by the affidavit material and the terms of the application sought by the father.
I sought to have the mother tell me all those matters which she considered to be directly relevant to the child’s best interests and I satisfied myself that she clearly understood the nature of the proceedings and the issues and information said to support the order.
The father's contention, as ultimately expressed, was for there to be a significant block period of time that the child spends with him, whether that be the six months expressed in the Application, or for some other significant period of time. In either event, the father contended that, during that period of time, the child should not spend time with, or communicate with, her mother.
The mother's proposal, in broad terms, contended for a slow build up of time starting with some supervised time of very short duration (a couple of hours) leading up, over a period of time, to some short overnight time.
It needs to be observed that the proposal by the mother would, for the child, represent a significant reduction in the amount of time that she spent with her father – albeit that it is uncontentious that there have been significant difficulties, particularly in recent times, associated with the child spending time with her father.
That the parties' proposals should be so disparate is reflective of a number of matters including complications in the facts forming the background to the current dispute and, also, the expressed views of an 11 and a half year old pubescent girl.
Of course, as the High Court has made clear, the overriding obligation of this Court is to arrive at orders which are in the best interests of this particular child in this particular child's circumstances, and, as a result, it is for the Court to formulate its own proposal should it be considered that such a proposal better represents the child’s best interests.
It is not necessary for the purposes of today's proceedings to give a complete historical background, but it is important that I outline, at least in broad terms, how this current dispute and the current proposals of the parties came to be.
The parties commenced a relationship in about April 1987. There were a number of moves of the parties commencing with them moving to Papua New Guinea in 1997. There were moves, then, within Australia, principally between Queensland and Western Australia which resulted, over time, in there being significant geographical separations between the parties and, consequently, periods of time when the father spent limited periods of time in the child’s life.
Ultimately, the parties were residing in Perth in March 2003 and the child was enrolled in a primary school there at that time. The parties separated in a matrimonial sense in May 2003. At that time the applicant returned to Queensland with the child.
Consent orders for contact by the father were made on 17 June 2004.
Contravention applications were made by the applicant father on 19 April 2005 and again on 21 June 2005.
Interim contact orders were made by this Court a few months later on 12 October 2005.
A further contravention application was made on 16 November 2005 and, ultimately, the respondent mother was found to have contravened parenting orders.
There were a number of counselling references undertaken by the parties and, I gather the child.
The circumstances of the family have been subject to four separate reports from independent experts, a psychologist Mr W, a family consultant Ms R, and, most recently, two reports by the family consultant attached to this Registry, Ms B.
There was a period of time for about three years from April 2005 when there was, effectively, little or no face-to-face contact between the father and the child.
In January 2008 the matter had been set down for hearing before Carmody J but, ultimately, orders were made by consent on that day which provided for the child to have contact with her father on one weekend per month.
At that time the residential position of the parties remained that which it had been. The father, who by that stage had re-partnered, remained living with his wife in Western Australia, and the respondent mother and the child were living in south‑east Queensland.
Expert reports prepared by Ms B, including, in particular her most recent, indicated the father and his wife considering all of the circumstances and ramifications of him moving permanently to south-east Queensland. During the preparation of the most recent report the father indicated that he had arrived at a decision that he and his wife would relocate to south-east Queensland so that he might develop a meaningful relationship with the child.
A few weeks prior to this hearing the father put those plans into effect and he is now living in south-east Queensland about a half an hour's drive from where the mother and the child live.
The father deposes, and I do not understand it to be in dispute, that he has commenced a business in south-east Queensland. His wife also works in a job she conducts from home. Each of them, then, is in regular employment and it is deposed that they have an intention to permanently reside in the south-east Queensland area.
As a result of further earlier proceedings, the parties appeared ultimately before Bint R. At that time, it appears to be common ground that the parties had agreed that, consistent with the recommendations made by Ms B, the child would spend five nights a fortnight in her father's care plus some other time.
It is also common ground that the mother, who was then represented, resiled from that agreement.
But, despite resiling from that agreement, it again seems to be common ground that, subject to some concerns that I will refer to in a moment, the child has been spending about five nights a fortnight with her father.
In broad summary the affidavit of the father filed in support of the current application speaks of, what I described to Ms B when she was in the witness box as escalating difficulties with respect to having the child change over into his care. A broad summary of the recent time (essentially coinciding with the father's move to south‑east Queensland) is that there has been a marked escalation of overt behaviour on the part of the child which, on its face, would appear to be indicative of her not wishing to spend time with her father.
Mr Walker, counsel who appears on the father’s behalf, submits, I think correctly with respect, that, although that affidavit does speak of those significant difficulties and that those difficulties appear to have escalated, one can discern in the affidavit material by the father some "glimmers of light" or glimmers of hope with respect to the re-establishment of the relationship.
With that in mind I should mention that, during the course of the hearing before me, the mother indicated that, independently of her (and indeed in circumstances where she says she simply happened to find them) the child had written letters to me. These ultimately became exhibits in the proceedings.
The letters, it is said, were found by a friend of the mother's and came into the mother’s home in that way.
I don't propose to refer in significant detail to those letters. But passages of them were put to Ms B when she was in the witness box and, because at least one of the letters has on its face an indication that it was written for the purpose of the child speaking to me, it seems to me to be important to indicate that I have indeed read those letters and taken into account the fact that, ostensibly at least, the child has written them and wants me to read them.
Parts of one of the letters the child has written in capital letters and asterisked various parts. Towards the end of that letter in a statement, apparently intended to be addressed to me, the child says, "Thank you for reading my letter, from [the child]". Under the heading "What I think", the child, in a series of dot points with capitalised headings, says this:
"Stress: When police said you are only 11 years old you don't know stress or what stress is, if I didn't have stress would I be cutting my hair off?
I wish I was "dead". I wish I was dead so all of this stuff with [T] can stop."
I interpose, "[T]" is a reference to the father. Next, under the heading "I am scared":
"I am scared of [T], if he drags me again and what will happen."
Under the heading "Feelings!" she says:
"Scared, sick in tummy, angry, annoyed, upset because this will never stop."
And under the heading "Listen!" the child says:
"Can you just let this be finished, I am sick and tired of this happening. Can you let my life go on normal. It is not happening a normal life with issues. Please stop it!"
Clearly enough when any child, let alone a pubescent child aged 11 and a half purportedly writes a letter to the Judge and says as part of the letter "I wish I was dead" a Judge is likely to be, and I record here that I am, very significantly concerned.
Understandably enough I raised the issue with Ms B. There was a lengthy discussion by her in the witness box and she was cross-examined by the mother, Mr Walker and Ms Dooley who is the Independent Children's Lawyer.
As well as the matter just referred to, other recent behaviour by the child including: running away (on one occasion with a suggestion that doing so occurred in somewhat dangerous circumstances involving traffic); information from the mother given from the Bar table today that the child had been cutting (and, the mother said, occasionally pulling) her hair and the mother finding a quantity of hair in the child’s handbag were the subject of discussion.
Ms B gave evidence consistent, I should say, with the impression I gained from reading the material, including the four separate family reports to which I have earlier referred, that, even though the expression "I wish I was dead" was used, that "alarm bells were not ringing" for Ms B.
That statement needs to have the context that the impression gained by Ms B is that the child had been exhibiting a significant amount of what might be crudely described as “attention-seeking behaviour” with a view to, in effect, exercising control over the situation as it existed between her mother and father.
I should also interpose here that, the statement was made, it seems, subsequent to an earlier report by Ms B. That report recognised that the child had made a number of strong statements that she did not want to see her father. Those statements were made in circumstances where there did not appear, on the face of it, to be any real cause for making those statements. I shall refer to this further in a moment.
Ms B had suggested that there be, as it were, "immersion" of the child in her father's care and, to give effect to that, had recommended the child spending five nights per fortnight with her father. Importantly, Ms B had recommended that changeovers occur at school, reasoning that the child’s being exposed to, and surrounded by, her peers may operate as some form of buffer to any attention-seeking behaviour by the child at changeover times.
It is fair to say, on any view of the evidence that this plan by Ms B did not work.
The evidence clearly reveals that, at changeover at the school, there was significant overt behaviour on the child’s part that indicated that she did not wish to go into her father's care.

Before proceeding further, I should indicate that I am, of course, cognisant of all of the statutory provisions which bind this Court in making decisions about the best interests of children.
In particular I am cognisant of the right that the child has to know and be cared for, and be nurtured by, each of the parents, not by one of them. I am also cognisant of what the Full Court said in Goode & Goode and, in particular, relating to this Court arriving at interim orders which are in a child's best interests, having considered each of the relevant matters that the statute requires.
One of the interesting aspects of this case, as it seems to me (and, indeed, I think it is fair to say as it seemed to Ms B from the evidence that she gave in the Court) is what the evidence reveals when regard is had to each of the s 60CC considerations.
First, it is common ground, and the mother readily accepts, because I asked her about it on a number of occasions, that she considers that it is important for the child not only to have a relationship with her father but to have a meaningful relationship with her father. In that respect the mother accepts and again, she gave evidence to this effect more than once, that that meaningful relationship should manifest itself in the child spending significant time with her father.
The benefit, then, to the child in having a meaningful relationship with both of her parents and with her father in particular is not an issue in these proceedings in the sense that it is contended by one party that such a relationship should somehow be curtailed by reference to any facts or circumstances that need to be determined.
Secondly, the mother was, commendably as I said, during the course of discussion, at pains to point out that she does not consider that the child is at risk of any harm when in the care of the father. She made no specific reference to the father’s current wife but on the proper basis that she did not know her.
When pushed on this issue it seemed to me abundantly clear, at least in terms of the things that the mother was saying, that she was anxious for me to know that she did not make any allegations against the father that harm, in any real sense, would come to the child if she spent time and indeed substantial time with her father.
Each of the primary considerations, and the mother's position with respect to those primary considerations, is an extremely important component of the decision which I have ultimately arrived at.
Next, and again interestingly, when the Additional Considerations are looked at, once again there does not appear to be a significant dispute between the parties.
This case then be distinguished readily and acutely from those cases where allegations are made that a child does not wish to see a parent because of previous behaviour by that parent towards the child or previous abusive or neglectful actions taken by that parent towards the child.
The views of the child I have already touched upon and I will come back to.
When one looks at “the nature of the relationship of [the child] with each of her parents and with other persons”, again, the mother considers that there should be a high quality relationship between the child and her father.
One might say that there is a factual dispute about the willingness of the mother, at least as the father sees it, to facilitate and encourage a close and continuing relationship, but closer analysis probably reveals that, in fact, it is more the ability of the mother that might be an issue rather than her willingness.
The mother raises no concerns about the effect of any changes in the child’s circumstances by reference to any time that the child might spend with the father.
The mother raises no issues with respect to the practical difficulty and expense of the child doing so.
The mother raises no issues with respect to the father's capacity to care for the child in an appropriate caring, loving and nurturing way.
Nor does the mother raise any issues in respect of the attitude to the child and to the responsibilities of parenthood demonstrated by the father.
It might be seen then as somewhat mysterious that there is a dispute of the nature and extent exemplified by the parties' proposals.
There are, though, issues identified in the family reports, and in particular the earlier family reports, that might provide a key – or keys – to the currently expressed position of the child.
First, the child is adopted. Expressing it in its most neutral terms, there was historically, a dispute about whether, and in what terms, the child should be made aware of that.
It seems abundantly clear on the evidence before me that issues relating from her adoption continue to be a significant issue in the child’s life.
The manifestation of that issue occurred at about the same time that the child’s parents separated and it seems to me axiomatic, and neither party disputes, that the child would, understandably enough, have experienced significant grief as a result of that separation.
Separation (in the matrimonial sense) was exacerbated by the fact that there was a geographical separation occasioned by the work and living history of the parties that meant that, after separation (in a matrimonial sense) periods of time that the father could meaningfully spend with the child had to take into account that significant geographical separation and, resulting time constraints.
Secondly, the family reports are consistent in identifying, and postulating as a possible reason for the child’s manifest behaviour and statements, that she and the mother have an “enmeshed relationship” or a relationship of co-dependence.
As an example, in the family report prepared by Ms R, a social worker, annexed to an affidavit filed on 16 July 2007, Ms R says at par 75:
"While the writer has respect for the views and opinions of children I am concerned that [the child] was not able to voice concerns that go anywhere near justifying her rejection of her father. It would seem her opinions are not based upon her real relationship with her father. It is appropriate that [the child] develops a realistic relationship with her father to base her opinions on."
That in turn, seems based on observations made by Ms R, for example, at pars 54 and 55 of her report. She says:
"Upon rejoining her mother [the child] again clung to her and appeared to be more distressed. With some encouragement she left with her mother's friend […] whilst the writer spoke to her mother.
[The child’s] distress was greatest when she was leaving and returning to her mother. During the observation with her father she appeared to be oppositional in her behaviour (about having to do something she did not want to do) rather than fearful."
Whether that opinion is ultimately shown to be correct, at a hearing, and whether that be the reason, or part of the reason, for the child’s behaviour or not, Ms R seems to me to be certainly correct when she says that the chld was not able to voice concerns that go anywhere near justifying her rejection of her father.
That seems to me to be a good summary of the evidence I have read in these proceedings.
Notwithstanding the understandable grief that a child might experience upon the breakdown of her family or resulting from finding out that she is adopted the evidence contains, in my view, nothing that justifies the apparent extent and breadth of the child’s statements and opposition to time with her father.
I am profoundly concerned that the nature of the relationship, whether it be a “bonding” as the mother would have it, or an “enmeshment” as family report writers have suggested, is a significant factor in producing – either subliminally or otherwise – the reactions by the child to spending time with her father.
In the report prepared by Ms B dated 18 December 2006. She says this at par 22:
"Despite [the mother] claiming that [the child’s] adoption has nothing to do with her attitude towards her father, I am of the opinion that it has a very large bearing on how she views herself and her world. It is further my opinion that [the child’s] introverted affect and inability or unwillingness to communicate when the issues of her family and her father are raised, is the result of triggering some traumatic pre-verbal memory. Hence she does not have the words to express her thoughts and feelings."
Having read four reports, by independent experts, I am struck by how congruent those independent opinions are, despite, I note, being expressed at differing stages of the child’s life.
The confluence of factors just described has produced a situation where an attempt to establish a meaningful relationship between the child and her father in circumstances where there is really, as I view the evidence, no foundation at all for suggesting that she ought not have a meaningful relationship with her father as the Act contemplates, has led to an acute position which was exemplified and expressed in the most recent written report of Ms B dated 24 June 2008.
I interpose that, in an earlier report, Ms B had suggested counselling for the father, mother and the child. In fact what occurred is that the child alone was receiving counselling from a Ms M. With that in mind, by the time that Ms B saw the parties again and prepared her most recent report Ms B said this at par 23:
"[the child’s] attitude towards her father has not changed despite counselling to address a number of identified issues… I am therefore of the opinion that in keeping with the theoretical underpinnings of the behaviouralists, we need to put in place a parenting plan that will indeed change the behaviour of all parties."
I emphasise again that this opinion had the pre-existing foundations to which I have referred, namely that for her part, Ms B, like me, could not identify any cogent reasons why the child ought not, apart from her own unwillingness to do so, enjoy a meaningful relationship with her father.
So much was Ms B of that opinion that she concluded in that most recent written report at par 26 as follows:
"I am optimistic that this parenting plan can be successful given the emotionally robust traits that [the father] and [the father’s wife] display and their commitment to develop and nurture a relationship with [the child]. With discipline and a determination by both [the mother] and [the father], it is my hope and opinion that [the child] will be pleasantly surprised by her positive experience and time with her father and will thus change her attitude towards her father."
That "parenting plan" is a reference to the matter referred to earlier in these Reasons, that the child spend five nights per fortnight with her father and that changeovers occur in a peer group setting so as to attempt to avoid any adverse behaviour by the child.
Significantly, in light of events that have occurred during the time period since, Ms B said in that report at par 27:
"If, however, after six months it appears that this approach has not worked and/or should it be found that the mother's behaviour and attitude is still having a negative effect on [the child’s] progress, I would strongly recommend that [the child] be ordered to live with her father with a moratorium against the mother for a number of months, with [the child’s] time with the mother being gradually reintroduced so that she spends five days a fortnight with her mother."
Having referred to that evidence by Ms B, the father's position can be seen as being understandable.
It is argued on his behalf that leaving aside factual disputes that will need to be determined outside a proceeding such as the current one, there are nevertheless a number of indications that point to a conclusion that precisely what Ms B recommends should be put in place on an interim basis.
Ms B was not as confident about that opinion in the witness box given, among other things, two things: one, the apparent escalation in the nature and extent of contrary behaviour by the child in connection with spending time with her father and secondly, the fact that what Ms B hoped was going to be a buffer on the child’s oppositional behaviour, did not work.
Ms B also expressed some concern with respect to issues such as the child running away and what was sometimes referred to during the course of the evidence as the child’s “self-harming”.
On analysis, the reference to self-harming really goes no higher than a reference to evidence, albeit disturbing of itself, that the child may have cut her hair in a way so as to establish what the mother described as "spots that were almost bald in her hair".
Mr Walker, on the father's behalf, with respect appropriately and understandably pointed out parts of the evidence by his client that indicate that what might have otherwise been described as enmeshment by the report writers might go further than that in terms of its reach on the child.
For example, he points to par 148 of his client's affidavit where the child is alleged to have said "we don't know who you are" about her father. Ms B said in evidence, that was an indication (assuming that the "we" refers to the mother and her) that the child is not expressing an independent position.
That is a conclusion, Mr Walker argues, that is reinforced by what is deposed to at par 25 of the father's affidavit where, upon returning from one of the interviews for the report processes, the father deposes to the child saying to her mother "I didn't speak to him mum".
Mr Walker says, in effect, “if not now, then when”. Further, he argues that, although it might be right to say that there has been an escalation in the nature and extent of the behaviour, it is also right to say that, based on his client's affidavit, when the child spends periods of time with him, the behaviour subsides and there are lights at the end (or middle) of the tunnel.
Mr Walker argues that this reinforces the position that Ms B initially proposed: there should be a significant block period of time allowing the child to experience for herself her father's fulltime care, and, of course, the care of the father's wife.
Mr Walker also argues that a continuation of the current situation risks the child suffering psychologically as a result of the mother's actions and that the child’s reactions and statements have an aura of the theatrical or tantrum about them.
I must say, as I said to Ms B during the course of the hearing, reading the evidence and listening to the mother's description of the child’s reaction and reading the child’s reactions in the affidavit material and the reports, I, too, came to the conclusion that her behaviour had elements of the theatrical or tantrum about it. I referred at one stage to it having an aura of a young child throwing a tantrum.
Ms B said that there were some indications, principally arising from the sorts of things I have just referred to, that indicate that the child is somewhat emotionally immature.
I agree with that assessment and I am very concerned about placing significant weight on the overt behaviour and expressions by the child of her attitude towards time with her father in all of the circumstances that I have outlined earlier in these Reasons.
Ultimately it seems to me that the agreed position of the child’s parents is that she should spend substantial time with her father. The father would say, of course, that she should spend perhaps the majority of her time with him. But, in terms of the co-parenting arrangement, there is no dispute that both parents should, if possible, be significantly involved.
There seems to be little dispute in respect of any of the other matters referred to either as primary or additional considerations in s 60CC.
The mother does not appear to raise any issue with what might be described as coming within the broader principles enunciated in the Act and in particular the need for both parents to be significantly involved in the caring and nurturing of the child.
When it is all boiled down, it seems to me that the significant issues relevant to the child’s best interests in the context of this interim hearing are two-fold.
First is the child’s psychological health and what might be done about it.
Secondly, is how time, which both parties agree is in her best interests, might best be facilitated in circumstances where attempts have been made, according to what the mother says, by her and where Ms B has tried something which was designed to facilitate that but which has, it seems to me, clearly failed.
No Court, I think, would purport to have "the answer" to that conundrum. It seems to me, though, that the very high likelihood is that the child’s behaviour and statements result from a number of issues, difficult for anyone to deal with, let alone a pubescent 11 year old girl.
These include dealing with the grief of the separation of her parents in every sense of the word; their inability to relate and communicate, and the fact that her true parentage was revealed in circumstances that are contentious and, which, perhaps with the wisdom of hindsight, both parties would regard as less than ideal.
Accordingly, in terms of the first of the two crucial pointers which I consider to be in the child’s best interests, it seems to me that the best way of doing so, given that no allegations are made addressing the psychological imperatives is to involve the child in appropriate expert therapeutic intervention that involves not only her, but also both of her parents, so that she has the capacity to hear both of her parents tell her in a safe, secure therapeutic environment, that they both think it is important for her to have a strong, meaningful, committed relationship to both parents.
The mother tells me that is what she believes. She will now have the opportunity to express it in an emotionally safe, therapeutic setting in a way that, hopefully, the child gets to hear and understand.
It seems to me that, by making the orders that I have indicated with respect to counselling, an attempt can be made to address issues relating to the child’s psychological health.
The second of the two issues earlier referred to is the child having a meaningful relationship with her father and how time with the father might be achieved.
The evidence as Mr Walker argues, tends to point to the fact that it is the changeover that is the most difficult component. Indeed that is what the mother seems to suggest. She says that she encourages the child to go on periods of time, she tells her that it is appropriate, she tells her that her father loves her and those sorts of appropriate things, but she cannot get her there.
An attempt should be made, then, to deal with that issue by, if it is at all possible, ensuring that changeover occur within a safe environment, with both of her parents telling her that they want the changeover to occur and that she should enjoy the time with her father.
It is for that reason that I have indicated that I propose to make orders that changeover occur at, and at the conclusion of, periods of therapy conducted by Ms P whom both parties agree is an appropriate person to undertake that counselling.
It is axiomatic that, if time is to occur properly and meaningfully, in the short, medium and long term future, changeovers ought not continue to occur within such an environment. It is with that in mind that I propose to order that there be two or three changeovers in the manner just suggested with the balance changeovers occurring by the mother delivering the child to the father at the commencement of time and the father delivering the child to the mother at the conclusion of time.
Not only does that have the advantage of spreading the load in terms of the practical considerations relevant to time being effected between the parties but it also, it seems to me, reinforces to the child, particularly on initial changeovers, the message that her mother genuinely wants her to spend time with, and enjoy time with, the father.
I have also made orders with respect to s 65L of the Act. Particularly in light of the unsuccessful plan initially put forward by Ms B that should have the opportunity to receive, as it were, data and information from what is hoped to be an important psychological intervention in the child’s life with hopefully positive results.

Ms B can then assess, among other things, whether the mother is serious, sincere and able to effect a meaningful relationship between the child and her father, particularly when that relationship is supported in the way that I have suggested by counselling and therapy for the child and her.
It is necessary to balance the strongly expressed apparent view from the child that she does not want to spend any time with her father, and the prospect of the Court saying to her that she should spend time with her father for a significant period of time.
That dilemma occurs in circumstances where the child has effectively been cared for primarily by her mother and where there is, on the mother's view, a significant bond between she and the child and, on the view of all the report writers, and most recently Ms B, an enmeshed relationship between the mother and the child.
Obviously there are ramifications, if that is the case, in removing the child even if for a month into her father's care and away from her mother's care. It would be, I think, naive to think that such a move will not create difficulties, and, perhaps, psychological ramifications for the child.
However, it seems to me wholly consistent with the child’s best interests that she have the opportunity to experience, in a meaningful way, the sort of care that will be provided for her by her father and his wife if they are, as it seems to me should be the case, significant on-going care givers in her life.
I think it is highly unlikely that this will occur while the child continues to live in the household of the mother and spend only sporadic time, even if five nights a fortnight, with the father.
It seems to me the time is now to attempt a version of what Ms B thought was appropriate at the time of her last report. I consider it in the child’s best interests, in balancing those competing considerations to which I have referred, to allow the child to experience her father for a block period of time.
I reject the submission made by the father for a longer period of time because I considered, that in balancing those competing considerations, a month is about right in terms of the stress from separation that the child will experience from her undoubted primary carer. Equally, I have no doubt that there will be significant difficulties experienced by the father during that month and I consider a month is about the right time frame that those difficulties and arrangements should apply for.
It is for those reasons that I reject the submission of the father that a block period of time should occur for periods of time of six months or three months.
During the course of the hearing there was some discussion with Ms B about the necessity for the child to receive psychiatric assessment and care.
Ms B had not previously recommended that. She indicated in the witness box that, having heard what she heard today, it was something that was in her mind. Having heard what I heard today and having read the material including the past history I have referred to, I have carefully considered it.
However, I am struck by something the mother said during the course of her discussions with me and that is that there was a suggestion that the child had been "over-counselled". I am also concerned about that.
I have put a therapeutic process in place for a relatively short period of time until the matter comes back before me. I will leave it to the professional assessment of that therapist, and indeed Ms B during the course of the 65L supervision, to flag for me on the next occasion whether psychiatric care might be recommended. Accordingly, I do not propose to make any order for psychiatric assessment or care for the child at the present time.
An issue is raised by Mr Walker who represents the father. He asserts that in light of the material contained in the letters, and, in particular, the reference to "I wish I was dead", and what has been described as self-harming behaviour by the mother, that there should be some concerns on the part of the Court that the child be introduced to the notion that she is going to spend a month with her father in a way that is most consistent with caring for her safety and best interests.
He asserts that that should occur by the five day, nine day arrangement that has been in place by de facto agreement between the parties for some time continuing to apply. That would see the child being in the father's care from today but given that the time is now 25 to 6, on a practical level more likely tomorrow, until Tuesday next week.
Ms B sees sense in that. I see sense in that. That would permit the time between now and the child spending a month with her father to be roughly split between her parents.
It would also allow time for the father to attempt to organise a session for the child and himself, and indeed the mother if she were so willing, prior to, and for the purposes of, explaining the child going into her father's care for a month.
I do not propose to order that the father effect that. It seems to me from all of the evidence before me that it is highly likely, particularly given that the father has himself originally initiated contact with Ms P, that he will attempt to see her as soon as he possibly can.
It seems to me appropriate and indeed, the mother does not strongly disagree, that the child come into her father's care after school tomorrow and remain in her father's care until Tuesday before school.
Today is Thursday and I have indicated, and the father has indicated, a desire to have Ms P’s involvement occur at the earliest opportunity. I will order that if, but only if, the only occasion that Ms P can see the child between now and next Tuesday afternoon is on Tuesday, the father be at liberty, upon giving written notice to the child’s school and the mother, to have the child remain in his care for the purpose of a consultation with Ms P.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 27 October 2008

[2008] FamCA 897

11 September 2008

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