Tulley and Lindmann-Tulley (No 2) - [2009] FamCA 1083

FAMILY COURT OF AUSTRALIA

TULLEY & LINDMANN-TULLEY (NO. 2)

[2009] FamCA 1083

FAMILY LAW – CHILDREN – best interests of the child – parental responsibility – meaningful relationship – with whom a child lives – with whom a child spend time

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Native Title Act 1993 (Cth)

AIF v AMS (1999) 199 CLR 160
Brown & Crawford [2009] FamCA 96
CDJ v VAJ [1998] 197 CLR 172 219
Chappell & Chappell [2008] FamCAFC 143
G v C [2006] FamCA 994
Godfrey v Sanders [2007] FamCA 102
Marsden & Winch (No3) [2007] FamCA 1364
Mazorski v Albright [2007] FamCA 520
McCue v Costa [2009] FamCAFC 92
Mulvany & Lane [2009] FamCA 76
U v U (2002) 211 CLR 238

APPLICANT:

Mr Tulley

RESPONDENT:

Ms Lindmann-Tulley

INDEPENDENT CHILDREN’S LAWYER:

Ms Dooley

FILE NUMBER:

BRC

1154

2007

DATE DELIVERED:

17 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

12-14 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Walker

SOLICITOR FOR THE APPLICANT:

Western Legal
Fremantle

COUNSEL FOR THE RESPONDENT:

Ms Anderson

SOLICITOR FOR THE RESPONDENT:

McCowans Solicitors

Surfers Paradise

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Fleetwood

SOLICITOR FOR THE
INDEPENDENT CHILDREN'S LAWYER

Dooley Solicitors

Southport

Orders

All previous parenting orders be discharged.

Parental Responsibility

The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child … born … June 1997, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b)Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c)Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d)Authorise any person, institution or body referred to in the previous sub-paragraphs to provide to the other parent any and all such information in respect of the treatment of the child, or her activities as the case may be, as the other parent might reasonably require;
(e)Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;
(f)Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, her social, sporting and extra-curricular activities as the other parent might reasonably require.
In order to give better effect to these Orders, a copy of these orders and the Court’s reasons for judgment be approved for publication to the Principal of the child’s school and any counsellor or therapist whom she might attend at the instigation of the father.

Live with and Time

The child … born … June 1997 shall live with her father.
The child shall spend time with the mother at all such times as might be agreed in writing between the parties, but otherwise as provided for in the succeeding paragraphs of these Orders:
(a)    From 10.00am until 3.00pm on Christmas Day 2009 with the mother to collect the child from the father’s residence at the commencement of that time and the father to collect the child from the mother’s residence at the conclusion of that time;
(b)    Save in respect of the period ordered on Christmas Day the mother neither spend time with, nor communicate with, the child for the period from the date of these orders up to 5.00pm Friday 8 January 2010 (being a period of approximately 8 weeks from the date of these orders);
(c)    The child shall spend time with the mother from:
(i)5.00pm Friday 8 January 2010 until 9.00am Monday 11 January and between those times from Friday 22 January until Monday 25 January, 2010;
(ii)from after school Friday 5 February 2010 until before school Monday 8 February, 2010 and between those times on those days in each alternate week thereafter;
(iii)For the whole of the Easter school holiday period in 2011 and each alternate year thereafter;
(iv)For one half of each gazetted school holiday period (other than the Easter school holiday period) as and from the June/July 2010 school holiday period.
(v)If not otherwise falling during a period of time specifically provided for in these orders, for two hours to be agreed between 9.00am and 5.00pm and, if a school day, from after school until 7.00pm on each of the child’s birthday; the mother’s birthday and Mother’s Day;
(vi)From 9.00am Christmas Eve 2012 until 9.00am on Christmas Day 2012 and between those times on those days each alternate year thereafter and from 9.00am Christmas Day 2013 until 9.00am Boxing Day 2013 and between those times on those days each alternate year thereafter.

Communication

Save as during periods of time otherwise provided in these orders, the mother be restrained, and an injunction issue restraining the mother, from communicating with the child other than by card or letter sent via Australia Post to the father’s address for a period of two years from the date of these orders.
The mother be restrained and an injunction issue restraining the mother from causing, encouraging or permitting any other person to communicate with the child other than by card or letter sent via Australia Post to the father’s address which accurately reflects on the envelope the name and address of the sender.
The mother be at liberty to contact the child by telephone between 7.00pm and 7.30pm on Wednesday 13 January, 2010 and between those times on that day each alternate week thereafter.

Facilitation of Orders

The Independent Children’s Lawyer, in conjunction with (and after consultation with) Ms B shall arrange for Ms B to explain these orders to the child and, via methods and in a manner considered appropriate by her, the reasons why the court has made those orders.
Pursuant to s 65L(1)(b), for a period of 12 months from the date of this order, a family consultant (if at all possible, Ms B), provide such assistance as the father might reasonably request, but only in circumstances where the child expresses a desire to speak to Ms B about any issue of concern to her and where the father considers that course appropriate.

IT IS FURTHER ORDERED THAT

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 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: BRC1154/2007

MR TULLEY

Applicant Father

And

MS LINDMANN-TULLEY

Respondent Mother

REASONS FOR JUDGMENT

When the father in these parenting proceedings moved to Queensland from Western Australia a little more than 12 months ago, he had seen little of the parties’ daughter, born in June 1997, who is now 12.
The child’s birth parents are from Papua New Guinea, but she came into the parties’ care shortly after birth. She was formally adopted by them in 2002.
The father had been living and working in Western Australia since about 2001 and the mother and the child lived there also until separation in about May 2003, shortly after which the mother and the child moved to the Gold Coast area.
The child saw little of her father between then and 2006. That time frame included court orders, including, on 24 January, 2006, a finding of six contraventions by the mother. Between early 2006 and early 2008 there was virtually no contact between the father and the child.
In early 2008, orders were made effecting what might be described as a progressive time regime for time between the father and the child. In mid-2008, the father moved from Western Australia to the Gold Coast. The stated purpose of his move was to re-establish and develop a relationship with the child.
In the context of that background, the fact that the child is now, pursuant to an earlier interim order of this court, living with her father and spending time with her mother on what was, initially, a supervised basis, is testament to a sad and very troubling history in the 13 months that this matter has been managed by this court.
The reporting Family Consultant, Ms B, aptly refers to a “plethora of Family Reports” that have been prepared in this matter’s history, both in this court and, previously, in the Federal Magistrates Court. Ms B has herself produced five such reports. Earlier reports were prepared by Ms R, a social worker, and, earlier still, by a psychologist Mr W.
A position has been reached, whereby, in Ms B’s opinion “the issue in dispute in regard to [the child] has been narrowed down to… which parent has the capacity and willingness to adequately provide for [the child] and promote and enable her to enjoy an ongoing relationship with the other parent.”
Whilst, for reasons which will emerge, I consider that Ms B is quite right in identifying that issue as, now, the single most important consideration in the determination of the child’s best interests, it is important to record two things.
First, the ultimate orders reflective of the court’s assessment of the child’s best interests must occur within, and be guided by, a mandatory legislative framework. Secondly, all reports prepared by Ms B, and earlier considerations by the court, have considered the broad context and miscellany of relevant matters central to findings about the child’s best interests.

The Parties’ Proposals

The Independent Children’s Lawyer contends for orders broadly in accordance with those recommended by the family consultant, Ms B.
At the conclusion of her most recent report (which, as will be seen, occurs consequent upon a process of supervision earlier ordered pursuant to Section 65L of the Act), Ms B ultimately recommends that the child live with the father and spend time with her mother each alternate week from after school Thursday to before school Monday and half school holidays. Ms B also recommends telephone communication each Wednesday and that the father have sole parental responsibility for the child.
In oral evidence, Ms B made it plain that those ultimate recommendations in respect of the sharing of time were not made without reservations.
The mother’s proposals, as contained in the Minutes of Order filed by the start of the trial is that the child live with her and that the father spend time with the child each alternate week from Thursday after school to Monday before school together with half school holidays.
In submissions at the conclusion of the trial, the mother’s proposal was that the child’s time should be shared equally (week about) between her parents. The mother sought an order for equal shared parental responsibility or, in the alternative, if an order for sole parental responsibility in favour of the father was contemplated by the court, an order similar to that made by me in Brown and Crawford [2009] FamCA 96.
The father’s Minutes of Order filed at the outset of the trial contend that the child should live with him and that time between the child and her mother ought be supervised at a contact centre, and therefore, as a result, limited in its duration and frequency.
Initially, that order was sought in terms which would see it cease in October 2011 (that is two years from the date of final hearing). In his opening, Mr Walker, Counsel for the father, deleted that temporal restriction. In final submissions, a shorter period of time was sought in which time would be supervised in that manner and it was contended that, after 12 months of contact-centre supervision, the time be supervised by a named individual. The practical effect of that order would be to increase time between the mother and the child to four hours.

Applicable Principles

Objects, Principles, Considerations and Best Interests

Responsible parents, including separated parents, in arriving at decisions jointly about what is best for their children, need to, and do in fact, weigh a number of different considerations. Many could be identified, none are prescribed. For Courts, the legislature has demanded that there also be a weighing process but has prescribed the factors that must be weighed in that balance.
Two of those factors are prescribed as having primary importance; the balance are described as “additional”. The process of weighing the evidence in respect of those matters is required to take place within a guiding philosophy dictated by the Objects and Principles of the legislation.
Two clear tenants of legislative intent relevantly emerge. First, it is intended that both parents should have an ongoing role in the co-parenting and co-nurturing of their children that is of value to the children. Secondly, that tenant, and the interference by a Court in co-nurturing by parents, should, in all cases, be governed by the determination of best interests specific to those children in those children's particular circumstances.
But, the Act makes it abundantly clear, and it reminds the Court numerous times in different places, that the essential exercise in making parenting orders is to have those orders best meet the best interests of the specific child or children's best interests relevant to their specific circumstances. That is why findings as to best interests underpin each of the specific matters to which the Court is directed by the Act. (See s 60CA and, more specifically, eg. s 60B(1);s 60B(2); s 60CA; s 61DA(4); s 65DAA(1)(a); s 65DAA(2)(c) and Note 1 to each of those latter two sections.
Ascertaining best interests by reference to the Act's mandatory signposts must embrace the fact that, "It is a mistake to think that there is always one right answer to the question of what the best interests of the child will require. Best interests are values not the facts." (CDJ v VAJ [1998] 197 CLR 172 219)
The Act’s requirements exist, then, within a framework where the court is given a broad discretion to fashion orders consistent with the specific children’s best interests and, as earlier described, with those best interests as the driving force.
The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark, sometimes adversely, the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus.
“Best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship. Courts must bring a consideration of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.

Parental Responsibility

The Act requires, in the circumstances confronting me, that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. Clearly, if that presumption applies then, in turn, the provisions of s 65DAA of the Act also apply.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the child’s bests interests for that presumption to be rebutted. The heading to s 60CC indicates that it is the section directed to “How a Court Determines What is in a Child’s Best Interests”. It is the only section that refers to how that central requirement is determined.
Findings about best interests, and, thus, findings about the s 60CC considerations are, then, required in order to come to a conclusion as to whether the presumption is rebutted.
Within that context, an additional consideration (s 60CC(3)(m)) also, in my view, emerges.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for the child. A parenting order does not derogate from that save as is expressly ordered.
But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined, but it might be thought to involve a concept different from that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
The Full Court held in Chappell and Chappell [2008] FamCAFC 143:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself. [Emphasis in original]

A finding that the parties are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility (s 65DAC) is plainly a highly relevant matter in determining whether the best interests of the child require the presumption to be rebutted in this case.
Equally, though, an order for “sole parental responsibility” in favour of a party (as contended for by the father and as recommended by Ms B) suggests (at least arguably) by reference to the various statutory definitions – and lack of definition - that the other party has no rights, responsibilities and authority in respect of “major long term issues”. (The latter expression is defined. Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE. See the discussion in Chappell, above, in respect of possible issues emanating from the distinction).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their child is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is determined to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
As it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind the child’s best interests, given her particular circumstances, is the ultimate criterion.
As pointed out in Chappell, above, one outcome of the specific application of those principles and considerations might be, for example, the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not. Or, an outcome might be, for example, to leave an ultimate decision or decisions to a party, but to make provision for formal input into any such decision by the other party. The latter is urged by the mother in the alternative to an order for sole parental responsibility in favour of the father.

Meaningful Relationship

In McCue v Costa [2009] FamCAFC 92, the Full Court approved a statement of Bennett J in G v C [2006] FamCA 994 to the effect that the notion of “meaningful relationship”, as used in s 60CC, required a court to “evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
The Full Court held that “the court should consider and weigh the evidence at the date of the hearing to determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents …” (at par 118).
That accepted, it also needs to be borne in mind that “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (per Kay J, Godfrey v Sanders [2007] FamCA 102).
When parents, by the institution of parenting proceedings which proceed to a trial, abdicate to a court the responsibility for making decisions about their children otherwise properly the preserve of parents working co-operatively together, there is often the potential for the Act’s two primary considerations to conflict: what might otherwise be seen as a meaningful relationship with a parent will be alleged to be contrary to a child’s best interests because of the potential for that parent to inflict harm, including emotional harm.
What constitutes a “meaningful relationship” in circumstances where harm is alleged (here, potentially psychological or emotional harm) can be elusive. In Mazorski v Albright ([2007] FamCA 520), Brown J held:-
“2. The provisions in the Act relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC.”
…
26.What these [dictionary] definitions convey is that “meaningful” when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary consideration and the application of the object in principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application the presumption of [equally] shared parental responsibility and the requirement the time with the children to be, where possible and in their best interests, substantial and significant.
I respectfully agree, noting her Honour’s use of the word “strictly”. See, too, Mulvany and Lane [2009] FamCA 76 per May & Thackray JJ). .
Of course, whilst this consideration “should be accorded particular importance in determining what order will best promote the interests of the child” and is “of the utmost importance … in determining [that] outcome…” it is necessary to “…take into account all of the relevant considerations identified in the legislation, giving each of them such weight as … thought appropriate…”. (Marsden and Winch (No3) [2007] Fam CA 1364 per Warnick & Thackray JJ @ par 77).

Best Interests – Overview and Basic Findings

The broad picture of the position in which the child found herself at the commencement of these proceedings can be given by the summation of a number of central findings about which there is little evidentiary controversy.
There can be no doubt in this case that the child has a closely bonded loving relationship with her mother. The mother has been the child’s historical primary carer and the child has received from her the vast bulk of her day to day nurturing during the great bulk of her life.
Save in respect of any influence the mother might have had in inculcating any negative attitudes in the child, (and, indeed, the mother’s attitude toward the father and his spending time with the child) there is no suggestion that the child has received other than entirely appropriate care from her mother.
There was, until recently, a very significant geographical distance between the father and the child. Leaving aside the controversy about the mother’s attitudes toward the child spending time with him, that geographic distance impacted significantly on the practicalities of any arrangements, or orders, for time between the child and her father.
The father (and his wife) moved to South East Queensland so as to avail him (and the child) of the opportunity to spend significant time together.
The mother, in what is one of the genuinely puzzling aspects of this case, makes no allegations against the father that he presents a risk to the child. She does not allege that the child is in danger of physical or emotional harm from her father, nor that he (or his wife) would provide for her care in anything other than an appropriate and loving way.
The mother says that the child needs a relationship with her father and says (implicitly) that the child would benefit from a meaningful relationship with him. She wants, she says, for the child to have an ongoing relationship with her father. Those matters (which, obviously enough, have inherent in them a number of the statutory considerations – for example, benefit of a meaningful relationship, nature of relationship, capacity of parents and changes in the child’s circumstances) might be seen to lead to conclusions about the child’s best interests that might see ordered care arrangements very different from those which currently pertain pursuant to interim orders, or which are now contemplated by the father.
Indeed, it seems abundantly clear that, upon moving to the Gold Coast, the father contemplated that the child would live predominantly with her mother and that he would spend significant (and, probably, “substantial and significant”) time with the child.

Best interests – The Child’s position now?

The benign overview reflected in the basic findings just referred to belies the nature and severity of the issues – including what Ms B regards as the central issue – confronting the court in this case.
Central to the profound seriousness of the issues confronting the court are comments made by the child herself.
The legislature makes it plain that “any views expressed by the child” must be taken into account as one of the considerations relevant to determining that child’s best interests. The legislature also refers to the child’s “maturity or level of understanding” being relevant to the weight that a court should give to the child’s views.
The child is now 12. She is, on all accounts, a mature and intelligent girl/young woman. She is pubescent. Her voice needs to be heard in these proceedings and account taken of her views.
I consider the use by the legislature of the term “views” (which, it should be noted was changed from “wishes” by the Reform Act) indicates a much broader concept than that embodied by simply asking a child (even of mature years) what he or she might desire by way of specific outcomes to proceedings.
In particular, I consider that the views of children (particularly when seen in combination with other “Additional Considerations” outlined in s 60CC) encompass a range of issues including the psychological foundation for those views, how any such expressed views might be reflective of, for example, attachment to either or both parents, and the child’s relationship with each.
The factors that might be at play (or have been at play) in forming the views of the child also have the potential to say a considerable amount about many of the Considerations (either Primary or Additional) relevant to the child.
The child’s views, as apparently expressed by her to her mother - and to other people who gave evidence on the mother’s behalf in the proceedings – have a universal theme: she does not like her father, she does not like his wife, she does not want to spend time with him and she is fearful of him and, perhaps, fearful of his wife.
The ferocity with which the child has expressed her views – and the, at times, extreme ways in which she has expressed herself non-verbally - should also be taken into account. That matter was a specific focus of an earlier part of the proceedings heard by me.

Earlier proceedings

The first day of this trial (as it is described in the Family Law Rules 2004 which now reflect the court’s Less Adversarial Process) occurred before me on 11 September 2008.
A court’s child-related hearing process now starts with a first day of a trial (Rule 16.08). It continues with continuation days (Rule 16.09) and culminates in a final stage of trial (Rule 16.10).
Periods of time separate those stages. Sometimes, unavoidably, that time lag is somewhat lengthier than is desirable. In other instances, that time lag allows child-orientated orders made on those earlier occasions to take hold. The s 65L order made in this case is an example.
Frequently, earlier judge events are punctuated by interim orders applicable pending the final stage of the hearing. Here, those interim orders involved difficult decisions and were attended by reasons. Although made at what is defined by the Rules to be a trial, commencing on the first day, the proceedings are, by their nature, truncated. Although, pursuant to the Rules, the parties are sworn and oral evidence is often received, the opportunity for the sort of extensive cross-examination as would occur at a final stage is limited (if there is any opportunity to cross-examine at all). The proceedings are more akin in substance (and, at least in part, in form) to those which would occur in a duty list or a chamber list.
Nevertheless, sometimes the best interests of a child dictate significant action being taken at those earlier stages. Such was the case here; the child’s primary care arrangements were shifted from her mother to her father. A decision of such magnitude should, in my view, be accompanied by reasons. So it was here.
An issue arises as to whether, at the final stage of the proceedings, those judgments can be relied upon by the court as evidence in reaching a determination after the final stage of the hearing.
Section 69ZX(3) of the Act provides:-
The court may, in child related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendations, finding, decision or judgment of any court, person or body of a kind mentioned in any subparagraphs (a)(i) to (iii).
The Explanatory Memorandum to the Reform Act, which introduced the section, referred to it being a modified version of s 86 of the Native Title Act1993 and to it implementing recommendations made by the Family Law Council’s “Pathway Report”. The Explanatory Memorandum says:-
The report found that such provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to s 68F(2). …
The reference in the Explanatory Memorandum is, to “proceedings in other courts”. The section refers, however, to “the court” in both the preamble and in subparagraph (a), although subparagraph (b) of the section refers to “any court”.
Read together, however, it seems to me that the section contemplates the court at a final stage of a hearing taking into account judgments made in earlier parts of those proceedings (i.e. an earlier stage of “the trial”) by the same court. That view is reinforced by the definition of “proceedings” in s 4 of the Act which provides:-
Proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.
So too, where the Rules contemplate a continuous, multi-event proceeding described as a “trial”, it seems to me that, contemplated within it, is the use by a court of earlier reasons as evidence (and other evidence) given or heard at earlier stages of the “trial”.
On the first day of this trial Ms B gave oral evidence. At that time, affidavit material by the father revealed that there were escalating difficulties in the child spending time with him, and her overt behaviours exhibited an apparent reluctance or refusal to spend that time.
In that part of the proceedings, the mother indicated that she had happened upon letters written by the child addressed to me. The mother says they were written with no input from her. She said they had been found by a friend of the mother and came to the mother via that friend. Passages from those letters were put to Ms B in the witness box that day.
During her oral evidence, and specifically in response to questions from me, Ms B gave what I consider to be poignant, heartfelt and accurate evidence that in my view lies at the very heart of a decision about the child’s best interests. Inherent in that evidence of Ms B and the opinions there expressed, which I accept, are a number of matters which find reflection in the statutory Considerations. In my earlier reasons, given that day, I said:
37.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.
38.Parts of one of the letters [the child] has written in capital letters and [she has] 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!"
39.Clearly enough, when any child, let alone a pubescent child aged (then) 11½ 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.
40.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.
41.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.
42.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].
43.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.
That statements and behaviours such as those just referred to should form part of the “views” of the child (or, put more broadly, part of the picture of her psychological and emotional functioning) is, clearly enough, profoundly disturbing.
The question of whether those expressed views and behaviours should be accepted, either as indicative of her true feelings, or persuasive of orders that are in her best interests, is a different question and one which is illuminated by other evidence both from Ms B and the father.

Orders made on the “first day of trial” on 11.09.08 were the first in three sets of orders made by me – the others made on “continuation days” on 17.12.08 and 26.3.09. Each of those sets of orders had, as a central concern, the issues just referred to.
Each of those sets of orders also addressed a concern, referred to clearly by Ms B in her numerous reports, of the role that the mother may have been playing (consciously or unconsciously) in the inculcation of, or continuation of, the attitudes, fears and concerns expressed by the child.
Ultimately, orders were made by me on 26 March 2009 that, until further order, the child live with her father. Reflecting the concerns I had about the role that the mother may have played in the child’s attitudes or her apparent inability to facilitate time between the child and her father occurring without it being attended by very significant emotional turmoil for the child, I made orders for time to be supervised and, thereafter, escalated to weekend time leading up to the anticipated final hearing.
Importantly, I also continued an order made pursuant to s 65L of the Act for Ms B to “supervise” periods of time (as that expression is used in the section). The observations there made were ordered to be the subject of a report by Ms B.
The observations made by Ms B, and particularly the observations made after the period of supervised time just referred to, are, in my view extremely important in making findings and orders in this case.

Expressed Views and True Views?

It is again very important to bear in mind that no ostensible reason is offered for the views (let alone the serious and extreme views) expressed by the child. There is no suggestion by the mother that her father presents a danger to her in any way.
The mother, I reiterate, purports to be supportive of an ongoing significant relationship between the two. Indeed, as earlier pointed out, her ultimate position at the conclusion of the hearing is that the child’s time should be shared equally between the father and herself.
The dissonance between those expressed positions (and ultimate assertion about orders which reflect the child’s best interests) and the ferocity, severity and consistency of the views expressed by the child is at once profoundly puzzling and profoundly troubling.
It is important to record that, although the child’s views are consistent, they are not universal. Crucially, they are at odds with things said to, and observations made by, Ms B consequent upon substantial periods of time between the child and her father ordered earlier by me.
It is, in my view, both constructive and important to quote extensively from Ms B’s family report dated 28 September 2009 (which, I emphasise, was the fifth such report prepared by her). Ms B says:-
I would concur with Ms [R’s] assertions [in a family report prepared by Ms R in 2007] and it is my opinion that up until orders were made for [the child] to spend a period of uninterrupted time with her father [the factors mentioned by Ms R] had influenced [the child’] position. It is, however, my assessment that, since her time with her father as per orders dated 17 December 2008, that the primary factor that is now prohibiting this matter from moving forward is the mother’s inability and/or unwillingness to effectively encourage and support [the child’s] relationship with her father.
23.As documented in my previous report, [the child’s] affect in January this year [after a period of time with her father] was of a child who was bright, happy and unburdened. As I stated in paragraph 16 of my previous report, [the child’s] “happy, positive [affect] was in direct contrast to the sullen, flat, non-communicative affect that she had routinely presented with in previous interviews and one could not help thinking that the time she had spent with her father had been an overwhelmingly positive experience for her”. I am still of the opinion that [the child’s] time with her father was an enjoyable experience and afforded both [the father] and [the child] the opportunity to establish and move consolidate a meaningful relationship.
…
25.It is my opinion based on what I observed of [the child] after spending time with her father and the conversations I have had with [the child], that she has now experienced the positive benefits of having a relationship with her father. At the interview on 22 January 2009, [the child] expressed a desire to spend half her time with her father and half her time with the mother, though she felt her mother would not be happy with this.
Ms B goes on in that report to refer to the observations made of the family pursuant to the order made during the ordered process of s 65L supervision. Ms B saw the child on three occasions, and interviewed the parents on two, in the lead up to the preparation of the September 2009 report to which I have just referred.
Ms B says in the report:-
28.During this time [the child] has reported that her time with her father has been “okay”. In May she complained about not having any privacy because [the father and his wife] were allegedly looking through her school bags and other possessions. [The father] confirmed that after the “fiasco” with mobile telephone and [the child] receiving text messages from Ms [J] (a former friend of [the mother]) he felt obliged to check her bags to ensure that nothing like that happened again.
…
29.It has been my observation that as time with her mother progressively increased, so too has [the child’s] flat affect and her unwillingness to communicate and discuss her family. In May both parents reported that [the child] had run away. [The mother] was somewhat vague with her recollection of the event and could not explain how an acquaintance of her’s called “[Ms H]” had arranged to collect [the child].
Unsurprisingly, it might be thought, the matters just referred to were observed by Ms B to have had a very significant emotional impact upon the child. In a sad and compelling paragraph in her most recent report, Ms B records:
In July 2009, [the child] was initially a little more upbeat than the previous appointment and stated that things were going okay at her father’s. She reported that she had spent her birthday with her mother. [The child] then burst into tears and sobbed and blurted out “Mum keeps asking me lots of questions about Dad and stuff…spoilt my birthday”. She then stated (still sobbing) “I just love Mum so much, I think I could cope if I live with her, it’s just really hard”. I then asked her “What do you mean, does Mum make it hard”. [The child] nodded “Yes” and sobbed again. I then asked her if her father made it hard to which she nodded “No” and quietly uttered “Not really”.
32. On 4 September 2009 [the child] was still reasonably flat, although she was a little more communicative. She reported that she was spending each alternate weekend with her mother and the time with her mother was “Good”. She also stated “Mum didn’t ask as many questions last weekend”. When asked how she was going at her father’s place she also stated “okay”. I specifically asked her if it was horrible at her father’s and she very clearly said “No”. I then asked her if it was good, to which she responded “Yes, pretty much”.
Further evidence of the stark contrast between the evidence adduced by the mother, and witnesses called on her behalf, as to what the child is saying to her and them, and that which she exhibits with her father, was provided in evidence by the father, which I accept, relating to a very recent visit by the child to Western Australia.
The child was taken to Western Australia by the father’s wife with a view to both seeing that place and meeting a number of friends and parts of the father and his wife’s extended family. The father gave evidence that the child was beside herself with excitement and was bubbling over at both the prospect of travelling to Western Australia and upon her return. I accept his evidence.
The picture painted by the mother (and at least one of her witnesses) was completely to the contrary. It was asserted that the child did not want to go and was expressing fear and concern about going.
It will be appreciated that a significant component of the reasoning behind the making of the s 65L order was for that intervention to assist the child in dealing with many of the issues to which reference has just been made. I had hoped (as I think is clear from my earlier reasons) that the mother might actively assist in promoting the child’s time with her father and that the child would benefit accordingly.
The mother has consistently denied that she plays any part (either consciously or unconsciously) in implicating a negative attitude in the child toward her father. I do not believe her.
I already referred to the child’s comments to Ms B about the mother asking questions, including the poignant emotional scene reported at paragraph 31 of Ms B’s September 2009 report that involved the child bursting into tears and sobbing as she told Ms B that “Mum keeps asking me lots of questions about Dad and stuff…”. Another example is provided at paragraph 34 of that report:-
[The father] reported that [the child] had confided in both he and [his wife] that she felt uncomfortable telling her mother that she had been to see [Ms B] in July (knowing that her mother had not attended – as neither parents were interviewed). According to [the father], [the child] reported that her mother “wanted to know what she had told the family consultant”.
Yet, amidst my then hopes and the sad and troubling background referred to, the mother adduced evidence as exhibits to an affidavit, sworn a matter of days before the trial, notes apparently recently written by the child (Exhibits “MLT14” and “MLT15”).
In one note (introduced into evidence, I repeat, through the agency of her mother) the child says, “Please try, keep trying, I [love] you so much we will make it through. I will be able to go back home with you to live forever ‘Hail Mary in Lovin Light’ please send [T] [the father] back home childless without [the child]”.
In another note, the child says “Mum I am a bit worried that when you go back to court I will never be able to see you again” and “Everybody thinks this is my right to see my Dad when I hate [T] so much but still know body knows how I feel they always think I’m happy. I just want them to stop making me like someone when I don’t like them. I just want to get out of this train reck. Sometimes I just want to run away again. When then nobody can find me or really rather just kill myself”.
I do not accept that those notes reflect the child’s true views about either herself, her father or her relationship (or desired relationship with her father).
The dissonance just referred to requires some explanation. I am convinced that the explanation lies in what Ms B describes as the child living in “two worlds”. One world is comprised by her life and experiences and emotions with her father, the other is comprised by her life, her experience and her emotions with her mother.
In poignant, and, what I consider to be, heartfelt and entirely accurate evidence, Ms B said in the witness box:-
MS [B]: Yes. [The child] is [the mother’s] life. And she commented on that to [the reporting psychologist] Mr [W].[some years ago]. And I understand that. She loves this child with her very being and [the child] has been her world. But such a tight and enmeshed relationship can end up being quite suffocating for a child. [In the latest report] …I quote the Stockholm people saying that, you know, anyone who interferes in our world is the enemy. And to a certain degree – not intentionally – but [the child] is almost being held hostage emotionally by her mother. My sense is that [the child] can’t afford to say positive things about her father for fear of losing this beloved mother of hers. [The child] can’t afford to have an unimpeded relationship with her father for fear that she will lose the one person who has been her world, and that’s her mother. So if it’s understood in that context I think we can understand the consistent messages that [the child] has made. It’s congruent with her being aligned with her mother. It’s congruent with her seeing her father in a negative light, seeing him as the ogre. She would quite honestly believe that her father is wrecking her relationship with her mother. That would be a reason for her to feel unsafe. That’s why she can’t articulate [why it] is … that she doesn’t feel safe because it isn’t anything that he’s actually physically done. I mean [the father] hasn’t behaved well at times. He’s not without fault.
HIS HONOUR: He doesn’t strike me as a man who has great insight either, I must say.
MS [B]: Yes. He has certainly demonstrated a willingness to self-reflect and look at how he could do things differently, in the times that I’ve spent with him. And if [the mother] can continue to get some counselling and understand the strength of the relationship she has had with [the child] and that she needs to now – well, let go, give [the child] permission to have a relationship with both her parents. That’s her right. If [the child] wants to know what her rights are – that’s her right, to have a relationship with both her parents …
…
…some of the time that [the mother] ...has had exclusively for herself she will lose, but she will not lose her daughter. This daughter will love her to the end of the day and she is desirous of spending time with her mother. And I would suggest that if [the mother] could give her permission, she would want to come home and say “Guess what Dad and I did? We did this. Guess what [E] and I made?” And it will not detract from the beautiful loving relationship that [the child] and [the mother] share.
The dichotomy, or what I have described as dissonance, there described is, it must plainly be said, contrary to the child’s best interests. It is, as Ms B was anxious to point out, potentially very significantly detrimental to the child’s emotional wellbeing.
Additionally, it is important to point out that this heartfelt passage also contains a hope on Ms B’s part; a hope that the mother will embrace the meaningful relationship the child desires with her father, which is not only the child’s right but which, in this case, is clearly beneficial for her.
I have come to the sad, but nevertheless firm, conclusion that the mother lacks the capacity to be able to do so.
I consider the mother is unable to do so for the reason identified by Ms B – that is, that there is a tight and enmeshed relationship which effectively holds the child emotionally hostage. What secures and maintains it and which, despite efforts at assisting the mother to gain insight, resists change, is the mother’s fear of losing the daughter that is her very being.
The mother’s evidence both in affidavit form and in the witness box firmly persuades me that she has no insight into this crucial dynamic.

Intentional or Unintentional?

A major concern in the final hearing was whether the mother was involved – consciously and deliberately – in the child running away whilst she was in her father’s care. Three such incidents are the subject of evidence.
One of those incidents involved a Ms H. Ms H had a prior relationship with the mother’s brother some eighteen years ago. After that period of time Ms H apparently sought out the mother. Her evidence was that she had seen the mother on “two or three occasions” and, she thought, on two of those occasions, had met the child. She said that, on one of those two occasions, the child had talked to her and she [Ms H] had offered to assist the child should the need ever arise.
The context of this conversation (and, more importantly, the need for it) did not become apparent to me. Ms H referred to being “a part of [the child’s] life”. Quite how her relationship with the child fits that description is, again, not apparent to me. Ms H “could not remember” whether the mother was present for the conversation between the child and her.
Not long after that conversation, Ms H was involved in collecting the child from beside the M3 motorway (one of, if not the, busiest highway in Queensland). It transpired that, in ways which remain completely unexplained, the child had made her way from the school she attends to an exit of that motorway (a distance of many kilometres); had telephoned Ms H at some point; Ms H had driven from her home (situated approximately 45 minutes to an hour away), collected the child and drove her back to her home.
Ms H telephoned the mother at some point on this journey. She did not identify herself. Ms H said she didn’t identify herself because she assumed the mother would know who was ringing. The mother said she didn’t recognise Ms H’s voice, nor could she even ascertain whether it was a male or a female.
The facts and circumstances surrounding this incident are, frankly, bizarre. It was put to Ms H (and the mother) that they were complicit in organising the events just described. I am not persuaded that I can make a specific finding to that effect (nor, necessarily, is a specific finding sought). Nevertheless, that such an incident could occur involving a person connected with the mother (in the somewhat tangential circumstances earlier referred to) at a time when the child was in the father’s care pursuant to court order, is as troubling as it is puzzling.
It is not an isolated incident.
An earlier issue, itself with bizarre features, was referred to in earlier ex tempore reasons given by me on 17 December 2008. A person (Ms J), who was then a friend of the mother and who gave oral evidence at the final hearing, was in possession of a mobile phone from which 335 text messages in an approximately one month period were exchanged with the child. In evidence Ms J said that she estimated that somewhere between 40 and 50 percent of those text message were sent (on her phone) by her teenage daughter who was a friend of the child’s. Ms J clearly identified, however, many messages which she agrees were sent by her and which, on any view, are quite extraordinary.
First, (and, again, in stark contrast with the picture presented to the independent expert observer, Ms B) the child expressed a significant fear of her father during those text messages.
Moreover, and perhaps even more troubling, the nature of the matters discussed during some of those texts, bearing in mind that at the time, the child was almost 11½ years of age, is bordering on the bizarre. For example, on 8 October 2008 Ms J texts the child “Flush if you do poo, OK to leave if wee”. On 6 October 2008 Ms J texts the child “Yes. It is fine to do whatever you need to in the toilet”.
Yet other text messages hint at matters which (as was put to her and the mother) are indicative of the mother and Ms J colluding in corresponding with the child at a time when court orders prevented the mother from communicating with the child.
A particular example of that is a text message which occurred on 7 October 2008 which was the subject of extensive cross-examination. It reads “I love you and Mum says mor elsker dig”. The last three words are, apparently, Danish. The mother gave evidence that, to her knowledge, neither Ms J nor her teenage child knew Danish (the mother’s native tongue). Ms J gave evidence that she did not send that text message and she thought that her daughter did. It was put that it was indicative of the mother being present with Ms J and communicating through her (something which both Ms J and the mother denied).
Yet, other text messages refer to what, in my view, ought be considered to be an extraordinary intervention on the part of a woman who, although knowing a child as a friend of her daughter, is not involved in the child’s day to day care. As but some examples: on Wednesday 8 October 2008 a text message reads “Hi t from Dad. Quiet in bedroom. Don’t want him in on the lie. Going in now so ph off love you”. Another message (whose author Ms J “could not recall”) reads “What are you going to do. Make him come out me the car to get you. Don’t just go easy”. “Write on paper the stuff [the father] said in car for counsellor please. Or for me”.

The text messages are redolent of someone significantly involved in these proceedings, and redolent of someone involving the child in issues the subject of these proceedings.
Again, I am not prepared to find (nor was I necessarily asked to find) that there has been collusion between the mother and Ms J designed to avoid either the letter or spirit of a court order relating to the mother not communicating with her daughter.
But that the child should be exposed to an adult involving herself in the manner indicated by the text messages is, to say the least, very worrying.
Ms J said that she told lies to the child to the effect that her mother was passing messages to the child through her, [Ms J], even though she wasn’t. For example “I am telling her. We are writing this together. We are writing this together, hard to explain to you. And yes I know what I said about your Mum was horrible but I was after a response from you and also want you to understand how important it is for you to in against [the father] if that is what you want to make it so Mum is not the influence on you. That is what is worrying you”.
I consider that the text messages, whether as a result of direct collusion with the mother or not, are indicative of comprehensive conversations occurring between the mother and Ms J in and about the court proceedings and the details of them. In particular, I consider that they are indicative of Ms J having a considerable degree of knowledge about matters contained in Ms B’s reports and Ms J communicating with the child about that topic.
The evidence reveals that, when the court’s approbation of Ms J’s conduct was indicated in reasons delivered in December 2008, the mother ceased contact with Ms J and no communication has occurred with her since.
Whilst I might be prepared to conclude that the mother “received the message” from the court about the inappropriateness of the intervention by Ms J as indicated in those earlier reasons, that cessation of contact had the effect of bringing to an end the relationship with the mother which was described by Ms J in her affidavit as “close” and, more importantly, a relationship with the child which Ms J was at pains to point out in her affidavit was so close that the child referred to her as “Mum 2”. The relationship with “Mum 2” has now ceased and ceased without warning.
But, again, the circumstances in which the child apparently had a relationship with Ms J sufficiently close as would be encompassed by her referring to Ms J as “Mum 2” elude me.
What I am confident about is that the nature and extent of conversations occurring between the mother and Ms H, and the mother and Ms J, in and about the proceedings, including significant details of the proceedings and, more importantly, negative things said or hinted by the mother about the father are significantly greater in extent than what is revealed in either the evidence of the mother or those individuals.
I wonder about, and am troubled by, it’s content. For example, it appears that on the child’s mobile phone (which, bizarrely, was given to her by Ms J) her address book includes a number for “Braveheart – sexual abuse hotline” and a number for “Kids Helpline”. No one was able to explain how either found their way into the child’s address book, although the mother guessed that the child had heard about Kids Helpline at school.
Ms S was another witness called in the mother’s case. She had a friendship with the mother developed primarily because her daughter and the child had started school together and had apparently been friends during the course of their schooling. I consider that Ms S was motivated in respect of the actions deposed to by her and in her attitude toward the father (which, I assess, to be essentially negative) primarily by the things that the child had said to her.
It seems to me unsurprising that a woman who is herself a mother would be troubled by consistently negative things said by a child (particularly a maturing child) about her father.
In letters that became exhibit M1 (introduced, it ought be noted, by the mother), the child addresses notes “to [Ms S]”. In one she says “If I am safe I will try to call you”. She goes on to say “Can you please help me. I feel like running away today. I cant take any of this nonsense any more I just want to be free I don’t know where I’m going to go.”
Ms S gave evidence of an expressed reluctance on the part of the child about going to Perth. I have already made findings about that and I reiterate them in this context. In a longer letter “to [Ms S]” the child says “Now [T] [the father] is going ask the court to stop you seeing me he thinks you are lieing but I know you are not”. I pause here to note that I consider the only realistic means by which the child would have known of the terms of any orders sought by the father is through the agency of the mother.
The letter from the child goes on “You know how I can’t see [Ms J] or Mr [F] and the same reason with you he tells me to tell you the truth to all of you first then he doesn’t have a problem seeing you but I am telling the truth that’s the thing. He said to me that the court would probably let me see my Mum a little bit or not at all. Then I told him that you would be happy that I wont see Mum and Dad at the same time. That just broke my heart I will never forgive never ever. Now I really really do hate his guts even more. Please help me! Please please”. The letter is signed off by the child with a note saying “I will miss you guys so much” and “Luv you”.
To my mind at least, it is entirely understandable that a woman faced with tragic correspondence such as that to which I have just referred, would be extremely concerned about any prospective relationship between a child who was the author of such a note and her father. That is all the more so, when that person is a mother of a teenage child herself.
But, oral evidence from Ms S reveals something, to my mind, even more troubling. This child, who is poignantly expressing to Ms B a desire to have a relationship with her father, and is pleading to be not put under pressure by her mother, has not said a single solitary positive thing about her father during the whole of the seven years that Ms S has known her:-
HIS HONOUR: Is it right to say that the picture that has been presented to you by [the child] and by the mother in terms of [the child’s] relationship with her father is wholly negative?

MS [S]:No, the only thing I get is from [the child] that she is upset, that she doesn’t want to be with her father that is what she says to me.

HIS HONOUR: Yes I understand that but in terms of what [the child] has said to you - has what she has said to you - the perception that she has conveyed to you of her father been wholly negative?

MS [S]:Not negative she’s just said that it’s unfair that she has to be there, that she’s forced to be there.

HIS HONOUR: What parts of it what parts of the things that she has said about her father, about time with her father, or about the relationship with her father has been positive?

MS [S]: Well she has just said she doesn’t want to be there.

HIS HONOUR: Well that’s not a positive thing you see…

MS [S]: I know…

HIS HONOUR: So tell me, think carefully about the things that she has said about her father, or about her time with her father, or about her relationship with her father. Thinking carefully about those things can you tell me anything at all that she has said that is positive about her father?

MS [S]: No

HIS HONOUR: Nothing at all. Thankyou

Summary and conclusions

The child has a right to know, love and be cared for by both her parents. She has a right to enjoy a meaningful relationship with both of her parents. I am convinced, however, that for so long as the child spends any significant time in the care of her mother, she has little, if any, prospect of enjoying a meaningful relationship with her father.
The mother has an enmeshed relationship with the child. I accept the opinion of Ms B that this expresses itself in a relationship with the child in which, to use Ms B’s words, the child is “being held hostage emotionally by her mother”. In my view, the mother (whether consciously or unconsciously) does not accord to this maturing girl the emotional freedom to form her own (loving) views of her father and to experience freely and openly his love for her and to express her love for him.
The Court has tried, through a s 65L process, utilising the skills of a family consultant in this Registry to effect a process of change to that situation. Yet, shortly before the trial, the child is expressing fears (which I find are baseless) and opposition (which I find is false) to travelling to Perth with the father’s wife and is continuing to say in correspondence directed to others worrying things about her emotional state and attitude (which, again, I find is contrary to her true feelings).
I am particularly troubled by the described differences in the child’s affect (observed by a detached expert as being “bright, happy and unburdened”) having spent time with her father (which time was assessed as “an overwhelmingly positive experience for her” and, on the other hand the observation that “… as time with her mother progressively increased [in accordance with my earlier orders] so to [did] [the child’s] flat affect and her unwillingness to communicate and discuss her family”. The assessed “overwhelmingly positive experience” is also to be contrasted with the nature and starkness of communications from the child (allegedly written by her alone) in which she expresses nothing but fear and negativity about her father.
The child is now 12. She is, on all accounts, a mature and intelligent girl. Her voice needs to be heard in these proceedings and account taken of her views. But the sad, troubling and serious picture presented by the child’s statements and behaviours referred to by both the mother and witnesses called on her behalf (and referred to in my earlier judgments) sits in stark contrast with the observations made (by an independent expert third party) consequent upon my earlier orders.
I do not believe that the child’s expressed views reflect her true feelings about her father or about her desire to have a meaningful relationship with him. I consider that, as expressed to her mother and those associated with her mother, her views are reflective of what the child thinks is consistent with what her mother wants her to think: “[The child] can’t afford to say positive things about her father for fear of losing this beloved mother of hers”.
A corollary is, in my view, that the mother is unable to genuinely promote a relationship between the child and her father. In my view, that takes the form of overt signals given to the child (witness Ms B’s account of the child, through her sobs, saying “Mum keeps asking me lots of questions about Dad and stuff …”).The father gives evidence to similar effect; the child said to him that her mother “wanted to know what she had said to the family consultant”.
Further, I find it inconceivable that the mother is not, via more subtle words and actions, making it quite clear to the child that a vote for a relationship with her father (or any real indication of same) is a vote against the (deep, loving and much-needed) relationship with her mother. That dichotomy is intolerable for a child and I find it unsurprising that the child has expressed her views in the manner, and with the severity that she has.
I find, though, that the child’s expressed negative views are explained by factors such as those referred to earlier, rather than a genuine antipathy (or fear) toward her father which has a foundation in her true feelings.
One has to be cautious of emotional descriptions or epithets. However, the mother’s attitudes expressed in the way just described are emotionally abusive of her daughter.
In my judgment, if the child receives significant amounts of her day to day care from her mother, there is little, if any, prospect of her developing, or being able to show, her love for her father and her manifest desire to have a meaningful relationship with him.
I consider that the mother will not promote a relationship between the child and the father.
I consider the nature of the relationship between the child and her mother – although loving and appropriate in so many respects is, ultimately harmful to her in the manner just described.
While so ever the mother’s attitude continues, and, the child feels a corresponding need to act in the manner earlier described, the mother’s capacity to provide for the child’s emotional and psychological needs is severely compromised. I consider the prospects of any change in the mother’s current stance to be poor.
Although I consider that the child will miss her mother’s day to day care, I consider an order which provides for her father to provide that day to day care is in her best interests.

Parental Responsibility

Recourse to the Act reveals that the presumption of equal shared parental responsibility – which applies by virtue of my intention to make parenting orders – can be rebutted if the best interests of the child so dictate.
As earlier referred to, s 65DAC of the Act make it clear that sharing parental responsibility is not a passive activity; the Act positively requires a process of consultation and joint decision making.
The matters earlier discussed in these reasons convince me that the child’s best interests are not met by an order for shared parental responsibility. Moreover, those same considerations point, in my view, to legitimate concerns about the mother seeking to undermine any decision-making about long term issues by the father.
I consider it in the child’s best interests for the father to have sole parental responsibility for those issues. However, in consideration of the additional matters earlier discussed under this heading, I intend to make an order similar to that which I made in Brown and Crawford [2009] FamCA 96.

Time

The child is a 12½ year old child / young woman. She has lived with her mother for virtually the whole of her life. What the child desperately needs, in my view, is the emotional and psychological freedom to express her love for each of her parents – and both of her parents - and, ultimately (as all children do and must), to arrive at her own adult judgments about her parents and to make her own judgments about the relationship she will enjoy with each, and both, during her adult life.
I have found that she is unlikely to be able to do so if she lives with her mother or spends large periods of time receiving her day to day care from her mother. If the father is, as per my intended orders, to have the primary day to day care of the child, a difficult question arises as to what orders for time with her mother are in the child’s best interests.
The child plainly loves her mother who has, historically been her primary carer. She plainly needs a loving relationship with her mother. But, equally, that relationship needs to be free of the damaging emotional impact caused, in my judgment, by the nature of the relationship between mother and daughter and the mother’s attitudes toward the father that have erstwhile infected the child’s emotional and psychological wellbeing.
The concerns pointed to earlier in these reasons, and the observations made, and opinions expressed, by Ms B, which I have accepted, clearly raise the spectre of time between the mother and the child being restricted with a view to attempting to limit the opportunities for the mother to give vent to the attitudes, words and neediness earlier described.
In those circumstances, supervision of time is urged by the father and merits consideration. His proposal in that respect is outlined earlier. Supervision is offered as a means of monitoring, and ensuring a brake on, any words or actions indicative of the attitudes earlier described. It is understandable that it might be urged in that context.
Yet, supervision is, by its nature, restrictive both of time and the circumstances which permit the development and growth of the views and attitudes just expressed. That is particularly true of supervision in a contact centre. But, supervision by individuals also brings with it inherent restrictions, an air of artificiality about the time and the relationship and, frequently, a plethora of practical problems and considerations (who, when, for how long, cost, alternative supervisors etc).
I have considered the use of s 65L. I reject its use as a “supervisory order” for a number of reasons. Primary among them is that the child has been seen time and again by report writers. That should stop. Also, that process was tried and was spectacularly unsuccessful in effecting insight and/or a change of attitude on the part of the mother (although very successful in allowing the child – at least within its confines – to have the freedom to express her love for her father and to display the bright, bubbly personality which is, at times, locked within her).
Uppermost in my mind is the making of orders which are least likely to lead to the institution of further proceedings. Because no one can predict the future, it is possible to argue that any orders I make in this case might see future litigation. For the child’s sake, I can only hope that does not occur. But, to the extent it is possible, I consider I should make final orders that bring these proceedings to an end.
Ultimately, preventing the promulgation by the mother of the sort of actions, words and attitudes toward the child described earlier in these reasons will be a matter of the mother seeking for herself (unprompted by compulsion) counselling or therapy of a type that will seek to provide insight into the dynamic so powerfully described by Ms B in oral evidence. With insight can come change. My view about the inappropriateness of compulsion persuades me not to make an order pursuant to s 65LA of the Act.
Balancing all of the matters just described, I consider that, to the extent that any orders can “cure”, or ameliorate, the concerns I have for the child and promote her best interests, orders should be made which reflect the following:
·    Supervision of time is likely to be more harmful to the child, and her relationship with her mother, than it is beneficial;
·    Unsupervised time between the child and her mother should be restricted in quantity on a week to week basis so as to permit the influences from her mother to be minimised and her experiences of her father’s care and her relationship with him to be maximised. I consider that alternative weekends and half holidays to be appropriate in that respect;
·    However, the transition for the child, by reason of all of the matters earlier described, will not be easy. Nor will it be easy for the child’s erstwhile primary carer to deal with these final orders. There is, in my view, a significant prospect of upset on the part of each. I consider that the child should be given the opportunity to absorb the ramifications of the orders and to adjust to them representing the final position in respect of her care. It is appropriate, in my judgment, that, in order to allow that to occur, there be a period of time during which the child spends neither time with her mother nor communicates with her. Given the time of year at which these reasons will be delivered, I will exempt from that restriction, a period on Christmas Day (for reasons which should, I think, be obvious);
·    It will be plain from what I have earlier had to say in these reasons that I am concerned about the text messages received by the child and the interventions of others in her life. I do not propose to issue broad injunctions (as was submitted might be appropriate) preventing the child being brought into contact with the individuals named in this judgment. I do propose to restrain the mother from facilitating contact with the child via other people. Otherwise, the concerns raised in the reasons are met sufficiently in my view by the live with / time orders I will otherwise make;
·    I remain concerned, however, about the propensity of the mother to act in an unrestrained way (particularly consequent upon the making of these orders) in the contact she has with the child. I have already indicated that I consider that the child needs an initial total respite from the pressure on her thus created. In addition, I consider it appropriate that a restraint be placed upon the mother from engaging in text or e-mail contact, which, by its nature can occur without the knowledge of the father. I propose doing so for two years. By then, the child will be 14½, she will have received her predominant care from her father and experienced his care and will be well on her way to attaining sufficient maturity to withstand any of the sorts of pressures to which I have made reference in these reasons;
·    The Independent Children’s Lawyer, in conjunction with (and after consultation with) Ms B arrange for Ms B to explain to the child the orders made by me and, via methods considered appropriate by her, the reasons why the court has made those orders;
·    Although rejecting s 65L in its “supervisory form”, I consider that I should make an order pursuant to s 65(1)(b) but, to take account of the issue I raised earlier (and the requirements of s 65L(2)) I consider it appropriate that, for a period of 12 months, Ms B should provide such assistance as the father reasonably requests but only in circumstances where the child expresses a desire to speak to Ms B about any issue of concern to her and where the father considers that course appropriate.

I am aware of the fact that these orders can be seen as following a path earlier trodden. Nevertheless, expressed as final orders, they nevertheless represent a balance between the various issues considered by me to be central to the child’s best interests.
I order accordingly.

I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 17 November 2009