TYLER & TYLER

[2013] FamCA 978

FAMILY COURT OF AUSTRALIA

TYLER & TYLER [2013] FamCA 978

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where the child has been exposed to family violence – Where the presumption is rebutted – Risk – Whether the mother has capacity to protect the child from psychological or emotional harm – Where the child’s older half-sister has displayed violent and aggressive behaviours towards the mother in the presence of the child – With whom the child lives – Separation of siblings – With whom the child spends time – With whom the child communicates.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65D.

MRR v GR (2010) 240 CLR 461.
Cox & Pedrana (2013) 48 Fam LR 651.

APPLICANT: Mr Tyler

RESPONDENT: Ms Tyler

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

FILE NUMBER: BRC 9805 of 2011

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13, 14 and 25 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Andrew

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Tyler in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carlton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

IT IS ORDERED BY WAY OF FINAL ORDER:

1. That J, born … 2006 (“the child”) live with the father immediately from the making of this Order.

2. This Order is authority for Child Dispute Services, Level 3 Harry Gibbs Commonwealth Law Courts Brisbane, to deliver the child, J, born … 2006 into the care of his father, Mr Tyler.

3. Pursuant to s 65L of the Family Law Act 1975 (Cth) a family consultant nominated by the Manager of Child Dispute Services of the Brisbane Registry of the Court is to explain these Orders to the child, and to give any party to the parenting orders any referrals to community agencies as are reasonably requested by the parties.

4. That the father have sole responsibility for the major long term issues for the child with such issues to include but not be limited to:

   (a)the child’s education;

   (b)the child’s religious and cultural upbringing; and

   (c)the child’s health.

5. That, except in the event of an emergency involving the children, the father is to consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:

   (a)the father shall inform the mother about the issue about which a decision which needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision, in writing;

   (b)the father shall give the mother 14 days to respond;

   (c)the father shall consider the mother’s views/response when coming to his decision;

   (d)the father will inform the other of the final decision he has made with respect to that issue as soon as practicable thereafter.

6. That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while he is in that party’s care.

7. That the child will spend time and communicate with the mother at all times as may be agreed between the parties and failing agreement as follows:

   (a)commencing on Friday 17 January 2014: from after school Friday until school Monday, or Tuesday if the Monday is a public holiday, each alternate weekend with the mother to collect the child from school at the commencement of such time and return him to school at the conclusion of such time;

   (b)commencing with the school holiday period occurring at the end of Term 1 in 2014:

   i.from 9.00 am on Good Friday to 5.00 pm on Easter Monday in 2014 and each alternate year thereafter;

   ii.for the first half of the March/April, June/July, September/October and December/January school holiday periods in even numbered years;

   iii.for the second half of the March/April, June/July, September/October and December/January school holiday periods in odd numbered years;

   (c)from 4.00pm on the Saturday immediately prior to Mother’s Day until school on the Monday immediately following Mother’s Day;

   (d)from 2.00 pm Christmas Day until 5.00pm Boxing Day in 2015 and each alternate year thereafter;

   (e)from 5.00 pm Christmas Eve until 2.00 pm Christmas Day in 2014 and each alternate year thereafter;

   (f)on the Mother’s birthday as agreed between the parties and failing agreement from 3.00 pm until 7.00pm;

   (g)on the child’s birthday as agreed between the parties and failing agreement from 3.00 pm until 7.00 pm;

   (h)from 17 January 2014 onwards: by telephone each Tuesday and Thursday between 6.00 pm and 7.00 pm  with the mother to initiate the telephone call and the father to facilitate the child’s receipt of the telephone call.

8. For the purpose of calculating the number of days in the child’s school holiday period, the school holiday period begins after school on the final day of the school term as prescribed by the school at which the child attends, and ends before school on the first day of the following school term as prescribed by the school at which the child attends.  Changeovers are to occur at 9.00 am on the day that falls at the halfway point of the school holidays.

9. That notwithstanding any other order, unless otherwise agreed between the parties, the child shall spend time with the father:

   (a)from 9.00 am on Good Friday to 5.00 pm on Easter Monday in 2015 and each alternate year thereafter;

   (b)from 4.00 pm on the Saturday immediately prior to Father’s Day until school on the Monday immediately following Father’s Day;

   (c)from 5.00 pm Christmas Eve until 2.00 pm Christmas Day in 2015 and each alternate year thereafter;

   (d)from 2.00 pm Christmas Day until 5.00 pm Boxing Day in 2014 and each alternate year thereafter;

   (e)by telephone between 6.00 pm and 7.00 pm each Tuesday and Thursday in periods when the child is spending time with the mother, with the father to initiate the telephone call and the mother to facilitate the child’s receipt of the telephone call.

10. That in respect of telephone communication, each parent shall:

    (a)facilitate communication to the other parent’s mobile or landline telephone number; and

    (b)ensure that the child has privacy during the telephone communication.

11. That where changeovers do not occur at the school attended by the child, the parent who has the child in their care pursuant to this order shall deliver the child to the other parent’s residence at the conclusion of that time.

12. That save for emergency situations, unless otherwise agreed between the parties, all communication in relation to the child shall occur via the use of text message.

13. That the father do all things necessary to ensure that the mother is noted as an enrolling parent and emergency contact at the child’s school and ensure that the school, any day care provider and the organiser of any extra-curricular activities in which the child participates is provided with the mother’s contact details.

14. That the mother and father shall:

    (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change;

    (b)notify the other at least twenty-one (21) days prior to relocating their residence;

    (c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;

    (d)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the child;

    (e)keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.

15. That any day care, school, educational facility or extra-curricular activity provider attended by the child is hereby authorised to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.

16. That any medical or other health professionals who treat the child are hereby authorised to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

17. That the father provide to the mother, within 28 days of him receiving the same, a copy of any school report in relation to the child.

18. That neither parent will denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and failing the third parties’ compliance with such a direction shall remove the child from that environment immediately.

19. Neither parent shall discuss these proceedings with the child save for as may occur during any interaction with a Family Consultant nor shall either parent involve the child in any discussions regarding any issue in dispute between the parties.

20. That the parties complete a Post-Separation Parenting Orders programme through either a Family Relationship Centre or Relationships Australia within six months of the date of this Order.

21. That the mother, or her agent, or anyone acting on her behalf, be restrained from approaching the child until 17 January 2014.

22. Both parties are at liberty to attend the child’s sporting and extracurricular activities.

23. That the father shall not enrol the child in any activity which takes place during the time the child is with the mother without the written consent of the mother.

24. During the time the child is with either party, the parent shall:

    (a)respect the privacy of the other party and not question the child unduly about the personal life of the other party;

    (b)speak of the other party respectfully;  and

    (c)not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the child.

25. That the Independent Children’s Lawyer be given leave to release a copy of the Family Reports, Dr L’s reports and the Reasons for Judgment delivered 13 December 2013 to the child’s counsellor.

26. That the Independent Children’s Lawyer be discharged after a period of six (6) months.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9805  of 2011

Mr Tyler

Applicant

And

Ms Tyler

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the child J, born in 2006 (“the child”) who has lived primarily with the mother and his half-sister, Y, born in 1997, since his birth.

2. The child’s parents separated, finally, under the one roof in December 2006. At this time the child was about six months of age. The parties and both children lived under the one roof until about February 2009, when the father moved to a ‘donga’ located on the same property.  This arrangement continued until around January 2010 when the mother and both children moved from the former joint residence. The father remains living at that residence.

3. From about February 2009 until about October 2010, the child spent time with the father each weekend from Friday afternoon to Sunday afternoon.   After this time, the father states that the mother restricted the child’s time with his father to Friday night each week, and the Saturday night also, once a fortnight.[1] This regime continued when Federal Magistrate Demack (as Her Honour then was) made Orders on 2 December 2011. 

   [1]          Affidavit of the Father filed 18 April 2013, paragraph 36-37.

4. On 6 June 2013, the Principal Registrar ordered that the child spend time with the father:

   a)from after school Friday to the Monday in “Week 1” and each alternate week thereafter; and

   b)from after school Wednesday to before school Friday in “Week 2” and each alternate week thereafter. 

5. Two Family Reports have been prepared to assist the Court in its deliberations: the first, dated 29 June 2012 followed interviews which occurred on 30 May 2012; the second, dated 22 April 2013 followed interviews which occurred on 12 April 2013.

6. In the period between the two Family Report interviews, the parties were able to negotiate their co-parenting relationship in a fairly stable and consistent manner. They appeared to cooperate, with the mother permitting the child to spend more time with the father than was prescribed by the applicable Order and the father providing practical assistance – for example, transport – to the mother and child. I consider it more likely than not, for reasons outlined below, that this period of cooperation arose out of the mother’s attempt to persuade the father against prosecuting the proceedings to final hearing. Unfortunately, the cooperative parenting regime evaporated during the second Family Report interview in the manner and circumstances outlined below.

7. Each parent now seeks an order that the child live with that parent. Each seeks that an order for sole parental responsibility for long term issues in relation to him be made in their respective favours. Each seeks that the child spend time with the other parent on each alternate weekend and for half of school holidays.

8. After the evidence closed, the Independent Children’s Lawyer sought orders to the effect that:

   a)the child live with the father;

   b)the father have sole parental responsibility for major long-term issues relating to the child; and

   c)commencing two weekends before the start of the first school term in 2014 – and each alternate weekend thereafter – the child spend time with the mother from after school Friday until before school Monday;

   d)the child spend half of each school holiday period, commencing at Easter 2014, with each parent.

Principles

1. In these proceedings, being proceedings for a parenting order (s 64B of the Act) in relation to the child, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Family Law Act (1975) (Cth) (“the Act”), make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.

2. When making a parenting order I am bound to apply a presumption that it is the child’s best interests that his parents have equal shared parental responsibility for him (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him: s 61DA(4) of the Act.

3. The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or another child or family violence: s 61DA(2) of the Act.

4. The evidence clearly establishes numerous occasions of violent interaction between the mother and Y. Most, but not all, of these were instigated by Y. I accept that records kept by the Department of Child Safety (“the Department”)[2] accurately record the mother’s admission, on 2 November 2009, that she “belted” Y when she needed it. When the mother was cross-examined about this entry she said that she could not recall the event. However, during her submissions at the end of the trial, the mother said that, when the Department attended at the home in 2009, she “had to” say she “belted” Y because “the father said that they would take the children away”. This later account was not raised by the mother during her cross examination of the father and I do not accept it.

   [2]          by whatever title that Department was then known

5. Either the mother was less than forthcoming during her evidence when she said that she could not recall this particular event or, during the adjournment of the hearing, she decided to provide, for her behaviour, an explanation that implicated the father.

6. I do not accept that the mother is likely to have forgotten an occasion when, according to her, the father told her to lie to Departmental offices so as to prevent them from acting to remove the children. Further, given that her case involves allegations that the father has been domestically violent to her and physically violent to Y, it beggars belief that she would not have taken the opportunity, if not in her own affidavit then during her cross-examination, to inform the Court of a specific occasion on which the father had acted violently toward Y.

7. I am fortified in the conclusions I have outlined above by the evidence that:

   a)on 11 November 2009, Y contacted her biological father in Victoria and told him that the mother had hit her with a strap and, having told them that she is not coming back, left her and the child alone at their residence;[3] and

   b)on 11 November 2009, Y presented at school in a distressed state, disclosing that the mother had, on an occasion, used a belt and buckle to strike her twice across the back and once on the back of the leg - staff observed a red mark on the back of her leg. [4]

   [3]          Exhibit 11.

   [4]          Exhibit 3

8. I have concluded that either the mother has been prepared to deliberately fabricate aspects of her evidence or, because of her own functioning, becomes caught up in a recounting in which the truth becomes lost or adulterated. I reach this conclusion having taken into account that which is outlined above and the mother’s evidence about the physical impact on Y of the assault which occurred in August 2010.

9. During her cross-examination the mother said quite clearly that Y, then about 12 years of age, bled from the anus from August 2010 until January 2011 as a consequence of having been “raped anally” by the person who assaulted her in August 2010. If I accepted the mother’s evidence about this issue, I would have no hesitation at all in concluding that, in such circumstances, the mother failed completely to discharge her parental responsibility to ensure that Y received appropriate medical treatment. Such would be the magnitude of this failure that, when combined with the significant conflict and disruption to which I have found, for the reasons expressed below, the child has been exposed whilst in the mother’s care, I would have no hesitation at all in concluding that his best interests are served by living primarily with the father.

10. However, the mother’s assertion that Y bled anally for six months following the assault in August 2010 is completely contradicted by the results of an external anal examination – carried out by a staff paediatrician at the G Hospital on 14 September 2010 – which revealed “normal appearance with no piles or fissures to the anus.” No bleeding was noted or reported despite the examination occurring about one month after the assault.

11. It is pertinent to record that this examination occurred in the context of a complaint that Y had been sexually assaulted, by an 18-year-old male acquaintance, by way of digital penetration of her genitals. There was no complaint whatsoever of anal penetration. During the examination, the examining paediatrician also confirmed with Y that she did not experience any significant pain at the time of the event, nor after, nor any abnormal bleeding.

1. I am left, therefore, to conclude that much of the mother’s evidence is completely unreliable. I have no hesitation at all in accepting, as accurate, the contents of the various documentary exhibits in preference to any evidence given by the mother which contradicts that same. In a similar fashion, I prefer the evidence of the paternal grandmother and, subject to reservations about his explanation about the noose hanging in a shed on the property, that given by the father. I also accept, generally, the evidence given by the Family Report writer and the contents of the two Family Reports.

2. I am satisfied that there are reasonable grounds to believe that the mother has engaged in abuse of Y or family violence. It follows that the presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the child] being the paramount consideration – see s 60CA; s 65AA).”[5]

   [5]          Cox & Pedrana (2013) 48 Fam LR 651, [19].

3. I must determine that which is in the child’s best interests, in terms of the allocation of parental responsibility between the parents, where he primarily lives and the time he is to spend with the parent with whom he does not primarily live, having regard to the considerations set out in s 60CC of the Act.

4. I did not understand either party to suggest that the child would not benefit from the opportunity to continue to develop, have and maintain a meaningful relationship with both of them. It is clear that both parties love the child very much and that both wish only the best for him. I consider that both parents have demonstrated a loving attitude toward the child. Both have involved themselves in his life and both will continue to be involved in his life in the future, irrespective of the specific terms of the Order I make.

5. It was not really contended that either party had failed to take opportunities to spend time, communicate and interact with the child. It is also clear, I consider, that both parties have maintained the child whilst he has been in their respective care.

6. I did not understand the mother to assert that the child has anything but a close and loving relationship with the father. If I misunderstood the position, I consider that the evidence from the Family Report writer, which I accept in this respect, clearly establishes that, in May 2012, the child ‘exhibited a close connection and bond with his father’[6] and, in April 2013, was observed to interact with the father with “ease, comfort, affection and without any reservations or fear.”[7]

   [6]          Family Report dated 29 June 2012.

   [7]Family Report dated 22 April 2013, paragraph 84.

7. In a similar fashion, I did not understand the father to assert that the child has anything but a close and loving relationship with the mother. Again, if I misunderstood his contention, I consider that the evidence from the Family Report writer, which I accept in this respect, clearly establishes the existence of such a relationship, albeit with distress on occasions, associated with exposure to the profanities used by the mother and Y during verbal altercations between them.[8]

   [8]          Family Report dated 22 April 2013, paragraph 84.

8. Whilst the parties’ respective residences are somewhat geographically distant (with the father living at Town B and the mother living at Suburb H), this reality is unlikely, irrespective of the Orders made, to affect substantially the child’s right to maintain both personal relations and direct contact with each of the parties on a regular basis. So much is made clear by the proposal, identified and advanced by each party as being in the child’s best interests, which will see him spending each alternate weekend and half of the school holiday periods with the parent with whom he is not primarily living.

9. I did not understand there to be any significant challenge to the father’s capacity to meet the child’s physical needs. I accept that, after the father became aware it had been suggested by the child’s teacher that the child might benefit from counselling, he contacted Uniting Care to arrange the same. I accept the submission of Counsel for the father that such action is inconsistent with any assertion that the father has been “closed” to the idea that the child may require some assistance or that he would fail, in the future, to ensure that the child received whatever additional assistance was recommended by the appropriate expert.

10. In the event that the child lives primarily with the father, he will continue to attend at his current school. In the event that the child continues to live primarily with the mother it is her preference that he change school to remove the burden of travel between his home and his current school and to permit him to attend at before and after school care.

11. It is not in dispute that the mother has always identified the child as having an indigenous heritage. I accept the father’s evidence that he has previously attended at a school-organised Indigenous Peoples’ Day, in which Y and the mother were involved, and I accept that he will support the child being involved in indigenous cultural events in the future because it is part of the child’s heritage and important that the child understands this.

12. I also accept that the mother has previously spoken with the father about her aboriginality and background at great length and that she has gone to fairly significant efforts to work out her mob and family background. I accept the father’s  evidence that, if the mother provides him with details of the results of these efforts, he will, in the future, ensure that, when with him, the child is afforded appropriate opportunities to enable him to continue to develop a knowledge of, and connection with, his indigenous heritage. I am satisfied that, irrespective of the specific terms of the Order I make, both parties will encourage and support the child as he continues to learn about his heritage.

13. Both the Independent Children’s Lawyer and the father submit that the child’s best interests require a change to his primary living arrangements. Such submissions rest significantly upon the assertion that the father is the parent with whom there is a greater prospect that the child will be afforded:

    a)protection from exposure to behaviours which are potentially harmful to him both physically and emotionally and which arise, in part at least, from the mother’s allegedly chaotic and overly permissive style of parenting and the sometimes violent interactions between Y and the mother; and

    b)the supported opportunity to continue to develop and enjoy a meaningful relationship with both parents without the risk of unwarranted  interruption to the same; and

    c)increased stability.

14. It is submitted on behalf of the father that Y’s behaviours reflect the impact of being primarily parented by the mother and that, if the child continues to be similarly primarily parented by the mother, it is more likely than not that he will, in the future, exhibit not dissimilar behaviours. The consequences for him are such, it is submitted, that a change to his current living arrangements is in his best interests.

15. The mother’s case is, as I understand it, in essence, that the child remain living primarily with her because of his strong attachment to her and her historic role as his primary care provider. She submits that the previous significant difficulties in her parenting of Y need to be considered within the context of that child suffering a serious sexual assault and demonstrating associated behavioural difficulties. She says that things for Y, and between them, have recently improved.

16. The mother does not accept that her parenting style and/or approach has, in any way, contributed to Y’s significantly challenging behaviours. Further, as I glean it from the evidence, the mother relies upon her actions in seeking external assistance in her parenting of Y and her recognition, in so doing, of the need to protect the child from exposure to Y’s behaviours, as demonstrating her capacity to provide the child with safe, secure and stable parenting in the future.

17. Whilst the submissions made on behalf of each party approached the matter in a somewhat different manner, it seems to me that the most significant and overarching issue is the parties’ respective capacity to parent the child.  The assertions of risk advanced on behalf of the father all appear, to me, to have their genesis in the asserted incapacity of the mother to provide consistent, disciplined and controlled parenting in a safe environment. The mother’s assertions that the father has engaged in violent behaviour toward her and is unlikely fully to support the child’s relationship with her if the child lives primarily with him can also be seen as a challenge to the father’s capacity to discharge the responsibilities of parenthood.

18. Part of the father’s case that the mother’s style of, and approach to, parenting the child is deficient rests upon the assertion that the child is at an unacceptable risk of suffering emotional harm if he continues to be overly exposed to the mother’s behaviour when asked to deal with a matter with which she does not agree.

19. An example of such behaviour can clearly be seen in the mother’s reaction to the Family Report writer informing her (and the father) during the interview on 12 April 2013 that, as was previously the case, she (the Family Report writer) would be recommending that the child’s time with the father progressively increase to the point where he was spending equal time with each parent:

    When the report writer stated that the recommendation previously made that [the child’s] time with his father progressively increase to a point where [the child] is spending equal time with each parent would be again recommended, [the mother’s] presentation instantly changed.  She became hostile and argumentative and refused to discuss the situation further.  [The mother] would not accept that this was the report writer’s view and became verbally abusive towards [the father].  She stated that his time with [the child] would now revert back to minimal time and that she would no longer co-operate with supporting his relationship with [the child].  [The mother] said she had told [the father] that if he agreed to the orders remaining the same she would support him spending more time with [the child] but she did not intend to do so now.[9]

    [The mother] was very verbally threatening towards [the father] in the report writer’s presence.  She was dismissive of the report writer’s view and attributed the recommendation to [the father].  [The mother] stated – “I promise I will not speak to you … again and that things will go down the shitter if you continue to trial”.  [The mother] said she had personal knowledge about the number of single parents and the implications for children who she personally knew of who were forced to be in a shared care arrangement.  [The mother’s] escalating tirade appeared to trigger her own childhood experiences and she alleged her brother had been a victim of shared care and it resulted in him committing suicide.  [The mother’s] abuse then focussed on her belief that by the time [the child] is 17 years old he will be suicidal and the report writer and [the father] would be responsible.’[10]

    [9]          Family Report dated 22 April 2013, paragraph 75

    [10]         Family Report dated 22 April 2013, paragraph 77.

20. I accept the Family Report writer’s description of the mother’s reaction outlined above as “explosive.” Lest it be thought that the reaction experienced by the Family Report writer was a unique occurrence, Departmental documents dated 2 November 2009 record that the mother had “extreme reactions” when confronted about Y’s behaviour. The recurrence of such behaviour when “confronted” with a perspective that does not accord with her own suggests that the mother experiences volatility of emotional expression and that she struggles to maintain control over the outward expression of her emotions.

21. I accept that the Family Report writer embarked upon the joint discussion in the manner that she did during the April 2013 interviews because her observations of the parties’ interactions prior to it did not suggest that there would be any adverse reaction to the same.

22. The mother attempted to explain her behaviour as a reaction to her becoming aware that, contrary to what the father had previously promised her, he was continuing to seek the equal care regime recommended by the Family Report writer. Even if this was the case, which I do not accept, the mother’s “explosive” reaction and subsequent threat to undermine the child’s relationship with the father demonstrates her inherent attitude and approach to parenting: namely, that all will go well as long as her views about what is in the child’s best interests are accepted and implemented. The existence of this inherent attitude and approach suggests that the mother may well struggle significantly to discharge the responsibility to reach decisions jointly should an order for equal shared parental responsibility be made.

23. I accept the father’s evidence that he did not ever tell the mother that he would withdraw these proceedings. I accept that, during discussions between the parties, the mother conveyed that she wanted the father to “drop” the proceedings and sign “full custody” of the child to her on the understanding that she would permit the father to spend as much time as he wanted with the child. Either the mother was disingenuous herself – in proposing this arrangement with no intention of implementing it once proceedings had been discontinued – or, the fact that it was proposed demonstrates that, despite the assertions about the father’s behaviour toward her (including that concerning his hanging a noose in the shed on the property) she holds no genuine and/or significant concerns about the father’s capacity, however described, to care for the child during such time. I tend to the latter view.

24. I accept that the father did not agree with or accept this proposal. Whether he led the mother to believe that he would accept such a proposal if she allowed the child to spend more time with him is, I think, a matter very much within the mother’s subjective understanding. I think it more likely than not that both parents cooperated with the other in the hope that the other would be persuaded to reach agreement on the terms that each sought.

25. I consider it more likely than not that the mother was behaving toward the father in an encouraging and supportive manner because she believed that, if she did, she would be able to convince him to end the proceedings. I consider that the father was receptive to any opportunity to spend any additional time with the child. When it became apparent to the mother that the father intended to continue to seek orders that the child live equally with each parent, she was unable to contain the explosive behaviour outlined above. I consider it more likely than not that the behaviour described by the Family Report writer was a demonstration of the mother’s reaction to her realisation that her attempt to manipulate the father to agree to a parenting regime on her terms had failed.

26. This whole event lends resonance to the father’s evidence that the parties are able to co-operate in their parenting of the child “to a point”: namely, as long as the mother gets “her way”. I accept that the parties have only been able to “get on” because the father has complied with the mother’s requests and acceded to her demands.

27. Given that it is the very thing she threatened to do during the Family Report interview in the presence of the Family Report writer, I accept the father’s evidence that, in the past, if he has disagreed with the mother about something relevant to the child, her response has been to limit the child’s opportunity to spend time with him. Such reaction demonstrates a limited understanding of the importance to the child of the opportunity to engage in regular and consistent time with the father.

28. I also accept and echo the father’s reservations about the parties’ likely future incapacity to communicate freely and meaningfully should they hold differing views about matters relevant to the child. The mother’s previous action in limiting the child’s opportunity to spend time with the father demonstrates an attitude that the mother sees herself as the ‘controller’ of the time that the child spends with the father: any additional time will be granted or withheld depending on her view of the father’s behaviour rather than upon any assessment of the benefit to the child of such time.

29. As a consequence of the mother’s adverse reaction to the information conveyed by the Family Report writer during the interview, the child left the same  without saying goodbye to the father.[11] Whilst this may well be understandable, the same cannot really be said of the fact that the child did not spend time with the father the weekend immediately after the interview as, I accept, had previously been discussed and arranged.

    [11]         Family Report dated 22 April 2013, paragraph 78.

30. The mother, father, the child and Y had all travelled to the Family Report interview together in the same car. I accept that during this journey there were discussions about the plans for the weekend. I do not accept the mother’s evidence to the effect that, whilst there had been discussions, there was no agreement between the parties that the child would spend that weekend with the father. I accept the father’s evidence to the effect that, prior to the interview, the parties had agreed that the child would spend time with him after the interview and over that weekend. I accept the father’s evidence that the child expected to spend time with the father after the Family Report interview because there had been discussion about this in the car on the way to the interview. I also accept the father’s evidence that during this discussion the mother was supportive of the child’s time with him, making comments to the effect that the child should “go and have a good time” with the father that weekend.

31. After the mother’s outburst during the Family Report interview she definitively told the father that he was not getting the child for the weekend - that is exactly what occurred. I accept that, thereafter, the time between the child and the father has occurred in strict compliance with the Order.[12]

    [12]         Family Report dated 22 April 2013, paragraph 77.

32. Whilst it could not seriously be contended that the child has been detrimentally affected in any lasting way as a consequence of the mother’s decision to prevent him spending the agreed weekend time with the father, such decision provides a clear demonstration of the mother’s changeable attitude toward supporting the child’s ongoing relationship with the father.

33. As I understand it, the Family Report writer expressed her view - namely, that the mother’s  “commitment to facilitating a meaningful relationship between [the father ] and [the child ] is fragile and does not foster confidence, as evidenced by her recent behaviour”[13] - in the context of believing that the mother had “apparently ceased” the child’s time with the father. This is not accurate save for it referring to the weekend which immediately followed the Family Report interview.

    [13]         Family Report dated 22 April 2013, paragraph 82.

34. What is clearly apparent, however, from the mother’s own comments during the Family Report interview is that her instinctive response to learning that the father’s approach to these proceedings was not as she understood or wanted it to be was to threaten to no longer support the child spending additional time with him. In this context, then, and irrespective of the inaccuracy referred to above, the Family Report writer’s opinion as to the fragility of the mother’s commitment to facilitating a meaningful relationship between the child and the father retains a certain persuasiveness.

1. I accept the essence of the Family Report writer’s opinion that, if the behaviour demonstrated by the mother during interview – namely, to become uncontrolled and, in retaliation, to threaten to cease supporting the child’s time with the father – continues unabated, it is likely that the child’s relationship with the father will be damaged.[14]

   [14]         Family Report dated 22 April 2013, paragraph 85.

2. On no occasion after the Family Report interview has the father asked the mother to be “flexible” about the time the child spends with him. I accept that the reason for this is the mother’s behaviour in “laying down the law” to him that “they” would “stick” to the terms of the June 2013 Order. I do not see the father’s approach as demonstrating a lack of interest in spending time with the child. I fully accept that the father would take up any opportunity to spend additional time with the child.

3. In contrast to the mother’s approach, the father has, on occasions, been flexible in permitting the child to remain in the mother’s care when, according to the June 2013 Order, the child should have spent time with him. Given his approach to the issue of not feeding the child food prepared in a microwave – namely, that he implemented the mother’s instructions about this despite holding significant reservations about the necessity for such an approach – I am confident that, if the child lived primarily with the father, he would approach the issue of the child’s future time with the mother in a similar manner of appeasement.

4. I conclude on the evidence before me, that it is more likely than not that the father’s style of parenting is less volatile than that of the mother. If the child lives primarily with the father, it is more likely that he will live in an environment of greater stability than if he continues to live primarily with the mother. I also accept that it is more likely that the father will consistently act to support the child in his relationship with the mother whilst the mother’s support of the child’s relationship with the father is much more susceptible to the influences of her own explosive emotional reactions.

5. The father also submits that there is an unacceptable risk that the child may suffer physical and/or psychological harm should he remain living primarily in the mother’s household because such care arrangement exposes him to the manifestations of the volatile and abusive relationship which has existed between Y and the mother over a not insignificant periods of time. It is clear that the one of the consequences of the interactions between Y and the mother has been the relatively frequent attendance of Police at the home where the mother, Y and the child have lived.

6. That a volatile and abusive relationship has existed between the mother and Y is clearly established when regard is had to the following:

   a)on 2 November 2009 the mother told the Departmental officers that she “belted” Y when she needed it;

   b)on about 2 September 2010, Police attended at the mother’s home after Y hit the mother with a piece of furniture. Not long before this, the mother and Y were involved in a physical altercation following the mother’s attempt to remove a cigarette from Y: Y kicked the mother and bit her on the arm, the mother retaliated hitting Y to the chest and legs with a belt. The mother sustained a bite mark to her arm and Y a belt mark to her chest. The child saw this incident;

   c)on 19 October 2010, whilst the child was present, Y grabbed the mother and punched her to the back of the head;

   d)on 11 December 2010, whilst the child was present, Y threw a television remote control at the mother, causing the mother to sustain a rather large split to her lip. The mother called the Police who attended;

   e)on 12 December 2010, following an argument during which the mother told Y that she wanted her house key back as she (Y) was no longer welcome at the home, Y struck the mother in the face. A short struggle followed during which Y attempted to hit the mother and the mother grabbed Y’s right arm leaving marks. Y left but when she returned the mother told her to leave as she was not allowed to come in – Y picked up an outdoor ornament and threw it on to the driveway below smashing it. The mother again called the Police : their notes record the mother had a split lip, bruising on her right arm and marks on her face below her right eye[15] – all injuries which must have been clearly apparent to the child;

   f)on 16 March 2011, the mother attended at Y’s school with “bruises and lacerations” to her arms. She told the principal that when she told Y she was driving her to school because of the appointment (which was to discuss Y’s future at the school in light of recent misconduct and frequent truancy), Y attempted to leave the home and, when the mother tried to restrain her, began hitting her in the head with a half brick.[16] When Departmental officers spoke with Y on 17 March 2011 she told them that: “I came home yesterday had an argument started punching Mum in the arm, pushed her and pulling her hair fighting in the lounge room. I then ran off down the road and mum caught me and pulled me back inside the yard. I grabbed a brick and hit mum on her back and leg. Mum screaming yelling out called Police. I don’t know if I hurt mum.” She also said that she didn’t get along with her mother: at times that they get on “good” and then clash. It had been like that the last few years.

   g)on about 5 June 2011, Y threw hydrogen peroxide at the mother and child;

   h)at about 7.00pm on 19 September 2011 Police attended at the mother’s residence. She had contacted them asserting that Y was being abusive and that, as a result, she was forced to lock herself in a rear bedroom. The Police recorded that the mother was “extremely erratic” upon their arrival. Y was in the bathroom having a shower and was visibly upset and angry, telling Police that the mother constantly lies and calls them, making it appear that she is the “bad guy”. Police noted the that “the mother was particularly abusive and would put down the daughter when she spoke about or to her.” The mother continually told the Police that she wanted them to remove Y and, when asked whether there was a suitable location to which they could remove her,  said there was “nowhere else” and that she didn’t particularly care, so long as Y wasn’t in her home. Whilst the mother told the Police that it was Y’s drug using that was the crux of the problem, they felt, after speaking to the mother, that there may have been other underlying issues as the mother “constantly speaks ill of the child and uses a derogatory explanation in regard to her upbringing and behaviour.”

   i)at approximately 9:30 pm on 19 September 2011 Police returned to the home after the mother claimed that Y was abusive and had her bailed up in the rear bedroom with the child. When the Police arrived, Y was in her bedroom. The mother told Police that she “wanted to wipe herself clean of her daughter and that she had tried every other alternative possible in dealing with her.” Police arranged emergency accommodation for Y that evening, removing her because the “constant bickering” between Y and the mother was resulting in Y becoming abusive and extremely emotionally distressed.[17]

   j)on 5 October 2011, following an earlier verbal altercation over the telephone, Y approached the mother aggressively, screamed abuse at her and punched her around the head with a closed fist three to four times, causing the mother to suffer a black eye. The mother started to throw Y’s clothes out of the house at which time Y punched her several times. After Y had gone the mother contacted the Police who later attended and removed Y pursuant to an emergency examination order. Photographs taken of the mother on 6 October 2011 revealed swelling and bruising on the side of her right eye, bruising on the left upper arm, a few scratches on her right upper arm, bruising on her right forearm and bruising on both hands.[18] Again, such injuries would clearly have been visible to the child.

   [15]         Exhibit 10.

   [16]         Exhibit 15.

   [17]         Exhibit 20.

   [18]         Exhibit 22.

7. This evidence, when combined with the mother’s account to the hospital to which Y was taken that she had become increasingly threatening and violent and engaged in patterns of threatening and intimidatory behaviour to get what she wanted, compels the conclusion that there has been significant domestic and family violence in the mother’s house over a significant period of time.

8. I accept that the mother asked the father to take the child into his care for a couple of days after she was struck by the television remote control (in order to allow the situation between the mother and Y to settle) and again after Y had assaulted the mother with a brick. If the child lives primarily with the father, the risk of this type of disruption to his primary care arrangement will be eliminated.

9. I was strongly urged by Counsel for the father to conclude that Y’s behaviours are a direct consequence of the mother’s incapacity to parent her appropriately and that, if left in the mother’s primary care, the child will start to manifest the same behaviours and reactions. In response, the mother advances that Y’s disruptive, abusive and violent behaviour arose only after Y was seriously assaulted and not as a consequence of her parenting.

10. I accept the father’s evidence that, from about 2009 onwards, Y started to be disruptive, defiant and physically aggressive toward the mother and that the manifestations of this behaviour involved her pushing, shoving and slapping the mother. I also accept that, when the father attempted to assist the mother to  control Y, she attacked him. The father’s evidence about Y’s behaviour is supported by Departmental records which, in November 2009 – approximately nine months before the August 2010 assault – note that Y’s behaviour had become aggressive. [19]

    [19]         Exhibit 11.

11. Despite this evidence, I consider it impossible to determine whether Y’s behaviour is the consequence of limitations in the mother’s parenting capacity or, at least in part and to some extent, a reaction to the August 2010 assault or,  a manifestation of Y’s innate personality or a combination of all of these, and, potentially, other unidentified influences.

12. However, even absent a conclusion as to the causal relationship, if any, between the mother’s parenting of Y and Y’s behaviours as briefly summarised above, it is clear that, whilst in the mother’s household, the child has, over a significant period of time, been a direct witness to significant domestic and family violence and a direct witness to the consequences of the same. This cannot have been beneficial for him and amounts to a harm from which he needs protection.

13. The mother relies upon the fact that the Department has not acted to remove either child from her care as an indicia of her parental capacity. However, on 5 June 2011, the Department noted that:

    [Y’s] behaviours are continuing to have a negative impact on the functioning of the household. It appears that the mother is not coping and is highly stressed. Information received surrounds concerns in relation to [Y’s] high risk behaviours, such as her erratic behaviour, sexual activity and drug use. It appears that the mother is not able to take effective action to protect [Y] from harm and is therefore limited in her capacity to be able to protect subject child [J].

14. In addition, having interviewed the child[20] after the incident on 19 September 2011  - at which time the child said “ we were terrified”, that Y was very very mad and wanted the mother’s charger for her phone and that when “we woke up and there were lots of holes on the door”[21] - the Department assessed him as having been emotionally harmed as a result of the mother’s failure to protect him from harm caused by Y in the home and concluded that he was a “child in need of protection.”[22]

    [20]         on 20 September 2011

    [21]         Exhibit 21.

    [22]         Exhibit 18.

15. Whilst I have determined that it is impossible for me to reach a conclusion about the cause of Y’s behaviour, I am in a position to reach a conclusion about the mother’s attitude to, and participation in, the intensive family support determined by the Department as the mechanism by which the identified risk of harm to the child – namely, exposure to Y’s behaviour and the mother’s attempts to manage and control the same – could be ameliorated.

16. After arriving at the conclusion referred to above, the Department took the uncommon step of arranging intensive support for the family via an Intensive Placement Assessment (IPA).[23] The support provided to the mother and Y commenced in about November 2011 and was resource intensive, involving as it did, intensive weekly therapeutic support for Y and the mother and youth worker outreach for Y for between five to ten hours depending on her willingness to engage.[24] The mother cancelled this support in about February 2012. When spoken to on 20 February 2012 about her decision, she continued to express to the Department the opinion that “no-one” had provided her assistance in dealing with Y. This clearly is incorrect.

    [23]         Exhibit 24.

    [24]         Exhibit 24.

17. The IPA Report, dated 27 January 2012, [25] provides a thorough overview, which I accept, of the Department’s efforts to assist the mother in expanding her parenting skills.

    [25]         Exhibit 26.

18. It also provides a clear assessment of the reality of the limitations in the mother’s parenting capacity and contains the following relevant information which I also accept:

    a)the mother’s behaviour in externalising responsibility for events and/or altercations has been modelled to Y resulting in her failing to accept and appreciate her own role in conflict;

    b)the mother’s level of motivation to engage in the intervention appeared to be low:

    i)she displayed resistance when attempts were made to reschedule appointments citing that she had other arrangements;

    ii)she preferred to go without sessions rather than attempt to make other arrangements;

    iii)she was irregular in completing “in between session” tasks, stating that she doesn’t have time to complete the set activities.

    c)the mother verbalised negative comments about the father whilst the child he was within hearing distance;

    d)the mother has limited insight into her own behaviour: for example, telling the Department that she is modelling appropriate behaviour, such as not swearing, to Y while swearing continually throughout the session;

    e)the mother’s inability to identify and reflect on positive and negative aspects of her parenting has resulted in a “continuation of poor approaches to parenting approaches along with a lack of development of the more positive aspects of parenting”;

    f)the mother’s parenting involves a distinct lack of appropriate boundaries and discipline such that Y did not have a weekly or weekend curfew, was allowed to smoke cigarettes at home and there were minimal negative consequences if Y was absent from home for a period of time;

    g)that, during instances when she is experiencing high levels of stress, the mother continues to model poor emotional regulation and has been unable to demonstrate the ability to restrict “information sharing” with Y which has resulted in increased levels of stress that that child;

    h)the mother appeared to be able to take on board some suggestions not to escalate arguments and/or altercations between herself and Y;

    i)significant verbal and physical conflict has occurred between the mother and Y with the child witnessing their altercations;

    j)that “a lack of exposure to appropriate guidelines for behaviour along with minimal or no consequences for negative behaviours has provided [Y] with a sense of autonomy and freedom that is beyond what is appropriate for a 14-year-old child. As a result, [Y] continues to display challenging behaviours (swearing, truanting, failing to seek permission from mother) with no negative consequences.”

    k)that the child is  typically in the vicinity when the mother discusses the conflict with his father but does not to appear to find these conversations unsettling : it is unknown whether this is because he is engrossed in television or used to being exposed to these types of conversation;

    l)the mother was observed to be acting in a protective fashion in relation to the impact of Y’s behaviour on the child for example by telling and reminding her not to swear whilst he was around;

    m)that the family required ongoing intensive therapeutic support in order to address the ongoing impacts of intergenerational trauma and to assist the mother in developing and maintaining more appropriate parenting strategies.

19. That violent interactions between Y and the mother continued following the IPA support provided by the Department is apparent from the evidence, which I accept, of Ms T (a departmental officer) about an event on 22 March 2012 which saw Y suffer cuts to her hand after slamming it into a fish tank, push the mother away, punch the mother in the back and slap her across the face and pick up a pedestal fan and swing it at the mother.

20. Despite an ambulance taking Y and the mother to the G Hospital after they agreed with Ms T that Y would have a mental health assessment there, the mother and Y left the hospital before any such assessment could occur. The mother’s attempt to explain that this occurred because of the likely delay in being seen is, I consider, an example of her tendency to externalise responsibility for events. A further example of this tendency can be seen in the mother’s response, when contacted by a Departmental officer for follow up after this event, in going into a “lengthy diatribe”  to the effect that, whilst she understands that Y needs help, “they” have been let down by people. The evidence before me does not support this conclusion at all.

21. In April 2012 there was an escalation in Y’s behaviours including emotional dysregulation and aggression towards others. Further, the mother herself reported that her own trauma was significantly impacting on her ability to contain Y’s behaviours because such behaviours often triggered past trauma for the mother.[26] This reaction also works against the mother being able to exercise any capacity to manage Y’s behaviour.

    [26]         Exhibit 28.

22. Further, Ms T continued to note, in April 2012, that it appeared that the mother still had difficulty setting reasonable boundaries for Y, in that:

    a)she allowed Y to attend parties and dropped her off and picked her up on the early morning knowing that she is attending in order to get drunk or ‘high’;

    b)she allowed Y to not attend school and provides the excuse that she is too scared to attend;

    c)she does not ensure that Y is home when the psychologist or social worker attended; and

    d)she did not have an issue with the child dating an 18-year-old because at least that meant that Y “is only sleeping with one person and is not promiscuous.”[27]

    [27]         Exhibit 38.

23. I accept that the Department put quite an intensive support package “around the family.”  I also accept that the mother did not prioritise the support offered.

24. I conclude from the above that, whilst the mother has consistently complained to authorities that she:

    a)is fearful of Y;

    b)needs assistance in managing Y’s behaviour and struggles to contain it and place boundaries around it;

    c)is afraid that Y could harm the child emotionally and physically if she continues to exhibit violent and aggressive behaviours such as those outlined earlier;

    d)is not coping with Y’s behaviour and is unaware of “how” she came to be as she is;

    e)wants to engage with the Department to get the help she thinks she needs to manage Y’s behaviour,

    she has refused to engage fully with the significant assistance provided by the Department for the purpose of addressing these concerns and her own parenting limitations. I also agree with Ms T that, whilst the mother says that she wants Departmental assistance, she doesn’t demonstrate that she in fact does. [28]

    [28]         Exhibit 38.

1. There is nothing in the material before me to suggest that, since cancelling Departmental support in early 2012, the mother has acted to address the limitations identified above or that they have, in fact, been addressed.

2. The mother submitted that, as a result of her influence, Y – who had previously struggled with regular school attendance - was now attending school regularly and achieving well. The contents of Exhibits 30 provide some difficulties in fully accepting the submission, although I am prepared to accept that the current situation for Y may be an improvement on that which existed previously.

3. On the basis of the information set out above, I conclude that the mother’s capacity to provide for and meet the child’s needs is significantly impaired and that, given her response to the significant Departmental support provided, her capacity is unlikely to improve significantly in the future.

4. I accept the Family Report writer’s evidence that, during interview in April 2013 the child “reported behavioural indicators of distress due to the profanities his mother and [Y] use when they have verbal altercations.”[29] I also accept and find that the mother has consistently minimised the nature and extent of the altercations between her and Y. The evidence clearly establishes that, in contrast to the explanation given by the mother to the Family Report writer, such altercations have involved far more than speaking “in loud voices.”

   [29]         Family Report dated 22 April 2013, paragraph 84.

5. I note that Y told the Family Report writer, on 13 April 2013 that her relationship with her mother had improved, that they are getting on really well, that she has learnt to walk away when she is angry and come back later to talk with the mother and that the mother does not respond angrily. However, given the contents of the IPA report and its assessment that Y is adept at saying what needs to be heard, I am not persuaded that this accurately represents the situation.

6. I accept the Family Report writer’s evidence that the mother “lacks insight about the impact of the parental conflict and into her own role in the cycle of relationship disharmony and does not acknowledge the impact of her own behaviours on [J] and [Y’s] wellbeing.”[30] Such opinion is consistent with that expressed in the IPA Report. The mother’s lack of insight in this respect persuades me that any significant, meaningful and long-lasting change to her behaviour and manner of parenting is unlikely.

   [30]         Family Report dated 22 April 2013, paragraph 84.

7. I accept the evidence of Dr L, psychiatrist, who assessed the mother in July 2013 and considered that she presented with a history of “significant psychiatric disorder or illness” which impacted adversely on her insight in relation to what is best for the child and on her ability to act protectively in relation to him. I further accept his opinion that the mother presented with a range of reactive emotional and psychological issues resulting from her personal history which have shaped her personality and that a consequence of ther own experience of significant developmental adversity in her own formative years had led to a “hardness” and “bitterness” and a “shallow capacity to feel and express empathy.”[31]

   [31]         Report exhibited to the Affidavit of Dr L filed 24 September 2013, p 20.

8. I hold significant concerns about the mother’s capacity to meet the child’s emotional needs. These concerns arise out of her actions in subjecting the child to that process which must necessarily have accompanied the taking of the photographs which are Exhibit 1. Whatever may have been the mother’s concerns about the father’s manner of dealing with the child’ s toileting issues,  it is difficult to comprehend her thought process in determining to subject the child to what can only have been an invasive procedure.

9. Having heard the mother’s evidence, I am left with the clear impression that, perhaps consistently with the matters identified by Dr L as referred to above, she fails completely to appreciate the invasive nature of her actions. In a manner consistent with her approach to dealing with the difficulties in Y’s behaviour, she attempted to deflect responsibility for her decision to photograph the child onto others. She continues to think that her actions were justified and an appropriate response to the concerns that she held. I do not share this view.

10. I accept the evidence of the Family Report writer that a more appropriate course of action would have been either to have the child examined by a medical practitioner or, perhaps equally importantly, to have raised the issue with the father.

11. I also accept the Family Report writer’s evidence, given in response to questions about the photographs taken by the mother of the child’s anus, that it can be “quite harmful” to make a child “display” for the purpose of taking such photographs. I accept the Family Report writer’s evidence that, given the graphic nature of the photographs, it is likely to have been harmful for the child to have participated in the taking of the same.

12. I further fully accept that there was no need for the mother to engage in this behaviour and to subject the child to that sort of evidence gathering. I further accept that the mother’s willingness to do so is demonstrative of an incapacity to focus upon the child and/or to appreciate the impact upon him of being subjected to such behaviour. The Family Report writer considered that the mother’s actions in taking the photographs amounted to an abuse and I agree.

13. It follows from the matters outlined above that I consider it highly likely that, if the child remains living primarily with the mother, he will continue to be a recipient of her limited parenting skills, capacity and abilities and will continue to be exposed to incidents of domestic violence and conflict. He may also continue to be exposed to the harmful consequences of decisions like that taken to photograph him in the manner referred to above. This can only impact adversely on him in general and on his emotional functioning in particular as he matures and grows toward adulthood.

14. The mother does not allege that the father has ever been physically violent to the child. However, as part of her case that his capacity to provide primary care for the child is limited, the mother alleges that he has previously been violent towards Y. Departmental records dated November 2009 contain

    
    

    that he “threw chair at [Y] in response to her behaviour”. On 11 November 2009, Y presented at school in a distressed state and disclosed that, during an argument with the parties, the father picked her up and threw her into a chair. I accept his evidence that he “threw” Y into a chair and that he did so whilst intervening when the mother was using a belt and buckle to strike Y.

15. Given that by the time Y spoke with Departmental officers on 12 December 2009 she made no disclosures and told them that she felt safe around both parties, I am confident in concluding that the father’s actions did not cause any harm to her. Whilst Y told the Family Report writer that the father was “cruel and angry” all of the time at home, this description must be considered in the context of the father’s evidence, which I accept given the clear evidence of Y’s frequent abusive behaviour toward the mother, that, when he attempted to speak with Y about her unacceptable behaviour she was abusive toward him.

16. Whilst Dr L, a psychiatrist who interviewed the parties and prepared a report in relation to each of them, raised the prospect that a psychiatric issue which could be impacting adversely on the mother’s ability to parent the child on a day to day basis concerns her potential preoccupation with his health, the absence of specialist medical evidence about such issues, the mother’s position that the child no longer has any “serious health issues” and my conclusions as to the deficiencies in her capacity to parent the child properly obviates the requirement for further consideration of this issue.

17. If primarily in his father’s care, the child would continue to attend at the same school he has previously attended. The mother’s primary preference, which arises out of the distance between her current residence and the child’s current school, is that, if the child continues to live primarily with her, he attend at a school situated closer to her current residence. Given the significant upheaval to which the child has been exposed thus far, I consider it unlikely that a change to his educational arrangements will benefit him.

18. If the child lives primarily with the father, his opportunity to interact and spend time with the paternal grandmother is likely to be increased. I do not accept that she represents any risk to him or that any increased time with her is likely to be in any way detrimental to the child. Whatever may be the mother’s opinion of the paternal grandmother and the difficulties associated in their relationship, there is nothing in the evidence to suggest that the paternal grandmother has anything but genuine affection for the child.

19. It is obvious that if the child lives primarily with the father his opportunity to interact and spend time with his mother will be reduced. However, given my conclusions as to the deficiencies in her capacity to parent him, I consider that time each alternate weekend and during half of each school holiday period will provide him with the opportunity to continue to develop a meaningful relationship with her whilst shielding him from the impact of those deficiencies.

20. If the child lives primarily with the father, his opportunity to interact and spend time with his sister Y will be reduced. Given the behaviours referred to above and the evidence which establishes her use of illicit drugs, such reduction in time may well be beneficial to him He will, of course, continue to have the opportunity to spend time and interact with Y on alternate weekends and during those school holiday periods when he is in the mother’s care and she is present.

21. I accept the Family Report writer’s evidence that “unless there are dramatic changes in the behaviour and attitude of [the mother], [the child] could emerge from this conflict with psychological problems as a direct result of [the mother’s] dysfunctional behaviours which will extend into [the child’s] ability to form meaningful relationships in the future.”[32] It must be clear from the Reasons so far expressed that I consider there has not been any dramatic change in the mother’s behaviour and attitude and that it is unlikely that such change will occur in the future.

    [32]         Family Report dated 22 April 2013, paragraph 83.

22. I accept the Family Report writer’s evidence to the effect that the impact on the child of the implementation of an order which would see him live primarily with the father and spend time with the mother on alternate weekends and during school holidays would be to impose a sense of calmness and order over his life. Living primarily with the father will shield him somewhat from exposure to the mother’s behaviour and minimise the possibility of the realisation of the adverse impact on his ability to form meaningful relationships in the future referred to above.

23. Given the material referred to above, I accept that the mother’s functioning has been, on occasion, “chaotic”. Given the contents of the IPA report, Dr L’s evidence - which I accept in its entirety - and the matters outlined above, I accept the Family Report writer’s assessment that much of the “chaos” in the mother’s household has its origin in the mother herself rather than as an incidence of external forces.

24. There is nothing in the evidence before me that persuades me that the father would do other than follow any recommendation provided by a medical practitioner upon whom the child attends. In contrast, I accept the Family Report writer’s assessment of the mother as the parent least likely to follow through with expert recommendations with which she does not agree.

25. I consider that the mother’s behaviour is very much one in which experts and/or professionals are engaged as long as they are supportive of matters as perceived by the mother: I rely on the mother’s disengagement with the IPA despite her significant efforts in achieving its provision.

26. I consider that the child will be more settled and stable if he lives primarily in the father’s household. I accept the Family Report writer’s assessment that the father is the parent more likely to be able to provide greater stability and consistency for the child. I accept the Family Report writer’s assessment that the father possesses a greater capacity to support the child’s relationship with the mother than the mother has to support the child’s relationship with the father.

27. For the reasons expressed above I conclude that it is in the child’s best interests that he live primarily with the father.

28. I accept the Family Report writer’s evidence that, following this change to the child’s primary living arrangements, it would be beneficial for him that there be a moratorium in respect of the time he spends with the mother. Given the mother’s reaction to the information conveyed to her by the Family Report writer and the significant distress which I anticipate my decision will cause to her, I think it more likely than not that she will be unable to contain her emotional response and upset in the child’s presence.

29. There is, I think, a significant risk that the mother may be unable to prevent herself from exposing the child to her belief, as expressed to the Family Report writer in April 2013, that her own brother had been a “victim” of shared care which resulted in him committing suicide and, by the time the child is 17 years of age, he too will be suicidal. [33]

    [33]         Family Report dated 22 April 2013, paragraph 77.

30. I am, therefore, of the view that, if the child immediately spends alternate weekend time with the mother there is a significant and unacceptable risk that that he may be exposed to her unrestrained distress and upset in a manner that is likely to cause him significant upset and distress. Such exposure also carries with it the risk of an adverse impact upon the child’s relationship with the father.

31. For these reasons, I have determined that it is in the child’s best interests that there be a moratorium of about five weeks so as to enable him to settle into his new primary care arrangement with the father and to afford the mother the opportunity to come to terms with this herself whether individually or via access to professional counselling support.

32. The Family Report writer said that, following a moratorium, the child’s time with the mother should be re-introduced in a graduated manner, commencing with day time contact only once a week, and increasing until the child spends time with her from Friday to Monday each alternate weekend. The purpose behind such graduation is to provide the child with time to consolidate the relationship with the father and come to understand that he would be living with him and spending time with the mother.

33. Neither the Independent Children’s Lawyer nor the father supported the graduated approach favoured by the Family Report writer. Having regard to the child’s previous primary living arrangements, his existing relationship with the mother and his attendance at school from the end of January 2014 I am not persuaded that a reintroduction by way of graduated, increasing time is necessary. I consider that going straight to alternate weekend time with the mother will minimise any further changes to his care arrangements and is in his best interests.

34. I have considered whether it is in the child’s best interests that an order be made providing him the opportunity to spend time with the mother for a number of hours on Christmas Day. I fully appreciate that the mother is likely to be significantly distressed should she be unable to spend time with the child on this day. However, given my significant concerns about her likely inability to manage her distress and the likely manifestation of the same in the child’s presence, I have, with significant reluctance, determined that it is not in his best interests to spend time with his mother on Christmas Day 2013. I emphasise that this situation will occur only in 2013 and note that, whilst it is obviously delayed, the mother will have the opportunity to celebrate with the child on the weekend in mid-January 2014.

35. I did not understand there to be any opposition to the making of an order permitting the Independent Children’s Lawyer to provide a copy of the Family Reports, Dr L’s reports and these Reasons for Judgment to a counsellor upon whom the child might attend. In the event that I am mistaken in this respect, I consider that it is likely to be beneficial for the child for such professional to have access to the contents of the reports and these Reasons so as to understand the circumstances in which the Order has been made today. Such knowledge can only assist any counsellor upon whom the child attends to provide whatever assistance and support may be requested by the child.

Parental responsibility

1. If the Court makes an order that the parties are to share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to him, such order requires the decision to be made jointly by the parties: s 65DAC(2) of the Act.

2. I accept the father’s evidence that the parents have a capacity to work together to a certain point.  I accept his evidence that he does not trust that if he disagreed with the mother they would be able to negotiate an outcome.

3. I accept the father’s evidence to the effect that he and the mother would probably not be able to agree about where the child should go to school. I accept his evidence that the two of them can only work on the “small things” and not the “big things” about the child and his issues. The mother’s evidence was to the effect that she was unable to speak with the father.

4. I note the mother told the Family Report Writer in April 2013 that “she has her home set up with ‘pen’ size cameras to record events if necessary and records all conversations with [the father] on an MP3 recorder which she carries with her when [the father] is around.” [34]

   [34]         Family Report dated 22 April 2013, paragraph 39.

5. Even absent the other matters to which a consideration has already been had, the lack of trust demonstrated by such behaviour leads me to conclude that the child’s parents would be unable to make joint decisions about a major long-term issue in relation to him - they would be unable to comply with the statutory requirement imposed upon them by the making of an order for shared parental responsibility.

6. Further, there is nothing in the evidence before me to suggest that there is any real likelihood of any future improvement in the parties’ ability to communicate.

7. The father will be the parent with whom the child primarily lives. He has demonstrated a commitment to ensuring that the child receive assistance recommended by various professionals. He has acted to ensure that the child was tested to determine the existence or otherwise of an asserted medical condition. I conclude that it is in the child’s best interests that an order for parental responsibility be made in the terms outlined at the commencement of these Reasons.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 December 2013.

Associate:     

Date:              13 December 2013