Verney and Farley

[2011] FMCAfam 513

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VERNEY & FARLEY [2011] FMCAfam 513

FAMILY LAW – Contested parenting proposals – allegations of domestic violence – contested parenting proposals – 8 year old child having violent tantrums brandishing a knife at the Mother on numerous occasions – conflict during the relationship in relation to the child’s time to be spent with the Father – mother’s domestic violence allegations exaggerated – mother and child relationship deteriorating.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Mazorski and Albright [2007] FamCA 520
MRR v GR [2010] HCA 4

Applicant: MR VERNEY

Respondent: MS FARLEY

File Number: CSC 92 of 2008

Judgment of: Willis FM

Hearing dates: 26 & 27 November 2009, 2 & 3 February 2010 and 28 October 2010

Date of Last Submission: 28 October 2010

Delivered at: Cairns

Delivered on: 31 May 2011

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the Respondent: Mr Trevino

Solicitors for the Respondent: Legal Aid Queensland

Counsel for the Independent Children’s Lawyer: Ms Wilson

Independent Children’s Lawyer: Stephen Todd, Vandeleur & Todd Solicitors

ORDERS

1. The child [X] born [in] 2002 (“the child”) live with Father at all times, other than when she spends time with the Mother pursuant to these Orders.

2. The Father is to have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, subject to the Father first consulting with the Mother prior to making any decisions relating to:

   (a)the child’s education (both current and future);

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

   (c)the child’s health;

   (d)the child’s name;

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.

3. The Father is restrained from changing the child’s surname, religion or relocating the child’s residence permanently without the prior written agreement of the Mother or Order of this Court.

4. Notwithstanding order 2 herein:

   (a)The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.

   (b)The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.

5. The child spend time with the Mother, on the condition that the Mother complies with Order 6, herein, at all times as agreed and specifically as follows:-

   (a)Each alternate weekend from the conclusion of school Friday until the commencement of school Monday.  In the event Monday is a public holiday time with the Mother is extended until the commencement of school Tuesday. 

   (b)After school each alternate Monday (or after school Tuesday in the event Monday is a public holiday) until the commencement of school the following day being Tuesday (or in the event of a long weekend Wednesday) to occur in the off week.

   (c)One half of all school holidays (including Christmas) alternating between the first half and second half each year.  In the event that the parent with the first half (which will generally include Christmas Day) is in Cairns on Christmas Day, the other parent will spend between 3:00 pm – 7:00 pm with the child.

   (d)All other times as agreed.

6. The child will spend time with the Mother pursuant to the terms of these Orders on the condition that the Mother is to forthwith engage with a qualified therapist or child expert to assist her to develop techniques in dealing with the child’s tantrums and difficult behaviour.  The Mother is to file and serve an Affidavit deposing to her attendance in compliance with this Order within three months of the date of this Order.

7. All changeovers are to occur to and from school.  In the event that a changeover occurs during the school holidays or a non-school day the changeover is to occur at [shop omitted] or other agreed location.  In the event of disagreement, handovers will occur at a location nominated by the Father. 

Telephone Communication

1. The Mother is to have telephone communication with the child at all times as agreed and specifically each Thursday between 5:00 pm and 6:00 pm unless the child is engaged in extra curricular activities on that evening at which time the Father is to nominate another time for telephone communication to occur once per week.  The Father is to initiate the call in the first week and the Mother is to initiate the call in the second week.

2. During the school holidays the parent with whom the child is living will ensure that the child rings the other parent no less than once each week.

Special Days

1. Notwithstanding any other specific Orders herein the child will always spend:

   (a)Father’s Day with the Father between 9:00 am – 7:00 pm (in the event the child is not already living with the Father).

   (b)Mother’s Day with the Mother between 9:00 am – 7:00 pm (in the event the child is not already living with the Mother).

   (c)Time with the Father on the Father’s Birthday between 9:00 am – 7:00 pm (in the event the child is not already living with the Father) on a non-school day or alternatively between 3:00 pm and 7:00 pm on a school day.

   (d)Time with the Mother on the Mother’s Birthday between 9:00 am – 7:00 pm (in the event the child is not already living with the Mother) on a non-school day or alternatively between 3:00 pm and 7:00 pm on a school day.

   (e)Time with the Mother and Father on the child’s birthday.  In the event the birthday falls on a school day the child will spend time with the parent with whom she is not otherwise living or spending time with between 3:00 pm – 6:00 pm.  In the event the birthday falls on a non-school day the child is to spend one half of the day with each of the Mother and Father.  The timing of the one half day is to be agreed and in the event of disagreement the child will remain with the parent with whom she is in the care of during the morning until 2:00 pm and spend from 2:00 pm – 8:00 pm with the other parent.

   (f)Time with the Father on [Z]’s birthday.  In the event [Z]’s birthday falls on a non school day (and the child [X] is not otherwise living with the Father) the child will spend between 9:00 am – 8:00 pm with the Father.  In the event that [Z]’s birthday falls on a school day and the child [X] is not otherwise living with the Father the child will spend between 3:00 pm – 7:00 pm with the Father.

2. Each of parties do all acts and things to ensure that the child is not exposed directly or indirectly to argument or any conflict between the parents.

3. Each of the parties are restrained from discussing issues arising in this litigation with the child or any sibling of the child (or from allowing any other person to do so).  Each party is restrained from allowing the child (or any sibling of the child) to have access to any of the contents of the material filed in this matter including any of the Family Reports or psychiatric assessment. 

4. Each of the parties and their families are permitted to attend school functions and activities at the school the child attends in accordance with the guidelines and with permission of the school administration. 

5. Each of the parties are restrained from making derogatory remarks or denigrating the other parent (or the other parent’s family) in the presence or hearing of the child and each parent shall ensure that no other person denigrates the other parent or their family in the presence or hearing of the child. Each party is restrained from raising or discussing the past alleged domestic violence allegations directly or indirectly with the child or the child’s siblings. 

6. The Father and Mother are to do all acts and things to ensure that the child is forthwith enrolled for counselling as recommended by family consultant Ms M at a recognised agency such as Cairns Youth Mental Health Service.  Each party is to be involved in the intake procedure and thereafter are to participate only as requested by the Counsellor.  It is an expectation of this Court that the child be permitted to have private counselling in the absence of the Father and Mother and without intrusion into her counselling sessions by either the Father or the Mother.  The parties are granted leave to provide to the Counsellor a copy of this Order and reasons for judgment together with the two family reports of Ms M. 

7. Each party is to inform the other forthwith (meaning without delay) in the event that the child is admitted to hospital or attends upon the hospital for treatment in relation to her asthma or any other illness. 

8. The Father or his agent is to collect the child from school this afternoon and the child is to attend upon the family consultant Ms M at the Cairns Registry this afternoon to enable the outcome of this litigation to be explained to her.  Thereafter the child is to remain living in the Father’s care (or Ms C) until after school Monday 6 June 2011.  Monday 6 June 2011 is to be regarded as the Monday in the off week pursuant to the Orders herein. 

9. The Independent Children’s Lawyer is to attend and participate in the conference today as directed by the family consultant to assist in explaining the Orders to the child.

10. Until the conference occurs the Mother is restrained from attending at the child’s school and each of the parties are restrained from discussing the outcome of the litigation with the child.  Thereafter the parties are only to discuss the outcome of the litigation in the manner recommended by Ms M.

11. The Independent Children’s Lawyer is directed to contact the child’s school principal forthwith and advise the principal of the Order for
    Ms C (or her agent) to collect the child this afternoon from school and that the child is to remain living in the Father’s care until Monday 6 June 2011 after school pursuant to these Orders.  The Independent Children’s Lawyer is to inform the principal, Mr B, that the Mother has been restrained from attending the school this afternoon.

12. The Independent Children’s Lawyer is discharged as of 1 June 2011.

NOTATION:

A.The Court notes that Orders 5 (a) and (b) have been altered prior to being issued to include the occurrence of long weekends on a Monday as indicated during the pronouncement of these Orders. 

B.Additional Orders relating to the child having the Orders explained to her and the subsequent arrangements up until 6 June 2011 have been included.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC 92 of 2008

MR VERNEY

Applicant

And

MS FARLEY

Respondent

REASONS FOR JUDGMENT

1. This matter involves a contested application relating to the living arrangements and parental responsibility for [X] (known as “[X]”) born [in] 2002, aged 8 years and 3 months at the time of trial.

2. [X]’s parents had a relationship between January 1997 and June 2006, a period of 9 years, ending four years ago. There were periods of separation during the nine years cohabitation. 

3. The parties’ post separation relationship has been characterised by an inability to communicate, high level disputes in the presence of the child and a simmering unease and mistrust between each of the parties.

4. Since the interim Consent Orders of 31 March 2008, [X] has been living with her mother for 9 days a fortnight and with the father for 5 nights a fortnight from afterschool on Wednesday to before school on Monday.

5. The father, who has been self- represented throughout this trial, says that he became concerned with the living arrangements embodied in the interim Order, when he heard the mother yelling at [X] in the background whilst he was having telephone contact with [X]. The father regarded the mother as displaying poor parenting skills as she was unable to manage [X]’s behaviour and he was concerned at what appeared to be regular ongoing trouble and conflict between [X] and her mother.

6. The father was sceptical about the reported level of tantrums that the mother described as occurring in her home with [X].  The father says [X] has minor tantrums in his care, but generally she had not behaved in the out of control manner as the mother described [X] behaving in her care.  The father says that he can manage [X]’s tantrums quite successfully and therefore, with less distress associated with her tantrums, [X] has a happier existence in his care.

7. The father says he is settled with his partner Ms C of four years, his household is a happy one and he believes he can bring some stability to [X]’s life.  He says that [X] has a great relationship with her new baby sister [Z], and that the best long term outcome for [X] would be for her to live primarily with him.  

8. The mother has not re-partnered and says she is not able to work outside the home while this litigation is in progress.  She seeks final Orders that [X] lives primarily with her and spend one block period each fortnight with the father for four nights, to include the weekend, with handovers to and from school. 

9. The mother submits through her Counsel Mr Trevino, she has been the parent with whom [X] has always lived since separation and with whom [X] has her closest attachment.  The mother says that despite the tantrums and physical altercations that have taken place between herself and [X] it is nonetheless in [X]’s best interests to remain living with her and that she has taken advice as to how to manage [X]’s behaviour in the past and will continue to do so. 

10. The mother says that she has been the victim of the father’s aggression and violence.  She says the father continues to abuse upon her via text messages.  The mother describes the father as an angry and aggressive man and she wishes to minimise [X]’s exposure to his behaviour.  The mother says she would like [X] to spend only each alternate weekend with the father as it is not in [X]’s best interests to spend much more than that with her father as [X] is still traumatised by the abuse that she has witnessed from the father.  The mother says that equal shared parental responsibility is not a workable arrangement.

11. The Independent Children’s Lawyer (“ICL”) in this matter, Mr Todd, has submitted through his Counsel Miss Wilson that this matter has been a most difficult matter from his perspective and that his support for one party or the other has fluctuated throughout the trial.  The Independent Children’s Lawyer has however, after considering all of the evidence, supported the application of the father.

12. The ICL submitted that the father had demonstrated the capacity and parenting skills to deal with [X]’s most difficult behaviour.  The mother in contrast has been having difficulties coping with [X]’s behaviour for at least the past two and half years. The ICL is troubled at the severity of the child’s behaviour which includes, spitting, biting, violent tantrums, swearing and brandishing a knife at the Mother on numerous occasions.  The ICL does not have confidence in the mother’s capacity to properly manage and contain this behaviour. 

13. Miss Wilson for the ICL submitted that whilst the father admitted to acts of domestic violence in the past, that at least up until 2007 the mother still had significant trust in the father’s parenting ability such that she was prepared to have [X] live with the father for 19 days whilst the mother headed off overseas for a vacation. 

14. After 2007 the ICL submits that it is difficult to attribute blame to one or other of the parents as being the sole cause of the incidents of family violence that occurred.  The ICL submits that the mother’s own situational anxiety may lead the mother to make exaggerated reports of the incidents.  The ICL does not have any confidence that leaving [X] in the primary care of the mother in the future will assist in the management of her perplexing behaviour and adopts the evidence of all the experts, that [X] should be living with one parent for most of the time, in submitting that the child should live with the father.

15. This case has been prolonged both in its Court life and the length of time taken for the trial.  It started in November 2009 and was unfinished after the two days allocated.  The matter was adjourned part heard and resumed in February 2010 which was the first date all the parties and their Counsel were available and the court had another three days available. The evidence given by one of the report writers, Ms W[1] on the final day of that session was quite startling. Ms W said in her evidence that it was possible the behaviour being exhibited by [X], such as fighting with the mother and finding knives to use in an attempt to hurt the mother was as a result of a possible undiagnosed psychiatric condition such as early psychosis or post traumatic stress.  Ms W was aware that [X]’s Uncle (the father’s brother) has schizophrenia and she regarded the child’s dangerous behaviour as possibly representing a threat to the physical safety of others, including and in particular, the father’s new baby.  Ms W recommended that the child be assessed by a psychiatrist before any further determinations were made in the matter, as a diagnosis of a psychiatric condition would likely have significant bearing on the final orders.  Ms M who prepared the initial Family Report agreed that this referral needed to be undertaken.

    [1] Regulaton 7 counsellor.

16. Consequently, a report was ordered from a single expert psychiatrist and Dr. G was appointed to assess the child and the parents. That report took many months to materialise due to delays involved in waiting for a psychiatrist to attend in Cairns and undertake the interviews and assessment.  This is one of the difficulties that regional practitioners and litigants have with a shortage of experts such as psychiatrists, who visit only several times a year.  Months go by whilst litigants wait for a visiting psychiatrist. Similar difficulties are experienced in Mackay and other regional areas of Queensland.

17. The psychiatric report was made available in September 2010 and the trial was resumed in October 2010.  After assessment, Dr. G concluded that [X] did not have a diagnosable psychiatric condition and effectively excluded the suggested childhood psychosis or post traumatic stress disorder.  Dr G did provide helpful observations for the Court as to the likely reasons for [X]’s behaviours which when distilled, likely has its origins in the parents’ conflictual relationship.   

Background

1. The mother was born [in] 1962 and is aged 48.  The father is ten years younger being born [in] 1972, he is now 38.  The parties met when the mother was about 35 and the father was 25.

2. The mother at the time was a single mother who worked as a [omitted].  She and [Y], her son from a previous relationship then aged about five years, lived in their own home.  The father lived elsewhere and worked as a self-employed [omitted].

3. Their relationship continued for five years before the parties moved together which the mother says was in July 2002.  When the parties commenced living together, it seems the mother was about to give birth to [X], which she did on [date omitted] 2002.  At that time, the mother was aged 40 and the father aged 30.

4. When the parties lived together, [Y] was aged from around 11 to 16, and he lived with the parties as part of their family unit. [Y] was aged 18 at the time the trial began.  He lives with his mother currently and has lived separately in the recent past, though I understand he has plans to move to Melbourne. 

5. Once the parties moved in together, their relationship lasted for approximately another four years ending in December 2006.  There were separations during this period.  Their first separation was in September 1999 and they reconciled around May 2001.  In May 2005 the mother applied for a temporary domestic violence order which was granted for a ten day period from 9^th May 2005 until the 19 May 2005[2].

   [2] Exhibit M3.

1. When the parties finally separated in December 2006, [X] was aged around 4, the father was 34 and the mother 44.

2. At separation [X] remained living with the mother.  The mother says that the father was initially not interested in seeing [X].  She says [X] was about four when the father started seeing her overnight and every second weekend.  She says this only happened when it suited the father and that he turned down opportunities she gave him to spend weekends with [X].  The mother says that the father only wanted a week on week off arrangement to reduce his child support. 

3. The father to the contrary says that he saw [X] most weekends after separation and that he and the mother were flexible and able to communicate at that stage[3]. 

   [3] Affidavit 12/2/08  paragraph 34.

4. In late 2007 the father commenced a live in relationship with Ms C who remains his partner. At about that time in October 2007 the mother travelled to Hawaii for a few weeks and by agreement, [X] lived with the father.

5. After the mother returned, the father says he encountered difficulties seeing [X] and that this really surfaced once he had started a course of correspondence through solicitors with the mother regarding a shared care arrangement with [X] and when he started a relationship with his partner, Ms C. 

6. The father filed an application to spend week on week off with [X] on 12 February 2008, half the holidays, special days and requested an order for equal shared parental responsibility. 

7. The mother filed a response on 28 March 2008 seeking orders that [X] live with her and spend each alternate weekend with the father from after school Friday to beginning of school on Monday, half the holidays and special days.  The mother agreed with the order for equal shared parental responsibility.  At one point in the proceedings after filing this response, the mother started proposing the father have supervised time only.   

8. On 31 March 2008 interim Orders were made by Consent providing for [X] to live with the mother for nine days a fortnight and five days each alternate week from Wednesday after school until Monday before school with the father.    

9. On 8 April 2009 and at the request of the Independent Children’s Lawyer, Orders were made which provided for [X] to attend Counselling at Centacare and that the costs be shared equally. Those orders were comprehensive and focused on the need for the parties to conduct themselves in a manner so as to protect [X] from this litigation.

10. Notwithstanding the making of those Orders, six months later when the updated Family Report was prepared by Ms W, the parties had not taken [X] to one on one counselling. This was primarily because they could not agree on a suitable agency, once they found that Centacare was not immediately available.  Also, the father has been concerned about further counselling for [X] as he considers that she has been taken to too many agencies and he has been wary of the mother’s involvement with those agencies.

11. The father and Ms C now have a child of their own, [Z] born [in] 2009.

12. The Mother describes herself as having depression and generally as a victim of domestic violence. Dr. G considers her diagnosis is a situational disorder characterised by anxiety.  The mother is prescribed medication of 20mg of Lexorpo per day.  The mother says she will resume work when the stress of the litigation is over.  The mother informed Ms M at the time of the final Family Report that she was in a relationship with a friend of over 20 years, however by the time the report was concluded the mother said she was no longer in that relationship.

Competing applications

1. In addition to the Orders that [X] live with the mother and spend time with the father for a block period of 4 days per fortnight from after school Friday to before school Tuesday, each alternate week, the mother proposes [X] spend time with her father for half of the school holidays, birthday time and special days and telephone communication at any time [X] requests but specifically each Tuesday and Thursday between 5 and 6pm. 

2. The mother seeks restraints from either party attending at the others residence and communication between the parties to occur by text message. 

3. The mother seeks a sole parental responsibility order with a condition that she consult with the father before making any decisions about major long term issues.  The mother says she will comply with an Order to engage with a qualified therapist to address her own situational anxiety and learn techniques to deal with [X]’s alleged behaviour outbursts.  The mother says the parties should ensure that [X] attends at the Child and Youth Mental Health Service of the Domestic Violence resources service program “As Kids See it”.

4. The father’s initial position was as set out in his application, being a week on week off arrangement.  His position seems to be that whilst at times he has said to the report writers that he would like to leave things as they are, the father has told Dr. G and the report writers, and the Court at the final trial, that he would like to see the current situation reversed with him having 9 days and the mother having 5 days.  He adopted the Independent Children’s Lawyer’s position based on the recommendation of Ms M that [X] live with him and spend three days in a block period and a further night in the off week with her mother. This position was to ensure that [X] didn’t spend too long away from either her mother or her new baby sister [Z], wherever [X] lived.

5. The father having heard all of the evidence of [X]’s behaviour and tantrums, now accepts that [X] needs counselling and will co-operate with Orders as recommended by Ms M.  The father submits that if an Order is made for sole parental responsibility, that the parent with that power ought to be restrained from changing the child’s name, religion and moving away from Cairns.

Legal Principles

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975.  In making parenting orders, the best interests of the child are the paramount consideration.  The Act provides two primary considerations described by Justice Brown in Mazorksi and Albright as twin 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 psychical and psychological harm.  These are stressed in s 60B(1) which sets out the objects of the legislation relating to children and reiterated as the primary considerations in s 60CC 1[4]. The additional considerations I must have regard to are set out in s 60CC (3) and (4). Section 61DA provides for a presumption of that it is in the best interests of the child for the parents to have Equal Shared Parental Responsibility. This presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence s.61DA (2). The presumption may be rebutted where there is evidence to satisfy the court that it would not be in the best interests of the child to have equal shared parental responsibility s.61DA (4). If a parenting Order is to provide for equal shared parental responsibility the Court must consider pursuant to s.65DAA (1) whether the child spending equal time would be in the best interests of the child and is reasonably practicable. It is only when each of these questions are answered in the affirmative that consideration can be given to making an Order for equal shared time. If such a finding cannot be made, the same considerations are to be undertaken in regard to whether or not significant and substantial time can be Ordered and the best interests and reasonable practicability considerations are once again to be undertaken MRR v GR [2010] HCA 4. When determining whether it is reasonably practicable for either equal or significant and substantial time the Court must have regard to the matters set out in s.65DAA (5) which include how far apart the parents live from each other, their current and future capacity to implement an arrangement for the child to spend either equal or significant and substantial time with each parent and their capacity both present and in the future to communicate with each other and resolve difficulties that might arise implementing an arrangement of that kind.

   [4] Mazorski and Albright [2007] FamCA 520, Paragraph 3.

Evidence

1. The father was self represented.  He did not have a case outline.  He relied on material filed on his behalf when he was legally represented, being his application and affidavit material filed on 12 February 2008.  He filed a further affidavit by leave of his partner Ms C.  He was given an opportunity to update his position and evidence orally and he was cross examined.

2. The father’s partner Ms C gave evidence and was cross examined.

3. The mother relied on the material in her case outline and she gave evidence and was cross examined.

4. The ICL called each of the report writers, Ms. W and Ms M.  Dr. G the single expert psychiatrist also gave evidence and was cross examined.

5. I have had regard to all of the evidence, the exhibits and submissions of each of the parties.  In these reasons statements of fact constitute findings unless indicated otherwise.

6. This matter was conducted over five days.  The Father was self-represented and the trial took much longer than counsel or the solicitors anticipated when the matter was initially listed and commenced.  The recommendation to obtain a psychiatric assessment of the child mid way during the trial left the matter part-heard for many months.  I have commented elsewhere in the judgment on the difficulties encountered in engaging a psychiatrist to attend in regional Queensland.  The Federal Magistrates Court of Australia is a busy first instance Court and the listings reveal the heavy workload for each individual Federal Magistrate.  The combination of difficult facts, re-reading of all the transcripts, a trial conducted on a fragmented basis over a period of time, consideration of the expert evidence of three experts and the self-representation of the Father has made the writing of this judgment protracted. 

The Witnesses – The Father

1. The father gave evidence and was cross-examined. [Family history and previous employment omitted.] He gave me the impression of being a hard working, knock about, easy going tradesman with a pleasant demeanour.  He accepts that in arguments with the mother he has become very angry very quickly.

2. The father was only 25 when he met the mother, and single.  The drinking and gambling and swearing that the mother, ten years older,  complains about seemed to me to be to be typical of what might be expected of a lot of young men in the father’s position.  The mother criticised him for spending his own income derived from his own efforts recklessly instead of saving it towards the house that she said they wanted to buy. The mother had different priorities to the father at that time the father admitted his own poor conduct toward the mother, in which he has become very angry, crude, at times uttering threats and obscenities, and insults.  It seemed to me that the father had matured since the years when he and mother lived together.

3. In terms of his relationship with the mother, the father said he realised that the arguing and conflict with the mother and himself could not continue. I had the impression that he now regretted some of his behaviour during his volatile relationship with the mother. He said the relationship with the mother was not good for him.  He completed two anger management courses to gain skills to handle conflict better.  The father said he knew he had to get out. 

4. I regard the father generally as a truthful witness who was willing to make admissions against his own interest and that he was a more accurate historian than the mother.  I regard him as genuinely being concerned about [X] remaining living with her mother and I reject the suggestion that the father is interested only in reducing his child support as alleged by the mother.  I have no doubt that he loves [X] dearly and is keen to have the opportunity to be involved fully in [X]’s life and to change [X]’s life so as to remove the current level of conflict that [X] has with her mother.  I regard him as a father who has much to offer [X].

Ms C – The father’s partner

1. The father’s partner gave evidence and was cross examined.  I found her to be a forthright and honest witness.  She was born in 1983 and aged 27.  Although only a new mother, Ms C has had experience earlier in her life assisting with her young nieces in hands on care.  She gave me the impression that she is a capable young mother.  In relation to commencing a relationship with the father she has been very mindful of and sensitive to [X] and [X]’s time with her father.  She has not sought to undermine the role of the mother.  Ms C is also aware that children sometimes run between parents trying to manipulate a situation as [X] has sometimes done whilst spending time with her father.  Ms C has been supportive of the father’s parenting of [X] and given [X]’s tendency to act out when she doesn’t get what she wants.  I am sure that this consistency in parenting is a positive factor whilst the father and Ms C are co-parenting. 

2. Ms C has also shown restraint in her dealings with the mother and remained as best she could out of the firing line between the father and mother, despite some comments which could be seen as provocative by the mother made in the State Court at the Domestic Violence hearing.

The Mother

1. The mother is well travelled, she has worked in a number of unskilled positions such [omitted] and plant operator in which she says she was subjected to sexual harassment as the only woman on the job.  She has travelled around Australia a few times, travelled to Bali about eight times, and Asia and also the United States of America.  She says she was involved in skydiving and road bikes.  The mother backpacked for 12 months, through London and America.  She has had various other relationships as set out in the psychiatric report including a relationship during the preparation of the final Family Report, allegedly with an old friend. The mother admits to using illegal drugs two or three years ago.

2. Her relationship with [Y]’s father was problematic from the beginning with the mother leaving him once she became pregnant.  She says he was verbally abusive and despite trying to reconcile, it didn’t work.  The mother had a relationship with a man who had bipolar disorder when [Y] was about three and the mother says that this didn’t last because he was not committed.  That relationship was just prior to the mother meeting the father.  The mother said of the father, he could be nasty and manipulative, someone who always swore and was a charmer.

3. Whilst the mother purports to have an interest in activities such as road bikes and skydiving, her presentation in the witness box shows no signs of the confidence and outgoing demeanour one might imagined the mother would have.  The mother was an anxious and intense woman who spoke rapidly, with sentences packed with information and explanations.  Generally she spoke over the top of each Counsel and myself.  It was hard for the mother to contain her answers.  Her speech was rapid.

4. Dr. G described the mother as pleasant, co-operative, friendly, had a lot of information to impart, spoke with intensity and was anxious. 
   I generally agree with Dr. G’s description of her being intense and anxious, though I considered the mother to have a neediness and uncertainty about her.  It seemed to me that the mother had lived and breathed some of the alleged family violence incidents referred to by her in this litigation many times and that the story had become more embellished in the re-telling.  Most of the mother’s evidence was told with emphasis on what the father had done to her, and re-told with much drama, at every opportunity.  The mother in my view remained silent or played down her part in the alleged incidents of argument and dispute.

5. I formed the view that the mother’s testimony was at times exaggerated particularly in relation to the level of her alleged fear and the overall drama of several incidents between the parties.  I did not regard her as a completely candid witness.  The way the mother chose to present her evidence and case was at times misleading.  The mother has portrayed herself as being without blame in the alleged family violence incidents.  The facts as I have found and referred to elsewhere in these reasons do not support this position.

6. The mother was a harsh critic of the father at every opportunity both in her oral and affidavit evidence.  The mother saw everyday comments as personal insults, which others might have just laughed off.  Her evidence about the father’s comments about “opinions” is an example as seen in the mothers’ affidavit at paragraph 27.  The mother is seen taking great offence when the father allegedly told her that the daytime television serials she watched were not real life.[5]  

   [5] Paragraph  26.

7. The mother deposed in her affidavit that the father had control of everything and she felt helpless, controlled and trapped in a bad relationship with no money.  She said he had total control.  I can see from the mother’s own evidence that he did not spend his money the way the mother wanted him to.  On the evidence before me I did not see evidence that the father was controlling. 

8. In my view the evidence points to the mother being controlling and engineering several situations regarding [X], which resulted in the father missing out on time with [X], which in turn resulted in him becoming angry and acting out his anger.  The mother relies on the angry outburst of the father as evidence of the father being domestically violent.  This dynamic is well illustrated in the December 2007 events referred to elsewhere in these reasons.

9. In relation to [X]’s behaviour outbursts, it seemed to me that the mother has had a long and difficult time post separation in handing [X].  Whilst I have no doubt that the mother loves [X] deeply, their relationship is intense and difficult and the oppositional behaviour demonstrated by [X] has I am sure, been exhausting for the mother.  My impression is that the mother has been struggling to handle [X]’s behaviour for many years and that at the time of the trial, she was still struggling.

Dr. G – Psychiatrist – single expert

1. The psychiatrist Dr. G gave evidence and was cross-examined.  She reported that in her view and after a limited assessment, there is nothing to indicate that [X] is suffering from a childhood psychosis, which is a rare phenomenon.  Dr. G believes that the history given by both parents could certainly explain outbursts of aggressive behaviour.

2. In relation to each of the parents, Dr. G agrees with the diagnosis of the mother having situational disorder characterised by anxiety.  Dr. G said that, following her limited assessment, neither the mother or father display significant symptoms of a psychiatric disorder apart from the aggression and incapacity to communicate in a civil way which may be a feature of personality problems.  I accept her evidence in this regard.

3. Dr. G considers that the mother’s description of the child being angry for a period of time when she comes back from the father’s home is not necessarily negative, but rather a very common experience for children making the transition from one home to the other, which can be quite dramatic.  I accept Dr. G’s evidence.

4. As to the mother’s anxiety levels generally having regard to her diagnosis of adjustment disorder with depressed mood characterised by anxiety, anxiety being the mother’s prevailing problem, Dr. G said that the anxiety that [X] is exposed to in the mother’s home would contribute to [X]’s own anxiety very considerably.  Dr. G said that an anxious parent is likely to transmit anxiety to a child, possibly to be overprotective and a parent who suffers from any psychological condition is likely to be more self pre-occupied.

1. Dr. G said that if one accepts the history of [X]’s aggression as referred to by the mother, [X] would suffer from dis-regulated affect, which basically means that [X] is overwhelmed with affect and unable to moderate or regulate it, and in the case of [X], the consequences are tantrums. 

2. Dr. G considered that the best outcome for [X] would be if the parents had counselling together to try and work out how to function, though she regarded the likelihood of this occurring as improbable. 
   I agree with her views in this regard.

3. As to the evidence of Ms W that [X]’s alarming behaviour of brandishing knives could potentially be a risk or danger to others such as the father’s young baby, [X]’s half sister, Dr. G said that the prediction of dangerousness is a difficult area and that whilst she couldn’t rule it out, there was nothing in [X]’s presentation (albeit it was a limited assessment) which would suggest any abnormality which suggests that [X] was a dangerous child.  Dr. G considered that [X]’s behaviour was at the extreme end and indicative that the child does need counselling. 

4. Dr. G’s view regarding the parental capacity of each parent was that whilst they did not have a psychiatric condition their intractable hostility towards each other is interfering with the parenting of [X] and that each parent’s insight had been blurred by their hostility towards each other.

5. Dr. G regarded the ongoing litigation as likely fuelling the hostility and that having regard to the hostility, shared care is highly unlikely to be appropriate and that [X] should be primarily with one parent and having contact with the other.

6. Generally I accept the views and observations of Dr. G.

Family Reports

1. The first Family Report was prepared by Ms M in April 2009.  A second report by Ms W in October 2009.  The father gave evidence that he took issue with the report prepared by Ms W as he believed that the report contained inaccuracies in relation to what he told the report writer and that overall the report writer had acted unprofessionally.  The father lodged a formal complaint to Ms W’s professional body.

2. Given the delay until trial, and the issues involved and the complaint of the father, an updating report was prepared by Ms M on 20 October 2010.

3. Each report writer gave evidence and was cross-examined.  Ms M had the benefit of two assessments with the parties and hearing the evidence of Dr. G and the evidence of Ms W.

4. Ms W postulated various theories in her report and oral evidence in relation to the child having post traumatic stress disorder or a psychosis consistent with a psychiatric disorder. Dr. G has excluded these psychiatric illnesses as being suffered by [X]. In her oral evidence,
   Ms W expressed the view that [X] might act out aggressively and even threaten the life of her baby half sister, [Z].  These theories have been investigated by Dr. G who has concluded that [X] does not suffer from psychosis, or any mental health or psychiatric disorder.

5. I note that Ms W in her report refers to the mother’s allegations of “substantial aggressive verbal and physical violence towards her by the father”.[6]  There is no evidence of the mother in her material or orally, that the father has been physically violent to the mother.  The mother’s evidence about the father consists of the father yelling at her, giving her threatening looks, making the action of cutting his throat at her, allegedly searching for a machete or finding one in a dispute, holding up a pole in a dispute in the garage as the mother drove off, and the father saying he would hang the dog if and when he ever found it, when it went missing.  These are contested allegations.

   [6] Paragraph 54.

6. I note also that all of the theories put forward by Ms W as to the possible explanations for the child’s behaviour or that she behaves better at the father’s house, or that she is afraid of monsters under the bed, all operate on the basis that one way or another the father has had a negative influence on [X].  Ms W postulated reasons to explain what is meant by [X] telling the report writer that she is afraid of her father taking her away from her mother.  I find this statement of [X] is consistent with evidence given by the father (which I accept) that [X] started saying this from the time his solicitors first wrote to the mother back in late 2007 or early 2008 saying that the father wanted shared care. 

7. As to the suggestion that the father is somehow responsible for the child having a fear of monsters under the bed, I have heard the evidence from each party. I am satisfied that the father read [X] bedtime stories. One of those stories is a story about monsters under the bed. It seems to me having read the book as an exhibit, the underlying thesis of the book being is to address what I would regard as this fairly common child hood experience, i.e. namely monsters under the bed. I regard the book as being entirely appropriate in the circumstances. There is no evidence that either parent has acted inappropriately in relation to this issue. It was clear though that at the mother’s [X] more often than not sleeps with her mother, whereas at her father’s he is more insistent that she sleep in her own bed. Ms W did not comment on this positive aspect of the father’s parenting,
   Ms W instead saying the father has taken steps to calm [X] in regard to “monsters”, however, the child remains upset and regularly attempts to climb into the father’s bed.  Ms W then wrote that apparently the child regularly, but not always sleeps in the mother’s bed.  

8. The father was impliedly criticised by Ms W for being directional in his parenting with [X] whereas the mother allows more choice.  Given [X]’s troubling and violent behaviour towards her mother, and the lack of respect shown by [X] to her own mother and other people, I consider that the father’s parenting techniques have some positive benefits in showing parental authority and giving [X] choice within limitations.  Ms W does not make negative comment about the mother’s parenting techniques which whilst I accept may have been well intended and no doubt reflect a large degree of frustration at [X]’s behaviour, I nonetheless regard as quite troubling.

9. Each report writer agrees that the behaviour of [X] is alarming and whilst there is no certainty, it is likely that the child’s behaviour is due to her witnessing aggression and conflict between the parties.  There is,  however, certainty amongst each Family Report Writer and Dr. G that the parents dysfunctional relationship and ongoing conflict has affected [X] and will continue to affect her if the parents continue with their negative communication and overt conflict with each other.  Having looked at the totality of the evidence, it seems to me likely that [X] has been affected by being exposed, either directly or indirectly, to her parents’ hostilities in the past.

10. None of the experts are prepared to offer an opinion with whom the child should live.  None of the experts have concluded that [X]’s behaviour will improve by changing residence from one parent to the other.  There is general agreement that by changing to an arrangement where [X] lives primarily with one parent and visits for short periods with the other, that this will allow [X] to settle into living in one home with one parent having more of an opportunity to parent [X], deal with her challenging behaviour and provide more stability, whilst spending short times with the other.  I accept this is so.

11. Each of the experts agrees that transitions from one house to the other are difficult for [X] and that she is unsettled for several days after a transition.  Each expert though considers that the child will benefit from a more stable living arrangement, spending most of her time in one household and contact with the other.

12. Ms M has expressed a view that the issue of the child misbehaving so seriously in the mother’s care is a complex issue, that it is too simple an explanation in this case to simply attribute the responsibility for this poor behaviour in the mother’s home to the mother.  Ms M gave evidence that there could be many factors that could weigh into why [X] is behaving in the way she is.  She suggests:  The mother’s management style, the previous domestic violence [X] has been exposed to and the manner in which the parties don’t talk to each other.  Ms M suggested that there are so many issues that could be attributed to [X]’s behaviour that it does not just equate to the fact that is just an issue between the Mother and [X].  All of the experts agreed that each of the parents have been in a position where they have both contributed to her behaviour that is being seen acted out by [X]. 

13. In relation to the likelihood of [X] having been exposed to Family Violence, Ms M said that if [X] had been exposed to the alleged domestic violence as suggested by the mother, it could have a significant impact upon [X] and it may be that this has potentially set a framework by which [X] has navigated her way to deal with conflict and possibly obtained messages about how appropriate it is and in what ways it is appropriate to act towards her mum.  [X] may have learned that aggression is an appropriate way to solve problems when they arise with her mother[7].  Ms W also stated that perhaps [X] has just learned to behave this way towards her mother.

    [7] Transcript page 43, line 30-45 28/10/10.

14. Ms M said that the behaviours described were extreme, not just swearing or a tantrum here or there.  Tantrums which include trying to fight her mother, tantrums with knives, kicking, pinching, spitting, swearing and more recently biting her mother are examples of the behaviour.  In my view, the father’s reluctance to accept what was happening in the mother’s household was symptomatic of the mistrust between himself and the mother.  The father stated during the trial unequivocally he could not trust a word the mother said.  The mother also indicated very clearly in her evidence and conduct that she did not trust the father. At the conclusion of the trial and following the evidence of Ms M in particular, the father in my view accepted that [X] had significant behavioural problems which resulted in her severely disruptive and dangerous behaviour at her mother’s. He did this having heard and accepted the views of independent experts rather than relying on the mother’s evidence.

15. In relation to any ongoing disputes Ms M recommends that the parties be ordered to attend dispute resolution as the first phase of dealing with such matters and prior to any applications made in this Court. In relation to any counselling that [X] continues with, Ms M recommended that the father be involved in that process as well as the mother, which has not happened to date, as the person who is working with [X] needs to have an accurate idea of the history not just one parent’s view.

16. Ms M considered that in terms of time spent with the other parent, that the time should be ten days with one parent and four with the other, the four to be taken in a block of three days and then a separate day in the off week, to ensure that [X] had regular time with each parent on a weekly basis.  I found the evidence of Ms M most helpful and I accept the basis of her recommendations.

Evaluating the competing proposals – s.60CC factors

1. I will now turn to discuss those factors which are relevant to the competing applications set out in s.60CC.

Primary Considerations – s.60 CC(2)(a) The benefit to the child of having a meaningful  relationship with both of the child’s parents.

1. In relation to the child having a meaningful relationship with each of her parents, it is necessary for me in this matter to weigh up the various s.60CC matters to determine how that can best occur. It seems that [X] does not handle transitions well from one event to another and that it will be more beneficial for her day to day wellbeing if she lives primarily with one parent. Ms M suggested that to ensure [X] has regular time with each parent that the four days she spends with the other parent, be broken into two separate occasions over two weeks so that [X] is not absent from either parent and from her new little sister [Z] for too long.

2. Much time has spent during this trial on the topic of [X]’s behavioural difficulties, and given the nature and extent of her behaviour, that is not unexpected. The Orders I make however need to take note not only of the behaviour issues, but of the other factors referred to in the relevant section 60CC factors in order to arrive at Orders which are in [X]’s best interests.

Section 60 CC (2) (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

1. It seems clear from the evidence of Dr. G, each report writer, and each of the parents that [X] has been exposed both directly and indirectly to scenes of serious conflict between the parents. It is a strong recommendation from all experts that [X] be sheltered from ongoing acrimony between the parents.  It is possible that her current severe behaviour problems are as a result of [X] being exposed to either family violence or parental disputes.  

2. I therefore need to make Orders which reduce the opportunity of [X] being exposed to ongoing abuse and conflict between the parents.  I note [X]’s own advice that her parents have not argued as much over the past couple of years.  This accords with the evidence that the conflict that the mother relies on as domestic violence, occurred in 2007 and early 2008, more than 2 years ago.

3. I will now turn to consider the additional considerations under section 60CC (3). Although I have listed certain issues under the relevant headings, some of the evidence referred to applies to more than one of the relevant considerations.

Section 60CC(3) Additional considerations are: Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. [X] ([X]) is described by Dr G as a pleasant, chubby little girl who made good eye contact, related warmly and told a clear history, was polite and appeared to be of at least average intelligence[8]. Ms W described her as long haired, slightly chubby, seven year old girl with an easy smile that turned into a sad grimace as she spoke about her life. [X] presented as a capable young girl who undoubtedly is of higher than average intelligence.  [X] presents more like a child of  ten (10) years old than one who is seven (7) years old[9].  The mother accuses the father’s partner Ms C as telling [X] that she need to lose weight and the mother told Ms M that she weighs [X] each time she goes over to her father’s.  It seems single experts also consider that [X] is a slightly overweight child.

   [8] Dr. G  page 4 .

   [9] Paragraph 39.

2. [X] has been interviewed on several occasions.  When interviewed for the first Family Report, she said she would like to go to her father’s every alternate weekend.  When asked if anyone else thought her spending every second weekend with her father would be a good idea, she said her mother thought so and she had told her this.  The mother says that she has asked [X], and that [X] said she did not want to live with her father. [X] has not said this to Ms M who conducted two interviews, Ms W or Dr. G.

3. In the final Family Report, [X] has expressed a view that she did not wish the arrangements to change (the 9/5 arrangement).  She has also said that if she lived with her mother for too long she would miss [Z] and if she lived with her father for too long she would miss her mother.  [X] is only 8 at the time of trial. When given an opportunity to do so, [X] has listed out things she likes doing with her mother and father.

4. [X] told Ms W that the first report writer made mistakes with some of the things in her report but did not say who showed her or told her about the report.  She asked Ms M who would be getting the Family Report first, mum or dad.  I am satisfied that [X] has been directly involved and exposed to this litigation and that she is aware of the past conflict that has occurred between her parents.  In all of the circumstances I am therefore cautious about placing any great weight on her wishes.  This is apart from her being only 8 years old and not in my view, being of an age to understand the long term ramifications of expressing a view about where she is to live. 

The nature of the relationship of the child with; (i) Each of the child’s parents; and (ii)    Other persons (including any grandparent or other relative of the child)

1. The mother has a close relationship with [X] and the closest parental attachment to [X].  The relationship between mother and daughter is however characterised by much turmoil and conflict.  At times their mother daughter relationship breaks down completely and events become out of control and quite dangerous for the mother and [X].  This must be emotionally exhausting for [X] and no doubt the mother.   

2. [X]’s regular conduct of reaching for and brandishing knives at her mother’s home or stabbing the door surrounds of the bathroom in which the mother is placing herself during some of the tantrums, are examples of the breakdown in the mother’s parental authority and the mother child relationship.  There is evidence of [X] biting, kicking, spitting at and hurting her mother, this has continued up until the trial.  [X] swears at her mother in anger.  The mother blames the father for this behaviour.  [X] has been living primarily with her mother and her brother [Y].  Whilst Ms M believes that blaming the mother for this behaviour on the basis that it occurs at her house is too simplistic for this complex problem, I do not accept as a valid explanation the mother’s position that [X]’s behaviour is all due to either the influence of her father or acts alleged to have been done and said by the father.  This explanation avoids any acceptance on the mother’s part of her own role in the conflict that has occurred between herself and the father, her problematic relationship with [X] at times, and her own inability to demonstrate parenting skills to manage [X]’s behaviour on a day to day basis when any number of routine events occur, such as [X] wanting something in a shop and not being able to have it. 

3. The mother told Ms M that whilst it is possible that the conflict between herself and the father contributed to [X]’s behaviour, she did not feel her own personal behaviour contributed to [X]’s behaviour but she did believe the child could have picked up on her (i.e. the mother’s)  fear when she was little[10].

   [10] Updated Family Report, paragraph 82.

4. Simple day to day interactions between the mother and [X] turn into difficult if not violent tantrums or acting out by [X].  The mother described [X] asking to go to her friends after school and when the mother refused, a tantrum results, with [X] punching, biting, pinching and spitting at the mother[11].  The mother gave many examples of [X] becoming very angry very quickly such as being told she couldn’t go to McDonalds afterschool whilst the mother was driving. [X] started kicking the back of the mother’s seat and swearing at the mother. The mother said on that occasion she drove back to school to see what had happened at school to cause the outburst.  When arriving back at the school car park, [X] was being really naughty and swearing and carrying on and Ms O had said to her because both our windows were down “[X] you’ve got to stop that.  You cannot speak to your mother like that”.[12] The teacher confirmed that nothing had occurred at school. 

   [11] Transcript page 95 – line 20 to 30 27/11/09.

   [12] Transcript page 101 – line 5. – 27/11/09.

5. The mother described incidents of anger by [X] when she and the father lived together.  The mother described the father as picking [X] up and walking outside with her and he would be hugging her and he taught her to ask for a hug when she was naughty.  The mother said that the technique worked when the father did it, but when she tried it [X] kicks, like starts thrusting her head back at me.  She will get her fingers and she will be pinching at me.  The mother said she had employed many and varied strategies to deal with [X]’s temper outbursts including dancing with her, taking her for a drive and “time out”. 

1. The mother described what she meant by “time out”. Under the guidance of my psychologist and so she has told me to sit up against the bathroom door and stay in there until [X] can calm herself down.  The mother said that she has done this about eight or nine times during 2009 on the advice of her psychologist, after trying so many other different things that just didn’t work.  The mother continued [X] realises that if I am going to the bathroom because of her bad behaviour, she doesn’t like it.  So she realises now that it is Mum’s time out.[13]  During the trial the mother said she had stopped this practice now, as it meant that while she was in the bathroom, [X] had the run of the house. 

   [13] Transcript page 97 – line 40-45 – 27/11/09.

2. The mother said whilst [X]’s behaviour had been difficult whilst she and the father lived together, it became worse after separation and when she started seeing her father on her own.[14]  The mother also suggested that there might be connection between the father and [X] and the difficulties at school.  The mother said when the father is going to collect her on Wednesday mornings [X] says she has a headache or feels sick in the stomach and doesn’t want to go to her Dad’.  The mother says [X] tells her she doesn’t want to go to her Dad’s, and instead says, “I want to stay here with you”. [15]  [X] told the report writer however that sometimes she gets a sore belly and it is not just when she has to go to her father’s[16] which is what the mother has suggested. 

   [14] Transcript page 98 – line 45 – 27/11/09.

   [15] Transcript page 101 and 102 – 27/11/09.

   [16] Paragraph 99 – Updated report.

3. The mother has consistently portrayed [X] as not wanting to go to her father’s, starting some years ago with the first phone call on Wednesday 5 December 2007.  Each time the mother says that [X] did not want to go to her father’s it was accompanied by the comment to the effect that [X] would rather stay with her.  This and other similar assertions by the mother are inconsistent with the evidence of [X]’s good relationship with her father with whom she has been spending five days a fortnight for over two years.  I reject the mother’s assertions as being simply that, her own subjective assertions.  The mother has provided much commentary in her evidence and Family Report interviews, however, I do not accept her commentary as evidence of factual matters. 

4. The father reports a good relationship with [X] and that [X] is happy and mostly good in his care. He says she has a ball at his place, she does activities with him and also Ms C and plays happily with the children in the neighbourhood.  Ms C has given evidence of the father’s good relationship with [X].  I accept her evidence.  The father says he is close with [X] that [X] is happy in his care and he has listed out activities such as fishing and swimming together that he and [X] engage in.  The father says she adores her little baby sister [Z] and that she has a good close relationship with his partner Ms C.  This evidence is supported by the interviews with [X] and the evidence of the family consultants’ observations.  The father described [X] running into his arms on Christmas Day.  [X] herself has described fun activities she does when with her father and holidays she has had with him which she has enjoyed.  The independent evidence of each of the Report writers is that [X] and her father share a sense of humour, their interactions are appropriate and when asked [X] said that there was nothing bad about being with either parent. I am satisfied that [X] has a good and close relationship with her father and that she is not opposed to spending time with him as alleged by the mother.

5. [X] has a good relationship with Ms C.  The mother though has made a myriad of complaints about things alleged to have been said and done by Ms C including urging the father to “do it” when the father allegedly told [X] he wanted to kill her.  I regard this allegation by the mother as obviously false.  The relationship that [X] has with Ms C is happy, good and close, and bears no resemblance to the kind of relationship that the mother asserts. 

6. The mother has also given [X] mixed messages about [X]’s relationship with her father.  The first evidence of this is in the account of the incidents on 5 and 7 December 2007 referred to elsewhere in these reasons. 

7. Similar contradictions occur with the mother’s refusal to allow [X] to go up to the hospital to see her new born baby sister with the mother initially saying that [X] could not come because she had to go to counselling, then nominating another day, and then changing her mind and telling the father that [X] could go to him according to the Orders.  The mother now says that she is concerned that [X] was upset because she didn’t get to go to the christening of [Z].  This implies that all the father had to do was ask the mother to swap weekends to enable [X] to attend the christening, however, when the father asked to have [X] for a short visit to a local hospital on the day [Z] was born, that was not agreed to by the mother.  I understand the father’s reluctance to engage the mother in another attempt to change the arrangements for the christening. 

8. I consider that whilst living with her mother, [X] is in an atmosphere in which there is overt or covert hostility towards the father.  I consider that this creates a difficulty for [X] in navigating a way to enjoy her own relationship with her father.  I am satisfied after examining all of the circumstances that the mother does not wish [X] to have a close and loving relationship with her father.  In her material she deposes to the father just wanting involvement to avoid child support and being manipulative.  

9. I regard the mother as contributing to the complexities and difficulties in her own relationship with [X], both through her interventions in the relationship between [X] and her father, [X] and the father’s partner and [X] and [Z]. In my view, it seems somewhat of a struggle for [X] to be able to freely engage with and develop her relationship with the father given the mother’s negativity towards the father.

10. [X]’s relationship with her father does not have this troubling history.  There are no complaints about the father’s parenting of [X] by the mother, though she has much to say about what goes on in the father’s household and of things allegedly said by the father and his partner as can be seen in the Family Reports.  The mother is, it seems to me, overly involved in [X]’s relationships with the father and his family.  I am troubled that the mother through her influence will slowly but surely undermine [X]’s relationship not only with her father, but with her new family consisting of the father’s partner and baby [Z].   

11. The father appears to function well and be more positive in his outlook generally and in relation to [X] than the mother.  He has an easy going relationship with [X].  When she starts to misbehave in the father’s house, either the father or Ms C caution [X] and if she is sent to her room or has a privilege withdrawn, [X]’s behaviour is contained.  I have confidence in the father’s ability to sensibly manage [X]’s behaviour and I regard the assistance that he will receive from his partner as being supportive of his role completely.

12. Ms M has made observations of [X] sharing time with the father and Ms C, they interacted with humour and no significant issues were noted.  Similarly [X] interacted well with the mother and [Y] when observed together in April 2009 with the mother interacting warmly with [X].  [X] has been observed being gentle and caring with her baby half sister [Z].  [X] gets on well with Ms C and Ms C gave evidence of having an entirely appropriate relationship with [X].  I saw no evidence that Ms C was attempting to undermine the mother’s role in any way.

The Mother’s son [Y]

1. I have no doubt that [X] has had a close relationship with [Y].  He is considerably older than [X] and now at 18 he is leaving home to pursue his own relationships and life. The relationship that [Y] has had with his biological father who lives in Perth appears to be almost non existent.  He denied that his mother had stopped him from having a relationship with his biological father when he spoke to Ms W in 2009.  The father in this matter lived with [Y] for years.  He gave evidence that it was difficult for him to move into the mother’s home and play the father figure with someone the age of [Y]. The father said that [Y] swore at his mother and he tried to exert control over him.  The mother said that there were times when the father and [Y] were in high conflict.

2. The mother moved away with [Y] when [Y] was little.  In around 2005 the father says he helped [Y] reconnect with his biological father and paid for [Y] to go see his father. This was not challenged during the trial.  [Y] was also interviewed by Ms M in the first family report and spontaneously in the final updated report in 2010.  I was surprised at the mother’s naivety in permitting [Y], a young man, to be present in Court during the contested hearing until I inquired who the young man was sitting in the gallery and suggested to the mother that he should leave, despite the mother saying through her Counsel that he wanted to be there to support her. This litigation was inevitably going to be raking over the previous allegations of domestic violence and abuse issues.
   I have the impression that [Y] is very loyal to his mother, that he has assisted her with the physical control of [X], and that he has been over exposed by the mother to her adult issues. 

3. I similarly hold the view that [X] has been exposed in the mother’s household to issues arising from this litigation, as far back as 2007 or 2008 when the father first starting a course of correspondence through his solicitors.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. I regard the mother’s encouragement and attitude to [X] having a relationship with the father as being contradictory and inconsistent.  When she wanted to go overseas for a holiday to meet up with an old friend in 2008, the mother was content for [X] to live with the father.  When she has wanted to spend time with [X] herself, [X]’s time with the father was suspended, as it was on 7 December 2008 which lead to a scene both at the day care centre and later at the mother’s home.  

2. In 2008 the mother consented to [X] spending time with the father
   

   [17] First report, paragraph 69.

   5 days a fortnight.  In 2009 the mother was considering the advantages of [X] having only supervised time with her father. The mother asked for supervised time when the first family report was prepared by Ms W in October 2009 on the basis that the Mother believes that this will be helpful to [X] as the Mother believes that the father is too “immature” and only thinks of himself and not [X].[17]  Another reason for supervision was suggested by the mother as being Due to the past aggression the Father has displayed Ms Farley believes that he may be inappropriately disciplining [X] and thus Ms. Farley would like the supervised sessions of the interactions between the Father and Child. There is no evidence of the father inappropriately disciplining [X]. I do not accept that the father lowering his voice and quietly telling [X] to behave is, as suggested by Ms W, to be regarded as some form of threatening behaviour. 

3. I regard the mother’s proposal in September 2009 contemplating supervision as being unrealistic but another example of the mother’s over-reactions.  [X] had been spending 5 days a fortnight with her father for about 18 months by the time the first report interviews occurred.  The mother’s initial response filed 28 March 2008 did not seek supervised, nor did the mother’s amended response filed on

   
   

   27 October 2009. 

4. The mother told Dr. G that she herself had considered [X] spending more time at her father’s but [X] did not want to.  The mother also said she wants the father to leave “them” alone.  The mother also said she believes things have become worse since the father has had a girlfriend.

5. In my view the mother has difficulty separating her own views and feelings towards the father from those between [X] and her father.  The mother is highly critical of the father in most respects and basically she wants him out of her and her children’s life, as she said to Dr. G.  As to the mother’s evidence that she is glad the father has re-partnered, in my view this is not what the mother’s conduct would suggest.  Her behaviour in refusing [X] the opportunity to go and see her new born baby sister on the day of the birth or even the following day, was a mean spirited gesture.  The mother’s behaviour was in my view controlling and intended to deprive [X] of the spontaneity of celebrating the arrival of her new baby sister with the father and his partner Ms C and new born [Z].  

6. [X] is alleged by the mother to behave poorly either before she goes to the father, or after she has been to the father. According to the terms of the consent order, [X] is always either going to or returning from the father’s home.  I do not accept the mother’s strongly held beliefs or assertions that [X]’s poor conduct, tantrums and acting out and the severe tantrums are attributable simply to the fact that the [X] spends time with her father, as the mother says or implies.  

7. Some of the incidents the mother describes such as kicking the car seat and swearing because the mother refuses to take [X] to McDonalds, or attacking her mother because the mother says she cannot go and play at a friend’s house, or refusing to have a shower are fairly normal incidents and are everyday occurrences.  I saw no evidence that the mother accepted any responsibility herself for her inability to properly manage what are fairly innocuous child hood scenarios.  

8. [X] has been living with the father now for five nights a fortnight for over two years. The mother has not acknowledged that [X] has two families, one with herself and one with the father.

9. It is also clear that the mother has told [X] stories about her father being violent, that [X] herself did not know from her own experience.  This is a poor reflection on the mother’s genuine willingness to encourage a relationship between [X] and her father, and can only have had a negative influence on [X]’s relationship with her father and add to her anxiety.

10. In the first Family Report the mother reported incidents which allegedly occurred at the father’s. The mother told Ms M that the father told [X] if she did not go to bed he’d kill her and that Ms C stands in the background saying “do it do it.”[18] I do not accept that father or Ms C made these threats.  I do not accept that the mother genuinely believed that such threats were made.  If she had, she would have applied to suspend contact long ago on this basis.  During this interview the mother made what I would describe as a raft of contradictory allegations and assertions.  Having said that the father told [X] he is going to kill her, the mother then gave evidence that she encouraged [X]’s relationship with her father by telling her he loved her, including him in [X]’s prayers and telling her she needed to spend time with her father even when she says she does not want to….  And the mother also claimed [X] had said she wanted her (ie Ms Farley) and her father to be together again so she would not have to go to her father’s by herself.[19]The mother then reported that the [X] said that the father said he hated her when she does something naughty and the mother then tells [X] that she will always love her even when she does not like her behaviour. The overarching themes of the mother’s assertions are logically contradictory.

    [18] Page 10, Family Report 6/4/09, paragraph 84.

    [19] Paragraph 84, 89, Family Report 6 April 2009.

11. The mother admits that she has told [X] that she left the father because of abuse and domestic violence (e.g. swearing and hitting) and that this behaviour was not to occur in her home[20].  There is no evidence of the father hitting or otherwise physically harming the mother. 

    [20] Paragraph 94, Family Report 6 April 2009.

12. [X] reported that her father had threatened to hang their dog by the neck from a tree and had a gun[21] when [X] was a baby and that [X] had said to the father at the time No Daddy No.  When asked how she knew, she said that it had happened when her mother had told her because she did not really remember.  The story of the father saying he would kill the family dog has become part of the family history in the mother’s household.  It allegedly arises when the dog had once run away and when out looking for the dog, the father said he was going to kill the dog.  On the mother’s version of events, the father said this out in the street.  [Y] says he heard the father say this, but I note he says he was in his room when he heard this.  [X] has been told of the story by the mother. The father denies saying he would kill the dog.  I am not satisfied that any genuine threat to kill the family dog was ever made by the father.  If he has said words anything that could be construed that he would kill the dog when he found it, I do not accept that it was said in the context as alleged by the mother or with a genuine intention to kill a dog as the mother would suggest. 

    [21] Paragraph 130 Family Report 6 April 2009.

13. The mother said that the father drove at her when he left her home in December 2007, and that [X] was out the front calling out “no daddy no.”  [X] when asked about the incident said that she saw the father’s car go vroom.  The father said that he left the house furious, kicked the mother’s car and accelerated rapidly away.  I do not accept the mother’s version of events that the father started driving up the drive-way threatening herself and [X].  The mother has in my view embellished much of her evidence, and it is clear that she has told [X] of incidents, her version of incidents, even incidents that allegedly occurred when [X] was a baby.  I am critical of the mother for engaging in this conduct which can only damage the relationship between the father and [X].

14. If [X]’s tantrums and violent conduct are as a result of being exposed to the conflict between the parties, the mother has not acknowledged or contemplated that [X]’s behavioural difficulties could be due, at least in part, to the dynamic of her own relationship with [X].  There is no acknowledgment by the mother that as suggested by the report writers, [X] may be responding in a learned behaviour in response to the mother’s own parenting of [X]. The father was prepared to acknowledge some of his poor behaviour in the past in the presence of [X] and to that extent he has played some part in her being exposed to conflict and argument.

15. Whilst the father has made abusive comments directed to the mother in certain situations, my overall impression is that these were in response to his frustration by the obstructionist attitude of the mother toward [X] having a relationship with him.  The father has admitted he insulted the mother, however, he appeared to genuinely accept that [X] had a close relationship with her mother and that she loved her mother.  He acknowledged that [X] would miss her mother if she lived mostly with him.  He has promoted [X]’s relationship with her mother, such as when the mother returned from her overseas holiday.  I do not regard the father as undermining the mother’s relationship with [X].  The father has lacked self control in directing personal insults at the mother and, like [X], he seems to have the ability to get angry very quickly.  I did not however, regard him as representing a danger to the mother or [X].

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. [X] was shopping with her mother. The mother says within two minutes of walking into the store, the father passed by herself and [X], and came back and picked up [X] and walked off (within the store) with [X] to show her to his partner, Ms C.  The mother says in her affidavit [X] looked back at me and asked her father to bring her back to mummy. She came back to me and wanted me to pick her up.  [Mr Verney] walked back down the isle behind my back turned around to me and said “you have done this to her” in an angry voice.  I did not reply.   Next we were waiting at the check out and he came back into the shop looking straight at me and leant down to [X] and whispered in her ear loud enough that I could hear and said to you “are you coming to daddy’s this Friday – Daddy will pick you up from day care”. [X]’s response was “no I want to stay with mummy”.  He stood up and walked back the way he came in but stood in the doorway closest to where I was standing at the checkout and said in a loud voice “you are dead”.  Everyone at the check out heard him and then looked at me.  I did not respond to this.  [X] also heard him and became scared.  I have three witnesses that work at [omitted] on the checkouts and they saw him and they heard what he said to me.  None of the witness that the mother refers to came to Court.

2. The father says he came upon [X] in the grocery store, picked her up turned around and whilst staying in the store, took her over to see his partner Ms C.  As he did so, he noticed [X] looking back at her mother.  [X] met the fathers’ partner and became anxious and ran back to her mother.  The father was upset.  He had not seen [X] in weeks, and since the incident at the day care centre and the mother’s home.  The father became angry with the mother seeing [X] running anxiously back to the mother and told her that she has “done this” to [X].  The father whilst waiting for his own groceries to be paid for, went up to the mother at the check out to say to her, in close proximity, he wished she was dead.  

3. I do not accept that the mother is without blame in [X] having a mixed reaction to seeing her father.  [X] had not seen her father for some weeks. The mother was giving [X] mixed messages long prior to this incident.  I do not accept that the father was sneaking up behind the mother, or acting in any way other than the way a father might do when he unexpectedly saw his daughter in the circumstances which occurred in an isle at a grocery store.  It is unfortunate indeed that [X] was so aware of and part of the ongoing conflict and that she had been exposed to parental conflict prior to this meeting.  [X] was placed in a difficult situation with divided loyalties.

4. In my view the mother has overplayed the domestic violence that has occurred in this matter.  I do not know what her experiences were with the other two other males in her life about whom she sought domestic violence orders.  In this case however, I am satisfied that the mother has been verbally abusive towards the father and that the father has insulted the mother.  I am satisfied that she has told the father to piss off and thrown a rock at him when telling him to leave her property and given him the finger.  It seems she has over-reacted in trying to have the father breached in relation to an alleged driving incident and have him reported as emotionally abusing [Y] as part of that same incident. 

5. This accords with my observation of the mother that she has a propensity to dramatise and embellish stories so as to paint herself as being victimised, without also acknowledging her role in the conflict. I find that there is a contradiction between the level of abuse and fear that the mother alleges and the facts.  

6. There is no evidence of physical violence to the mother caused by the father.  The mother has made reference to other incidents, such as the father reaching for a machete or searching for a machete as she drove out of the house once prior to their final separation. [X] has been told about this incident by the mother. The father denies ever using a machete to threaten the mother or [X]. I am not satisfied on the balance of probabilities, noting the seriousness of the allegation, that the father has physically threatened the mother or [X] with a machete or a pole. [Y] made reference to a machete, however, I do not regard [Y] as an independent witness and as I have said elsewhere, he seems to be somewhat of a protector of his mother and a young man that has been overly involved in the mother’s litigation.  The reference to the father reaching for a pole, is similarly vague, and whilst the father says that he did own poles for use in his occupation as a [omitted], they were stored on his car and he denied using the pole to threaten the mother.  I am not satisfied on the balance of probabilities, noting the seriousness of the allegation that the father has threatened the mother with a pole.   

7. Generally I had the impression that the mother overstated the father’s conduct and exaggerated what he is alleged to have said and done by way of threats to the mother.  The father in my view is a more honest historian than the mother and where his evidence contradicts that of the mother, in the absence of independent evidence, I prefer the evidence of the father.

8. I do not accept that the father started “driving” at the mother or [X] from the bottom of the driveway as suggested by the mother. I accept that he revved his engine before driving off as stated by the father and [X].  I consider the mother’s allegation that [X] stood outside calling out “no daddy no” is an embellishment.

9. The mother lists out text messages dated 2008 and 2009[44] as being further evidence of continuing abusive text messages.  I do not regard those texts as abusive or constituting ongoing domestic violence. The texts sent by the father in 2006 and 2007 are extremely insulting texts[45]  I accept the submission of the Independent Children’s Lawyer Counsel that they occurred years ago.  There is no evidence after 2007 of such grossly offensive texts sent by the father.  It seems that after these texts were sent the mother was still content to leave [X] with the father for the duration of her holidays and other times in 2007.

k) Any family violence order that applies to the child or a member of the child’s family, if: (i) The order is a final order; or (ii) The making of the order was contested by a person;

[44] JLF 2 – mothers affidavit 27/10/09.

[45] JLF 1.

1. The mother told Ms M that she had taken out a domestic violence order in a previous relationship when she was aged 23, as she claimed the person she had been involved with at that time threatened to kill her.  The mother also made reference to another domestic violence order being taken against another partner, during her separation with the father.

2. There is one final domestic violence order in this matter and it was not contested.  That Order was issued on 30 January 2008 when the father went to Court and said he would agree to the order as long as he could see his child. The order was a private application by the mother for the father to prohibit him having any contact, by any means of communication, except for the purposes of having time with a child pursuant to an order or written agreement.  At the time he did this there were no Family Law orders in place and no written agreement. [46] The father did not have any legal advice in relation to consenting to this order.  

   [46] Copy of Order attached to father’s affidavit  12/2/08 PV1.

3. The incidents that the mother reported to this Court are the basis of the mother’s Order. The mother applied for this order and the handwritten application is crammed with information including on an additional page.

4. I note that a breach of the Domestic Violence was reported by the mother and subsequently dismissed.  Similarly a report of “Emotional Abuse report listed also for the aggrieved’s sixteen year old son who in the vehicle at the time.” [47] is shown as “Solved” on 17 January 2008. The report continues that, “This incident has been assessed as being of minor risk of further harm.  This incident does not meet the criteria for a referral to DCHS.  Nil Injuries sustained. Nil threats to child”.

   [47] Exhibit ICL 1 – Qld Police – domestic violence documents. Subpoena Pak 7.

5. The other Order in this matter which has issued is a temporary Order, issued in 2005, when the parties still lived together.   It was an order for the father to be of good behaviour current for ten days. The father said he did not attend for this application and he thought that the mother would tell him about it when he got home that night.

6. The father has not physically harmed the mother, and I am not satisfied he has exerted controlling of financial violence upon the mother as alleged.  I am not satisfied that that he has ever attempted to or did harm the mother. I do not know what other domestic violence situations the mother has been involved in with her two other relationships in which she obtained domestic violence orders.  It may be these experiences account for her alleged fear of the father or perhaps it is the mother’s anxiety disorder that plays a role in her perception of the father.  My impression was that the mother was irritated by the father’s involvement in her own and [X]’s life more than being afraid of the father.  The image of the mother shouting the father off the property, slamming doors in his face, throwing a rock and giving him the finger suggested to me she was really angry at the father for coming to her home and demanding to have his time with [X].

l)  Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The parties have been operating on interim Orders for two years.  Each of the parties has expressed their desire for the litigation to be finalised.   It seems to me that [X] will also benefit from having the issue of her living arrangements decided on a final basis and to have one less issue for her parents to be conflicted about.

m)   Any other fact or circumstance that the court thinks is relevant.     There is nothing to add under this factor.  Not applicable.

Parental Responsibility

1. In this matter I am not satisfied that the presumption of equal shared parental responsibility has been rebutted as I do not consider that the level of violence alleged to have occurred by the father, has in fact occurred.  In relation to abuse of the child, it is arguable that the ongoing conflict which appears to have affected [X] to some degree, is an abuse.  It has however been perpetrated by each party. If this is so, the presumption is rebutted.

2. The mother’s initial application showed she agreed to equal shared parental responsibility.  The mother’s position on long term decision making is that it has waxed and waned during this litigation commencing with her agreement to it, then suggesting that she doesn’t mind the father had some say though he should not be permitted to not permit her moving and her final position was to seek sole parental responsibility. 

3. Each Family Report writer suggests that the parent with whom the child lives should have sole parental responsibility.  It is recommended that the parent with sole parental responsibility should be obliged to properly consult with the other parent prior to making any decisions of a long term nature to do with the health, education religion or other significant matters involving [X]’s long term wellbeing.  This would be a strategy which may reduce the amount of conflict or the opportunity for conflict between the parties and therefore help [X]. This should only occur through written advice.  I accept that this seems an appropriate measure. 

4. Having regard to all of the section 60CC factors that I have considered elsewhere in these reasons, I am satisfied that it is not in [X]’s best interests for an order to be made for equal shared parental responsibility. The mother and father have had a relationship marked with vitriol and insults and conflict. Their ability to communicate effectively about arrangements and issues arising with [X]’s care has been almost non-existent. The use of domestic violence orders and attempted breaches has been a hallmark of the mother’s interaction with the father. The parties do not have the capacity to facilitate communication necessary to cooperate in making joint decisions as required in an equal shared parental responsibility Order, particularly given their mistrust of each other and their conflicted past.

5. I also consider that the restraints in relation to [X]’s surname, changing her religion and either party being able to relocate [X]’s residence ought to be made, in the absence of written agreement or Order of this Court.

Evaluating the respective proposals

1. In evaluating the parties’ respective proposals, as is apparent from my observations of the mother’s parenting capacity, I do not have confidence in the mother’s parenting skills and therefore I am troubled at the prospect of [X] spending most of her time in the mother’s care.

2. I am satisfied that if the father has the necessary parental capacity and ability to manage [X]’s behaviour and that he will be assisted in this by his partner Ms C.  I regard her as being sensible and mindful of her role in [X]’s life that she is not [X]’s mother, but an important part of [X]’s other family.

3. I am not satisfied that the mother is willing to promote [X]’s future relationship with her father or her sister [Z].  I consider that the mother has been controlling in the past with [X]’s time spent with her father and that she has largely created the difficulties which occurred in December 2007 that lead to the encounters between the mother and father in the presence of [X].

4. I am satisfied that the father and his new partner will promote [X]’s relationship with her mother whilst offering her a more stable and peaceful existence.  I consider that it is more likely that [X]’s current dangerous behaviour will be less of a feature if she lives primarily with her father.  [X] and her father do not have the troubled dynamic in their relationship that I regard [X] and her mother as having.  [X] does not demonstrate symptoms of being as angry with her father as she regularly demonstrates with her mother.  This is likely to allow [X] to live in a more peaceful and less volatile environment. 

5. The evidence of [X]’s consistent tantrums when with her mother suggests to me that whatever strategies have been adopted by the mother, and I am critical of some of her methods used in the past, have been most unsuccessful.  [X] said she feels sad when her tantrums are over.  [X]’s emotions seem to fluctuate from sadness to extreme anger in the presence of her mother, whereas the time spent with her father is generally without the same level of trauma and distress associated with [X]’s ongoing behaviour in her mother’s care.  When a tantrum is brewing at her father’s, it is dealt with in a less emotionally draining fashion for [X], and because they are less volatile, there is less chance of [X] hurting herself, and hurting others that she loves.  I regard the father has having adequate parenting capacity to manage, as best as can be, [X]’s behaviour.

6. In my view [X] needs strong parental support and love and professional counselling. [X] has had mixed messages and inconsistency from her mother about her relationship with her father and his partner. The mother’s methods of dealing with [X]’s behaviour have undoubtedly involved [X] being physically hurt and possibly unnecessarily embarrassed.  The counselling should be focused on [X]’s issues, and the counsellor should be provided with the two Family Reports of

   
   

   Ms M and the psychiatric report together with copy of this decision.  It is imperative that the counsellor have a complete understanding of the issues determined in this matter, and not just one side of the story, as is currently the case.   

7. I have the impression that [X] has been unable to enjoy a close relationship with her father for many years and that the mother has been unnecessarily controlling of that relationship.  I consider that the mother has little regard for the father’s role in [X]’s life and that she has been unable to distinguish her own troubled relationship with the father from that of [X] and the father.  I do not condone the insults that the father has directed to the mother.  Most of the insults occurred some years ago.  Although the father has been personally critical of the mother, in my view he has always accepted her role as the mother and not attempted to undermine it.  His criticism has arisen out of the dynamic he found himself in with the mother’s interference with his time with [X].

8. I am mindful of the importance to [X] of having an opportunity to grow up with and develop a relationship with her new little sister and to enjoy the day to day interaction that forms the basis of a strong sibling relationship.  [X]’s relationship with [Z] offers opportunities, love, fun and support for [X] in the years ahead.  I am not confident that the mother will allow this relationship to flourish in the future if [X] lives primarily with the mother.  I have the impression that the mother is somewhat resentful of [X]’s relationship with the father, his partner and half sister and that there is a risk that these relationship may be subtly undermined by the mother.

9. I am satisfied in all of the circumstances that it is in [X]’s best interests to live primarily with her father. I note that this is the recommendation of the Independent Children’s Lawyer. In my view, this living arrangement will assist [X] to achieve her full potential and, it is hoped, reduce the possibility of her becoming a delinquent in her teens as referred to by Dr G.

10. I have confidence that the father is more mature and settled than in the heady days post separation.  He has been unfailing in his commitment to [X] and this has been despite many hurdles placed in his way by the mother.  I regard him as offering [X] a positive and happy childhood and having the ability to guide her through the difficulties she is currently experiencing in her tantrums. I consider that spending less time with the mother will reduce the stress and distress of the ongoing tantrums in the mother’s care.  A change in the dynamic of the mother-daughter relationship is unlikely in my view to impact negatively on their relationship as it is already in such a difficult state. If there is less stress in their relationship and some of the day to day issues which have caused difficulty on an ongoing basis are removed from their interactions, it is hoped that their relationship will be strengthened over time and develop into a satisfying and healthy relationship between the mother and daughter.

11. I accept the recommendation of Ms M that the time spent by [X] with the non-resident parent should occur in two short blocks. The first from Friday after school to Monday before school each alternate week and the second on the Monday from after school until Tuesday at the beginning of school in the other week.  This arrangement ensures that [X] will see her mother each week.  I am satisfied that whilst this is reduced time with the mother, that this arrangement will enable [X] to have a meaningful relationship with each parent.

12. As for telephone calls, I note that the mother seeks Orders for twice a week and that the interim consent orders provide for twice a week.  The phone calls in the past have occurred during periods of difficulties between the mother and daughter and I consider that one stipulated phone call each week with each parent to facilitate the call on alternating weeks would be appropriate.  If there are other occasions that [X] wishes to talk to either parent this ought to be facilitated at reasonable times by agreement.  In saying this, I am not suggesting that phone calls ought to be happening every day.  I simply intend to make Orders to allow for at least one phone call per week and a second call in the event there is reason to do so and by agreement. 

1. The Order that I intend to make represents a significant change for [X], however, given her troubled relationship with her mother and the ongoing nature of her tantrums, I consider that living primarily with her father offers [X] more hope of a peaceful childhood in the years ahead and the opportunity to change the dynamic in her relationship with her mother to prevent their relationship deteriorating any further.  To this extent I consider it also the Order which is least likely to lead to further.  The domestic violence allegations have been determined in this matter and it is time for the mother to cease raising such issues directly with or in the presence of [X]. I intend to make an Order preventing either party from discussing the past allegations of domestic violence with [X] or in her hearing.

2. I intend to make an Order that [X] be informed of the change living arrangements by Ms M and until that occurs each of the parents will be restrained from discussing the outcome of these proceedings with [X].

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Willis FM

Date:  31 May 2011