VILE & PRABSZIC

[2015] FamCA 596

FAMILY COURT OF AUSTRALIA

VILE & PRABSZIC [2015] FamCA 596

FAMILY LAW – CHILDREN – BEST INTERESTS – CHILDREN’S WISHES – SPEND TIME WITH – COMMUNICATE WITH – CHANGE OF NAME – Where the child is 13 years old – Where there has been family violence perpetrated upon the child by the father – Where the child lives with the mother and does not wish to spend any time with his father – Where the father seeks orders to spend time with and communicate with the child and for the child to attend therapy – Where the father opposes the child’s change of name despite the child’s wishes to the contrary – Orders made that the child spend time with and communicate with the father in accordance with his wishes – Orders made to facilitate the child’s and parents’ attendance at family therapy.

Family Law Act 1975 (Cth) ss 60CC

APPLICANT: Ms Vile

RESPONDENT: Mr Prabszic

INDEPENDENT CHILDREN’S LAWYER: KD Holmes

FILE NUMBER: SYC 7559 of 2012

DATE DELIVERED: 24 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 and 12 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KD Holmes

Orders

IT IS ORDERED

1. That the parties forthwith do all things and sign all documents necessary to cause a change of the Christian name of the child B born … 2001 (“the child”) from “B” to “D” and to otherwise do all things to ensure the child uses that new Christian name both formally and informally.

2. That the mother complete the form titled “Application to register a change of name for a child born in NSW” and send the completed form to the father by post.

3. That in the event the father does not return the signed form referred to in Order 2 herein to the mother within 14 days of its posting date, then the mother shall be entitled to execute that document on behalf of the father.

4. That the Orders made by Justice Watts dated 28 January 2009 as to the father spending time with, and communicating with, the child, being Orders 3.1 to 3.10, be hereby discharged.

5. That the father spend reasonable time with the child as agreed between the father and the child, subject to and in accordance with the child’s views and wishes.

6. That the father engage in reasonable communication by telephone with the child as agreed between the father and the child, subject to and in accordance with the child’s views and wishes.

7. That upon the issue of an amended birth certificate for the child, consequent upon the registration of the change of name, the mother submit to the father a completed form of application for a passport in the name of D Prabszic.

8. That in the event the father does not return the signed passport application referred to in Order 7 herein to the mother within 14 days of its delivery to him, then the mother shall be entitled to execute that document on behalf of the father.

9. That all orders placing the child known as B or D Prabszic now known as D Prabszic born … 2001 on the Airport Watch List be hereby discharged.

10. That the child be immediately removed from the Airport Watch List.

11. That the mother have leave to travel with the child outside the Commonwealth of Australia, and for the purpose of such travel the mother is to provide the father with one month’s written notice by email (and in the case of emergency travel, such notice to be provided as soon as it is reasonably practicable) as to:

    (a)Time of anticipated departure from and return to Australia;

    (b)The countries the child will visit on the proposed trip;

    (c)Details of the proposed flights;

    (d)Places that the children will visit during the course of the proposed trip; and

    (e)Emergency contact telephone and email details for the child at all times while outside of Australia.

12. That, provided the first appointment with Mr E can be arranged within three months of the date of these Orders, then:

    (a)Each of the mother and the father do all acts and things required to engage Mr E as their family therapist;

    (b)The parents attend on all appointments set by Mr E and ensure that the child attends all appointments set by Mr E;

    (c)The parents and the child continue to attend upon Mr E until he states, in writing, that no further attendances are appropriate; and

    (d)The mother pay for five sessions of counselling with Mr E and thereafter the father be responsible for payment of all fees charged by Mr E.

13. That the mother forthwith provide to the father the child’s residential address.

14. That the Court requests that the Independent Children’s Lawyer meet with the child and explain to him the effect and intent of these orders.

15. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7559  of 2012

Ms Vile

Applicant

And

Mr Prabszic

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parenting arrangements for B (“N”) who was born in 2001 and is now 13, almost 14, years of age.

2. Ms Vile (“the mother”) was born in Country H and first came to Australia briefly in 1999. She returned to Australia in 2000 and commenced a relationship with Mr Prabszic (“the father”) who was born in Country I and had lived in Australia since 1988.

3. They married in 2001. After the marriage, they shared their home with the husband’s mother (“the paternal grandmother”). The husband’s sister, Ms J (“the paternal aunt”) lived nearby and, as she ran her business from the home of the husband and the wife, was a frequent presence in the child’s life.

4. The parents separated on 14 January 2005 when the mother left the home with B and lived in rented accommodation.

5. The father formed serious concerns about the state of the mother’s mental health. In July 2005 the father was informed that the mother had been hospitalised. On 8 July 2005, interim orders were made, by consent, for the child to live with his father and have supervised time with his mother.

6. In August 2005 the mother returned to Country H where she sought treatment for her mental health issues. She returned to Australia in December 2006.

7. When the mother left, The paternal aunt returned to the family home to help care for the child.

8. There were difficulties between the parents in relation to the child’s spending time with his mother and the mother filed an application seeking orders that the child live with her.

9. The matter came before Watts J for the first day of the hearing in September 2007.

10. The procedural history of the matter and the difficulties in bringing the matter to final hearing are set out in the judgement of Watts J delivered on 28 January 2009, when final orders were made. Those orders had the effect that the child was to live with the mother and that she have sole parental responsibility for him. The orders provided for supervised time for the child with the father for a period of six months, thereafter the time was gradually to extend. Time was also provided for the child to spend time with his aunt, The paternal aunt, and with his paternal grandmother.

11. The mother re-partnered. She and Mr K have a child, L, who was born in 2011 and is the child’s half-brother.

12. The father has not re-partnered. He lives with his mother and the paternal aunt.

13. The present proceedings were instituted by the mother’s filing an application on 17 December 2012 for orders suspending the time that the child spends with the father, in circumstances that will be explored later in these reasons. She sought orders that the time be for two hours each month in a supervised contact centre.

14. That application was listed for final hearing in October 2014 but the dates were vacated on the application of the father.

15. The mother asks the Court to make no order for the child to spend time with his father, other than telephone calls as agreed between the child and his father. In addition, the mother asks the Court to authorise a change of name from “B” to “D” and for the father, or in default, the mother, to sign such documents as are necessary to obtain a passport for the child.

16. The father opposes the application for change of name and seeks orders to spend time with the child. He seeks orders that the child attend upon a child psychologist or psychiatrist to assist him in resolving the “current conflict issues” with his father and for the parents to attend a relationships conflict course and, thereafter, re-instatement of the regime put in place by Watts J in 2009.

17. In the final hearing, the father, who represented himself, relied on affidavits of Ms B, Ms O, and his sister, the paternal aunt. They were not required for cross-examination.

18. In addition the father relied on four affidavits sworn by him.

19. The mother relied on three affidavits by herself and an affidavit of Mr K.

20. The Court was assisted by an Independent Children’s Lawyer (“ICL”) and a report from a Family Consultant, Ms Q (“the Family Consultant”).

CHANGE OF NAME

1. The mother, in her affidavit sworn 7 April 2014, deposes that the child has requested the name change. She says that he has said to her on a number of occasions that he is bullied at school because of his name and that other children say that “B” is a girl’s name. The mother says that the child has discussed the change of name with his father.

2. The mother also deposes that the child has asked her to change his surname to “K” but she has told him that he can do that himself when he is an adult.

3. In her affidavit sworn 9 October 2014, the mother deposes that the child told her:

   I told Dad that I wanted to change my first name from ‘[B]’ to ‘[D]’ but Dad wouldn’t agree. He said he wouldn’t let me change it because it is part of my [Country I] heritage [B] is our family saint.

4. The mother deposes that the father had delivered a birthday card to the child’s school on his birthday in 2013. the child was not at school that day. She says that the child was distressed when he came home the following day and said:

   Dad went to school yesterday and left a birthday card for me on my desk with ‘[B]’ on it. I was hiding this name for all these years and now everybody knows my real name. They were calling me ‘[B – a, B – a]’, like the girl’s name.

5. B has told his mother that he hates getting awards because his name is called at assembly.

6. On 7 April 2014 the mother’s solicitor wrote to the father’s solicitor in relation to the father having attended at the child’s school and calling him “B”. The letter recorded that the child was upset as he did not want his school friends to hear him being called “B”.

7. On 30 July 2014 the ICL wrote to the father’s then solicitors suggesting that it might assist the father’s reconciliation with the child if he agreed to the change of name because this was something that the child wants.

8. On 28 July 2014 the solicitors for the mother wrote to the solicitors for the father enclosing the requisite application form for the name change and asking that the father sign the form.

9. On 9 September 2014 the father’s solicitors replied saying:

   …while our client notes that the child is utilising the name “[D]” or “…” to which he has no particular objection he is not prepared to agree to any formal change of name at this time.

10. The father, in his affidavit sworn 21 January 2015, deposes that the parents both agreed to the name “B” and that he has explained to the child that he has the name of many famous people and a Country I saint.

11. He is surprised that the name is an issue for the child.

12. He deposes:

    I proposed recently to my son that I agree with adding … or [D] in front of the child and that way there is a compromise which would make (hopefully) everyone happy. However, there is no official confirmation of acceptance from Applicant Mother up to this date.

    In that conversation with [B] I suggested that I am agreeable with change of name to […] as he is commonly addressed by his friends. [B] initially accepted but quickly changed his mind and insisted that his name be changed to [D].

13. The compromise proposed by the father in not acceptable to the child.

14. Ultimately, the issue of the child’s name is one to be determined having regard to his best interests. I accept that the name causes the child distress and embarrassment and that he wants to change to the Anglicised version.

15. It may be that changing his name will have an effect on the child’s hostility towards his father. It is clear that his hostility will remain while his name is unchanged.

16. It is in the child’s best interests that his name be changed.

PASSPORT

1. The father refuses to sign a passport application for the child. He deposes that the conversation with B, which is referred to in paragraph 32 of these reasons, continued:

   I also suggested that travelling which require organising passport and that should not be a problem, and that when we sort out his name change, we’ll apply for passport so he can travel too.

   In regards to lifting a “travel notice” I have no problems to comply with that request too, as long as [B] can travel freely with me as well once these proceedings are finalised and I hopefully regain contact with my son.  

2. Thus the father, as he confirmed at the commencement of the trial, is prepared to consent to the issue of a passport for the child but only if the name that appears on the passport is “B”.

3. The father raises no concerns in relation to the child being returned to Australia if he is permitted to travel, or in relation to any proposed destination.

4. The father’s resistance to the issue of a passport for the child is related to the fact that the child has no plans to travel with his father.

5. In his affidavit sworn 21 January 2015 the father deposes that it is in the child’s interest to be able to travel overseas but continues “but also it is not in [B’s] best interest to be denied the experience of being with his immediate paternal family here in Australia”.

6. The father’s position is that he will agree to the issue of the passport once the child’s name has been changed in accordance with the father’s proposals (which are not acceptable to B).

7. There is no dispute that it is in the child’s best interests that he be able to travel and thus that a passport issue.

8. The mother asks the Court to make sensible orders in relation to the father being notified of any proposed travel and provided with an itinerary.

9. The issue of the passport is not a bargaining tool, as the father has sought to use it, to secure the child’s change of attitude in relation to spending time with his father. Indeed, it is likely that the father’s refusal to consent to the issue of the passport has hardened the child’s resolve.

10. No cogent reasons are advanced by the father in opposition to the issue of the passport and orders will be made which give the father the opportunity to sign the documents if he chooses and authorise the mother to sign if he does not.

ALLEGATIONS OF VIOLENCE

1. In accordance with the Orders of Watts J made on 28 January 2009, the child spent time with his father, initially supervised and then unsupervised. The father, in his Parenting Questionnaire, states that between February 2009 and October 2012, the child spent time with him every second weekend and for half of the school holidays.

2. It is the father’s case that the mother has been determined to destroy his relationship with the child and that she has deliberately poisoned their relationship.

3. It is the mother’s case that the child’s stated wish not to spend time with his father has come about as a result of the father’s behaviour towards the child and, particularly, the episodes of violence perpetrated by him on the child.

4. The child spent the weekend commencing 23 November 2012 with his father.

5. In her affidavit sworn 7 April 2014, the mother deposes that, after spending the weekend with his father in June 2011, the child told her that his father had hit him. the child said “We went out to the pizza shop for grandmother’s birthday. I was joking with dad and I said ‘hey dad, hey dad, hey dad’ and I said about the (Nintendo) DS. Then he hit me over the lips in the pizza shop. He said not to repeat saying ‘hey dad’ to him.”

6. The father denies that he hit the child on this occasion.

7. On 20 February 2012, after spending the weekend with his father, the child told his mother that his father had hit him. the child said “Dad wanted me to wear a slip-on (shoe), that I said I don’t want to wear. He wanted me to wear them. I said no. He hit me a few times.”

8. The father denies that he hit the child on this occasion.

9. On 26 November 2012, after spending the weekend with his father, the mother observed the child to have tears in his eyes. The child told his mother that his father had hit him. He said “Dad hit me on Friday. When he hit me I spun right around, 180 degrees. He hit me three times and tried for a fourth time but I dodged it. Dad said to me ‘You know how to dodge, you pussy.’”

10. The child had taken photos of his face on his Ipad after the incident. Those photos were tendered. It is not possible from looking at the photographs to determine the strength of the slap. The photographs show the child with red cheeks but the father tendered a number of other photographs of the child on other occasions with red cheeks. The mother observed that the child had red marks and a bruise on his left cheek.

11. The child told his mother “Dad came in on Sunday evening when I was watching TV. He turned off the TV and said to me ‘Whatever happened on Friday, you deserved it. But don’t say anything about it to your mother.’”

12. The mother asked the child what he wanted to do and the child said that a policeman had come to talk to his class that day and had explained what to do if someone hurt a child. the child told his mother that he wanted to go to the police.

13. The mother took the child to the police station. He was interviewed and provided a statement. The DVD recording of the interview was tendered. the child told the police officer:

    Then he (the Respondent) comes inside and says “Go have a shower now” and I’m like “Can I watch this quickly?” cause I was watching, wanting to watch the news and he’s like “Go have a shower now” and I’m like “Can I watch this quickly?”. And then he goes, he takes off his glasses and puts them on the table. And then he says get up. And then he smacks me in the face. And then he says get up you wuss and then smacks me on the face a second time. And then, um, does it a third time and he just, um, he hits me but it doesn’t hurt as much as the first and second time because I missed it a bit and the (sic) he’s like “You deserved it” and I started to swear a little bit and he tried to do it a fourth time and I missed that one and he said “You don’t wanna dodge stuff in life”.

14. In the recorded interview the police officer asked the child how he felt after the incident and the child replied, (referring to his father), “I love him but I don’t love him at the same time”. When asked how he felt when his father hit him the child said “I feel heartbroken”.

15. On or about 26 or 27 November 2012 a provisional Order (ex parte) Apprehended Domestic Violence Order (“ADVO”) was taken out by the police against the father. A final ADVO was made on 5 March 2013 and was in force until 5 November 2013.

16. On 17 December 2012 the mother filed an application to suspend unsupervised time.

17. The father’s evidence in relation to the incident on 23 November 2012 is found at paragraph 38 and following of his affidavit sworn 5 May 2014 and in his Parenting Questionnaire filed 21 October 2013.

1. In the Parenting Questionnaire the father says:

   As pleaded an incident took place in October 2012 where I disciplined [B] for being disobedient, swearing and refusing to obey my directions. My discipline where I struck was deemed to be unlawful correction. The Police were involved at the instigation of the applicant mother and I was charged. I was afforded a Section 10 Dismissal but an AVO was issued in [B’s] favour. I understand that the AVO has or is about to expire.

2. The passage from the Parenting Questionnaire does not indicate that the father regarded his actions as inappropriate.

3. The father deposes in his affidavit:

   38.In relation to this incident I say that on 23 November, 2012 I collected the child from school at 3pm as usual for his contact weekend with me. When we arrived home, the child greeted and kissed my mother and then jumped on the sofa and commenced playing with his iPod. My mother said to the child (this conversation took place in Country In, although the child answered in English):

   “[B] please change out of your school uniform as I am doing some washing and I want to wash it ready for you on Monday.”

   [B] said to her:

   “No I want to rest first.”

   I then said to him:

   “[B] do as your grandmother says now please. It will only take a minute. In fact, you should go and have a shower as well.”

   He ignored me and continued to play with his game. I said:

   “Come on [B]. Hurry up! I need to go back to the office”.

   [B] said:

   “Fucking shit!”

   I said:

   “[B!]”

   He ignored me and swore softly and I said:

   “[B] look at me please.”

   He jumped off the sofa and stood up suddenly right in front of me. I slapped him lightly on his left cheek. He sat back down and swore again. I said:

   “[B] stop that at once!”

   He said:

   “I can do what I want and you can’t do a fucking thing about it.”

   I said:

   “Stand up please.”

   When he did I slapped him lightly on his left cheek again. I was breathing hard and had tears in my eyes. I was very shocked at his language and behaviour as I had never seen or heard him behave like that before. I said to him:

   “Don’t you dare speak to me or your grandmother like this. This is totally unacceptable. We do not deserve to be spoken to like this.”

   [B] sat back down on the sofa and did not swear again. My mother, who had tears in her eyes, said to him:

   “[B] why are you behaving like this?”

   [B] did not answer her but instead made a rude gesture by raising his middle finger at her. I saw him do this and slapped him on the cheek again. I said:

   “Why are you doing this? Since when do you swear and behave like this?”

   He said:

   “I do not know, I didn’t mean it. I’m sorry Dad.”

   I said:

   “OK we’ll talk about it later. I have to go back to work for a while.”

   We hugged and I left the house. [B] left the house with me and walked over to the home of one of our neighbours, [Ms O] at number [F Street] as previously pleaded [B] often played with [G] her grandson. I was waiting on the porch till he was with our neighbour and before I had left the front drive, he walked back again. As he went past me into the house, he said:

   “[G] is not there. Can we go to park later?”

   I said:

   “Of course as soon as I came back or early tomorrow if I will be late today”

   39.I returned home at about 9.00pm. After dinner was over I said to [B]:

   “I’m really sorry smacked you earlier. I apologise as I’ve never had to do that before and it made me sad to have to do that. One day if you have your own chid you’ll understand how hard it is for a parent to punish their child. But your language and behaviour were totally unacceptable. Why were you so angry and rude?”

   He said:

   “I don’t know Dad. I’m sorry too.”

   I hugged him and said:

   “OK well it’s over now. I know we love and care about each other and this will not happen again”.

   He gave me a kiss and said: “Yeah Dad”.

   The rest of the weekend was uneventful and [B] showed no sign of being distressed.

1. On his own admission, the father slapped the child three times across his face.

2. The father says he deeply regrets slapping his son. No doubt he deeply regrets the consequences of his actions.

3. The child was interviewed by the Family Consultant in March 2014.

4. The Family Consultant reports:

   30.[B] (aged 12 years) presented as having matured a great deal over the 12 months since he was last at the Court. On this last occasion he was more assertive although still respectful. He appeared to have arrived at the Court with a clear intention to be heard and his message is that he does not want to spend time with his father.

   31.[B] said that he went to see a psychologist on two occasions but did not go back because the psychologist apparently told him that he would have to see his father if he went back.

   32.[B] said that the last time he spoke to his father was before Christmas 2013. He said that he argued with [the father] over the telephone because [the father] said that [B] had embarrassed him by walking away from him at the school awards ceremony. [B] said that he told his father that he [the father] embarrassed him by calling him “[B]” when he wants to be called “[D]”. [B] said that his aunt joined the conversation and told him not to “speak to his father like that” and so he hung up the telephone.

   33.When asked why he does not want to see his father, [B] says it is because his father hit him on three separate occasions, one about five years ago when he hit him across the face, another about four or five years ago when he refused to put some shoes on and [the father] hit him with the shoe on his bottom and hand and the last in 2012 when [the father] hit him across the face three times.

   34.[B] said that he does not believe his father has changed and believes that he will probably hit him again. He became quite dramatic when challenged about his views and said “I would rather die than go there, it’s like hell for me,” but he did say that he might talk to his father by telephone if his father called.

5. The father was interviewed by the Family Consultant who reported:

   18.[The father] continues to appear to excuse his having hit [B] in the past but he has also, during interviews at the Court, acknowledged that he was wrong and he has apologised to [B]. He seems frustrated that [B] does not accept any responsibility for his poor behaviour and appears to want other people (police, the Court) to understand why he hit [B] in 2012.

6. The paternal aunt was also interviewed by the Family Consultant who reported:

   28.[The paternal aunt] said that, after the Court ordered that [B] live with his mother, he used to spend time with them every second weekend. This continued until “the accident” in 2012 (when [the father] hit [B] across the face). She said that she was not at home at the time of “the accident” but she apparently saw [the father] not long after, when he returned to work. [The paternal aunt], said that [the father] was “shaking” and upset about having hit [B] and she felt that it was “out of character” for him to have hit [B].

7. In cross-examination by senior counsel for the mother, the father conceded that hitting [B] was deliberate and planned. He agreed that hitting [B] three times was deliberate but denied attempting to hit [B] a fourth time.

8. He also said of the incident “I just simply lost it”; and “I’ve done no abuse to this child”; and “I’ve seen it as discipline”. In later oral evidence the father said “I admitted wrongdoing on slapping the child and I have been prosecuted for that matter, but other than that I have never abused this child”.

TELEPHONE CALLS

1. The father spoke to the child on Christmas Day 2013 and next on 8 May 2014. That conversation was reported in great detail by the child to his mother who includes an almost verbatim transcript in her affidavit. The father denies that the conversation was as alleged by the mother.

2. There was another conversation on 6 August 2014. the child reported to his mother that he and his father had agreed that the father would telephone the child once a month. The father sent a text message later that evening saying:

   It was nice to hear your voice again :-) Daddy loves you a lot and best regards from your aunty and granny too. Keep in touch and can we also catch up on Skype if you have your address?

   [B] replied:

   I don’t do skype or Facetime because I’m not interested in social media. I’m happy every four weeks Wednesdays 7pm, [B].

   In a further text, the child clarified, “Sorry I meant phone calls”.

3. The father and the child spoke again on 3 September 2014. The child reported a pleasant phone call.

4. The father called again on 17 September 2014. Again the mother has recorded the child’s version of the conversation in her affidavit. The father denies that he said what was alleged. He does not give his version of the conversation.

5. The mother deposes that the father called twice more the same evening but the child refused to answer the phone. The father agrees that he left a voice message:

   Your daddy loves you very much, it is not nice what you are doing hanging up on me. You don’t like to hear the truth. If you want to stop this case your mum can do it because she initiated this. I don’t want to discuss this with you anymore. I am very proud that at least you are good at school.

6. The father called again on 24 September 2014. There was a brief conversation. The mother says that the child told her that he asked his father not to call next week. The father did not give his version of that call.

7. On 1 October 2014 the father called again. the child reported to his mother that he told his father he did not want to talk to him and the father said he was calling because the Court ordered him to call. The father did not give his version of that call.

8. On 8 October 2014 the phone rang but the child refused to answer.

9. Telephone calls continued. The father rang the child on his birthday. the child told his father that he didn’t want to talk to him and that “You have to pay attention to what you are doing then I’ll talk to you”.

10. The calls continued with the father calling the child about once each month. They spoke briefly.

11. On 10 December 2014, a conversation took place between the child and his father. the child told his mother:

    Dad said ‘I want to stop this madness’ so I told him ‘Stop it than (sic)’. He then said ‘If you don’t love me or care about me, tell me’. I said ‘I don’t love you. I don’t want to live with you. I don’t want to do anything with you. You stop me from being a kid, from being able to travel overseas, from being able to change [B] to [D], the name I hate and kids are teasing me.” He said ‘Your mother is putting us through this hell’. I said ‘It is between me and you. Not between you and mum. It is nothing to do with her, it is only me and you. I don’t want to talk to you anymore. You are annoying me. Keep away from me’.

12. In cross-examination the father agreed that the conversation was substantially as set out in the mother’s affidavit.

13. Nevertheless, the calls continued.

14. On 17 December 2014 the child told his mother, after a telephone call, “Dad said he will let me change my name and let me have a passport. I thanked him”. The mother deposed that the child looked happy.

15. The father continued to call about once each month and he and the child spoke briefly.

THE RECOMMENDATIONS OF THE FAMILY CONSULTANT     

1. The Family Consultant’s recommendations are set out in her report at Paragraphs 48 to 52:

   48.      It is recommended that [the father] contact [B] by telephone or email once per fortnight or as agreed between [the father] and [B] and that if [B] should want to spend time with [the father], this be accommodated by [the mother].

   49.      It is recommended that [the father] receive copies of all school reports and school photographs and that he be given all information pertaining to [B’s] health.

   50.      It is recommended that [B] be able to receive birthday and Christmas cards and presents from any member of the paternal family.

   51.      It is recommended that no member of the maternal household denigrate the father or the paternal family.

   52.      It is recommended that these orders be explained to [B] in person.

2. In her oral evidence, the Family Consultant said that one further attempt should be made in family therapy to salvage the relationship between the father and the child.

3. The father proposed that the child attend on Mr E, a family therapist practising in Sydney, for counselling directed towards repairing the relationship.

4. The mother and the ICL opposed that course of action.

5. The Family Consultant gave evidence that Mr E would be the most appropriate therapist to attempt the task. However, no arrangement has been made with Mr E and there is no evidence that he has any availability to accept this family for treatment.

6. The Family Consultant was persuaded, primarily by the fact that the child continues to be willing to speak to his father on the telephone, that it is appropriate to make one more attempt at remediation of the relationship. She was clear in her evidence that, in the hands of Mr E, there would be no detrimental effect to B, even if the intervention were not successful.

7. The Family Consultant recommended that the existing orders be vacated and that it would not be helpful for the child to make orders that he spend time with his father.

8. In essence, the position of the Family Consultant was that, if the relationship could be repaired through therapy, then it was up to the father and the child to negotiate the time they spent together and the manner in which they communicate.

9. Either way they will reach an agreement and no order will be necessary, or they will not reach an agreement and no order will have any utility.

10. Even if the therapy does not achieve a reconciliation between the child and his father, the Family Consultant was of the opinion that the therapist would be able to help the child deal with his own feelings. She said it was likely that the child was feeling guilty about the breakdown of the relationship with his father and that the child loved his father. She suggested that he may also, now or at some time in the future, be angry with his mother over her role in the parental conflict.

11. Whether the therapeutic intervention will be successful cannot be predicted. Much will depend on the father’s being able to accept his own responsibility for the current state of his relationship with the child and to refrain from placing the entire blame on the mother which will not be acceptable to the child and is likely to cause the child to be reluctant to participate further.         

WHAT TIME SHOULD the child SPEND WITH HIS FATHER?

1. The Family Law Act1975 (Cth) sets out the primary considerations for determining what is in a child’s best interests in s 60CC as follows:

FAMILY LAW ACT 1975 - SECT 60CC

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2) The primary considerations are:

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

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

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. Neither the mother nor the ICL submit that it is not in the child’s best interests to have a meaningful relationship with his father. However, in criminal proceedings, a court has determined that the father assaulted the child.

2. The father, in his affidavit sworn 5 May 2015, deposes to having slapped the child on the cheek three times on 23 November 2012.

3. The child is adamant that there were three separate occasions when his father hit him.

4. Even if I accepted the father’s evidence that there was only one occasion where he slapped the child’s face he did so, on his own admission, three times on that occasion.

5. The child has been subjected to family violence.

6. The father expresses sorrow and remorse over the incident. However, as will be explored later in these reasons, he does not accept responsibility.

The child’s Views

1. The child’s views are clearly set out in the Family Report in the passages to which reference has been made in these reasons. The Family Consultant found him to be mature. He is now another year older than he was when the Family Report was prepared.  

2. It is the father’s case that the child’s expressed wishes have been so influenced by his mother that they should be given little weight.

3. No doubt the child’s views have been either overtly or covertly influenced by the maternal household. In her affidavit sworn 5 May 2014, The paternal aunt set out in detail the difficulties she experienced in spending time and communicating with the child after he lived with his mother. She gave numerous examples of the child telling her that he could not do things because his mother had instructed him not to and of angry interactions with the mother in the presence of the child. The paternal aunt was not required for cross-examination and I accept her evidence.

4. In 2013 the ICL arranged for the child to see a psychologist in an attempt to mend the relationship with his father. That attempt was unsuccessful and the child refused to continue the sessions when he understood that he would be required to see his father if the sessions continued.

5. The Family Report was released to the parties in March 2014. The recommendations of the Family Consultant are clear.

6. On 30 July 2014 the ICL wrote to the solicitor for the father saying, inter alia:

   I have recently met with [the child] and, sadly, his views as to what he wants to happen are consistent with the recommendations of the Family Consultant. Those recommendations do contain a “way forward”, but not in the way your client would have it. Telephone calls might be the best way to start again. He has a birthday approaching in the not too distant future.

7. In relation to the assertion by the father that the child’s views were influenced by his mother and Mr K, the Family Consultant reported:

   44.[The mother] did not have a lot to say on the day of interviews, but from what [Mr K] revealed, it would seem that there has been an unhelpful degree of criticism of [the father] in their household. Comments made by [Mr K] regarding “weird” behaviour by [the father] (volunteering in the school canteen and his sister always being around) are likely to have been expressed in front of or around [B]. These views are likely to have influenced [B’s] relationship with [the father], although [the father] has clearly contributed to the difficulties in that relationship by using physical chastisement with [B].

   45.[The father] and [the mother] have been in conflict for the past nine years. This is three quarters of [B’s] life. Affidavit material and information obtained during interviews would indicate that the conflict remains at a level that is emotionally destructive to all parties, and in particular to [B]. It would seem that [B] has found a way to protect himself.

8. The father has no insight into his contribution to the child’s present unwillingness to see him. He continues to blame the mother for the present situation. In a telephone conversation on 10 December 2014, the child reported that his father said “Your mother is putting us through this hell”. the child told his mother that he replied “It is between me and you. Not between you and mum. It is nothing to do with her, it is only me and you. I don’t want to talk to you anymore. You are annoying me. Keep away from me”.

9. In his oral evidence the father said that the fault for the breakdown of his relationship with the child after December 2012 lies solely with the mother.

10. That is consistent with his assertion in the telephone call of 10 December 2014 that it is the mother who is to blame.

1. It is likely that the child’s views, as currently expressed, have their foundation in a combination of the negative attitude of the maternal household towards the father and the child’s own experience of his father.

2. Although the child is nearly 14 years old, I accept the evidence of the Family Consultant that at this age he does not have the experience, the understanding or the maturity to make a decision about his future relationship with his father. He is not in position to weigh up the likely effects of the continuing rift against the benefits he might gain from the relationship being repaired, at least to the extent where there could be some communication between the child and his father.

3. The fact that the child has continued to take calls from his father, in circumstances where he could have refused to speak to him, suggests that, at least on some level, the child wants to maintain contact with his father.

4. However, I accept that his expressed views have to be given considerable weight and for that reason I accept the evidence of the Family Consultant that no order should be made for face to face contact between the child and the father.

The child’s relationships

1. It is abundantly clear that the child’s relationship with his father and the whole paternal family has broken down. The issue is whether any steps can be taken to repair that situation.

Parents’ participation in the child’s life

1. Both parents have had difficulties at various times in the child’s life, in participating in his life and in decision making. There have been two defended hearings relating to parenting arrangements. Each alleges that he or she has been prevented by the other from spending time with the child.

2. The mother is critical of the father because he did not telephone the child weekly as he was entitled. In circumstances where the child has repeatedly stated that he wanted calls no more than monthly, the father’s pattern of calls is understandable.

Obligations to maintain the child

1. The father is in arrears of Child Support to the extent of some $7,800. He was unable to explain why he is not making the payments assessed by the Child Support Agency but it does not appear that the issue of child support has had an effect on the child’s attitude towards his father. There is no evidence that the child is aware that the support is not being paid as assessed.

Effect of separation

1. In her oral evidence, the Family Consultant said that, if the relationship between the child and his father is not repaired, the child is likely to feel guilty about his part in the breach. She said that he may be angry with his mother at some point to the extent that he may reject her or that he may continue to completely reject his father. Either situation would be psychologically damaging for the child.

2. The consequence of the rift between the child and his father is that the child is deprived of the relationships with his paternal grandmother The paternal aunt, which must have been important to him. The paternal aunt gives evidence in her affidavit of a close and loving relationship with the child.

3. Unfortunately, there is no evidence that either The paternal aunt nor the paternal grandmother have attempted to telephone the child. The paternal aunt’s request of the mother that she show the child a postcard sent to him from New York prompted an angry response from the child that “It’s not fair she sends me a postcard when I’m not allowed to have a passport or travel overseas”.

Capacity of the parents to provide for the child’s needs

1. The Family Consultant said that the root cause of the child’s present difficulties is the implacable hostility of the parents. They separated in January 2005. There was a defended hearing in relation to the child in 2009. In the proceedings before me, the father remains strongly critical of the mother’s actions as far back as 2005 and after 2009.

2. The father took every opportunity, both in his affidavits and in his oral evidence, to criticise the mother. For example, he criticised her for not including his name on the first page of a school enrolment form although it was clear on the face of the form that there was a specific space for the name of the parent who does not live in the same household.

3. The mother says that she is supportive of the father’s wish to reconcile his relationship with the child but there is no evidence that she has made any real attempt to do anything other than to allow the child to do as he wishes. Her continuing position is that the child should decide whether and how he sees his father.

4. The mother not only allowed, but actively enabled, the child to open a Facebook page using the surname of K rather than Prabszic. There could be no clearer indication of her lack of commitment to the repair of the child’s relationship with his father.

5. For two years the mother has refused to tell the father where the child lives although in oral evidence she readily said that she had no objection to his having the address.

6. The father wants to impose his parenting style upon the child against the child’s wishes. The mother does not want to make parenting decisions that might ultimately be for the child’s benefit.

7. I have no doubt, however, that each parent will abide by the letter of any order that is made.

The child’s right to enjoy his culture

1. Both the parents are of Country I origin.

2. The child’s father, paternal grandmother and paternal aunt could make a contribution towards his appreciation of his culture that he does not presently have the opportunity to enjoy.

3. The father’s refusal to consent to the issue of a passport for the child has had the effect that he has been deprived of the opportunity to visit his maternal grandparents in Country H or to experience Country I first hand.

Family violence

1. As has already been stated, the incident where the child was slapped by his father is an incident of family violence.

2. The child has expressed the fear that his father would punish him again in a similar way. That fear is not unreasonable.

3. The father told the Court that there were cultural factors at play. Although he did not actually say that it was acceptable in his culture to hit a child across the face by way of punishment, that was the tenor of his evidence.

4. The father does not view his actions as abusive but rather as discipline.

5. I do not consider that slapping a child across the face is an appropriate method of discipline and the fact that the father was found to have assaulted the child demonstrates that the criminal law system does not consider the father’s actions to be acceptable.

6. The father in cross-examination, when challenged, became increasingly angry, loud and strident. He is a big man and physically imposing. Although he was able to moderate his behaviour when reminded, he quickly resumed his previous loud and angry manner. No doubt, that is the way he reacted towards the child when the child misbehaved.

7. I accept that the father is filled with remorse whether as to his actions or their consequences. However, I do not accept that he will not again act in a similar way.

The likelihood of further proceedings

1. In oral evidence the father said that, if the child did not attend upon Mr E, he would consider contravention proceedings.

2. If the orders made in 2009 were revived as the father seeks, and the child refused to spend time with the father, then it is likely that there would be further applications from the father.

3. If the Court makes no order which requires the child to spend time with the father, other than that which the child chooses to spend, the possibility of further proceedings is considerably lessened.

CONCLUSION

1. The child’s wishes are clear, strong and long held but they are not determinative because he is not able to make a decision based on all of the factors, and all of the understanding of social science, which needs to be taken into account.

2. However, his wishes should be respected in that no order should be made for him to spend time with his father other than in accordance with his wishes.

3. I accept the evidence of the Family Consultant that there should be one more attempt in therapy with Mr E to reconcile the child and his father. This may not be successful, or may not be successful to the extent that the father hopes, but at worst the child will be taught some skills to deal with the lack of relationships with the paternal family in his life.

4. Because there is no evidence before me that Mr E is available to conduct the proposed therapy, a time limit should be imposed. If Mr E is not in a position to begin the process within three months, then the orders in relation to therapy will lapse.

5. Whether the child’s attitude towards his father would have softened, if the father had willingly and generously agreed to the change of name and the issue of a passport for B, can never be known, but the father has chosen not to agree to either of those things.

6. Similarly, whether the mother will truly support the therapy for the child and whether the father can set aside his overwhelming need to blame the mother for the present state of affairs, cannot be predicted.

7. The benefits for B, if the therapy is successful, have been enunciated by the Family Consultant. This is the last chance for B, while he is still a teenager, to decide, with the assistance of Mr E, whether he wants to have a relationship with his father.

8. However, as should be made clear to B, it is his mother’s responsibility to ensure that he continues to attend on Mr E until Mr E decides to end the process. It is not for the child to decide whether he attends.

9. The mother agreed to pay for five sessions with Mr E. The father has agreed to pay for the balance of the sessions.

10. The mother should understand that the child must attend the sessions appointed by Mr E. What occurs in the sessions is a matter between the child and Mr E.

11. The duration of this process must be in the hands of the therapist. The outcome will be in the hands of the parents and the child. There is no more that the Court can do.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 July 2015.

Associate: 

Date:  24/7/2015